J-A25014-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

POLINA TERTYSHNAYA, INDIVIDUALLY :          IN THE SUPERIOR COURT OF
AND ON BEHALF OF ALEXANDER :                     PENNSYLVANIA
TERTYSHNAYA, HER MINOR SON,         :
                                    :
               Appellant            :
                                    :
          v.                        :
                                    :
STANDARD SECURITY LIFE INSURANCE :
COMPANY    OF   NEW     YORK,  HCC :
SPECIALTY UNDERWRITERS, INC. A/K/A :
AMERICAN SPECIALTY UNDERWRITERS, :
INC., HCC INSURANCE HOLDINGS, :
INC., A/K/A AMERICAN SPECIALTY :
UNDERWRITERS,    INC.,    AMERICAN :
SPECIALTY    UNDERWRITERS,    INC., :
MICHAEL S. CHAUT, MICHAEL CHAUT & :
ASSOCIATES, JAY M. GROSSMAN AND :
PUCKAGENCY, LLC,                    :
                                    :
               Appellees            :       No. 449 EDA 2014

            Appeal from the Order entered December 16, 2013,
               Court of Common Pleas, Philadelphia County,
                Civil Division at No. 3803 May Term 2010

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED NOVEMBER 19, 2014

     Appellant, Polina Tertyshnaya (“Tertyshnaya”), appeals from the order

entered on December 16, 2013 by the Court of Common Pleas of

Philadelphia County, Civil Division, granting the motion for summary

judgment of Appellees, Standard Security Life Insurance Company of New

York (“SSLIC”), HCC Specialty Underwriters, Inc. (“HCC”), and American




*Retired Senior Judge assigned to the Superior Court.
J-A25014-14


Specialty   Underwriters,   Inc.    (“ASU”)    (collectively,    the   “Insurance

Defendants”). After careful review, we affirm.

     The relevant facts and procedural history of this case are as follows.

SSLIC is a licensed insurance company.        Insurance Defendants’ Motion for

Summary Judgment on All Claims Because All Claims are Barred by the

Statute of Limitations, 8/19/13, ¶ 14.      ASU, now known as HCC, was the

managing and supervising underwriter for SSLIC’s insurance policies at all

times applicable to this case.     See id. ¶ 15.    In 1999, Dmitri Tertyshny

(“Tertyshny”) was a professional hockey player in the National Hockey

League and a member of the Philadelphia Flyers (“Flyers”).             Id. ¶ 13.

Tertyshny retained Jay Grossman (“Grossman”) of The Marquee Group1

(“TMG”) to represent him as his sports agent.         Id. ¶ 2.     Michael Chaut

(“Chaut”) was the designated broker for Tertyshny for an insurance policy he

allegedly purchased in 1999. Id. ¶ 4.

     On July 23, 1999, Tertyshny was participating in a Flyers summer

training camp in British Columbia, Canada.       Second Amended Complaint,

11/6/12, ¶ 19. That evening, Tertyshny died in a tragic boating accident,

leaving behind his wife, Tertyshnaya, who was four-months pregnant at the

time of his death. This litigation stems from the insurance policy allegedly



1
   Grossman is no longer part of TMG. He is now the sole member of the
Puck Agency, LLC.       See Insurance Defendants’ Motion for Summary
Judgment on All Claims Because All Claims are Barred by the Statute of
Limitations, 8/19/13, ¶ 2.


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J-A25014-14


purchased      by   Tertyshny     from   the     Insurance    Defendants    in   1999.

Tertyshnaya believes that Tertyshny purchased a policy with permanent total

disability (“PTD”) and accidental death and dismemberment (“AD&D”)

coverage.      See Tertyshnaya’s Brief at 4.              Conversely, the Insurance

Defendants maintain that Tertyshny purchased a policy with only PTD

coverage. See Insurance Defendants’ Brief at 5. Tertyshnaya contends that

fraud perpetrated by the Insurance Defendants prevented her from receiving

death benefits and filing suit within the statute of limitations.                  See

Tertyshnaya’s Brief at 19.

