J-S71019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF ROSEMARIE            :   IN THE SUPERIOR COURT OF
 MONTEVERDE, DECEASED                  :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: ELIZABETH ADAMS            :
                                       :
                                       :
                                       :
                                       :   No. 1995 EDA 2019

              Appeal from the Order Entered June 17, 2019
    In the Court of Common Pleas of Chester County Orphans' Court at
                           No(s): 1513-0205


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.:                     FILED FEBRUARY 12, 2020

     Elizabeth Adams (Appellant), executrix of the estate of Rosemarie

Monteverde (Decedent), appeals from the orphans’ court’s order sustaining

the preliminary objections of Bank of America, N.A. (Bank of America), and

dismissing Appellant’s third amended petition for surcharge with prejudice.

We affirm.

     The orphans’ court recounted the factual and procedural background:

            [Decedent] died on November 11, 2012. Decedent was the
     sole trustee of a trust (The Monteverde Irrevocable Family Trust)
     created by her husband Joseph Monteverde with $100,000 in cash
     at United Jersey Bank. Joseph Monteverde died in 1993. The
     trust named as successor trustees Decedent’s children[,] John
     Monteverde and [the Co-Executrixes: Appellant and Cecilia
     Rooney]. In 2009, Decedent was diagnosed with Alzheimer’s
     disease and Co-Executrixes obtained Power of Attorney for her.
     In 2011, under the authority of the POA, Co-Executrixes went to
     a Bank of America (successor by merger of United Jersey Bank)
     branch office in New Jersey to close all accounts with [Bank of
     America], and all safety deposit boxes. On July 31, 2011, nine
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     accounts were closed with [Bank of America] together with all
     safety deposit boxes.

           In 2012, Co-Executrixes noticed an amount of money, less
     than $100, was deposited into one of Decedent’s Bank of America
     accounts. The funds were thereafter withdrawn by [Bank of
     America]. This happened again in 2013, 2014, 2015[,] and 2016.
     In 2012, 2013, 2014, 2015[,] and 2016, [Bank of America] billed
     the estate for the safety deposit box that had been closed in 2011.

            On May 9, 2016, Co-Executrixes received notice from Legal
     Complaint Services of the existence of The Monteverde
     Irrevocable Family Trust account. Co-Executrixes learned that the
     trust account was at Bank of America, valued in excess of
     $93,000. [Appellant] obtained original trust documents and a
     bank statement from 1993 showing a balance of $96,849.53. On
     May 20, 2016, [Appellant] presented the original trust paperwork
     to Bank of America. [Appellant] claimed that Bank of America
     failed to answer her questions regarding the funds and history of
     earnings. Bank of America contends that the funds in the account
     were distributed to [Appellant] on May 20, 2016. Co-Executrixes
     claim that the funds were released on November 9, 2018.

           On October 12, 2018, Co-Executrixes filed a Petition for
     Surcharge.     On November 8, 2018, Co-Executrixes filed an
     Amended Petition for Surcharge. On December 10, 2018, [Bank
     of America] filed Preliminary Objections to the Amended Petition
     for Surcharge. On December 28, 2018, Co-Executrixes filed a
     Second Amended Petition for Surcharge. On January 17, 2019,
     [Bank of America] filed Preliminary Objections to the Second
     Amended Petition for Surcharge. On February 5, 2019, Co-
     Executrixes filed a Third Amended Petition for Surcharge. On May
     22, 2019, [Bank of America] filed Preliminary Objections to the
     Third Amended Petition for Surcharge.

                               *     *     *

           On June 17, 2019, [the orphans’ court] sustained the
     Preliminary Objections to the Third Amended Petition, and
     dismissed with prejudice the claims against [Bank of America].
     On July 15, 2019, [Appellant] filed the instant appeal.


Orphans’ Court Opinion, 8/28/19, at 1-4.


