J-A03030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BR2D, LLC                                          IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

KELLY FEEKO AND JOSEPH FEEKO

                            Appellees                  No. 1379 MDA 2016


                 Appeal from the Order Entered August 4, 2016
               In the Court of Common Pleas of Schuylkill County
                       Civil Division at No: S-1721-2013


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.:                              FILED APRIL 12, 2017

       Appellant, BR2D, LLC, appeals from the August 4, 2016 order granting

summary judgment in favor of Appellees, Kelly and Joseph Feeko.1            We

affirm.

       On August 26, 2013, Appellant filed an action to quiet title, pursuant

to Pa.R.C.P. No. 1061(b)(2) and (3),2          in property located at 23 Center

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1
    Appellee Joseph Feeko never actively participated in this matter.
2
   Rule 1061(b)(2) permits a quiet title action where the plaintiff seeks “to
determine any right, lien, title or interest in the land or determine the
validity or discharge of any document, obligation or deed affecting any right,
lien title or interest in land[.]” Pa.R.C.P. No. 1061(b)(2). Subsection (3)
permits a quiet title action to “compel an adverse party to file, record,
cancel, surrender or satisfy of record, or admit the validity, invalidity or
discharge of, any document, obligation or deed affecting any right, lien, title
or interest in land[.]” Pa.R.C.P. No. 1061(b)(3).
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Street, Parcel 09-13-0061.00 and 0 Center Street, Parcel 09-13-0059.001

(collectively the “Properties”), both of which are located in East Union

Township, Schuylkill County.    Appellant also alleged causes of action for

conversion, trespass, unjust enrichment and ejectment.

     According to the Schuylkill County Deed Book, Appellant transferred

the Properties to Appellees by a Deed of July 9, 2004 (the “Deed”), for

consideration of $1.00.   Complaint, 8/26/2013, at Exhibit C.      The Deed

contains the signature Mary G. Dombrosky, Appellant’s owner, but Appellant

denied that Dombrosky signed the deed. Id. at ¶¶ 10-11, Exhibit C. The

Complaint alleges, without elaboration, that the Deed is “falsified.”    Id. at

¶ 7. Appellant alleged it became aware of the Deed and Appellees’ claims to

the Properties in July of 2013.    Id. at ¶ 8.   Appellees filed preliminary

objections on September 25, 2013. The trial court overruled the preliminary

objections on October 17, 2013.      Appellees answered the complaint on

November 1, 2013.

     On May 16, 2016, Appellant filed its pre-trial memorandum, explaining

its theory of the case. According to the pre-trial memorandum, the transfer

of the Properties “was premised on the oral promise by [Appellee] Joseph

Feeko to pay the sum of $5,000.00 to [Appellant].”       Appellant’s Pre-Trial

Memorandum, 5/16/2016, at 1. The memorandum explains that [Appellee]

Joseph Feeko never paid, and Appellant continued to act as owner of the

Properties, maintaining them and paying real estate taxes.         Id.     The


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memorandum further explains that Appellee Kelly Feeko3 never knew of the

transfer of the Properties until her June 2013 divorce from Joseph Feeko.

Thus, Appellant’s sole theory in support of recovery was enforcement of the

alleged oral agreement between Appellant and Appellee Joseph Feeko. Id.

at 2.

        On July 14, 2016, Appellees filed a motion for summary judgment,

asserting that the statute of limitations and the statute of frauds barred any

action on the alleged oral agreement.            Appellant responded on July 20,

2016.        On August 4, 2016, the trial court granted summary judgment in

favor of Appellees. This timely appeal followed. Appellant’s brief presents

these questions:

        I.      Whether the court erred in granting summary judgment to
                Appellee Kelly Feeko, on the grounds that Appellant is
                time-barred under the statute of limitations from raising
                the issue of an oral contract, thus making Appellant’s
                motion to amend its complaint moot.

        II.     Whether the court erred in granting summary judgment to
                Appellee Kelly Feeko, on the grounds that Appellant is
                barred under the statute of frauds from pursuing a claim
                based on an oral agreement for the sale of land.

        III.    Whether the court erred in granting summary judgment to
                Appellee Kelly Feeko, on the grounds that the discovery
                rule does not toll the statute of limitations.

Appellant’s Brief at i.

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3
  Both parties’ briefs indicate that Appellee Kelly Feeko is remarried and her
new married name is Kelly Treco.