         On   May   27,   2010,   nearly    11    years    after   Tertyshny’s   death,

Tertyshnaya filed a complaint against the Insurance Defendants raising

claims of breach of contract, quantum meruit/unjust enrichment, and bad

faith.    On December 20, 2010, Tertyshnaya filed an amended complaint,

which added claims for violating the Pennsylvania Unfair Trade Practices and

Consumer Protection Law, fraudulent misrepresentation, and negligent

misrepresentation.        On November 6, 2012, the                 trial court granted

Tertyshnaya’s motion for leave to amend the complaint again and to join

additional defendants. That same day, Tertyshnaya filed a second amended

complaint in which she joined Chaut, Michael Chaut & Associates (“MCA”),

Grossman, and the Puck Agency, LLC as defendants.

         In the Second Amended Complaint, Tertyshnaya alleged the following.

In March 1999, Tertyshnaya and Tertyshny sought and purchased a policy of



                                           -3-
J-A25014-14


PTD and AD&D insurance from the Insurance Defendants for $1,000,000 in

coverage, for which she signed as the beneficiary.              Second Amended

Complaint, 11/6/12, ¶¶ 15, 17.

      In April 1999, Tertyshnaya and Tertyshny provided Grossman with

$3,700, representing their payment for the premium of the alleged PTD and

AD&D policy. Id. ¶ 18. Tertyshnaya claimed that neither she nor Tertyshny

received a copy of the alleged PTD and AD&D policy prior to Tertyshny’s

death on July 23, 1999.     Id. ¶ 20.     She asserted that on July 28, 1999,

shortly following Tertyshny’s death, the Insurance Defendants cancelled the

alleged PTD and AD&D policy. Id. ¶ 22. Tertyshnaya complained that she

has not yet received any of the death benefits to which she believed she was

entitled. Id. ¶ 23.

      Tertyshnaya     averred     that   Attorney   Jerrold    Colton   (“Colton”)

represented her from late 1999 through 2004.                  Id. ¶ 24.    Colton

investigated whether she was entitled to AD&D benefits resulting from

Tertyshny’s death.    Id.   Tertyshnaya contends that Grossman told Colton

that she and Tertyshny never purchased any insurance policy.                  Id.

Tertyshnaya claimed that in 2005, she retained Attorney James McNally

(“McNally”) and he likewise looked into whether she had any right to AD&D

benefits stemming from Tertyshny’s death. See id.; see also Deposition of

McNally, 10/17/12, at 20.       Tertyshnaya asserted that McNally and his law

firm confirmed Grossman’s, and subsequently Colton’s, belief that she and



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J-A25014-14


Tertyshny never purchased any insurance policy.        See Second Amended

Complaint, 11/6/12, ¶ 24; see also Deposition of McNally, 10/17/12, at 38.

Nonetheless, Tertyshnaya stated that she persisted in her investigation.

Second Amended Complaint, 11/6/12, ¶ 24.

       Tertyshnaya claimed that in December 2008, her second husband,

Michael Moy (“Moy”), attempted to contact the Insurance Defendants

seeking information about Tertyshny’s alleged PTD and AD&D insurance

policy. See id.; see also Deposition of Moy, 7/13/12, at 82. Tertyshnaya

asserted that SSLIC explained that if Tertyshny had purchased an insurance

policy, that TMG would have held it, that TMG would have issued the

certificate of insurance for the policy, and that TMG is an insurance agent for

ASU.    Second Amended Complaint, 11/6/12, ¶ 24.            Tertyshnaya also

contended that SSLIC confirmed that AD&D coverage would be part of a PTD

insurance policy.   Id. ¶ 24.    Tertyshnaya alleged that Grossman, TMG,

Chaut, and MCA are agents for the Insurance Defendants.             Id. ¶ 26.

Tertyshnaya bases this contention on her assertion that Grossman, TMG,

Chaut, and MCA solicit and process insurance applications for the Insurance

Defendants. Id. ¶¶ 25-26.

