J-A11010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CONNIE REESE,                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

PAMELA TYLER,

                            Appellee                 No. 1769 MDA 2016


              Appeal from the Judgment Entered January 11, 2017
               In the Court of Common Pleas of Lycoming County
                   Civil Division at No(s): CV-2015-001766-CV


BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 18, 2017

       Appellant, Connie Reese, appeals from the judgment entered on

January 11, 2017, in favor of Appellee, Pamela Tyler. We affirm.

       In its October 14, 2016 opinion and verdict, the trial court made the

following findings of fact and conclusions of law:

       FINDINGS OF FACT

       1. The relationship between the parties is that [Appellant] is the
       mother and [Appellee] is [Appellant’s] adult daughter.

       2. On December 4, 2003, [Appellant] cosigned a promissory note
       for a $20,000 student loan which covered [Appellee’s] living
       expenses while she obtained her Master’s Degree from
       Marywood University.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     3. [Appellant] cosigned the loan in part so that [Appellee] and
     [Appellee’s] teenage daughter could have [money to pay for]
     expenses and not have to live with [Appellant].

     4. December 4, 2003, [Appellee] promised and intended to
     repay the student loan herself.

     5. [Appellant] was aware and would contact [Appellee] about
     late payments made by [Appellee].

     6. [Appellee] failed to repay her student loan and made minimal
     payments, with her last payment being May 28, 2009.

     7. As of November 24, 2009, [Appellant] was aware that
     [Appellee] was at least 165 days past due and that the entire
     balance and accrued interest would be due in full unless
     [Appellant] took action at that time.

     8. After [Appellee] stopped paying on the student loan,
     [Appellant] did not contact [Appellee] about [Appellant’s]
     payments on [Appellee’s] loan except through an attorney.

     9. In April 2010, [Appellant] obtained legal advice concerning
     the loan.

     10. On April 29, 2010, [Appellant’s] attorney wrote to [Appellee]
     threatening to commence litigation if [Appellee] failed to contact
     Counsel.

     11. On October 8, 2011, [Appellant] obtained a secondary
     mortgage loan in the amount of $34,000 and used $21,369.13 …
     to pay the student loan debt in full.

     12. [Appellee] did not communicate with [Appellant] or her
     attorney about the debt once [Appellee] stopped paying on the
     student loan.

     13. [Appellee] did not conceal her residence, employment or
     whereabouts from [Appellant].

     14. Indeed, [Appellant] was aware of [Appellee’s] address,
     location of work, and knew of places to find [Appellee], such as
     when she [would] go out to dinner on [a] regular weekly basis,
     and attend family functions.

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     15. [Appellant’s] Complaint [was] filed in the instant suit on July
     24, 2015, which is more than four years after the [May 28,
     2009] breach of contract.

     16. The contract did not involve an ongoing relationship for
     services to be provided but instead involved a promise to pay
     money.

     CONCLUSIONS OF LAW

     1. [Appellant’s] claim is based upon a breach of an oral contract
     with [Appellee] that [Appellant] would co-sign the student loan
     and [Appellee] agreed to pay it herself.

     2. Breach of contracts are governed by a four year statute of
     limitations under 42 Pa. C.S. [§]5525(a)(8).

     3. The breach and right to maintain suit arose on May 28, 2009,
     the date of the last payment, and certainly started to run upon
     notice to [Appellant] on November 24, 2009.

     4. The instant suit was commenced more than four years after
     those dates.

     5. The instant suit is barred by the four year statute of
     limitations.

     6. Because the obligations in this matter are governed by
     contract, the unjust enrichment claim fails as a matter of law.

     7. The contract did not constitute a continuing contract for
     purposes of tolling the statute of limitations, as no services were
     rendered pursuant to a relationship between the parties.

     8. The doctrine of fraudulent concealment does not apply
     because [Appellant] was well aware of the nature of her injury at
     the time [Appellee] stopped paying on the student loan and
     indeed threatened to sue well within the statute of limitations.

     9. [Appellee] did not acknowledge or reaffirm the debt so as to
     restart the limitations period.

Trial Court Opinion, 10/14/16, at 1-3.

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     Verdict was entered in favor of Appellee on October 14, 2016.              On

October   19,   2016,   Appellant   filed   a   document   entitled   “Motion   to

Reconsider.” On October 25, 2016, the trial court denied Appellant’s motion.

