J-S15033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANE M. MELLOW                                       IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                         Appellant

                    v.

ARTHUR F. SILVERBLATT, ESQUIRE AND
SILVERBLATT & ASSOCIATES

                         Appellee                        No. 1385 MDA 2014


               Appeal from the Order Entered August 5, 2014
              In the Court of Common Pleas of Luzerne County
                      Civil Division at No(s): 3780-2010


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 01, 2015

      Appellant Diane Mellow appeals from the order of the Luzerne County

Court of Common Pleas entering summary judgment in favor of Arthur F.

Silverblatt, Esquire, and his law firm Silverblatt & Associates (collectively

“Appellees”). After careful review, we affirm.

      The underlying facts and procedural posture of this matter are

relatively straightforward. In January of 2006, Appellant engaged Appellees

to represent her in divorce proceedings from her husband, then-state

senator Robert J. Mellow.           The parties reached a marital settlement

agreement that provided for,          inter   alia,   monthly alimony payments

supplemented by a portion of Mr. Mellow’s pension payments upon his

retirement. The agreement also included a non-modification clause. Despite

her misgivings about the sufficiency of the alimony payments and Appellees’
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representation, Appellant executed the marital settlement agreement on

November 14, 2006. The court then terminated the marriage by a divorce

decree entered on November 17, 2006.

       In September 2008, Mr. Mellow sold for $350,000.00 a commercial

property he had received through the marital settlement agreement that had

been appraised at only $190,000.00 at the time of the agreement.         After

learning of the sale in the summer of 2009, Appellant filed 1 a Petition to

Strike/Set Aside Marital Settlement Agreement,2 which alleged Mr. Mellow

had failed to disclose information relating to the value or potential value of

the couple’s marital and non-marital assets.     Mr. Mellow filed preliminary

objections.      On December 1, 2009, the court granted Mr. Mellow’s

preliminary objections and dismissed Appellant’s Petition to Strike/Set Aside

Marital Settlement Agreement because Appellant failed to plead and prove

extrinsic fraud.3
____________________________________________


1
  Marguerite Nealon, Esquire, represented Appellant during the challenge to
the marital settlement agreement.
2
 Appellant originally filed a Petition to Modify/Increase Alimony on July 20,
2009, which she subsequently withdrew and replaced with a Petition to
Strike/Set Aside Marital Settlement Agreement on July 24, 2009.           On
October 22, 2009, she filed an Amended Petition to Strike/Set Aside Marital
Settlement Agreement.
3
  Appellant incorrectly claims that this “petition was denied due to the non-
modification clause.” Appellant’s Brief, p. 7. The lower court’s opinion
granting the preliminary objections makes no mention of the non-
modification clause.     Instead, the lower court based its decision on
Appellant’s failure to prove extrinsic fraud, as indicated supra.        See
(Footnote Continued Next Page)


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      In March 2010, Appellant commenced the instant legal malpractice

lawsuit against Appellees.4 Appellant alleged professional negligence against

Arthur Silverblatt personally, and Silverblatt & Associates under the doctrine

of respondeat superior, for failing to conduct discovery that would have

revealed the extent of the Mellows’ property for the purpose of proper

distribution, and for improperly acquiescing to Mr. Mellow and his counsel’s

demands.5      On February 11, 2013, Appellees filed an answer and new

matter asserting that the applicable statute of limitations barred Appellant’s

claims.   On December 19, 2013, Appellees filed a motion for summary

judgment based on the statute of limitations.       Appellant answered the

summary judgment motion on January 21, 2014. The trial court conducted

a hearing on March 25, 2014 and granted Appellees’ motion for summary

judgment on July 10, 2014. This appeal followed.6
                       _______________________
(Footnote Continued)

generally Opinion, No. 06-FC-40056 (C.P. Lackawanna County, filed
December 1, 2009).
4
  On March 24, 2010, Appellant commenced the action by filing a writ of
summons. Appellant then filed a complaint on November 10, 2010.
5
  Appellant filed an amended complaint on January 14, 2013 that included
the same two claims. See generally, Amended Complaint.
6
  Upon order of the trial court, Appellant complied with Pa.R.A.P. 1925(b).
The trial court, however, did not issue a Pa.R.A.P. 1925(a) opinion.
Nevertheless, the certified record contains the trial court’s July 10, 2014
Opinion and Order (“Opinion and Order”), which adequately explains the
court’s reasons for granting summary judgment. Accordingly, we will decide
this matter without remanding to the trial court for the filing of a Rule
1925(a) opinion.



