J   -A16040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DAVID CLARK, INDIVIDUALLY, AND          :   IN THE SUPERIOR COURT OF
    AS ADMINISTRATOR OF THE ESTATE          :         PENNSYLVANIA
    OF MONICA CLARK, DECEASED

                      Appellants


                 v.
                                            :   No. 1474 MDA 2018

    JEFFREY STOVER, ESQUIRE AND
    STOVER, MCLAUGHLIN, GERACE,
    WEYANDT & MCCORMICK, P.C.

                Appeal from the Order Entered August 10, 2018
      In the Court of Common Pleas of Huntingdon County Civil Division at
                              No(s): 2015-1380


BEFORE:      LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED AUGUST 01, 2019

        David Clark and his mother, Monica Clark, ("collectively the Clarks")

appeal from the August 10, 2018, order entered in the Court of Common Pleas

of Huntingdon County granting the motion for summary judgment in favor of

Jeffery Stover, Esquire, and his law firm, Stover, McLaughlin, Gerace,

Weyandt & McCormick, P.C. (collectively "Appellees").1 After     a   careful review,

we affirm.




1 This appeal was filed by David Clark and Monica Clark. However, on January
24, 2019, during the pendency of this appeal, Monica Clark passed away and
the Huntingdon County Register of Wills ("Register of Wills") granted Letters
Testamentary to David Clark. Thereafter, Appellees filed an application



      Former Justice specially assigned to the Superior Court.
J   -A16040-19


         The relevant facts and procedural history are as follows: On July 14,

2008, Daniel M. Clark ("Decedent") passed away, and he was survived by four

siblings, including David Clark, as well as his mother, Monica Clark.            On

February 6, 2008, Decedent executed       a   Last Will and Testament ("the Will")

bequeathing to Leslie A. McDermott, who was              a    long-time employee of

Decedent, the following: his personal belongings,       a    sum of $150,000.00, his

accounting business, an option to purchase his office and apartment building,

and his interest in CMS Computer Services. Further, the Will bequeathed the

sum of $25,000.00 to Christina M. Reynolds, as well as the sum of $25,000.00

to Randi I. Beatty, both of whom were employees of Decedent.                The Will

provided that the remainder of Decedent's Estate was to be distributed equally

to the Humane Society of Huntingdon County and the Retirement Assistant

Care for Equines Fund ("R.A.C.E. Fund"). Decedent made no provision for his

family    in   the Will.   Decedent appointed the following individuals as Co -

Executors of the Will: Edson S. Crafts,   III,   Leslie A. McDermott, and Lawrence




seeking to strike the Clarks' brief on the basis Monica Clark is no longer a
proper party to the appeal. However, David Clark, in his capacity as personal
representative of Monica Clark's Estate, filed an application with this Court
seeking to be substituted as a party. Accordingly, we deny Appellees'
application to strike and grant the application for substitution of a party. See
Pa.R.A.P. 502(a)("If a party dies after a notice of appeal or petition for review
is filed or while a matter is otherwise pending in an appellate court, the
personal representative of the deceased party may be substituted as a party
on application filed by the representative or by any party with the
prothonotary of the appellate court."). We have amended the caption
accordingly.


                                        -2
J   -A16040-19


L.   Newton. Thereafter, Lawrence          L.   Newton renounced his right to serve as

Co -Executor and,    thus, the Register of Wills granted Letters Testamentary to

Edson S. Crafts,   III,   and Leslie A. McDermott and admitted to probate the Will

on August 4, 2008.

        Thereafter, in September of 2008, David Clark retained Attorney Stover,

and on October 17, 2008, he filed          a    caveat objecting to the Register of Wills'

granting of Letters Testamentary and Probate.                  Specifically, David Clark

averred Decedent had executed prior Wills, including one on November 12,

2007, that had named him as            a   beneficiary.    He also averred he had been

named as the beneficiary on several of Decedent's life insurance policies, but

that Decedent changed the              life insurance       beneficiary designations in

November of 2007. David Clark averred Decedent executed the February 6,

2008, Will and changed the life insurance beneficiary designations in 2007

because of the undue influence of Leslie A. McDermott.

        Pursuant to 20 Pa.C.S.     §   907, David Clark filed for certification to the

Orphans' Court.      Following hearings on August 5, 2009, and September 3,

2009, the Orphans' Court dismissed David Clark's claims on November 17,

2009. David Clark filed an appeal to this Court, and we affirmed on May 19,

2011.2    In re: Daniel      M. Clark, 988 MDA 2010 (Pa.Super. filed 5/19/11)



2 On appeal, David Clark claimed the Orphans' Court erred in rejecting his
argument that Leslie A. McDermott exerted undue influence and/or Decedent
was of a weakened intellect when he executed the Will in February 6, 2008;


                                                -3
J   -A16040-19


(unpublished memorandum).        David Clark filed   a   petition for allowance of

appeal, which our Supreme Court denied on June 8, 2012.