       Tertyshnaya averred that the Insurance Defendants, along with

Grossman, TMG, Chaut, and MCA, intentionally concealed Tertyshny’s

alleged PTD and AD&D insurance policy from her by representing that she

and Tertyshny never purchased any insurance policy in an attempt to avoid



                                     -5-
J-A25014-14


paying her death benefits.      Id. ¶ 32.       Tertyshnaya complained that the

Insurance Defendants, after the initiation of this litigation, provided her with

a copy of Tertyshny’s insurance policy, which revealed that on August 30,

1999, after his death, the Insurance Defendants issued the policy, backdated

to March 1, 1999, for PTD coverage only. Id. ¶¶ 28-29, 33-35, Exhibit A.

Tertyshnaya    claimed   that   this   fraud,   perpetrated   by   the   Insurance

Defendants and their agents, prevented her from filing suit until 2010. See

id. ¶ 32.

      On December 7, 2012, the Insurance Defendants filed an answer with

new matter in which they denied all material allegations in the second

amended complaint.       On August 19, 2013, following the completion of

discovery, the Insurance Defendants filed a motion for summary judgment,

in which they averred the following.

      On February 19, 1999, Grossman contacted ASU requesting a quote

for PTD insurance for Tertyshny.            Insurance Defendants’ Motion for

Summary Judgment on All Claims Because All Claims are Barred by the

Statute of Limitations, 8/19/13, ¶ 16.           On March 1, 1999, Grossman

obtained confirmation from ASU that Tertyshny was bound to a one-year,

24-hour coverage PTD policy for $1,000,000 with a premium of $3,700. Id.

¶ 17. On March 3, 1999, ASU invoiced Grossman for the $3,700 premium.

Id. ¶ 18.     On March 18, 1999, TMG sent Tertyshny material about PTD

insurance and directed him to sign the application and make out a check for



                                       -6-
J-A25014-14


the premium and mail it to them. Id. ¶¶ 19-20. The Insurance Defendants

claim that there were no instructions for Tertyshnaya to sign anything. Id.

¶ 19. Around April 26, 1999, Tertyshny sent TMG a signed application along

with a $3,700 check from his and Tertyshnaya’s joint account for the

premium. Id. ¶¶ 23-25. On June 4, 1999, ASU received a $3,700 check

from TMG representing the payment for the premium due in connection with

Tertyshny’s PTD insurance policy. Id. ¶ 26.

     Shortly following Tertyshny’s death on July 23, 1999, the Insurance

Defendants cancelled his PTD insurance policy.    Id. ¶ 38.   On August 30,

1999, the Insurance Defendants sent a $2,775 refund for the premium to

Grossman and TMG along with a copy of Tertyshny’s PTD policy with all

addendums, including the cancellation addendum. Id. ¶ 39.

     The Insurance Defendants contended that although Tertyshnaya has

believed since 1999 that she is entitled to AD&D benefits, she has not filed

with the Insurance Defendants a claim for death benefits.     Id. ¶ 42. The

Insurance Defendants pointed out that neither Colton nor McNally ever

contacted the Insurance Defendants, despite evidence that both possessed

documents identifying SSLIC as the insurer of a PTD policy for Tertyshny.

Id. ¶¶ 48-49; Deposition of McNally, 10/17/12, at 27-29; see also

Insurance Defendants Motion for Summary Judgment on Counts I, II, III,

and VIII, 8/19/13, Exhibit 21 (Letters From McNally to Colton, 3/9/05).




                                    -7-
J-A25014-14


     The Insurance Defendants maintained that they had no relationship

and were in no way affiliated with Grossman and TMG and that neither

Grossman nor TMG received any compensation stemming from Tertyshny’s

purchase of a PTD insurance policy from them.           Insurance Defendants’

Motion for Summary Judgment on All Claims Because All Claims are Barred

by the Statute of Limitations, 8/19/13, ¶¶ 8-10.        Rather, the Insurance

Defendants identified Chaut as the designated broker for Tertyshny’s

acquisition of PTD insurance and point out that he received compensation for

Tertyshny’s purchase of a PTD policy.2     Id. ¶¶ 11-12.        The Insurance

Defendants further claimed that no employee of the Insurance Defendants

ever told Moy, Tertyshnaya’s second husband, that Tertyshny purchased a

policy with AD&D benefits. Id. ¶ 61.

