J-S79003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MILDRED K. CALKINS, ADMINISTRATRIX             IN THE SUPERIOR COURT OF
OF THE ESTATE OF ANNA C. KASYCH,                     PENNSYLVANIA
DECEASED

                        Appellant

                   v.

EDWARD H. BUTZ, ESQUIRE, LESAVOY
BUTZ & SEITZ, LLC, ST. LUKE’S HEALTH
NETWORK, INC., ST. LUKE’S HOSPITAL –
ALLENTOWN CAMPUS

                        Appellees                   No. 442 EDA 2016


              Appeal from the Order Entered January 19, 2016
              In the Court of Common Pleas of Lehigh County
                    Civil Division at No(s): 2015-C-0809


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED JANUARY 23, 2017

     Appellant, Mildred K. Calkins, Administratrix of the Estate of Anna C.

Kasych, Deceased, appeals from the order entered in the Lehigh County

Court of Common Pleas, which granted judgment on the pleadings in favor

of Appellees Edward H. Butz, Esquire, and Lesavoy Butz & Seitz, LLC

(“Attorney Butz and LB&S”). We affirm.

     The relevant facts and procedural history of this case are as follows.

Appellant is a sibling of Anna Kasych and Charles Kasych, Jr., who are

deceased. The Kasychs initially owned eight properties as joint tenants in

Whitehall Township (“Whitehall Properties”), which were valued at millions of

dollars. In October 2008, the Kasychs met with the vice president of the St.
J-S79003-16



Luke’s Hospital Development Office, to discuss the possibility of making a

testamentary gift of the Whitehall Properties to St. Luke’s Hospital (“St.

Luke’s”).   At the Kasychs’ request, the general counsel for St. Luke’s

recommended two accountants and two attorneys for estate planning

services, one of whom was Attorney Butz. At that time, Attorney Butz was a

partner at the law firm of LB&S.     Bernard Lesavoy also was a partner at

LB&S. Attorney Lesavoy and LB&S had represented St. Luke’s in the past.

Attorney Lesavoy also received a community involvement award from St.

Luke’s in 2002 and was an honorary co-chair at the hospital’s “Dinner by

Starlight” event in 2005.

      Shortly after the meeting with the St. Luke’s Development Office, the

Kasychs engaged the services of Attorney Butz and LB&S in connection with

the planned bequests to St. Luke’s. The terms of Attorney Butz and LB&S’

representation was not memorialized in writing.          In December 2008,

Attorney Butz drafted separate wills for the Kasychs devising their property

interests, including the Whitehall Properties, to St. Luke’s.   As part of the

estate plan, Attorney Butz also drafted new deeds for each of the Whitehall

Properties, which changed the Kasychs’ ownership of the properties from

joint tenancies to tenancies in common.     In a letter to the Kasychs dated

December 4, 2008, Attorney Butz explained: “Finally, I have enclosed a

document converting your real estate ownership from joint tenancies with

right of survivorship to tenancies in common, which allows you to separately

leave one-half of your properties to St. Luke’s.” (Appellant’s Complaint, filed

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4/15/15, at Exhibit C; R.R. at 43a).             This change comported with the

Kasychs’ desire, as expressed in their wills, for their estates to qualify for the

federal estate tax charitable deduction. The Kasychs signed the new deeds

on February 6, 2009, and they were recorded on March 3, 2009.                 The

Kasychs executed the finalized wills on August 12, 2009.1 Mr. Kasych died

on September 8, 2010.            On February 17, 2011, Attorney Lesavoy was

appointed to the Board of Governors of St. Luke’s Hospital—Allentown

Campus. Ms. Kasych was executrix of Mr. Kasych’s estate and administered

his estate for three years until her death.        Mr. Kasych’s will was probated

and his one-half interest in the Whitehall Properties passed directly to St.