         Meanwhile, on July 13, 2010, Monica Clark, who was also represented

by Attorney Stover, filed an action against Decedent's Estate3 alleging that,

prior to his death, Decedent converted life insurance benefits, as well as

tangible personal and business property of Robert Clark,4 who predeceased

Decedent on November 6, 2003.         Monica Clark averred the benefits and

property lawfully belonged to her, and that, prior to his death, Decedent made

misrepresentations indicating he would invest her share of Robert Clark's

Estate on her behalf.5 Decedent's Co -Executors filed      a   motion for summary

judgment averring, inter a/ia, that Monica Clark failed to file her conversion

lawsuit within the applicable two years statute of limitations. In December of



the Orphans' Court erred in discounting the testimony of his expert, John
DeCarle; and the Orphans' Court erred in rejecting his argument that
Decedent's change of beneficiary on his life insurance policy was not the
product of undue influence.

3    further discussed infra, the Clarks averred that Monica Clark also met
    As
with Attorney Stover in September of 2008; however, upon Attorney Stover's
recommendation, Monica Clark was not named as a party in the 2008 lawsuit
filed by David Clark against Decedent's Estate, and instead, Monica Clark filed
her own lawsuit on July 13, 2010.

4   Robert Clark was Decedent's father, as well as Monica Clark's husband.

5 Monica Clark averred she and Decedent were appointed as Co -Executors of
Robert Clark's Estate. She further averred that Robert Clark had three life
insurance policies: a $1,000,000.00 policy owned by Decedent and two
$250,000.00 policies for which Monica Clark was named as the sole
beneficiary.
                                      -4
J   -A16040-19


2013, the Orphans' Court granted the motion for summary judgment and

dismissed Monica Clark's complaint with prejudice.                 Monica Clark did not file

an appeal from the Orphans' Court's order.

        On October 1, 2015, the Clarks                instituted the instant case against

Appellees via       a   praecipe for   a   writ of summons.     On November 5, 2015, the

Clarks filed   a   civil complaint, which they amended on December 14, 2015, and

again on January 15, 2016, in response to Appellees' preliminary objections.

The Clarks' second amended complaint presented claims as to both David

Clark and          Monica    Clark regarding         legal   malpractice negligence,   legal

malpractice breach of contract, and third -party beneficiary. In support of their

claims, the Clarks relevantly averred the following:

        7. Around September 2008,       [Appellant], David Clark, retained
        [Appellee], Jeffrey Stover, Esquire[,] towards bringing an action
        alleging that [Decedent] suffered from undue influence during the
        execution of his will. Huntingdon County Orphans' Court Division,
        Docket No. 10-1017. David Clark had a verbal agreement for legal
        services with [Attorney] Stover and initially paid [Attorney] Stover
        approximately $25,000 (David Clark and Monica Clark each
        contributed about half of this amount).
        8. [Attorney] Stover advised David Clark that [Appellant], Monica
        Clark, should not be a [p]laintiff in the underlying [will contest]
        matter because[,] if the lawsuit [was] unsuccessful, Monica
        [Clark] would be precluded from bringing a subsequent lawsuit for
        misrepresentation and conversion.
        9. But for [Attorney] Stover's advice (and failure to protect
        [Monica Clark's] underlying rights and to provide accurate
        material or facts upon which [the Clarks'] decisions were made),
        [the Clarks] would not have agreed to exclude Monica Clark as a
        [p]laintiff at that time.
        10. [Attorney] Stover also advised David Clark that there was a
        viable claim against MetLife Insurance regarding [Decedent's] life


