J-A28041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HAKIF NAMANI & SADIJE NAMANI                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellants
                  v.


BEZARK, LERNER, & DEVIRGILIS, P.C. AND
STUART WINEGRAD, ESQUIRE

                            Appellees                No. 3453 EDA 2015


                     Appeal from the Order October 15, 2015
             in the Court of Common Pleas of Philadelphia County
             Civil Division at No.: November Term, 2013, No. 2456


BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 05, 2017

        Appellants, Hakif Namani and Sadije Namani, appeal from the order

entering summary judgment in favor of Appellees, Bezark, Lerner, &

DeVirgilis, P.C., and Stuart Winegrad, Esquire,1 in this legal malpractice

action. We affirm.

        We take the factual history from the trial court’s February 4, 2016

opinion.

              On December 23, 2004, [Appellant Hakif], suffered a
        work-related injury to his left arm and hand. In January 2005,
        an [Electromyography (EMG)] and the subsequent report by Dr.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We have amended the caption to reflect the name of both defendant
Appellees in this matter, and to reflect that both Appellants have appealed.
J-A28041-16


     Robert Kreb confirmed injury to his arm and hand, but doubt[ed]
     a significant disc herniation.

           On March 29, 2005, [Appellant Hakif] retained Appellees to
     obtain workers’ compensation benefits as a result of his work-
     related arm and hand injuries. Appellees were successful in
     obtaining benefits for Appellant[ Hakif’s] initial complaint, but did
     not pursue any other potential ancillary injuries.

           On May 1, 2006, Appellees sent a letter to Appellants
     explaining that benefits would be terminated if a Workers’
     Compensation Judge (WCJ) did not believe that [Appellant Hakif]
     was in need of continued treatment. Appellees’ letter further
     suggested that Appellant [Hakif] should settle because no doctor
     [was] keeping [him] from performing full duty work.

           [I]n an order dated November 27, 2006, a WCJ found no
     evidence of ongoing disability as of June 21, 2005, terminating
     [Appellant Hakif’s] workers’ compensation. The WCJ’s order was
     affirmed by the Workers’ Compensation Appeal Board (Board) on
     August 22, 2007.      The Board’s order was affirmed by the
     Commonwealth Court on [January 16, 2008]. [(See Namani v.
     Workers’ Compensation Appeal Board, 2008 WL 9399107
     (Pa. Cmwlth. 2008) (unpublished memorandum)).]

           In February 2008, Dr. Andrew Freese, M.D., Ph.D.
     reviewed the 2005 EMG and found cervical strain and disc
     herniations that he concluded were the result of [Appellant
     Hakif’s] workplace injury. Dr. Freese suggested surgery, which
     Appellees allegedly encouraged.

            In light of Dr. Freese’s report, Appellees filed a reinstated
     petition on November 11, 2008[,] claiming that [Appellant Hakif]
     neither knew, nor should have known about his cervical strain
     and disc herniations until February 6, 2008. The petition was
     denied by a WCJ in March 2011 and affirmed by the
     Commonwealth Court on December 6, 2011. [(See Namani v.
     Workers’ Compensation Appeal Board, 32 A.3d 850 (Pa.
     Cmwlth. 2011)).]

           Appellants allege fraudulent misrepresentations by
     Appellees for having assured success of the workers’
     compensation claim and informing Appellants that their right to
     benefits had not concluded after the WCJ terminated the matter
     in 2006.


                                     -2-
J-A28041-16



(Trial Court Opinion, 2/04/16, at 3-4) (record citations and quotation marks

omitted).

       On    November      22,   2013,     Appellants   brought   the   instant   legal

malpractice action against Appellees asserting claims for professional

negligence, breach of contract, breach of fiduciary duty, fraud, and loss of

consortium.      On January 15, 2015, the trial court sustained Appellees

preliminary objections in part and struck Appellants’ claims for fraud and

loss of consortium.        On August 3, 2015, Appellees filed a motion for

summary judgment on the remaining negligence, breach of contract, and

breach of fiduciary duty claims, arguing that Appellants filed their claims

after the statutes of limitations, and that Appellants could not prove

malpractice as a matter of law.