Luke’s.    During that time, Ms. Kasych also defended Mr. Kasych’s estate

against claims brought by Appellant, and contacted Attorney Butz to revise

her own estate plan. In an engagement letter to Ms. Kasych dated February

12, 2013, Attorney Butz stated:

          I have advised you that my firm has represented St.
          Luke’s Hospital in a variety of matters. You may also
          recall that my youngest son was born at St. Luke’s
          Hospital, Allentown. Therefore, you should know that I
          have a high regard for St. Luke’s. Because you are free to
          leave your estate to any person or entity you wish,
          however, I do not believe that the above facts have any
          bearing on my representing you in connection with your
          estate plan. On the other hand, I do not want to be

____________________________________________


1
 Both wills contained a provision requesting that the personal representative
use all reasonable efforts to prevent the sale or transfer of any estate
property to Appellant, among several other individuals and entities.



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           involved in any matter adverse to St. Luke’s. I hope you
           will find this satisfactory. If not, please let me know.

(Appellant’s Complaint at Exhibit D; R.R. at 45a-46a).                   Ms. Kasych

subsequently engaged other counsel to revise/revoke her will. Ms. Kasych

died on December 21, 2013.             No testamentary writing was admitted to

probate, and Appellant was appointed administratrix of Ms. Kasych’s estate.

        On March 16, 2015, Appellant initiated the current action by filing a

praecipe for a writ of summons in her capacity as administratrix of Ms.

Kasych’s estate.       Appellant filed a complaint on April 15, 2015, which

included counts of breach of contract, malpractice/professional negligence,

and breach of fiduciary duty against Attorney Butz and LB&S.2              Appellant

also brought counts of unjust enrichment and equitable reformation against

St. Luke’s Health Network, Inc. and St. Luke’s Hospital—Allentown Campus

(“St. Luke Defendants”).            The St. Luke Defendants filed preliminary

objections on May 8, 2015.          On May 27, 2015, Appellant filed preliminary

objections to the St. Luke Defendants’ preliminary objections. Attorney Butz

and LB&S filed an answer and new matter to the complaint on June 12,

2015.       On June 17, 2015, the St. Luke Defendants filed amended

preliminary objections to Appellant’s complaint.

        On September 4, 2015, Attorney Butz and LB&S filed a motion for

judgment on the pleadings, arguing Appellant’s claims against them were
____________________________________________


2
    Appellant filed certificates of merit in support of her complaint.



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barred by the relevant statutes of limitations. The court sustained the St.

Luke Defendants’ preliminary objections on September 24, 2015, which

resulted in dismissal of all claims against the St. Luke Defendants. 3   The

court granted Attorney Butz and LB&S’ motion for judgment on the

pleadings on January 19, 2016. Appellant filed a timely notice of appeal on

February 2, 2016. The court ordered Appellant to file a concise statement of

errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely

complied.

       Appellant raises the following issues for our review:

          WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
          ENTIRE COMPLAINT WITHOUT ALSO ADDRESSING THE
          APPLICABLE FOUR-YEAR STATUTE OF LIMITATIONS TO
          [APPELLANT’S] COUNT I FOR BREACH OF CONTRACT,
          WHICH WAS TIMELY FILED.

          WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
          COMPLAINT AS A MATTER OF LAW AND GRANTING
          [ATTORNEY BUTZ AND LB&S’] MOTION FOR JUDGMENT ON
          THE PLEADINGS UNDER THE STATUTE OF LIMITATIONS
          WHERE THE DISCOVERY RULE AND/OR FRAUDULENT
          CONCEALMENT DOCTRINES TOLLED THE APPLICABLE
          LIMITATIONS PERIODS FOR [APPELLANT’S] TORT AND
          CONTRACT CLAIMS AND THE FACTUAL ISSUES IN
          DISPUTE PRECLUDED A RULING ON THIS ISSUE AS A
          MATTER OF LAW AT THE PLEADINGS STAGE.

(Appellant’s Brief at 4).