Appellant filed an appeal to this Court on October 27, 2016, from the order

denying her motion to reconsider.      On November 1, 2016, the trial court

directed Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed her Pa.R.A.P.

1925(b) statement on November 3, 2016.

     On November 17, 2016, this Court issued a rule to show cause why

the appeal should not be quashed due to Appellant’s failure to preserve her

issue on appeal in a post-trial motion as opposed to a motion for

reconsideration.   Additionally, this Court informed Appellant that judgment

had not been entered on the verdict. On January 9, 2017, this Court filed an

order noting that Appellant failed to respond to the rule to show cause.

However, the order discharged the November 17, 2016 rule to show cause

and referred the preservation-of-issues matter to the merits panel. Finally,

the January 9, 2017 order directed Appellant to praecipe for the entry of

judgment on the verdict.      Thereafter, Appellant filed her praecipe, and

judgment was entered on January 11, 2017.

     Before we address the merits of Appellant’s appeal, we must dispose

of the procedural issue mentioned above. As noted, following the verdict,

Appellant filed a document entitled “Motion to Reconsider.” Appellant then


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failed to avail herself of the opportunity to comply with this Court’s rule to

show cause and explain why her appeal should not be quashed. It is well

settled that in order to preserve issues for appeal, the appellant must file a

post-trial motion. Pa.R.C.P. 227.1(b). A motion to reconsider is not a post-

trial motion. Moore v. Moore, 634 A.2d 163, 166 (Pa. 1993).

      However, while a motion for reconsideration is not the same as a post-

trial motion under Pa.R.C.P. 227.1, when a party files a timely motion for

post-trial relief within ten days of the court’s verdict and the trial court

addresses the issues raised, this Court may deem the issues preserved for

appellate review even where the motion was erroneously titled as a motion

to reconsider rather than a post-trial motion. See Gemini Equipment Co.

v. Pennsy Supply, Inc., 595 A.2d 1211, 1214 (Pa. Super. 1991) (holding

that issues raised in timely motion for reconsideration are preserved for

appeal under Pa.R.C.P. 227.1 where the motion was essentially a mislabeled

motion for post-trial relief). In other words, “[w]e will not construe the rules

of procedure so narrowly as to allow a minor procedural error to affect the

substantive rights of the litigants.” Id.

      Here, the relief requested was effectively a post-trial motion asking the

trial court to deem the underlying contract between Appellant and Appellee

an installment contract and find the complaint filed within the statute of

limitations.   Thus, Appellant asked the trial court to change its decision,

relief which is specifically contemplated under Pa.R.C.P. 227.1(a)(4).


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J-A11010-17


Accordingly, we decline to quash this appeal due the procedural misstep and

shall address the appeal on its merits.

        Appellant raises the following issues for this Court’s consideration:

        1. Whether the issue of continuity or instalment contract was
        waived by the appellant.

        2. Whether the trial court erred in failing to consider the student
        loan as an installment or periodic payment after May 7, 2009,
        and each was a separate and distinct cause of action.

Appellant’s Brief at 4 (verbatim).

        In Appellant’s first issue, she challenges the trial court’s conclusion

that she waived her argument that the agreement was a continuing contract.

In its Pa.R.A.P. 1925(a) opinion, the trial court stated that Appellant did not

allege in her complaint that there was a continuing contract and that the

claim never was raised or argued. Pa.R.A.P. 1925(a) Opinion, 12/23/16, at

1-2.     After review, we conclude that while this claim is not raised with

specificity in the complaint, Appellant did raise this argument in her pretrial

memorandum,1 at trial,2 in the motion for reconsideration that we earlier

determined to be a post-trial motion,3 and in her Pa.R.A.P. 1925(b)




____________________________________________


1
    Pre-trial Memorandum, 9/28/16, at 2.
2
    N.T., 9/30/16, at 73.
3
    Motion for Reconsideration, 10/19/16, at ¶9.



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J-A11010-17


statement.4     Accordingly, we decline to find waiver, and we shall address

Appellant’s claim on its merits.

         In her second issue, Appellant argues that the trial court erred in

failing to find that the loan was a continuing contract after May 7, 2009, and

each missed payment was a separate cause of action tolling the statute of

limitations. We disagree.

        The applicability of a statute of limitations is a question of law; our

scope of review is plenary, and our standard of review is de novo. Ash v.