       On October 8, 2015, the trial court granted Appellees’ motion with

respect to Bezark, Lerner, & DeVirgilis.          On October 15, 2015, the court

amended its order to include Stuart Winegrad, Esq.                This timely appeal

followed.2

       Appellants raise two issues on appeal:

       1.   Pursuant to the appropriate standard upon summary
       judgment, did the [trial court] commit reversible error as a

____________________________________________


2
  Pursuant to the court’s order, Appellants filed their statement of errors
complained of on appeal on December 9, 2015. See Pa.R.A.P. 1925(b).
The trial court entered its opinion on February 4, 2016. See Pa.R.A.P.
1925(a).



                                           -3-
J-A28041-16


      matter of law by granting [Appellees’] motion for summary
      judgment as to the statute of limitations?

      2. For preservation purposes, did the [trial court] err when it
      granted summary judgment as to the statute of limitations
      pursuant to the “continuing representation rule”?

(Appellants’ Brief, at 10) (unnecessary capitalization omitted).

      Our standard of review on an appeal from the grant of a motion for

summary judgment is well-settled.

            [O]ur scope of review of a trial court’s order granting or
      denying summary judgment is plenary, and our standard of
      review is clear: the trial court’s order will be reversed only where
      it is established that the court committed an error of law or
      abused its discretion.

             Summary judgment is appropriate only when the record
      clearly shows that there is no genuine issue of material fact and
      that the moving party is entitled to judgment as a matter of law.
      The reviewing court must view the record in the light most
      favorable to the nonmoving party and resolve all doubts as to
      the existence of a genuine issue of material fact against the
      moving party. Only when the facts are so clear that reasonable
      minds could not differ can a trial court properly enter summary
      judgment.

Markovsky v. Crown Cork & Seal Co., 107 A.3d 749, 755 n.4 (Pa. Super.

2014), appeal denied, 125 A.3d 1202 (Pa. 2015).          Further, “[s]ummary

judgment may properly be entered in favor of a defendant when the

plaintiff’s cause of action is barred by the statute of limitations.” Brooks v.

Sagovia, 636 A.2d 1201, 1202 (Pa. Super. 1994) (citation omitted).

      Appellants argue that their complaint was timely filed pursuant to the

doctrines of equitable tolling based upon the discovery rule and fraudulent

concealment, and therefore it should not have been barred by the statute of

limitations.   (See Appellants’ Brief, at 18-24).       They argue that the

                                     -4-
J-A28041-16



discovery   rule   should   apply   because     Appellant   Hakif,   “a     highly

unsophisticated,   non-English   speaking,    working   class   immigrant    from

Kosovo[,]” did not understand the litigation process and only when his

appeal was denied in 2011, did he understand that Attorney Winegrad did

not include his neck injury in his original claim. (Id. at 23). Appellants also

claim that Appellees fraudulently concealed malpractice by telling them that

their case had not concluded after the 2006 denial of benefits, and the

statutes of limitations should toll for that reason as well. (See id. at 23-24).

We disagree.

      [A]n action for legal malpractice may be brought in either
      contract or tort. . . . [I]t is undisputed that the two-year
      limitations period applies to the negligence claim and the four-
      year limitations period applies to the breach of contract claim.
      42 Pa.C.S.[A.] §§ 5524(3), 5525.

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570–71 (Pa. Super.

2007) (case citations omitted). A two-year statute of limitations period also

applies to breach of fiduciary duty claims.     See 42 Pa.C.S.A. § 5524(7).

“[T]he trigger for the accrual of a legal malpractice action, for statute of

limitations purposes, is not the realization of actual loss, but the occurrence

of a breach of duty.” Wachovia Bank, N.A., supra at 572.

      Here, the trial court explained that:

      In this case, the alleged breach of duty, which is the trigger for
      the statute of limitations, is the date that Appellees submitted
      the workers’ compensation claim without filing a claim for
      cervical strain and disc herniation in 2005. The actual date that
      Appellees submitted [Appellants’] claim does not appear in any
      of the filings before this [c]ourt.