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      Both Appellant and the orphans’ court have complied with Pennsylvania

Rule of Appellate Procedure 1925. Appellant presents three issues for review:

      1. WHETHER THE COURT ERRED AS A MATTER OF LAW AND
      DISREGARDED ISSUES OF FACTS IN SUSTAINING [BANK OF
      AMERICA’S] PRELIMINARY OBJECTIONS TO THE THIRD AMENDED
      PETITION FOR SURCHARGE, WHEN APPELLANT’S CLAIMS ARE
      NOT TIME BARRED.

      2. WHETHER THE COURT ERRED AS A MATTER OF LAW AND
      DISREGARDED ISSUES OF FACTS IN SUSTAINING [BANK OF
      AMERICA’S] PRELIMINARY OBJECTIONS TO THE THIRD AMENDED
      PETITION FOR SURCHARGE, WHERE APPELLANT SUCCESSFULLY
      STATED A CLAIM FOR BREACH OF FIDUCIARY DUTY.

      3. WHETHER THE COURT ERRED AS A MATTER OF LAW AND
      DISREGARDED ISSUES OF FACTS IN SUSTAINING [BANK OF
      AMERICA’S] PRELIMINARY OBJECTIONS TO THE THIRD AMENDED
      PETITION FOR SURCHARGE, WHERE APPELLANT PLEAD SPECIFIC
      FACTS TO ALLEGE FRAUD.

Appellant’s Brief at 5.

      All three of Appellant’s issues allege that the orphans’ court committed

an error of law in sustaining Bank of America’s preliminary objections to

Appellant’s third amended petition for surcharge and dismissing her petition.

      Our standard of review of a [lower] court’s order granting
      preliminary objections is well settled.

      [O]ur standard of review of an order of the [lower] court
      overruling or granting preliminary objections is to determine
      whether the [lower] court committed an error of law. When
      considering the appropriateness of a ruling on preliminary
      objections, the appellate court must apply the same standard as
      the [lower] court.

Shafer Elec. & Const. v. Mantia, 67 A.3d 8, 10 (Pa. Super. 2013), aff'd on

other grounds, 96 A.3d 989 (Pa. 2014).


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         Initially, we note that a statute of limitations affirmative defense should

be pled as new matter, not as a preliminary objection. See Pa.O.C.R. 3.11

(“All applicable affirmative defenses shall be pleaded in the answer under the

heading ‘New Matter.’”). Bank of America acknowledges this procedural error.

See Bank of America’s Brief at 16 n.2.         However, Appellant failed to object

to Bank of America’s procedural error by filing a responsive preliminary

objection, and therefore, Appellant has waived any claim challenging the

error.     See Hvidak v. Linn, 190 A.3d 1213, 1228 (Pa. Super. 2018)

(“[W]here a party erroneously asserts substantive defenses in a preliminary

objection rather than these defenses by answer or in new matter, the failure

of the opposing party to file preliminary objections to the defective preliminary

objections, raising the erroneous defense, waives the procedural defect and

allows the [lower] court to rule on the preliminary objections.”) (citing Preiser

v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992)). We therefore turn

to the merits of Appellant’s appeal.

         In her first issue, Appellant claims the orphans’ court erred in sustaining

Bank of America’s preliminary objections and concluding that her claims are

barred by the applicable statute of limitations. See Appellant’s Brief at 17-

20. Both Bank of America and the orphans’ court conclude that both causes

of action raised by Appellant in her third amended petition for surcharge are

time-barred. See Bank of America’s Brief at 16-20; Orphans’ Court Opinion,

8/28/19, at 4-5.


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      We have previously stated that, “[a]bsent issues pertaining to the

discovery rule, whether the statute of limitations has run on a claim is

generally a question of law for the [lower court] judge.” Wilson v. Transport

Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005) (citation omitted). “Which

statute of limitations applies to a cause of action is also a matter of law for

the court to determine.”        Id. (citation omitted).      “Additionally, the

interpretation and application of a statute is a question of law that compels

plenary review to determine whether the court committed an error of law.”

Id. (citations omitted).