     On   October   25,   2013,   Tertyshnaya   filed   her   memorandum   in

opposition to the Insurance Defendants’ motion for summary judgment. On

December 16, 2013, the trial court granted the Insurance Defendants’

motion for summary judgment, finding Tertyshnaya’s claims barred by the

statute of limitations. On January 14, 2014, Tertyshnaya’s timely notice of

appeal followed.3

     On appeal, Tertyshnaya raises the following issues for review:

2
  On May 22, 2013, the trial court ultimately dismissed Chaut and MCA from
the case.
3
  The trial court did not order a concise statement of errors complained of
on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure in this case.


                                    -8-
J-A25014-14


          [1.]   In deciding a motion for summary judgment,
                 may the trial court resolve factual disputes
                 against the non-moving party?

          [2.]   Whether the trial court improperly dismissed
                 the case based on the statute of limitations?

          [3.]   Whether the trial court erred in holding the
                 statute of limitations began to run against
                 [Tertyshnaya], the beneficiary, and the unborn
                 son of the insured, [Tertyshny],

                 a.    upon the death of [Tertyshny] on July
                       23, 1999[,] despite evidence that
                       [Tertyshnaya] and her attorneys were
                       told by the [Insurance Defendants’]
                       agent, defendant [Grossman], that no
                       policy was ever purchased, and

                 b.    no later than August 30, 1999 when the
                       [Insurance Defendants] allegedly sent
                       the policy without the death benefits to
                       [their] agent Grossman who claims he
                       never received it, and

                 c.    by imputing alleged knowledge of the
                       [Insurance       Defendants’]      agent
                       Grossman, who claims he was unaware
                       the policy was ever issued, [sic] to the
                       beneficiary [Tertyshnaya] with whom the
                       agent had no relationship?

          [4.]   Whether the trial court erred in holding there
                 was no evidence that the [Insurance
                 Defendants] fraudulently concealed the policy
                 from [Tertyshnaya], the beneficiary, or that
                 the discovery rule and the fraudulent
                 concealment doctrine did not toll the statute of
                 limitations?

          [5.]   Whether the trial court erred or abused its
                 discretion in relying upon documents that (1)
                 were misrepresented by the [Insurance



                                   -9-
J-A25014-14


                 Defendants] as having been in [Tertyshnaya]’s
                 possession prior to this case, (2) were not
                 properly authenticated, (3) were characterized
                 without basis by [the Insurance Defendants’]
                 counsel in violation of [Pa.R.C.P.] 1035.1 and
                 1035.2 – which characterizations were
                 disputed by [Tertyshnaya]’s insurance expert’s
                 report, and (4) as to which the completeness
                 of such document production by the Insurers is
                 disputed and cannot be resolved by the court?

Tertyshnaya’s Brief at 2-4 (footnote omitted).4

     The standard of review for an order granting a motion for summary

judgment is as follows:

           A reviewing court may disturb the order of the trial
           court only where it is established that the court
           committed an error of law or abused its discretion.
           As with all questions of law, our review is plenary.

           In evaluating the trial court’s decision to enter
           summary judgment, we focus on the legal standard
           articulated in the summary judgment rule. Pa.R.C.P.
           1035.2. The rule states that where there is no
           genuine issue of material fact and the moving party
           is entitled to relief as a matter of law, summary
           judgment may be entered. Where the non-moving
           party bears the burden of proof on an issue, he may
           not merely rely on his pleadings or answers in order
           to survive summary judgment. Failure of a non[-
           ]moving party to adduce sufficient evidence on an
           issue essential to his case and on which it bears the
           burden of proof establishes the entitlement of the
           moving party to judgment as a matter of law. Lastly,
           we will view 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.


4
   We have reordered the issues that Polina raises on appeal for ease of
review.


                                    - 10 -
J-A25014-14



JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62 (Pa.