                                                -5
J   -A16040-19


        insurance policies; however, [Attorney] Stover never pursued this
        claim -despite promises otherwise.
        11. At trial, [Attorney] Stover called Dr. John DeCarle, a board
        certified psychiatrist[,] to testify regarding the physical impact
        alcoholism had on [Decedent's] mind.
        12. Upon information and belief, DeCarle had          no   previous
        experience as an expert witness.
        13. Further, DeCarle testified that this was the only evaluation
        during his career where he did not meet with the subject. The
        Commonwealth (which was a party to the matter because
        charitable organizations were named as beneficiaries in
        [Decedent's] last will and testament) submitted both a motion to
        preclude the testimony of Decarle and a motion to severely
        discount the testimony of DeCarle.
        14. The Honorable Daniel J. Milliron found DeCarle's [testimony]
        should be severely discounted because he never personally
        examined [Decedent].
        15. Consequently, on or about November 10, 2009, Judge Milliron
        held that David Clark did not meet the burden of clear and
        convincing evidence to find [Decedent] was of weakened intellect.
        16. Notwithstanding, [Attorney] Stover advised David Clark to
        appeal and said that the [Orphans' Court's] decision would be
        reversed. [Attorney] Stover told [David Clark] that "he would still
        get something out of (the case)."
        17. David Clark relied on [Attorney] Stover's false assurances and
        appealed [his] case to the Pennsylvania Superior Court. David
        Clark lost his appeal on or about June 20, 2011.
        18  Upon [Attorney] Stover's continued advice and false
        assurances, David Clark appealed to the Pennsylvania Supreme
        Court -which declined to hear the case on or about May 16, 2012.
        19. [The Clarks] paid [Attorney] Stover a total of approximately
        $50,000 and gave Monica Clark's diamond ring and diamond wrist
        watch to [Attorney] Stover to litigate t[he] [will contest] case.
        20. [Appellant], Monica Clark[,] then retained [Appellees] towards
        bringing a second action alleging that [Decedent] converted life
        insurance benefits and tangible personal and business property of
        Robert Clark, which lawfully belonged to her. Additionally, Monica
        Clark alleged [Decedent] made misrepresentations that he would
        invest Monica Clark's share of Robert Clark's Estate of her behalf.


                                       -6
J   -A16040-19


        21. Monica Clark had   a   verbal agreement for legal services with
        [Attorney] Stover and          initially paid [Attorney] Stover
        approximately $10,000.
        22. Judge Milliron presided over the second action.
        23. Knowing Judge Milliron was hostile to [Appellants] and had
        decided against David Clark in the first action, [Appellants] asked
        that [Attorney] Stover request Judge Milliron recuse himself.
        [Attorney] Stover failed to do so.
        24. Defendants, [Co -]Executors of the Estate of [Decedent], filed
        a Motion for Summary Judgment.

        25. On or about December 17, 2013, Judge Milliron granted
        Defendants' Motion for Summary Judgment.
        26. Of particular note was Judge Milliron's finding that [Attorney]
        Stover failed to file Monica Clark's lawsuit within the applicable
        two (2) year statute of limitations period.
        27. As a result of the aforesaid, [Appellees] caused [the Clarks]
        to suffer great monetary expense and emotional distress.

The Clarks' Second Amended Complaint, filed 1/15/16, at          III 7-27.
        On   February 1, 2016, Appellees filed another set of preliminary

objections, which the trial court granted, in part, and denied, in part.

Specifically, the trial court dismissed Monica Clark's legal malpractice breach

of contract and third -party beneficiary claims.           On February 27, 2017,

Appellees filed an answer with new matter to the Clarks' second amended

complaint. Therein, Appellees contended as new matter, inter a/ia, that all

claims asserted by the Clarks are barred by the statute of limitations.          On

March 13, 2017, the Clarks filed     a   reply to the new matter.

        Following discovery, on May 7, 2018, Appellees filed          a   motion for

summary judgment, along with        a    supporting brief, seeking judgment in their

favor as to the remaining claims: David Clark's and Monica Clark's legal

                                           - 7 -
J   -A16040-19


malpractice negligence claims, David Clark's legal malpractice breach of

contract claim, and David Clark's third -party beneficiary claim.           Therein,

Appellees averred the Clarks' claims are barred by the statute of limitations

and, even if the claims were timely asserted, the Clarks failed to produce

evidence establishing      a    prima facie case such that Appellees are entitled to

summary judgment as         a   matter of law.

        On June 15, 2018, the Clarks filed a response in opposition to Appellees'

motion for summary judgment, along with            a   supporting brief. Therein, the

Clarks averred that, under the equitable discovery rule, they did not file their

action beyond the statute of limitations, and, additionally, the statute of

limitations was tolled by Appellees' concealment of the facts forming the basis

of the Clarks' claims. Moreover, they asserted they set forth ample evidence

establishing   a   prima facie case as to the claims.

        On June 27, 2018, Appellees filed a reply brief in continued support of

their motion for summary judgment, and on July 5, 2018, the Clarks filed           a


sur-reply in opposition to Appellees' motion for summary judgment. Following

oral argument, by opinion and order entered on August 10, 2018, the trial

court granted Appellees' motion for summary judgment and dismissed the

remaining claims in the Clarks' complaint with prejudice.

