J-A21011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOMINICK BUSCIACCO,                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

ACME MARKETS, INC.,

                         Appellee                      No. 3705 EDA 2015


            Appeal from the Order Entered November 20, 2015
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): No. 03328 August Term, 2014


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 15, 2016

      Appellant,   Dominick   Busciacco,   appeals     from   the   trial   court’s

November 20, 2015 order granting Appellee’s, Acme Markets, Inc. (referred

herein as “Acme”), motion for summary judgment because Appellant’s claim

was barred by the statute of limitations. We affirm.

      In short, this case arises out of Appellant’s slip and fall at an Acme

store on August 18, 2012, due to a floor that he alleged was negligently

maintained. Appellant did not file a complaint to recover damages for the

alleged injuries he sustained until August 26, 2014, more than two years

after the incident occurred and after the applicable statute of limitations had
J-A21011-16


run. See 42 Pa.C.S. § 5524(2).1 Appellant had incorrectly believed that the

incident occurred on September 18, 2012, instead of August 18, 2012.2

        On October 5, 2015, Acme filed a motion for summary judgment,

asserting that Appellant’s claims were barred by the applicable statute of

limitations.    Appellant subsequently opposed this motion, arguing that it

should be denied because Acme “induced” Appellant to file his complaint

after the statute of limitations had expired.    Specifically, Appellant claims

that Acme did not inform him of the actual date of the incident or produce

requested documents that would have verified the date.              Therefore,

according to Appellant, the statute of limitations should have been tolled due

to Acme’s purportedly fraudulent concealment.

        On November 23, 2015, the trial court granted Acme’s motion for

summary judgment. On December 2, 2015, Appellant filed a timely notice
____________________________________________


1
    Section 5524(2) provides:

        The following actions and proceedings must be commenced
        within two years:
                                         …
           (2) An action to recover damages for injuries to the person
           or for the death of an individual caused by the wrongful act
           or neglect or unlawful violence or negligence of another.
42 Pa.C.S. § 5524(2). Appellant does not dispute that Section 5524(2)
controls his cause of action. See Appellant’s Brief at 14.
2
  According to Appellant, he “inadvertently provided [his] counsel with the
incorrect date of [the] incident.” Appellant’s Brief at 10. It is not disputed
between the parties now that the incident at issue actually occurred on
August 18, 2012. See Appellant’s Brief at 8; Appellee’s Brief at 4.



                                           -2-
J-A21011-16


of appeal to this Court. In his appeal, Appellant raises two issues for our

review:

          1. Whether the trial court erred and/or abused its discretion
             when     it   granted     summary        judgment       to   …
             Defendant/Appellee when there is an open issue of
             material fact as to whether … Defendant/Appellee’s
             conduct constituted fraudulent concealment and whether
             that conduct was sufficient to toll the statute of limitations.

          2. Whether the trial court erred and/or abused its discretion
             when    it   granted      summary       judgment  to     …
             Defendant/Appellee when the doctrine of fraudulent
             concealment tolls the statute of limitations.

Appellant’s Brief at 5.

      We begin by setting forth our standard of review:
             The Pennsylvania Rules of Civil Procedure governing
      summary judgment instruct, in relevant part, that the court shall
      enter judgment whenever there is no genuine issue of any
      material fact as to a necessary element of the cause of action.
      In considering the merits of a motion for summary judgment, a
      court views the record in the light most favorable to the non-
      moving party, and all doubts as to the existence of a genuine
      issue of material fact must be resolved against the moving party.
      Finally, the court may grant summary judgment only when the
      right to such judgment is clear and free from doubt.

Lazarski v. Archdiocese of Philadelphia, 926 A.2d 459, 461 (Pa. Super.

2007) (internal citations omitted).      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).

      In its Pa.R.A.P. 1925(a) opinion, the trial court explained that “[w]hile

[Appellant] asserts that the statute of limitations was tolled by [Acme’s]


                                       -3-
J-A21011-16



fraudulent concealment, in the form of non-responsiveness, [Appellant] has

not set forth any facts to support that fraudulent concealment occurred.”

See Trial Court Opinion (TCO), 2/3/2016, at 3. Additionally, the trial court

noted that “[Appellant] was, at all times, aware of the date of the alleged

slip and fall and simply commenced his action beyond the timeframe

permitted….” Id. In response, Appellant insists that “there is an open issue

of material fact as to whether [Acme’s] conduct constituted fraudulent

concealment….”     Appellant’s Brief at 14 (emphasis and unnecessary

capitalization omitted). Appellant claims that “the record proves that on at

least three occasions, [Acme] was put on notice that [Appellant] had the

incorrect date of [the] incident. At no point during pre-litigation did [Acme]

inform [Appellant] of the actual date or produce requested documents

needed to verify dates.”   Id. at 16.    Thus, Appellant contends that “the

record contains factual allegations pertaining to [Acme’s] conduct sufficient

to satisfy the [requirements of] fraudulent concealment when viewed in the

broadest sense….” Id. We disagree.

     Even when viewing the record in the light most favorable to Appellant,

the facts are not sufficient to prove fraudulent concealment and it is clear

that Acme is entitled to judgment as a matter of law. It is well-established

that “[t]he doctrine of fraudulent concealment is an exception to the

requirement that a complaining party must file suit within the statutory

period.” Lazarski, 926 A.2d at 464-65 (citations omitted). “[I]n order for

fraudulent concealment to toll the statute of limitations, the defendant must

                                    -4-
J-A21011-16



have committed some affirmative independent act of concealment upon

which the plaintiff[] justifiably relied.”     Id. at 465 (citation omitted). This

Court has explained that “mere silence or nondisclosure is insufficient” to

establish fraudulent concealment. Montanya v. McGonegal, 757 A.2d 947,

951 (Pa. Super. 2000) (citations omitted); see also Lange v. Burd, 800

A.2d 336, 339 (Pa. Super. 2002) (citation omitted) (“[M]ere silence in the

absence    of   a   duty    to   speak      cannot    suffice   to   prove    fraudulent

concealment.”). Moreover, “[t]he plaintiff has the burden of proving active

concealment through clear and convincing evidence.” Montanya, 757 A.2d

at 951 (citation omitted).

      Here,     Appellant    has   failed     to     demonstrate     any     affirmative

independent act of concealment by Acme.                The record plainly shows that

Acme took no affirmative action; it simply did not respond to Appellant’s

pre-litigation correspondence. Further, Appellant has not shown that Acme

was under a duty to provide him with the correct date, especially when

Appellant’s discovery requests had not yet been served.                    As such, we

conclude that the record, viewed in the light most favorable to Appellant,

does not establish fraudulent concealment. Because we determine that the

fraudulent concealment exception does not apply to this matter, the statute

of limitations was not tolled. Accordingly, we conclude that the trial court

properly granted Acme’s motion for summary judgment.

      Order affirmed.




                                         -5-
J-A21011-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




                          -6-