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,

777 A.2d 418, 429 (Pa. 2001)).

      We begin by addressing Tertyshnaya’s first, second, third (including its

sub-issues), and fourth issues together, as these issues collectively raise the

question of whether the trial court erred in deciding that Tertyshnaya’s

claims were time barred by the statute of limitations. 5     See Tertyshnaya’s

Brief at 24-36. The primary basis for Tertyshnaya’s arguments on appeal is

that the trial court incorrectly determined that the doctrine of fraudulent

concealment and the discovery rule did not apply in this case to toll the

statute of limitations. See id. at 24.

      “Summary judgment is appropriate if a plaintiff’s cause of action is

barred by the statute of limitations.”    Gojmerac v. Naughton, 915 A.2d

1205, 1206 (Pa. Super. 2006).       The Superior Court of Pennsylvania has

stated the following regarding the statute of limitations:

            As a matter of general rule, a party asserting a
            cause of action is under a duty to use all
            reasonable diligence to be properly informed of


5
  In a footnote, Polina also attempts to argue that the statute of limitations
has not yet begun to run on the claims of her and Tertyshny’s minor son.
Polina’s Brief at 32 n.13. We find that Polina has waived this argument on
appeal for failure to develop it. See Umbelina v. Adams, 34 A.3d 151, 161
(Pa. Super. 2011). In the footnote, Polina merely quotes 42 Pa.C.S.A.
§ 5533(b)(1)(i), which provides for the tolling of the statute of limitations for
the claims of unemancipated minors, and provides no further support or
basis for this argument. See Polina’s Brief at 32 n.13.


                                     - 11 -
J-A25014-14


           the facts and circumstances upon which a
           potential right of recovery is based and to
           institute suit within the prescribed statutory
           period. Thus, 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[,] even though a person may
           not discover his injury until it is too late to take
           advantage of the appropriate remedy, this is incident
           to a law arbitrarily making legal remedies contingent
           on mere lapse of time. Once the prescribed statutory
           period has expired, the party is barred from bringing
           suit unless it is established that an exception to the
           general rule applies which acts to toll the running of
           the statute.

Hopkins v. Erie Ins. Co., 65 A.3d 452, 460 (Pa. Super. 2013) (emphasis

added; internal citations omitted) (quoting Pocono Int’l Raceway, Inc. v.

Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)).

     The exceptions that act to toll the running of a statute of limitations

include the doctrine of fraudulent concealment and the discovery rule. Fine

v. Checcio, 870 A.2d 850, 858 (Pa. 2005). In regards to the doctrine of

fraudulent concealment, our Court has stated:

           [T]he doctrine of fraudulent concealment serves to
           toll the running of the statute of limitations. The
           doctrine is based on a theory of estoppel, and
           provides that the defendant may not invoke the
           statute of limitations, if through fraud or
           concealment, he causes the plaintiff to relax his
           vigilance or deviate from his right of inquiry into the
           facts. The doctrine does not require fraud in the
           strictest sense encompassing an intent to deceive,
           but rather, fraud in the broadest sense, which
           includes an unintentional deception. The plaintiff has
           the burden of proving fraudulent concealment by



                                   - 12 -
J-A25014-14


             clear, precise, and convincing evidence. While it is
             for the court to determine whether an estoppel
             results from established facts, it is for the jury to say
             whether the remarks that are alleged to constitute
             the fraud or concealment were made.

Id. at 860 (internal citations omitted). Importantly, “in order for fraudulent

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

committed some affirmative independent act of concealment upon which the

plaintiff justifiably relied.”   Baselice v. Franciscan Friars Assumption

BVM Province, Inc., 879 A.2d 270, 278 (Pa. Super. 2005) (citation and

quotations omitted).

      Additionally, this Court has held that “[t]he discovery rule is a

‘judicially created device which tolls the running of the applicable statute of

limitations until the point where the complaining party knows or reasonably

should know that he has been injured and that his injury has been caused by

another party’s conduct.’” Coleman v. Wyeth Pharm., Inc., 6 A.3d 502,

510 (Pa. Super. 2010) (quoting Crouse v. Cyclops Indus., 745 A.2d 606,

611 (Pa. 2000)).