        Specifically, as to David Clark, the trial court determined that his action

against Appellees was barred by the statute of limitations. See Trial Court

Opinion, filed 8/10/18, at 5-6.         With regard to Monica Clark, the trial court


                                           -8
J   -A16040-19


initially determined that Monica Clark did not set forth         a   prima facie case for

her legal malpractice negligence claim against Appellees. See id. at 6. That

is, the   trial court determined the statute of limitations as to Monica Clark's

underlying conversion claims against the Decedent expired in February of

2007, and since "the earliest possible date that Monica Clark engaged Attorney

Stover was in September 2008[,]"6 she could not demonstrate that she would

have prevailed on her underlying claim absent any breach of duty on behalf

of Attorney Stover.          Id. Additionally, the trial court   concluded that, to the

extent Monica Clark averred Attorney Stover breached his duty by failing to

name her as      a   party   in   the lawsuit brought by David Clark against Decedent's

Estate, Monica Clark's action against Appellees was barred by the statute of

limitations. Id.

        This timely appeal followed on September 5, 2018, and all Pa.R.A.P.

1925 requirements have been met.




6   As indicated supra, although Monica Clark did not file her own action against
Decedent's Estate until July 13, 2010, the Clarks averred Monica Clark was
present when David Clark met with Attorney Stover in 2008. It is unnecessary
for us to determine precisely whether Monica Clark formally retained Attorney
Stover in 2008 or 2010.



                                              -9
J   -A16040-19


        On appeal, the Clarks argue the    trial court erred   in   granting summary

judgment    in   favor of Appellees on the basis the Clarks' action was barred by

the statute of limitations!

        The principles we apply in reviewing     a   summary judgment order are

well -settled.

        [S]ummary judgment      isonly appropriate in cases where there are
        no genuine issues of material fact and the moving party is entitled
        to judgment as a matter of law. Pa.R.C.P. 1035.2(1). When
        considering a motion for summary judgment, the trial court must
        take all facts of record and reasonable inferences therefrom in a
        light most favorable to the non-moving party and must resolve all
        doubts as to the existence of a genuine issue of material fact
        against the moving party. Yenchi v. Ameriprise Fin., Inc., 639
        Pa. 618, 161 A.3d 811, 818 (2017) (citing Toy v. Metropolitan
        Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195 (2007)). An
        appellate court may reverse a grant of summary judgment if there
        has been an error of law or an abuse of discretion. Fine [v.
        Checcio, 582 Pa. 253,] 870 A.2d [850,] 857 n.3 [(2005)].
        Because the claim regarding whether there are genuine issues of
        material fact is a question of law, our standard of review is de
        novo and our scope of review is plenary. Id.



  As indicated supra, the trial court concluded all claims remaining in the
Clarks' complaint were barred by the statute of limitations. However, on
appeal, the Clarks have developed an argument related to their legal
malpractice negligence, as well as David Clark's legal malpractice breach of
contract claim, only. That is, they have developed no argument as to the
dismissal of David Clark's third -party beneficiary claim upon the grant of
summary judgment. Further, they have developed no argument as to the
dismissal of Monica Clark's legal malpractice breach of contract and thirty -
party beneficiary claim upon the grant of Appellees' preliminary objections.
While the Clarks provide argument with regard thereto in their reply brief for
the first time, a reply brief cannot be a vehicle to argue issues not initially
raised and developed in the appellant's original brief. Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214 (1999). We shall, accordingly, confine our
analysis.


                                        - 10 -
J   -A16040-19


Nicolaou v. Martin,          Pa.     ,   195 A.3d 880, 891-92 (2018). In addition,

to the extent this Court must resolve        a    question of law, we review the trial

court's grant of summary judgment in the context of the entire record.

Yenchi, supra.

        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). As this Court has held:

               Once the prescribed statutory period for commencing a
        cause of action has expired, the complaining party is barred from
        bringing suit. Lack of knowledge, mistake or misunderstanding
        does not toll the running of the statute of limitations. The defense
        of statute of limitations is not a technical defense but substantial
        and meritorious. Mere delay, extended to the limit prescribed, is
        itself a conclusive bar. There is a strong policy in Pennsylvania
        courts favoring the strict application of statutes of limitation. It is
        the duty of a party asserting a cause of action to use all reasonable
        diligence to be properly informed of the facts and circumstances
        upon which a potential right of recovery is based and to institute
        suit within the prescribed statutory period.

Booher v. Olczak, 797 A.2d 342, 345 (Pa.Super. 2002) (internal citations
and quotations omitted).      "Thus, the statute of limitations begins to run as

soon as the right to institute and maintain           a   suit arises....Once the prescribed

statutory period has expired, the party          is   barred from bringing suit unless it

is   established that an exception to the general rule applies which acts to toll

the running of the statute." Pocono               International Raceway, Inc.             v.