      “Generally, the statute of limitations begins to run when the right to

institute and maintain suit arises.” Mahonski v. Engel, 145 A.3d 175, 183

(Pa. Super. 2016) (citation omitted). However, Pennsylvania law recognizes

the discovery rule exception to statutes of limitation:

      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 [the
      plaintiff] has been injured, and (2) that [the] 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.

Melley v. Pioneer Bank, N.A., 834 A.2d 1191, 1201 (Pa. Super. 2003)

(citation omitted). While the application of the discovery rule is ordinarily a

question of fact, where reasonable minds would not differ as to its application,

the lower court may make the determination as a matter of law. O’Kelly v.

Dawson, 62 A.3d 414, 420 (Pa. Super. 2013); see also Toy v. Metropolitan


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Life Ins. Co., 863 A.2d 1, 7-8 (Pa. Super. 2004) (“[W]here the facts are so

clear that reasonable minds could not differ, the commencement period may

be determined as a matter of law.”) (citation omitted).

     Turning to the matter before us, the applicable statute of limitations

provides:

     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
     sounds 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).

     The orphans’ court concluded that both of Appellant’s stated causes of

action were time-barred by Section 5524(7), explaining:

            Any 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 shall be
     commenced within two years. 42 Pa. C.S.A. 5524(7). The statute
     of limitations begins to run as soon as the right to institute and
     maintain a suit arises; lack of knowledge, mistake or
     misunderstanding do not toll the running of the statute of
     limitations. It is the duty of the party asserting a cause of action
     to use all reasonable diligence to properly inform himself of the
     facts and circumstances upon which the right of recovery is based
     and to institute suit within the prescribed period. The exception
     to the statute of limitations, the discovery rule, 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. Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa.
     Super. 2002).

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             Since 2011, [Appellant] and [her sister,] Ms. Rooney, as
      agents under the [power of attorney], had access to financial
      records of Decedent’s accounts with Bank of America. Since 2012,
      [Appellant and Ms. Rooney] were aware that deposits were made
      into one of Decedent’s Bank of America accounts. As executors
      of the estate, [Appellant] and Ms. Rooney had a duty to gather
      the assets of the estate since the grant of Letters Testamentary
      on February 4, 2013. In May of 2016, [Appellant and Ms. Rooney]
      were on notice that Bank of America[] had an account titled “The
      Monteverde Irrevocable Family Trust.” The two year Statute of
      Limitations began to run in May of 2016 when [Appellant] learned
      of the existence of the trust account and believed that Bank of
      America failed to disclose to her information regarding the
      account. [Appellant and Ms. Rooney] waited until October 18,
      2018 to file the initial Petition for Surcharge. That was many years
      after they discovered that deposits were still made to Decedent’s
      bank account, and more than two years after May of 2016 when
      they discovered the existence of the Trust account. Thus, [the
      orphans’ court] found that [Appellant’s] claim[s] against Bank of
      America [were] barred by the Statute of Limitations.

Orphans’ Court Opinion, 8/28/19, at 4-5.

      We agree with the orphans’ court’s determination that the discovery rule

exception is applicable as a matter of law to Appellant’s claims, and that even

with its application, Appellant’s claims are time-barred by Section 5524(7).

      Appellant’s third amended petition for surcharge raises two causes of

action: breach of fiduciary duty and fraud. See Appellant’s Third Amended

Petition for Surcharge, 2/5/19, at 2-8.    Pursuant to Section 5524(7), both

claims allege tortious conduct and therefore “must be commenced within two

years.” 42 Pa.C.S.A. § 5524(7); see also Zimmer v. Gruntal & Co., Inc.,

732 F.Supp. 1330, 1335-36 (W.D. Pa. 1989) (“Common law fraud is a tort

claim governed by Pennsylvania’s two-year statute of limitations. . . .

Likewise, breach of fiduciary duty is tortious conduct and subject to the two

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year limitations period[.]”) (citing, inter alia, 42 Pa.C.S.A. § 5524(7);

Restatement (Second) of Torts, § 874 (1979)).