      Tertyshnaya argues that the doctrine of fraudulent concealment

applied in this case because of misrepresentations made by Grossman and

the Insurance Defendants.         Tertyshnaya’s Brief at 24-36.      Tertyshnaya

claims that Grossman was an agent for the Insurance Defendants and that

he committed an affirmative independent act of concealment by allegedly

informing her and Colton that Tertyshny never purchased any insurance



                                      - 13 -
J-A25014-14


policy.   Id. at 26-28, 32.        Additionally, Tertyshnaya asserts that the

Insurance   Defendants    committed      an     affirmative   independent   act   of

concealment by issuing an insurance policy for PTD coverage, as opposed to

AD&D coverage, on August 30, 1999, after Tertyshny’s death, backdated to

March 1, 1999. Id. at 32. Tertyshnaya argues that her insurance expert’s

report supports her contention that the Insurance Defendants issued a

backdated policy that fraudulently only provided PTD coverage so that they

could avoid paying her AD&D benefits. Id. at 24.

      In regards to Tertyshnaya’s fraudulent concealment argument, the

trial court found the following:

            [N]one of [Tertyshnaya’s] unsupported allegations
            are sufficient to show that the statute of limitations
            on [her] claims should have been tolled under the
            fraudulent concealment doctrine. [The] Insurance
            Defendants presented evidence that they did not
            [backdate] [Tertyshny]’s policy as evidenced by a
            conditional coverage note dated March 5, 1999,
            before the policy was issued. More importantly,
            neither [Tertyshnaya] nor her attorney contacted
            [the] Insurance Defendants until December of 2008
            regarding the existence of a policy for [Tertyshny]
            providing [AD&D] benefits. When [Tertyshnaya]
            contacted [the] Insurance Defendants in December
            of 2008 inquiring as to why death benefits were not
            paid, the statute of limitations had expired for all of
            [her] claims.

                                   *     *       *

            In [s]ummary, [Tertyshnaya] alleges a scenario in
            which she was actively prohibited from discovering
            the true state of affairs through [the] Insurance
            Defendants[’] fraud and concealment. Although [the]



                                       - 14 -
J-A25014-14


            Insurance Defendants did contact Grossman, and
            stated that the [PTD] policy was cancelled due to
            death, [Tertyshnaya] has produced no coherent facts
            indicating   that   [the]   Insurance   Defendants
            affirmatively concealed [an AD&D policy]. Nor has
            [Tertyshnaya] produced any facts to show that she
            made any attempt to learn of [an AD&D policy] by
            August of 2005. There is also no evidence that [the]
            Insurance Defendants produced a [backdated]
            policy.

Trial Court Opinion, 12/16/13, at 9-10.

      We conclude that the trial court did not err in determining that the

statute of limitations had run on all of Tertyshnaya’s claims and that the

doctrine of fraudulent concealment did not apply in this case to toll the

statute of limitations.   Despite the fact that Tertyshnaya has consistently

maintained, since 1999, the belief that Tertyshny’s policy contained AD&D

coverage, she failed to use all reasonable diligence to become properly

informed of the facts upon which her potential right of recovery is based.

      The undisputed material facts in this case establish the following.

Tertyshny died on July 23, 1999. Tertyshnaya admits, both in her brief and

in her deposition testimony, that she was involved in the purchase of an

insurance policy for Tertyshny and always maintained the belief that she was

entitled to AD&D benefits under Tertyshny’s insurance policy. Tertyshnaya’s

Brief at 17; Deposition of Tertyshnaya, 6/26/12, at 78, 88, 202-03.

Tertyshnaya even claims in her brief that “[she] did not sleep on her rights”

and that “[she] could not sleep because she was certain a life insurance




                                    - 15 -
J-A25014-14


policy had been purchased from the [Insurance Defendants].” Tertyshnaya’s

Brief at 17.

      In fact, in October 1999, Tertyshnaya asked Colton to determine if she

was   entitled    to   AD&D   benefits    under    Tertyshny’s    insurance   policy.