Continental Ins. Co., 932 A.2d 877, 879-880 (Pa. 2007). It is undisputed

that the statute of limitations for bringing suit for breach of contract is four

years.     42 Pa.C.S. § 5525.          Appellant and Appellee entered into their

agreement on December 4, 2003. N.T., 9/30/16, at 7, 20. The trial court

found that Appellant had actual notice that Appellee was in breach of the

agreement on May 28, 2009, when Appellee made her last payment, or at

the latest, November 24, 2009, when Appellant was informed by a

collections agency that the loan she cosigned was due.            Id. at 23-24.

Evidence of this notice is apparent as Appellant had an attorney write to

Appellee regarding Appellee’s breach on April 29, 2010.              Id. at 11.

However, Appellant did not file her complaint until July 24, 2015, which is

more than four years after November 24, 2009. Complaint, 7/24/15. Thus,

____________________________________________


4
    Pa.R.A.P. 1925(b) Statement, 11/3/16, at ¶1.



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J-A11010-17


the trial court concluded that Appellant’s claim for breach of contract was

barred. Trial Court Opinion, 10/14/16, at 3.

      Appellant asserts that the trial court erred when it concluded that the

suit was barred by the statute of limitations because the contract was a

continuing contract.    Appellant’s Brief at 10.    The statute of limitations

relative to a continuing contract is determined as follows:

      When a contract is continuing, the statute of limitations will run
      either from the time when the breach occurs or when the
      contract is in some way terminated. S.T. Hudson Eng. v.
      Camden Hotel Dev., 747 A.2d 931, 934 (Pa. Super. 2000). In
      addition, the “acknowledgement doctrine” “provides that a
      statute of limitations may be tolled or its bar removed by a
      promise to pay the debt.” Id. “A clear, distinct, and unequivocal
      acknowledgement of a debt as an existing obligation, such as is
      consistent with a promise to pay, is sufficient to toll the statute.”
      Id. at n. 5 (citation omitted).

Crispo v. Crispo, 909 A.2d 308, 313 (Pa. Super. 2006).             “The test of

continuity, so as to take the case out of the operation of the statute of

limitations, is to be determined by the answer to the question whether the

services were performed under one continuous contract, whether express or

implied, with no definite time fixed for payment, or were rendered under

several separate contracts.”    Thorpe v. Schoenbrun, 195 A.2d 870, 872

(Pa. Super. 1963).

      Appellant argues that where continuing payments are owed, a

separate and distinct cause of action accrues for each payment as it

becomes due. Appellant’s Brief 12 (citing Ritter v. Theodore Pendergrass

Teddy Bear Productions, Inc., 514 A.2d 930, 935 (Pa. Super. 1986)).

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J-A11010-17


While this is a correct statement of law, it is inapplicable to the facts of the

case at bar.

      Ritter involved outstanding payments, payments due at the time of

the lawsuit, and potential future payments. Ritter, 514 A.2d at 935. Thus,

the Court concluded it could not determine when the statute of limitations

began to run for each missed payment.        Id.   The situation in the instant

case is markedly different, and Appellant conflates the obligations of the

parties in attempting to have her contract with Appellee deemed a

continuing contract.

      The trial court here concluded that Appellant and Appellee agreed that

Appellant would co-sign a promissory note, Appellee would repay the note,

and the terms of that note were fixed. Trial Court Opinion, 10/14/16, at 4.

When Appellee failed to meet her repayment obligation, she was in breach of

her agreement with the lender, and the full amount of the loan was due.

Appellee’s breach of her agreement with the lender obligated Appellant to

repay the note. Thus, Appellee’s breach of her agreement with the lender

was also a breach of her agreement with Appellant.              No installment

payments or     continuing contingencies existed between Appellee           and

Appellant, and this fact distinguishes our case from Ritter, making the

continuous contract-doctrine inapplicable. Indeed, the statute of limitations

began running at the time of Appellee’s breach.




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J-A11010-17


      Therefore, because we agree with the trial court that no further

installments were contemplated, and the statute of limitations began to run

at the time of the breach, we also agree with the trial court that, even if we

use the later November 24, 2009 date as the date of the breach, the July

24, 2015 complaint was untimely.     Thus, Appellant’s claims are barred by

the statute of limitations.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the January 11, 2017 judgment entered

in favor of Appellee.

      Judgment affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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