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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                           Appellees                   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.

DISSENTING MEMORANDUM BY LAZARUS, J.:                    FILED MAY 01, 2015

        I respectfully dissent from the majority’s decision. I believe that there

exists a genuine issue of material fact as to whether or not Mellow was, or

should reasonably have been, on notice as to Silverblatt’s alleged negligence

in November 2006. Based on the deposition testimony relied upon by the

trial court and the majority, I believe reasonable minds could differ as to

whether Mellow actually suspected negligence, or whether she was merely

dissatisfied and frustrated with the divorce process itself.      Accordingly, I

believe the issue of whether the equitable discovery rule might apply to toll

the statute of limitations should have been allowed to be presented to a

jury.

        Whether the equitable discovery rule applies ordinarily requires the

jury to make a factual determination as to whether the plaintiff acted with
J-S15033-15



reasonable diligence, unless the facts are so clear that reasonable minds

cannot disagree on the issue. O'Kelly v. Dawson, 62 A.3d 414, 420 (Pa.

Super. 2013). Our Supreme Court has expanded upon the roles of the trial

court and jury as follows:

      As the discovery rule has developed, the salient point giving rise
      to its application is the inability of the injured, despite the
      exercise of reasonable diligence, to know that he is injured and
      by what cause.        We have clarified that in this context,
      reasonable diligence is not an absolute standard, but is what is
      expected from a party who has been given reason to inform
      himself of the facts upon which his right to recovery is premised.
      As we have stated: There are very few facts which diligence
      cannot discover, but there must be some reason to awaken
      inquiry and direct diligence in the channel in which it would be
      successful. This is what is meant by reasonable diligence. Put
      another way, the question in any given case is not, what did the
      plaintiff know of the injury done him? But, what might he have
      known, by the use of the means of information within his reach,
      with the vigilance the law requires of him? While reasonable
      diligence is an objective test, it is sufficiently flexible to take into
      account the differences between persons and their capacity to
      meet certain situations and the circumstances confronting them
      at the time in question. Under this test, a party’s actions are
      evaluated to determine whether he exhibited those qualities of
      attention, knowledge, intelligence and judgment which society
      requires of its members for the protection of their own interest
      and the interest of others.

      Therefore, when a court is presented with the assertion of the
      discovery rule’s application, it must address the ability of the
      damaged party, exercising reasonable diligence, to ascertain
      that he has been injured and by what cause. Since this question
      involves a factual determination as to whether a party was able,
      in the exercise of reasonable diligence, to know of his injury and
      its cause, ordinarily, a jury is to decide it. Where, however,
      reasonable minds would not differ in finding that a party knew or
      should have known on the exercise of reasonable diligence of his
      injury and its cause, the court determines that the discovery rule
      does not apply as a matter of law.


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Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations and

punctuation omitted).

      When confronted with the possibility of litigation, a layperson retains

the services of a lawyer because lawyers are trained in the law and are

presumed to be competent. It is the nature of our adversary system that

laypersons involved in litigation –     especially in emotionally charged

situations such as divorce proceedings – are frequently dissatisfied and

frustrated with the legal process, regardless of the competence level of their

attorneys.   Based on the record as it now stands, I believe that it is not

sufficiently clear whether there existed “some reason to awaken inquiry,” or

whether Mellow was simply dissatisfied and frustrated with a legal process

that she believed was generally slanted in favor of her politically powerful

husband. For this reason, I would reverse the trial court’s entry of summary

judgment and remand for trial.




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