       Appellate review of an order granting a motion for judgment on the

____________________________________________


3
  The order sustaining the St. Luke Defendants’ preliminary objections is not
at issue in this appeal.



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pleadings implicates the following principles:

          Entry of judgment on the pleadings is permitted under
          Pennsylvania Rule of Civil Procedure 1034, which provides
          that “after the pleadings are closed, but within such time
          as not to unreasonably delay trial, any party may move for
          judgment on the pleadings.” Pa.R.C.P. 1034(a). A motion
          for judgment on the pleadings is similar to a demurrer. It
          may be entered when there are no disputed issues of fact
          and the moving party is entitled to judgment as a matter
          of law.

          Appellate review of an order granting a motion for
          judgment on the pleadings is plenary. The appellate court
          will apply the same standard employed by the trial court.
          A trial court must confine its consideration to the pleadings
          and relevant documents. The court must accept as true all
          well pleaded statements of fact, admissions, and any
          documents properly attached to the pleadings presented
          by the party against whom the motion is filed, considering
          only those facts which were specifically admitted.

          We will affirm the grant of such a motion only when the
          moving party’s right to succeed is certain and the case is
          so free from doubt that the trial would clearly be a fruitless
          exercise.

Southwestern Energy Production Co. v. Forest Resources, LLC, 83

A.3d 177, 185 (Pa.Super. 2013), appeal denied, 626 Pa. 691, 96 A.3d 1029

(2014).

      “[W]hether the statute of limitations has run on a claim is generally a

question of law for the trial [court].” Wilson v. Transp. Ins. Co., 889 A.2d

563, 570 (Pa.Super. 2005). “Which statute of limitations applies to a cause

of action is also a matter of law for the court to determine.”              Id.

“Additionally, the interpretation and ‘application of a statute is a question of

law that compels plenary review to determine whether the court committed

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an error of law.’” Id.

      Generally, “the statute of limitations begins to run at the time when a

complete cause or right of action accrues or arises, which occurs as soon as

the right to institute and maintain a suit arises.” Centre Concrete Co. v.

AGI, Inc., 522 Pa. 27, 31, 559 A.2d 516, 518 (1989). “The party asserting

the cause of action has the affirmative duty to use all reasonable diligence to

determine the facts and circumstances of the claim and to institute suit

within the prescribed period.”     Devine v. Hutt, 863 A.2d 1160, 1167

(Pa.Super. 2004).

         Statutes of limitations are vital to the welfare of society
         and are favored in the law. They are found and approved
         in all systems of enlightened jurisprudence. They promote
         repose by giving security and stability to human affairs.
         An important public policy lies at their foundation. They
         stimulate to activity and punish negligence. While time is
         constantly destroying the evidence of rights, they supply
         [the place of evidence lost or impaired by lapse of time, by
         raising a] presumption which renders proof unnecessary.
         Mere delay, extended to the limit prescribed, is itself a
         conclusive bar. The bane and antidote go together.

Id. Nevertheless,

         The discovery rule is a judicially created device which tolls
         the running of the applicable statute of limitations until
         that point when the plaintiff knows or reasonably should
         know: (1) that he has been injured, and (2) that his injury
         has been caused by another party’s conduct.              The
         limitations period begins to run when the injured party
         possesses sufficient critical facts to put him on notice that
         a wrong has been committed and that he need investigate
         to determine whether he is entitled to redress.

Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa.Super. 2002), appeal


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denied, 572 Pa. 709, 813 A.2d 844 (2002). Whether the prescribed statute

of limitations period has expired is not relevant to whether “the discovery

rule applies to toll the statute of limitations in any case where a party

neither knows nor reasonably should have known of his injury and its cause

at the time his right to institute suit arises.” Fine v. Checcio, 582 Pa. 253,

269, 870 A.2d 850, 859-60 (2005). Instead,

         [W]hen a court is presented with the assertion of the
         discovery rule[’]s application, it must address the ability of
         the damaged party, exercising reasonable diligence, to
         ascertain that he has been injured and by what cause.
         Since this question involves a factual determination as to
         whether a party was able, in the exercise of reasonable
         diligence, to know of his injury and its cause, ordinarily, a
         jury is to decide it. Where, however, reasonable minds
         would not differ in finding that a party knew or should
         have known on the exercise of reasonable diligence of his
         injury and its cause, the court determines that the
         discovery rule does not apply as a matter of law.