Deposition of Colton, 7/11/12, at 30-31.          In 2004, subsequent to Colton’s

inquiries into whether Tertyshnaya was entitled to AD&D insurance benefits,

she engaged McNally to investigate whether she had a claim for AD&D

benefits.      Deposition of McNally, 10/17/12, at 20.           Neither Colton nor

McNally have any recollection of contacting the Insurance Defendants to see

if Tertyshny’s policy included AD&D coverage, despite evidence indicating

that both Colton and McNally had insurance documentation identifying SSLIC

in conjunction with Tertyshny’s policy.       Id. at 27-29, 40-41; Deposition of

Colton, 7/11/12, at 77; see also Insurance Defendants Motion for Summary

Judgment on Counts I, II, III, and VIII, 8/19/13, Exhibit 21 (Letters From

McNally to Colton, 3/9/05).      It was not until December 2008 that Moy,

Tertyshnaya’s second husband, contacted the Insurance Defendants to

determine if she had a right to any AD&D benefits.                    Deposition of

Tertyshnaya, 6/26/12, at 204.

      Thus, although Tertyshnaya made allegations of fraud against the

Insurance Defendants that she claims prevented her from knowing whether

Tertyshny’s insurance policy existed and from filing suit within the limitations

period, she has also consistently maintained that she and Tertyshny



                                         - 16 -
J-A25014-14


purchased an insurance policy that included AD&D coverage. In an effort to

determine what her rights were under Tertyshny’s alleged PTD and AD&D

policy, Tertyshnaya had three attorneys and her second husband investigate

the alleged PTD and AD&D policy. Despite her consistent belief that she was

entitled to AD&D benefits, however, Tertyshnaya never submitted a claim for

AD&D benefits following Tertyshny’s death.          Id. at 224.      In fact, no one

working on her behalf contacted the Insurance Defendants until December

2008.

        Tertyshnaya also finds it significant that she did not receive a copy of

Tertyshny’s insurance policy until after she initiated the instant litigation.

See Tertyshnaya’s Brief at 5, 10, 14, 17, 28.            As a result, Tertyshnaya

contends that prior to filing this lawsuit, she did not have the basis for a

claim. See id. at 13-14. However, the fact that Tertyshnaya did not have a

copy of Tertyshny’s insurance policy until after filing suit only underscores

her lack of reasonable diligence in this case.       At the time she filed suit in

May 2010, Tertyshnaya possessed the same information about Tertyshny’s

alleged insurance policy providing AD&D coverage that she did when

Tertyshny died in 1999.        Moreover, Tertyshnaya had as much evidence of

the purported fraud on the part of the Insurance Defendants in 1999 as she

did in 2010.     Given her persistent belief that she was entitled to AD&D

benefits    stemming    from    Tertyshny’s     death,   none   of   the   Insurance

Defendants’ purported acts of fraud prevented her from bringing this lawsuit.



                                       - 17 -
J-A25014-14


Filing suit within the statute of limitations would have begun the discovery

process – the process upon which she ultimately relied to gain the

information she currently possesses.

      Accordingly, the trial court did not err in concluding that the statute of

limitations had run on all of Tertyshnaya’s claims and that the doctrine of

fraudulent concealment did not apply in this case to toll the statute of

limitations. Tertyshnaya did not exercise reasonable diligence by waiting to

file suit until May 2010 because she had no more evidence then of her

alleged right to AD&D benefits or the Insurance Defendants’ purported fraud

than she did following Tertyshny’s death.      See Hopkins, 65 A.3d at 460.

Additionally, none of the Insurance Defendants’ alleged acts of fraud caused

Tertyshnaya to relax her vigilance or deviate from her right of inquiry into

the facts. See Fine, 870 A.2d at 860. Therefore, the trial court was correct

in finding Tertyshnaya’s delay in filing suit inexcusable.