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      Appellant raises the following issues for our review:

      A. Does a genuine issue of material fact exist as to whether or
      not Diane Mellow was on notice of Arthur Silverblatt’s negligence
      as of November 14, 2006?

      B. Does a genuine issue of material fact exist as to whether or
      not Diane Mellow exercised due diligence in discovering Arthur
      Silverblatt’s breach of his professional duty of care?

Appellant’s Brief, p. 4 (footnotes omitted).

      This Court’s scope and standard of review on an appeal from the grant

of a motion for summary judgment is well settled:

      In reviewing an order granting summary judgment, our scope of
      review is plenary, and our standard of review is the same as that
      applied by the trial court.... An appellate court may reverse the
      entry of a summary judgment only where it finds that the lower
      court erred in concluding that the matter presented no genuine
      issue as to any material fact and that it is clear that the moving
      party was entitled to a judgment as a matter of law. In making
      this assessment, we view the record in the light most favorable
      to the nonmoving party, and all doubts as to the existence of a
      genuine issue of material fact must be resolved against the
      moving party. As our inquiry involves solely questions of law, our
      review is de novo.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow a
      fact-finder to render a verdict in favor of the non-moving party,
      then summary judgment should be denied.

Brandon     v.   Ryder   Truck    Rental,      Inc.,   34   A.3d   104,   107-108

(Pa.Super.2011).




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     We first address whether the applicable statute of limitations bars

Appellant’s claims. As we have explained:

     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).

     The Judicial Code sets a two-year statute of limitations for legal

malpractice claims.   42 Pa.C.S. § 5524.    “In actions for legal malpractice,

Pennsylvania uses the occurrence rule to determine when the statute of

limitations begins to accrue.      Under this rule, the statutory period

commences upon the happening of the alleged breach of duty.” Glenbrook

Leasing Co. v. Beausang, 839 A.2d 437, 441 (Pa.Super.2003), aff’d, 881

A.2d 1266 (Pa.2005). “An exception to this rule is the equitable discovery

rule which will be applied when the injured party is unable, despite the

exercise of due diligence, to know of the injury or its cause.” Id. (citation

omitted). However, “[l]ack of knowledge, mistake or misunderstanding, will




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not toll the running of the statute.”            Id. (citation omitted); see also

Booher, supra.7

       Here, at the latest, Appellees breached their duty to Appellant when

she entered into the marital settlement agreement on November 14, 2006.

Accordingly, she had until November 14, 2008 to timely file a legal

malpractice lawsuit based on Appellees’ representation.         Appellant did not

commence this action until March 24, 2010, more than sixteen months after

expiration of the applicable limitations period.           Therefore, absent an

exception, this action is time-barred under the occurrence rule.

       The equitable discovery rule does not rescue Appellant’s action.

Appellant claims she was not alerted to counsel’s negligence until 2009,

when she learned that her former husband sold a piece of commercial

property he received via the marital property agreement in 2008 for an

amount greatly exceeding the property’s appraised value at the time of

divorce.    Appellant’s testimony demonstrates, however, that she should

have begun investigating counsel’s performance in November 2006 but

failed to do so.




____________________________________________


7
   Fraud or concealment may also provide an exception to the statute of
limitations in legal malpractice actions. See Glenbrook Leasing, 839 A.2d
at 443. Appellant does not allege fraud on the part of Appellees in this
matter.




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     Appellant testified at her deposition that she believed Arthur Silverblatt

was not doing his job in November 2006, when she signed the marital

settlement agreement. In pertinent part, Appellant testified:

     Q: Now you believe that somehow or other you were not given
     what you were entitled to in the divorce settlement, the property
     settlement; is that correct?

     A: Yes.

     Q: When did you first suspect that?

     A: When I realized that the $2,500 [alimony] I was getting and
     whatever would be added to it would have to have income tax
     taken out of it. That was a big blow. And then the other thing
     was, that I was told that I had settled, that was it. He just said
     take this or take a chance and go to the master. So I figured I
     had to take that.

     Q: When you signed the divorce property settlement, did you
     believe you were not getting what you were entitled to?

     A: I believe that that’s all I was going to be able to get, I had no
     choice.

     Q: Did you believe that you should have got more?

     A: Yes, I do. But I believe that I could not have. I was
     supposedly having a very competent, high profile, tough
     attorney to do everything. And if that’s - -

     Q: And did you - -

     A: And I was up against somebody, that should have been
     realized, that this man was the top businessman in the state.