Id. at 267-68, 870 A.2d at 858-59 (internal citations omitted).         See also

Fiorentino v. Rapoport, 693 A.2d 208, 216, 219 (Pa.Super. 1997), appeal

denied, 549 Pa. 716, 701 A.2d 577 (1997) (stating: “Evidence which

demonstrates that a plaintiff has suffered the loss of property rights under a

contract will suffice to establish ‘actual injury’ or ‘harm’ in a legal malpractice

action”; “In Pennsylvania, the occurrence rule is used to determine when the

statute of limitations begins to run. Under the Pennsylvania occurrence rule,

the statutory period commences when the harm is suffered, or if

appropriate, at the time an alleged malpractice is discovered”; whether

statute has run on claim is usually question of law for trial judge, i.e., where

                                       -8-
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facts demonstrate reasonable minds could not differ, court can determine

limitations period as matter of law).

      In issue one, Appellant argues her complaint made out a breach of

contract claim by alleging Attorney Butz and LB&S failed to follow Ms.

Kasych’s instruction to make a revocable bequest to St. Luke’s. Appellant

asserts Attorney Butz and LB&S took an additional unrequested step of

converting the Whitehall Properties from joint tenancies to tenancies in

common,    eliminating   Appellant’s     “power   of   appointment”   over   the

“properties as a whole.”      Appellant contends Attorney Butz and LB&S

deviated from the general professional practice of drafting a will as

requested by the client, with an intent to benefit St. Luke’s.        Appellant

maintains the four-year statute of limitations should apply to her breach of

contract claim, as opposed to the two-year statute of limitations applicable

to claims of professional negligence.

      Appellant further argues the court misapplied the discovery rule.

Appellant avers it is unknown whether Attorney Butz and LB&S advised Ms.

Kasych that her “rights in the whole of the real properties” were

extinguished when the properties were converted to tenancies in common.

Appellant claims the discovery rule tolled the statute of limitations even if

Ms. Kasych knew by the time of Mr. Kasych’s death in 2010, that Mr.

Kasych’s one-half interest in the Whitehall Properties would pass directly to

St. Luke’s. Appellant asserts Ms. Kasych still had no reason to inquire into


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the legal cause of her harm until she received the February 2013 letter from

Attorney Butz, disclosing a potential conflict of interest. Appellant concludes

the court erred when it determined Appellant’s breach of contract claim was

barred by the statute of limitations. We disagree.

      Under Pennsylvania law, “[a]n action may be commenced by filing with

the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint.”

Pa.R.C.P. 1007.    Section 5525 of the Judicial Code sets forth a two-year

statute of limitations for professional negligence actions:

         § 5524. Two year limitation

         The following actions and proceedings must be commenced
         within two years:

                                  *       *       *

            (7) Any other action or proceeding to recover
            damages for injury to person or property which is
            founded on negligent, intentional, or otherwise tortious
            conduct or any other action or proceeding sounding in
            trespass, including deceit or fraud, except an action or
            proceeding subject to another limitation specified in this
            subchapter.

42 Pa.C.S.A. § 5524(7). Section 5525 of the Judicial Code sets forth a four-

year statute of limitations for breach of contract actions:

         § 5525. Four year limitation

         (a) General rule.—Except as provided for in subsection
         (b), the following actions and proceedings must be
         commenced within four years:

                                      *       *       *

            (3)   An action upon an express contract not founded

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           upon an instrument in writing.

                                  *    *    *

           (8) An action upon a contract, obligation or liability
           founded upon a writing not specified in paragraph (7),
           under seal or otherwise, except an action subject to
           another limitation specified in this subchapter.