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     The Pennsylvania Rules of Civil Procedure authorize any party to move

for summary judgment “whenever there is no genuine issue of any material

fact as to a necessary element of the cause of action or defense which could

be established by additional discovery or expert report[.]”   Pa.R.C.P. No.

1035.2(1).

            As has been oft declared by this Court, summary judgment
     is appropriate only in those cases where the record clearly
     demonstrates that there is no genuine issue of material fact and
     that the moving party is entitled to judgment as a matter of law.
     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. In
     so doing, the trial court must resolve all doubts as to the
     existence of a genuine issue of material fact against the moving
     party, and, thus, may only grant summary judgment where the
     right to such judgment is clear and free from all doubt.

           On appellate review, then, an appellate court may reverse
     a grant of summary judgment if there has been an error of law
     or an abuse of discretion. But the issue as to whether there are
     no genuine issues as to any material fact presents a question of
     law, and therefore, on that question our standard of review is de
     novo. This means we need not defer to the determinations
     made by the lower tribunals. To the extent that this Court must
     resolve a question of law, we shall review the grant of summary
     judgment in the context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal

citations and quotation marks omitted). Rule 1035.3(a) requires the party

opposing the motion to produce evidence essential to the cause of action,

without merely resting upon the allegations or denials in the pleadings.

Pa.R.C.P. 1035.3(a).




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      Instantly, Appellant has failed to produce any evidence that the Deed,

which is notarized and bears the signature of Appellant’s owner, was

“falsified” as alleged in Appellant’s complaint.    Appellant’s sole basis for

challenging the validity of the Deed is its assertion that Appellees promised

to pay $5,000.00 upon transfer of the Properties but never did so.

      As Appellees and the trial court correctly note, the statute of

limitations for “an express contract not founded upon an instrument in

writing” is four years.   42 Pa.C.S.A. § 5525(a)(3).      Appellant alleges an

express oral contract that arose some time in 2004. Appellant tendered its

promised performance on July 9, 2004, by executing the Deed. Appellees

never made the allegedly agreed-upon payment. Appellant then waited until

August 26, 2013, to file this action. Plainly, Appellant’s action is barred by

§ 5523(a)(3).

      Appellant relies on the discovery rule in hope of avoiding this result,

but Appellant’s reliance is misplaced.

             Generally, a cause of action first accrues when a party is
      injured[.]. […] The discovery rule is a judicially created exception
      that tolls the running of the applicable statute of limitations
      when an injury or its cause was not known or reasonably
      knowable. The discovery rule can toll the statute of limitations
      until a plaintiff could reasonably discover the cause of his injury
      in cases where the connection between the injury and the
      conduct of another is not apparent.

            If the injured party could not ascertain he was injured and
      by what cause within the limitations period, despite the exercise
      of reasonable diligence, then the discovery rule is appropriate.
      The test is objective but takes into account individual capacities
      and society’s expectations of attention, knowledge, intelligence

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       and judgment for citizens to protect their own interests. The
       party who invokes the discovery rule has the burden of proving
       its applicability by establishing he acted with reasonable
       diligence in determining the fact and cause of his injury but he
       was unable to ascertain it. Thus, the key point that gives rise to
       application of the discovery rule is the inability of the injured
       party, despite the exercise of reasonable diligence, to know that
       he has been injured and by what cause.

              This determination is a factual one as to whether the
       party, despite the exercise of reasonable diligence, was unaware
       of his injury and unable to determine its cause.

Simon v. Wyeth Pharm., Inc., 989 A.2d 356, 365 (Pa. Super. 2009)

(internal citations and quotation marks omitted).

       Here, Appellant alleges the existence of an oral agreement that existed

in 2004.    As we have already noted, Appellant has failed to produce any

evidence that the Deed, bearing the signature of Appellant’s owner, was

falsified. Thus, the facts of record establish that Appellant transferred the

Properties, in accordance with the alleged agreement, in 2004.       Appellant

therefore cannot claim that it was unaware of the alleged injury until 2013,

when Appellee Kelly Feeko first asserted her interest in the Properties. The

discovery rule does not toll § 5525(a)(3) under these circumstances.

       The trial court therefore did not err in granting Appellee’s motion for

summary judgment.4


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4
  We agree with the trial court that an amended complaint alleging a cause
of action for breach of contract would be futile, as Appellant cannot
overcome the bar of the statute of limitations. Furthermore, we need not
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




                       _______________________
(Footnote Continued)

address whether the statute of frauds provides an additional basis for
affirming the trial court.



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