     Q: And when you signed that agreement, did you think Mr.
     Silverblatt wasn’t doing the job you hired him for?

     A: I believed just what I said. He was a high profile attorney.
     And whether or not I liked it, [Mr. Mellow] said that was it or we
     would have to go to a master. I believed him in that way. But
     then I realized after that, I should have had more support.



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      Q: Did you believe at that time that [Mr. Mellow] somehow or
      other was causing Mr. Silverblatt to not do the job he should
      have been doing?

      A: I believe that there was influence.

      Q: At that time when you signed that agreement?

      A: I believe he had influence over everybody. I believe that
      [Mr. Mellow] ran the whole divorce with [his attorney]. I believe
      that they were the ones that really got their way on everything.
      And I believe [Mr. Mellow’s attorney] probably had somebody
      behind it because I did not believe in any way, shape or form
      that [Mr. Mellow’s attorney] was a better attorney than Art
      Silverblatt. I really believed that Art Silverblatt was way above
      them.

      Q: In terms of ability?

      A: Ability, credibility, everything. I believe that he would be
      untouchable from anybody. But then I saw that this divorce was
      what I was going to get from this high profile state person. And
      here we go again.

      Q: But even then when you signed the agreement, you believed
      that Mr. Silverblatt was not getting for you what you should have
      gotten?

      A: I do believe that I had to take what I had or get less.

      Q: Well, answer yes or no. Did you believe that Mr. Silverblatt
      was not doing the job he should have been doing to get you
      what you’re entitled to? Yes or No?

      A: Yes. And then it was confirmed by Marguerite [Nealon] and
      other attorneys.

Deposition Transcript, June 18, 2012 (“Deposition Transcript”), pp. 43-46.

      Additionally, Appellant testified that she felt in November 2006 that

Appellees were not adequately addressing her questions or protecting her

interests.   See Deposition Transcript, pp. 7-8.   She also testified that she

had concerns in 2006 that her husband’s illicit activities might adversely


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J-S15033-15



affect his pension (including her share thereof), but she did not discuss this

issue with Attorney Silverblatt.8 Id. at 34.

       The trial court found that Appellant’s testimony illustrated that she was

on notice of Appellees’ alleged negligence as early as November 14, 2006.

See Opinion and Order, p. 3.            The court further determined that, while

Appellant may not have actually known of Appellees’ negligence on

November 14, 2006, “[s]he did know enough . . . to investigate those

matters she was skeptical about so she could institute litigation within the

[s]tatute of [l]imitations.”      Id. at 4.    Based on Appellant’s testimony and

Pennsylvania’s adherence to the occurrence rule of statute of limitations

accrual in legal malpractice matters, the trial court ruled her action was

time-barred:

       [Appellant] did not commence this suit until she obtained
       sufficient evidence [from which] she could conclude [Appellees]
       were negligent. That, however, is not the law. A person
       suspecting negligence has an obligation to investigate that
       possibility. [Appellant] did not.

Opinion and Order, p. 4.          Accordingly, the trial court granted Appellees’

motion for summary judgment.


____________________________________________


8
  Following his retirement from the Pennsylvania Senate, federal authorities
indicted Mr. Mellow on multiple mail fraud and tax evasion charges to which
Mr. Mellow eventually pleaded guilty. Mr. Mellow’s conviction forfeited his
right to the pension. Accordingly, in 2012, Appellant no longer received the
pension payments to which she had previously been entitled under the
martial property agreement.



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      We agree with the trial court that the occurrence rule acts as a time-

bar to Appellant’s claims. See Glenbrook Leasing, supra. Nor does the

equitable discovery exception to the occurrence rule apply.              The record

reveals that, despite suspecting before the execution of the marital property

agreement      in   November      2006   that     counsel   had   provided   deficient

representation, Appellant failed to investigate her suspicions until 2009,

when she learned the price for which her husband had sold the commercial

property that he received as part of their marital property agreement.

Appellant should have begun investigating counsel’s performance in 2006

when the parties executed the marital property agreement, as she believed

at   that   time    that   the   agreement      was   unsatisfactory   and   counsel’s

representation was deficient.        Appellant’s testimony that other attorneys

later confirmed her suspicions about Appellees’ deficient representation

serves only to illustrate that, had she timely exercised due diligence, she

could have commenced her legal malpractice suit within the limitations

period.     See Deposition Transcript, June 18, 2012, p. 46.             Accordingly,

Appellant’s claim is time-barred.




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     Order affirmed.

     Judge Wecht joins in the memorandum.

     Judge Lazarus files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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