42 Pa.C.S.A. § 5525(a)(3), (8).    “In Pennsylvania, an individual who has

taken part in an attorney-client relationship may sue his attorney for

malpractice under either a trespass or assumpsit theory, each of which

requires the proof of different elements.” Fiorentino, supra at 212.

     For a trespass/professional negligence claim, the plaintiff must

establish three elements: (1) the employment of the attorney or other basis

for duty; (2) the failure of the attorney to exercise ordinary skill and

knowledge; and (3) the attorney’s failure to exercise the requisite skill and

knowledge was the proximate cause of damage to the plaintiff.      Bailey v.

Tucker, 533 Pa. 237, 246, 621 A.2d 108, 112 (1993). “An attorney will be

deemed ‘negligent’ if he…fails to possess and exercise that degree of

knowledge, skill and care which would normally be exercised by members of

the profession under the same or similar circumstances.”        Fiorentino,

supra at 212.

        By way of comparison, an assumpsit claim based on
        breach of an attorney-client agreement is a contract claim,
        and the attorney’s liability must be assessed under the
        terms of the contract. [Bailey, supra] at 251, 621 A.2d
        at 115. Thus, if the attorney agrees to provide his…best
        efforts and fails to do so, an action in assumpsit will
        accrue. Id. “[A]n attorney who agrees for a fee to

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           represent a client is by implication agreeing to provide that
           client with professional services consistent with those
           expected of the profession at large.” Id. at 251-52, 621
           A.2d at 115.

Id. at 213. As a general rule to succeed in a cause of action for breach of

contract the plaintiff must establish: “(1) the existence of a contract,

including its essential terms, (2) a breach of a duty imposed by the contract

and (3) resultant damages.”          Gorski v. Smith, 812 A.2d 683, 693-94

(Pa.Super. 2002), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004)

(holding that post-Bailey, breach of contract claims in context of legal

malpractice are not limited to instances in which attorney failed to follow

specific instruction of client, but also encompass breach of implied promise

by attorney to render legal services in manner consistent with standards of

profession at large).

      Instantly, Appellant initiated this action by writ of summons filed on

March 16, 2015. Appellant’s civil complaint contained three counts against

Attorney    Butz   and    LB&S:   Count   I—Breach    of     Contract;   Count    II—

Professional    Malpractice;   and    Count     III—Breach    of   Fiduciary     Duty.

Appellant’s breach of contract count stated as follows:

                          Count I – Breach of Contract
                         ([Appellant] v. Butz and LB&S)

           75. [Appellant] hereby incorporates by reference all
           other paragraphs of this Complaint as though set forth
           fully herein.

           76. When Anna [Kasych] engaged [Attorney] Butz and
           LB&S she contracted for specific services to effectuate her

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          then intent to execute a Will as part of her estate plan
          which made a bequest to St. Luke’s.

          77. By definition, a bequest is revocable by the testator
          during his or her life.

          78. [Ms. Kasych’s] contract with [Attorney] Butz and
          LB&S for estate planning services was supported by
          consideration in that [Ms. Kasych] paid fees for such
          services.

          79. [Attorney] Butz and LB&S materially breached their
          contractual duties to [Ms. Kasych] because they did not
          deliver a revocable bequest to St. Luke’s, but instead,
          contrary to the parties’ contract, [Attorney] Butz and LB&S
          delivered an estate plan containing a bequest with 50% of
          the bequest becoming irrevocable upon the death of
          [Charles Kasych].

          80. As a direct and proximate cause of [Attorney] Butz
          and LB&S materially breaching their contract with [Ms.
          Kasych] by including an irrevocable gift to St. Luke’s, [Ms.
          Kasych], and therefore her Estate, [Appellant] herein,
          suffered substantial damages in the form of losing 50% of
          the value and income of Whitehall Township Properties.