Pocono Produce, Inc., 503          Pa.   80, 468 A.2d 468, 471 (1983) (citations

omitted). See Fine, supra (holding the statute of limitations period begins

                                          - 11 -
J   -A16040-19


running even if the plaintiff lacked knowledge or misunderstood the factual or

legal basis of the claim).        Whether an action was timely filed within the

limitations period   is a   matter of law for the court to determine. See id.

                [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)

(citations onnitted).8

        Initially, we must determine when the statute of limitations      in   this legal

malpractice action began to accrue. "[T]he occurrence rule                is used      to

determine when the statute of limitations begins to run in       a   legal malpractice

action. Under the occurrence rule, the statutory period commences upon the

happening of the alleged breach of duty." Communications                       Network
International, Ltd.      v.   Mullineaux, 187 A.3d 951, 960-61 (Pa.Super. 2018)
(quotation and bold omitted). That is, the "trigger" for the statute of




8 We note that "[a] claim of legal malpractice [based on negligence] requires
that the plaintiff plead the following three elements: employment of the
attorney or other basis for a duty; the failure of the attorney to exercise
ordinary skill and knowledge; and the attorney's negligence was the proximate
cause of damage to the plaintiff." 412 N. Front St. Assocs., LP v. Spector
Gadon & Rosen, P.C., 151 A.3d 646, 657 (Pa.Super. 2016) (citations
omitted). A legal malpractice claim based on breach of contract requires the
plaintiff 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.
Core States Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super. 1999).

                                         - 12 -
J   -A16040-19


limitations in   a   legal malpractice action is not the realization of actual loss but

the occurrence of      a   breach of duty. Wachovia Bank, N.A., 935 A.2d at 572.

        In the case sub judice, the Clarks have identified various alleged

breaches of duty committed by Attorney Stover during the litigation of David

Clark's lawsuit against Decedent's Estate, including: the failure to procure

competent expert testimony to address the impropriety in the drafting of the

Will    and   Decedent's       lack    of capacity,   the   failure   to   offer   factual

testimony/evidence that would have buttressed the claims for lack of capacity

and undue influence,9 and the failure to conduct discovery and an evaluation

of the Co -Executors' financial activities to rebut the claim that Leslie A.

McDermott did not receive        a   substantial economic benefit from the WHO° See

The Clarks' Brief at 32, 35.          Further, as to Monica Clark, they aver Attorney




9  For instance, the Clarks assert Decedent left messages on the Clarks'
telephones from late 2007 to early 2008; however, Attorney Stover did not
introduce the messages in the underlying Will contest case. The Clarks' Brief
at 16-18. Further, they assert Attorney Stover should have deposed various
individuals, including Thomas Miller, Charles Lightner, Pamela Filson, Karen
Ponish, Charles Bierbach, and Daniel Varner, who would have provided
information rebutting the idea that Decedent was of sound mind when he
executed the Will. Id. at 18-20.

10The Clarks assert Attorney Stover breached his duty by failing to request a
detailed accounting of the Estate, which would have revealed Leslie A.
McDermott was stealing assets from the Estate. The Clarks' Brief at 21-24.
They contend this would have discredited Leslie A. McDermott's testimony in
the underlying Will contest that she did not receive a substantial benefit from
Decedent's Estate. Id.



                                            - 13 -
J   -A16040-19


Stover breached his duty by improperly advancing the theory that Monica

Clark should pursue her own conversion lawsuit against Decedent's Estate

and, thus, failing to join her as   a   defendant in the lawsuit brought by David

Clark against Decedent's Estate.11       See id.

        While the exact dates of Attorney Stover's alleged breaches have not

been identified by the Clarks, it is evident that the alleged breaches of duty

occurred in this case no later than November 10, 2009, when Judge Milliron

entered his order dismissing David Clark's claims against Decedent's Estate in

the underlying will contest.12          See Robbins & Sevento Orthopedic

Surgeons, Inc. v. Geisenberger, 674 A.2d 244 (Pa.Super. 1996) (holding
the statute of limitations for legal malpractice for alleged negligence in

preparing and filing employee pension plan with Internal Revenue Service

("IRS") accrued no later than the date when the IRS rendered its decision that




11 As indicated supra, the trial court provided an alternate reason for granting
summary judgment in favor of Appellees and against Monica Clark as to her
legal malpractice negligence claim; namely, that she did not establish a prima
facie case since the statute of limitations on her conversion suit against
Decedent's Estate expired, at the latest, in February of 2007, which was prior
to her retaining of Attorney Stover in 2008. However, as discussed supra, the
Clarks did not properly challenge this portion of the trial court's ruling on
appeal.