      Appellant alleges that on July 21, 2011, acting under their power of

attorney for Decedent, she and Ms. Rooney went to the Bank of America

location in Oradell, New Jersey, to close all of the Decedent’s accounts and

safety deposit boxes.    Appellant’s Third Amended Petition for Surcharge,

2/5/19, at ¶ 9. At the conclusion of the July 21, 2011 visit, Bank of America

“assured [Appellant and Ms. Rooney] that all of the accounts were closed and

paid.” Id. at ¶ 12.

      Appellant further alleges in her petition that “[o]n or about April 25,

2016, [Appellant and Ms. Rooney] received notice from Legal Claimant

Services” of the existence of “The Monteverde Irrevocable Family Trust of

Rosemarie Monteverde.”      Id. at ¶¶ 20, 21.    Legal Claimant Services also

informed Appellant that the trust contained an excess of $93,000. Id. at ¶

22.

      In her petition, Appellant asserts that on or about May 8, 2016, an

attorney provided her with “a copy of the original Trust documents and a

United Jersey Bank statement from 1993, with a then balance of . . .

[]$96,849.53[].” Id. at ¶ 27. Appellant further alleges she presented the

original trust documents and account statement to a representative of Bank

of America on May 20, 2016. Id. at ¶ 29. Appellant avers, however, that

Bank of America withheld all of its records pertaining to the Trust until August

14, 2017, and therefore argues that she was “unaware of [Bank of America’s]

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breaches and misconduct until receiving the records” on that date. Appellant’s

Third Amended Petition for Surcharge, 2/5/19, at ¶¶ 34, 35.

      Without the application of the discovery rule exception, the statute of

limitations would begin to run when Bank of America allegedly expressed to

Appellant that all of the Decedent’s accounts were closed on July 21, 2011 —

the date the alleged breach and fraudulent representation occurred.        See

Appellant’s Third Amended Petition for Surcharge, 2/5/19, at ¶ 12. However,

in analyzing Appellant’s causes of action, the orphans’ court correctly

determined, as a matter of law, that the discovery rule exception to the statute

of limitations is applicable to her claims.     See Orphans’ Court Opinion,

8/28/19, at 5. We conclude that Appellant did not have sufficient information

on July 21, 2011 to know that she had been injured as a result of Bank of

America’s alleged misrepresentation. O’Kelly, 62 A.3d at 420; Melley, 834

A.2d at 1201.

      We also agree with the orphans’ court’s conclusion that the limitations

period for Appellant’s claims began to run in May 2016, when “[Appellant]

learned of the existence of the trust account and believed that Bank of America

failed to disclose to her information regarding the account.”   Orphans’ Court

Opinion, 8/28/19, at 5; see also O’Kelly, 62 A.3d at 420; Melley, 834 A.2d

at 1201.

      Appellant first raised her breach of fiduciary claim against Bank of

America in her original petition for surcharge filed on October 12, 2018, and

asserted a claim of fraud in her second amended petition for surcharge filed

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on December 28, 2018. Because the applicable two-year statute of limitations

began to run in May 2016, Appellant had until May 2018 to raise both her

breach of fiduciary duty and fraud claims. See 42 Pa.C.S.A. § 5524(7). The

orphans’ court therefore correctly determined that both of Appellant’s causes

of action are time-barred, and properly sustained Bank of America’s

preliminary objections asserting the statute of limitations as an affirmative

defense.

      Accordingly, the orphans’ court did not err when it determined, as a

matter of law, that the statute of limitations barred Appellant’s breach of duty

and fraud claims.   Due to our conclusion that Appellant’s claims are time-

barred, we need not address Appellant’s second or third issues, which examine

whether Appellant adequately pled the causes of action in her petition. We

therefore affirm the orphans’ court’s order sustaining Bank of America’s

preliminary objections and dismissing Appellant’s petition with prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/20




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