(Appellant’s Complaint at 17-18; R.R. at 21a-22a). Count I of the complaint

sets forth a cognizable breach of contract claim with an allegation that

Attorney Butz and LB&S failed to abide by an express term of the parties’

agreement, i.e., creation of a revocable bequest to St. Luke’s.4 See Gorski,

supra. Appellant did assert that Attorney Butz and LB&S failed to follow a


____________________________________________


4
   That allegation renders moot the parties’ dispute over whether a
malpractice-based breach of contract action requires the plaintiff to allege
her attorney failed to follow a specific client instruction, not just that the
attorney failed to provide services consistent with professional standards.



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specific client instruction.5 Therefore, Appellant stated a claim for breach of

contract subject to the four-year statute of limitations. See 42 Pa.C.S.A. §

5525(a).

       In 2009, Attorney Butz finalized the wills and deeds; and the Kasychs

signed the documents.            Further, while they were alive, the Kasychs’

individual bequests were revocable. Likewise, Ms. Kasych knew in 2009 that

the Whitehall Properties had been converted from joint tenancies to

tenancies in common. Attorney Butz’ letter to the Kasychs around that time

explained that the deed changes would allow them to devise their one-half

interests in the Whitehall Properties to St. Luke’s separately.

       Assuming without deciding that Attorney Butz’ explanation of the

effect of the deed changes was inadequate, no reasonable minds could

disagree that Ms. Kasych knew or should have known of the existence and

cause of her “injury” (loss of her right to survivorship in the Whitehall

Properties) upon or shortly after Mr. Kasych’s death on September 8, 2010.

Ms. Kasych administered the estate of Mr. Kasych, whose one-half interest in

the Whitehall Properties passed directly to St. Luke’s in accordance with his

will. Consequently, Ms. Kasych knew Mr. Kasych’s one-half interest in the

properties was not passing to her via right of survivorship. Therefore, the

____________________________________________


5
   Pennsylvania law makes clear the failure to follow a specific client
instruction is no longer a required element of a breach of contract claim in
the context of legal malpractice. See id.



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limitations period on Appellant’s breach of contract claim commenced in

2010 at the latest, upon the death of her sibling.        See Fine, supra;

Fiorentino, supra.

      The alleged breach and injury, as stated in Count I of the complaint,

did not depend on Attorney Butz’ purported conflict of interest. The contract

claim is simply that Attorney Butz and LB&S breached their contract with Ms.

Kasych by failing to “deliver a revocable bequest.”     No reasonable minds

could disagree that Ms. Kasych knew of the alleged breach and injury in

2009, or 2010 at the latest, and long before she received Attorney Butz’s

February 2013 letter regarding his potential conflict of interest. Thus, the

February 2013 letter did not affect the statute of limitations on Appellant’s

breach of contract claim, given the nature of that claim.    When Appellant

filed a praecipe for a writ of summons on March 16, 2015, the breach of

contract claim was barred by the four-year statute of limitations.    See 42

Pa.C.S.A. § 5525(a).

      In issue two, Appellant argues Ms. Kasych had no knowledge of

Attorney Butz and LB&S’ purported conflict of interest with St. Luke’s until

she received the February 12, 2013 letter from Attorney Butz.        Appellant

asserts that letter is what triggered Ms. Kasych’s duty to exercise reasonable

diligence to investigate the legal cause of her harm, i.e., “overreaching” by

Attorney Butz and LB&S to the benefit of St. Luke’s. Appellant maintains the

letter did not, however, disclose Attorney Butz’s actions and their effects on


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Ms. Kasych—only the existence of a previously undisclosed conflict.

Appellant contends that when a reasonable period is added to date of that

letter, her professional negligence and breach of fiduciary duty claims fall

within the applicable two-year statute of limitations. Appellant alternatively

argues her action should relate back to the date she had filed a previous

complaint against the same parties in 2014.      Appellant avers her original

complaint made essentially the same allegations against Attorney Butz and

LB&S, but it was dismissed because of a “captioning issue.”          Appellant

submits Attorney Butz and LB&S were already on notice of her claims, and

the trial court in the previous case had recommended the filing of a second

complaint.   Appellant concludes the court improperly dismissed the 2015

negligence case on statute of limitations grounds. We disagree.