12 We acknowledge that David Clark filed an appeal to this Court, as well as a
petition for allowance of appeal with our Supreme Court, which was denied on
June 8, 2012. However, in Wachovia Bank, N.A., 935 A.2d at 574, this
Court "rejected the plaintiff's argument that the pendency or potential
pendency of an appeal in the underlying case would toll the statute of
limitations in [a] legal malpractice action."
                                         - 14 -
J   -A16040-19


deductions for the          pension   plan     were disallowed).         Thus, absent the

applicability of any exceptions, the statute of limitations expired two years

later (approximately November 10, 2011) for the Clarks' legal malpractice tort

claim and four years later (approximately November 10, 2013) for David

Clark's legal malpractice breach of contract claim.                 However, the Clarks did

not institute the instant action until October 1, 2015, when they filed their

praecipe for     a   writ of summons. See Pa.R.Civ.P. 1007 (indicating an action

may be commenced by the filing of        a    praecipe for      a   writ of summons with the

prothonotary). Accordingly, their action          is   barred by the statute of limitations

absent an applicable exception.

        The Clarks argue they have set forth           a   genuine issue of material fact as

to the applicability of the equitable discovery rule, which is an exception to

the occurrence rule. See Communications Network                        International, Ltd.,
supra.
               The discovery rule is an exception to the requirement that a
        complaining party must file suit within the statutory period. The
        discovery rule provides that where the existence of the injury is
        not known to the complaining party and such knowledge cannot
        reasonably be ascertained within the prescribed statutory period,
        the limitations period does not begin to run until the discovery of
        the injury is reasonably possible. The statute begins to run in
        such instances 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. The party seeking to invoke the discovery rule bears the
        burden of establishing the inability to know that he or she has
        been injured by the act of another despite the exercise of
        reasonable diligence.



                                             - 15 -
J   -A16040-19


Id. at      961 (quotation and bold omitted). See Nicolaou, supra, 195 A.3d at

892 (holding the discovery rule is tied to actual or constructive knowledge of

at least some form of harm and of           a   factual cause linked to another's conduct,

without the necessity of notice of the full extent of the injury, the fact of actual

negligence, or the precise cause); Wachovia Bank, N.A., 935 A.2d at 572

("[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.") (quotation marks and

quotation omitted)). Under the standard of reasonable diligence, "a plaintiff

is    required to establish that he exhibited those qualities of attention,

knowledge, intelligence and judgment which society requires of its members

for the protection of their own interests and the interests of others."

Nicalaou, supra, 195 A.3d at 893-94. "Accordingly, the statute of limitations
in a legal         malpractice claim begins to run when the attorney breaches his or

her duty, and is tolled only when the client, despite the exercise of due

diligence, cannot discover the injury or its cause."                       Communications
Network International, Ltd.,            187 A.3d at 961 (quotation and bold omitted).

         It   is   noteworthy that due diligence      is   measured by an objective-rather

than    a   subjective-test. Gleason v. Borough of Moosic, 609                   Pa.   353,15
A.3d 479,485-86 (2011) (quotation omitted). Because due diligence involves

a    factual inquiry, it is normally   a   question for the jury.       Id. However, where

                                                - 16 -
J   -A16040-19


reasonable minds would not differ on whether              a   party has exercised due

diligence,   a   court may determine that the discovery rule does not apply as         a


matter of law.13 Id. See Wilson v. El-Daief, 600               Pa. 161, 964 A.2d 354,

361-62 (2009) (holding the applicability of the discovery rule may be resolved

"at the summary judgment stage where reasonable minds could not differ on

the subject") (quotation marks and quotations omitted)); Cochran v. GAF

Corp., 542       Pa.   210, 216, 666 A.2d 245, 248 (1995)     ("[Me   have not hesitated

to find as   a    matter of law that   a   party has not used reasonable diligence in