                                     -5-
J-A28041-16


             Notwithstanding the absence of the date of submitting
       [Appellant Hakif’s] claim, that date can be no later than
       November 27, 2006, the date when benefits were terminated.
       Appellant[s] filed their complaint on November 22, 2013, nearly
       seven years after their loss. Appellants’ claims are therefore
       barred by the four-year and two-year statutes of limitations
       unless an exception applies and tolls the statute.

(Trial Ct. Op., at 6).3

       An exception to the occurrence rule “is the equitable discovery rule

which will be applied when the injured person is unable, despite the exercise

of due diligence, to know of the injury or its cause.     Lack of knowledge,

mistake or understanding, will not toll the running of the statute.”

Wachovia Bank, N.A., supra at 572 (citations omitted). “As the discovery

rule has developed, the salient point giving rise to its application is the

inability of the injured, despite the exercise of reasonable diligence, to know

that he is injured and by what cause.” Fine v. Checcio, 870 A.2d 850, 858

(Pa. 2005) (citation omitted).

        Here, Appellants, in the exercise of reasonable diligence, should have

known that they were injured when Appellant Hakif’s benefits were

terminated in 2006. See id. Appellant Hakif’s lack of understanding about

the workers’ compensation appellate process does not toll the running of the

statute. See Wachovia Bank, N.A., supra at 572. Therefore, we conclude

that the discovery rule does not apply in this case.
____________________________________________


3
   Our review of the certified record also reflects an absence of
documentation of the date that Appellees submitted Appellant Hakif’s initial
workers’ compensation claim.



                                           -6-
J-A28041-16



       The statute of limitations may also be tolled if a defendant fraudulently

conceals facts from plaintiff. See Lange v. Burd, 800 A.2d 336, 339 (Pa.

Super. 2002), appeal denied, 818 A.2d 504 (Pa. 2003).            “The defendant

must have committed some affirmative independent act of concealment

upon which the plaintiffs justifiably relied. Mere mistake or misunderstanding

is insufficient. Also, mere silence in the absence of a duty to speak cannot

suffice to prove fraudulent concealment.” Id.

       Here,   Appellants   have   not    proven   that   Appellees   fraudulently

concealed relevant facts.     See id.     Rather, as the trial court observed,

Appellees’ statement that Appellant Hakif’s right to benefits had not

concluded in 2006, was “true, as evidenced by the subsequent five years of

motions and appeals filed by Appellees on Appellants’ behalf.” (Trial Ct. Op.,

at 8).     Therefore, we conclude there is no evidence of fraudulent

concealment that would toll the statute of limitations. See Lange, supra at

339.

       We discern no error of law in the trial court’s conclusion that

Appellants’ claims were barred by the statutes of limitations.                See

Markovsky, supra at 755 n.4. Appellants have not set forth any evidence

that would prove that they filed their complaint within the statutes of

limitations period, nor have they proven that an exception would apply that

would toll the statutes. See Wachovia Bank, N.A., supra at 572; Lange,

supra at 339; 42 Pa.C.S.A. § 5524(7). Accordingly, we agree with the trial




                                         -7-
J-A28041-16



court that summary judgment was proper on this basis.               See Brooks,

supra at 1202. Appellants’ first issue does not merit relief.

      In their second issue, Appellants argue that this Court should adopt

the continuing representation rule with respect to the trigger for the accrual

of a legal malpractice claim for statutes of limitations purposes.          (See

Appellants’ Brief, at 25).      Appellants acknowledge that this Court has

declined   to   adopt   the   continuing   representation   rule.    (See   id.);

Gleenbrook Leasing Co. v. Beausang, 839 A.2d 437, 441-42 (Pa. Super.

2003), affirmed, 881 A.2d 1266 (Pa. 2005) (“[i]n Pennsylvania, the method

used to determine when the statute begins to accrue is the occurrence rule

or the discovery rule when appropriate.”) (citation omitted). Thus, the trial

court correctly applied the law when it did not adopt the continuing

representation rule. Appellants’ second issue does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




                                      -8-