      As a preliminary matter, issues raised for the first time on appeal are

generally deemed waived. See Pa.R.A.P. 302; Rivera v. Home Depot, 832

A.2d 487 (Pa.Super. 2003). Further, any issue not included in an appellant’s

Rule 1925(b) statement is waived for purposes of appellate review. Madrid

v. Alpine Mountain Corp., 24 A.3d 380 (Pa.Super. 2011), appeal denied,

615 Pa. 768, 40 A.3d 1237 (2012).

      Instantly, Appellant failed to raise her “relation back” argument at any

stage of the trial court proceedings.    Appellant also failed to include the

relation-back claim in her Rule 1925(b) statement.      The issue appears for

the first time in Appellant’s brief on appeal. Thus, the relation-back claim is


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waived.    See id.; Rivera, supra.            Furthermore, Appellant cites no

Pennsylvania authority to support her relation-back argument and relies

exclusively on non-binding decisions of federal and other state courts. See

Branham v. Rohm and Haas Co., 19 A.3d 1094 (Pa.Super. 2011), appeal

denied, 615 Pa. 771, 42 A.3d 289 (2012) (stating Superior Court is not

bound by decisions of federal courts, other than United States Supreme

Court, or decisions of other state courts on matters of Pennsylvania law).

Therefore, Appellant failed to preserve her “relation back” theory.

      Moreover, Appellant had two years under Section 5524 to prosecute

her claims of professional negligence and breach of fiduciary duty. See also

Weston v Northampton Personal Care, Inc., 62 A.3d 947 (Pa.Super.

2013), appeal denied, 622 Pa. 752, 79 A.3d 1099 (2013) (stating two-year

statute of limitations applies to cause of action for breach of fiduciary duty);

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565 (Pa.Super. 2007) (stating

two-year statute of limitations applies to claims for professional negligence).

      Counts II and III of Appellant’s complaint allege Attorney Butz and

LB&S were negligent and/or breached their fiduciary duty to Ms. Kasych

when they failed to (1) disclose conflicts of interest with St. Luke’s; (2)

obtain Ms. Kasych’s informed consent regarding the conflicts; (3) comply

with Ms. Kasych’s request for a revocable bequest; (4) adequately advise

Ms. Kasych of the difference between a joint tenancy and tenancy in

common or the effect the deed changes would have on her interest in the


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Whitehall Properties.    The two-year statute of limitations applies to these

claims.   See 42 Pa.C.S.A. § 5524(7); Weston, supra; Wachovia Bank,

N.A., supra.    As with the breach of contract claim, Ms. Kasych knew or

should have known no later than her sibling’s death in 2010 of Attorney Butz

and LB&S’ alleged failure to follow Ms. Kasych’s instructions or explain the

consequences of the deed changes.       With regard to Appellant’s claims for

professional errors, Appellant’s discovery of Attorney Butz and LB&S’ alleged

conflict of interest is relevant to the statute of limitations analysis.   Ms.

Kasych received a letter from Attorney Butz dated February 12, 2013,

disclosing his personal involvement with St. Luke’s and LB&S’ past

representation of the hospital.    Therefore, Ms. Kasych was aware of the

alleged conflict of interest no later than February 2013. At that time, Ms.

Kasych knew all the critical facts underlying her negligence and breach of

fiduciary duty claims.   See Weik, supra.     No reasonable factfinder could

conclude the two-year limitations period applicable to Counts II and III

should have commenced at any time after February 2013. See Fiorentino,

supra.    Appellant filed the praecipe for a writ of summons on March 16,

2015, after her claims of professional negligence and breach of fiduciary

duty were time-barred. See 42 Pa.C.S.A. § 5524(7). Thus, the trial court

properly granted Attorney Butz and LB&S’ motion for judgment on the

pleadings. Accordingly, we affirm.

     Order affirmed.


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J-S79003-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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