13   The Clarks contend the Supreme Court's holding in Nicolaou, supra,
"clarified" that whether the plaintiff met the discovery rule is "a jury question."
The Clark's Brief at 34. Further, as to this issue, in a Post -Submission
Communication filed with this Court on June 12, 2019, the Clarks ask us to
take note of Rice v. Diocese of Altoona -Johnstown,                A.2d     , 2019
WL 2427919 (Pa.Super. filed 6/11/19), which applied Nicolaou.
        Contrary to the Clarks' suggestion, neither Nicolaou nor Rice establish
a per se rule that whether the plaintiff met the discovery rule is always a
question for the jury. In Nicolaou, which involved allegations of medical
malpractice in failing to treat and diagnose the plaintiff's Lyme disease, the
Supreme Court reiterated that the determination of whether a plaintiff
exercised "reasonable diligence" relevant to the application of the discovery
rule is "generally" a question for the jury; nevertheless, the Supreme Court
held "courts may resolve the matter at the summary judgment stage where
reasonable minds could not differ on the subject." Nicolaou, supra, 195 A.3d
at 894 (quotation and quotation marks omitted). The Supreme Court then
concluded in Nicolaou that, since there was a genuine issue of material fact
and reasonable minds could differ as to whether the plaintiff exercised
reasonable diligence, Pennsylvania's general rule (that the issue should be
submitted to the jury) applied in the case. Id.
        Moreover, in Rice, this Court concluded reasonable minds could differ
as to whether a plaintiff exercised due diligence in a case involving alleged
sexual molestation by a priest, as well as the alleged cover-up by the Diocese,
and thus, applying Nicolaou, this Court held the issue was for the jury to
decide.


                                            - 17 -
J   -A16040-19


ascertaining the cause of an injury thus barring the party from asserting their

claim under the discovery rule."). The party asserting the discovery rule bears

the burden of proof.   Id.
        Here, viewing the record in the light most favorable to the Clarks, there

is no   genuine issue of material fact that their legal malpractice claims were

reasonably discoverable when Judge Milliron rendered his decision in the

underlying Will contest case. At this point, they possessed "sufficient critical

facts to put [them] on notice that    a   wrong [by Attorney Stover]" may have

been committed.     Communications Network International, Ltd., 187 A.3d
at 961 (quotation omitted).     Nothing in the record suggests that the Clarks

were in any way hindered from immediately assessing Attorney Stover's

performance.

        As the trial court concluded, David Clark testified during his deposition

that he was actually aware of Judge Milliron's decision "within         a    week of

November 10th, 2009." David Clark's Deposition, dated 3/15/18, at 128. The

Clarks' lack of understanding, lack of knowledge, or mistake about the

meaning of Judge Milliron's decision (or Attorney Stover's action/inaction)

does not toll the running of the statute.      See Wachovia Bank, N.A., 935

A.2d at 572.     Further, inasmuch as reasonable minds would not differ on

whether the Clarks exercised due diligence, and there    is no basis   for   a   jury to
conclude that the limitations period was tolled by operation of the discovery

rule, it was unnecessary for the issue to be submitted to   a   jury, and the trial


                                      - 18 -
J   -A16040-19


court properly found the discovery rule does not apply as          a   matter of law.14

Gleason, supra.

        This does not end our inquiry as the Clarks further argue they have set

forth   a   genuine issue of material fact as to whether the statute of limitations

should be tolled due to Appellees' fraudulent concealment of facts from them.

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

conceals facts from the plaintiff. See Fine, supra. As our Supreme Court

has held:




14 As indicated supra, one of the breaches of duty complained of by the Clarks
is that, during discovery in the underlying Will contest case, Attorney Stover
failed to request a detailed accounting of the Estate, which would have
allegedly revealed Leslie A. McDermott was stealing assets from the Estate,
which in turn would have discredited Leslie A. McDermott's testimony in the
underlying Will contest case. The Clarks' Brief at 21-24, 35-36. The Clarks
contend they discovered Leslie A. McDermott was stealing from the Estate
during various periods, including from July 2008 to November 2009, when the
R.A.C.E. Fund filed a lawsuit against Leslie A. McDermott on March 10, 2015.
See id. at 22; The Clarks' Answer in Opposition to Summary Judgment, filed
6/15/18. Accordingly, under the equitable discovery rule, the Clarks suggest
the statute of limitations was tolled until March 10, 2015, when the R.A.C.E.
Fund filed its lawsuit.
       We disagree with the Clarks' argument. Reasonable minds would not
differ in concluding that the Clarks could have reasonably ascertained, with
due diligence, whether Attorney Stover requested an accounting of the Estate
during discovery in the underlying Will contest case. Specifically, as of
November 10, 2009, when discovery was closed and Judge Milliron issued his
decision in the underlying Will contest case, the Clarks were put on notice that
they should investigate to determine whether Attorney Stover breached his
duty in this regard. See Gleason, supra. The Clarks' lack of knowledge or
understanding of the need for a detailed accounting does not toll the running
of the statute of limitations. See Wachovia Bank, N.A., supra.