      Tertyshnaya also argues that the discovery rule applied in this case to

toll the statute of limitations.   Tertyshnaya’s Brief at 24-36.   We find that

Tertyshnaya has waived this claim based upon her failure to raise it before

the court below. “Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”       Majorsky v. Douglas, 58 A.3d

1250, 1268 (Pa. Super. 2012), appeal denied, 70 A.3d 811 (Pa. 2013); see

also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Here, Tertyshnaya did not



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raise the discovery rule as an exception to the statute of limitations in her

memorandum in opposition to the Insurance Defendants’ motion for

summary judgment.       See Plaintiff’s Memorandum in Opposition to the

Insurance Defendants’ Motion for Sanctions for Spoliation of Evidence and

Four Motions for Summary Judgment, 10/25/13, at 27-29. The fact that the

trial court did not address the discovery rule in its opinion further supports

the notion that Tertyshnaya failed to raise this issue.         See Trial Court

Opinion, 12/16/13, at 5-10. Tertyshnaya cannot now raise this issue for the

first time on appeal.   See Majorsky, 58 A.3d at 1268; Pa.R.A.P. 302(a).

Accordingly, Tertyshnaya has waived this claim on appeal. However, given

our analysis and disposition of the claim she raised, the result would be the

same.

      For her next issue on appeal, Tertyshnaya argues that the trial court

erred in granting the Insurance Defendants’ motion for summary judgment

because it relied on documents attached to their motion that they

misrepresented Tertyshnaya to have possessed prior to her filing suit.

Tertyshnaya’s Brief at 36-38. Tertyshnaya claims the Insurance Defendants

wrongly stated that these records were “produced by Plaintiff.”                Id.

Tertyshnaya   also   contends   that     the    Insurance   Defendants   did   not

authenticate certain other records relied on by the trial court.               Id.

Tertyshnaya further complains that the trial court ignored her objections to

the Insurance Defendants’ records by denying her motion in limine in



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regards to the Insurance Defendants’ spoliation of relevant records after she

filed suit. Id. at 38-39. Tertyshnaya asserts that the trial court improperly

made factual determinations on an incomplete record. Id.

      We conclude that the trial court did not abuse its discretion in its

consideration of the records attached to the Insurance Defendants’ motion

for summary judgment.     There is no support for Tertyshnaya’s allegations

that the Insurance Defendants misrepresented any records.           The only

representation that the Insurance Defendants make in their motion for

summary judgment is that these records were “produced by Plaintiff in

discovery,” not that she had them prior to filing suit. See, e.g., Insurance

Defendants’ Motion for Summary Judgment on All Claims Because All Claims

are Barred by the Statute of Limitations, 8/19/13, ¶¶ 6-7.      Although the

affidavit authenticating several of the Insurance Defendants’ exhibits

attached to their motion for summary judgment did mistakenly state that

Tertyshnaya received them “prior to and during this litigation,” the

Insurance Defendants’ notified the trial court of this error and corrected it.

See Praecipe to Attach to Motion for Summary Judgment – Exhibit 1,

11/21/13, ¶ 3; Insurance Defendants’ Reply Supporting Praecipes to Attach

and for Oral Argument, 12/6/13, at 4.

      There is likewise no support for Tertyshnaya’s claims that the trial

court relied on records that the Insurance Defendants did not properly

authenticate. First, the Insurance Defendants properly attached each of the



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records that they relied upon to their motion for summary judgment. See

Kroptavich v. Pennsylvania Power & Light Co., 795 A.2d 1048, 1063

(Pa. Super. 2002) (finding depositions and various other business record

exhibits that the moving party attached to the motion for summary

judgment were properly made part of the certified record).         Second, the

Insurance Defendants filed an affidavit, signed by Brendon Bruner of HCC,

certifying the authenticity of several of the records relied upon by the

Insurance Defendants in their motion for summary judgment. See Praecipe

to Attach to Motion for Summary Judgment – Exhibit 1, 11/21/13, ¶¶ 4-5.

      Finally, even if the trial court did improperly consider certain records in

this case, it would have no effect on the outcome of the case. Here, there is

no dispute that Tertyshnaya has maintained the belief since 1999 that she

and Tertyshny bought an insurance policy with PTD and AD&D coverage.

Despite this belief, and the fact that Tertyshnaya or her attorneys possessed

documentation identifying the Insurance Defendants concerning this alleged

policy, Tertyshnaya never filed a claim for death benefits with the Insurance

Defendants and did not file suit against them for nearly 11 years.        These

facts are either admitted to, by Tertyshnaya or her former attorneys, or

supported by the record, and are fatal to her claims.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/19/2014




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