                                         - 19 -
J   -A16040-19


              The doctrine [of fraudulent concealment] is based on a
        theory of estoppel, and provides that the defendant may not
        invoke the statute of limitations, if through fraud or concealment,
        he causes the plaintiff to relax his vigilance or deviate from his
        right of inquiry into the facts. The doctrine does not require fraud
        in the strictest sense encompassing an intent to deceive, but
        rather, fraud in the broadest sense, which includes an
        unintentional deception. The plaintiff has the burden of proving
        fraudulent concealment by clear, precise, and convincing
        evidence.
                                          ***
               [T]he standard of reasonable diligence, which is applied to
        the running of the statute of limitations when tolled under the
        discovery rule, also...applies when tolling takes place under the
        doctrine of fraudulent concealment. This is, we believe, the
        standard that will serve one of the overarching tenets in this area
        of our jurisprudence-the responsibility of a party who seeks to
        assert a cause of action against another to be reasonably diligent
        in informing himself of the facts upon which his recovery may be
        based.     Moreover, because the doctrine captures even
        unintentional conduct on a defendant's part and the standard of
        reasonable diligence requires from a party only that knowledge
        which is reasonably attained under the circumstances, we do not
        believe that deviation from that standard to a higher threshold of
        knowledge is warranted. Thus, we conclude that a statute of
        limitations that is tolled by virtue of fraudulent concealment
        begins to run when the injured party knows or reasonably should
        know of his injury and its cause.

Fine, supra, 870 A.2d at 860-61 (citations omitted).

        Here, the Clarks suggest that Attorney Stover fraudulently concealed

from them the fact he did not request       a   detailed accounting of Decedent's

Estate in the underlying Will contest. In this vein, they point to the following

letter, which Attorney Stover sent to them on May 4, 2015, which was well

after the expiration of the statute of limitations, advising them of the

following:


                                       - 20 -
J   -A16040-19


        I understand from a very good source that a Civil Action has been
        or is about to be filed against Leslie McDermott and Edson Craft
        (and maybe Larry Newton) on account of Ms. McDermott co -
        mingling and stealing the Estate assets for her own benefit.
        Apparently there is very little in the way of assets remaining in
        the Estate.

The Clarks' Brief at 35.

        The Clarks aver that upon receipt of this letter, in which Attorney Stover

was apparently referring to the R.A.C.E. Fund's lawsuit, the Clarks "finally

knew that there was       a   major piece of their case that was not included by

[Attorney] Stover." Id. They argue Attorney Stover's letter amounts to an

admission of negligence, as well as fraudulent concealment, as to his failure

to request   a   detailed accounting of the Estate.

        Initially, we note the facts underlying the Clarks' claim are not       in

dispute, i.e., the Clarks rely on the letter from Attorney Stover for the basis

of their fraudulent concealment claim. We hold the content of the letter, as     a


matter of law, does not establish fraudulent concealment. See id. That is,

the letter provides no evidence of an unintentional or intentional act of

concealment or that Attorney Stover somehow, through fraud or concealment,

caused the Clarks to relax their vigilance to inquire about the breaches

allegedly committed by him during the underlying litigation. See id.

        Finally, the Clarks suggest that, through fraud or concealment, Attorney

Stover made David Clark relax his vigilance as to Attorney Stover's negligence

in   the underlying Will contest case by assuring David Clark that he believed



                                        - 21 -
J   -A16040-19


Judge Milliron's decision in the underlying Will contest case was incorrect, and

thus, David Clark could win on appeal. See The Clarks' Brief at 41.

         During his deposition, David Clark admitted that, prior to appealing, he

believed "[Attorney Stover] missed         a    bunch of the mistakes the judge made.

And then the judge missed half the mistakes that [Attorney Stover] had

made."      David Clark's Deposition, dated 3/15/18, at 56.15               In any event,

viewing the evidence in the light most favorable to the Clarks, nothing in the

record suggests the Clarks were in any way hindered from immediately

assessing Attorney Stover's performance. Fine, supra.

         In conclusion, we conclude there is no genuine issue of material fact,

and there is no error of law in the trial court's determination that the Clarks'

legal malpractice claims are barred by the statute of limitations.

         For all of the foregoing reasons, we affirm.

         Affirmed; Application to Strike       is   Denied; Application for Substitution of

a    Party is Granted.




15    We note the Clarks request that this Court adopt the "Continuous
Representation Rule" under which the statute of limitations would not begin
to run until the date on which the Clarks terminated Attorney Stover. This
Court has previously rejected this argument, Glenbrook Leasing Co. v.
Beausang, 839 A.2d 437 (Pa.Super. 2003), and we are bound by the holding
under the doctrine of stare decisis. Eckman v. Erie Ins. Exchange, 21 A.3d
1203, 1209 (Pa.Super. 2011) ("This Court is bound by existing precedent
under the doctrine of stare decisis.").
                                           - 22 -
J   -A16040-19


Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 8/1/2019




                     - 23 -
