J-A01005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JAMES HELDRING, INDIVIDUALLY               :   IN THE SUPERIOR COURT OF
    AND ON BEHALF OF PENCOYD IRON              :        PENNSYLVANIA
    WORKS, INC.                                :
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :   No. 1731 EDA 2017
                                               :
    LUNDY, BELDECOS & MILBY, P.C.,             :
    F/K/A LUNDY, FLITTER, BELDECOS             :
    & BERGER, P.C., ERIC C. MILBY,             :
    ESQ.

                Appeal from the Order Entered April 24, 2017
     In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): May Term, 2015 No. 2532


BEFORE:      LAZARUS, J., OTT, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 27, 2018

       Pencoyd Iron Works, Inc. (“Plaintiff”),1 appeals from the order entered

in the Court of Common Pleas of Philadelphia County, granting the motion for

judgment on the pleadings filed by Lundy, Beldecos & Milby, P.C., and Eric C.

Milby, Esquire (collectively, “Defendants”).        Upon review, we reverse and

remand for further proceedings.

       This case involves a malpractice suit instituted by Plaintiff Pencoyd Iron

Works against Defendants stemming from Attorney Milby’s stewardship of an

____________________________________________


1Although the caption in this matter also names James Heldring as a party,
he was dismissed as a plaintiff by the trial court, and that ruling was affirmed
by this Court in a prior appeal. See Heldring v. Lundy Beldecos & Milby,
P.C., 151 A.3d 634 (Pa. Super. 2016).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A01005-18



underlying collection action.          Although Plaintiff successfully obtained a

judgment in that matter, it has been unable to collect it because Attorney

Milby sued a “trade name” company, “Grasso Holdings,” which Plaintiff claims

has no assets.2

       The procedural history of this matter is complicated, to say the least.

On May 21, 2015, Plaintiff commenced the instant action by writ of summons

against Defendants.       Plaintiff alleged that Defendants were “negligent and

careless in their pre-litigation investigation and due diligence because they did

not name the correct Grasso entity or any of the various legal entities owned

or controlled by David Grasso.”          Amended Complaint, 11/30/15, at ¶ 31.

Plaintiff asserted that a search via the internet or Dun & Bradstreet would

have been sufficient to alert Defendants as to the identity of the correct legal

entity. Plaintiff alleged that Defendants’ actions have impaired its ability to

collect on its judgment and sought damages for legal malpractice and unjust

enrichment.

       On December 1, 2015, Defendants filed preliminary objections in the

nature of a demurrer. In those preliminary objections, Defendants asserted

that the trial court in the underlying matter had determined as a matter of law

and fact that Grasso Holdings was the contracting party with Plaintiff and was

the party responsible for payment of all amounts due.            See Preliminary

____________________________________________


2The trial court in the underlying action denied a motion for “clarification” filed
by Attorney Milby in the underlying action seeking to apply the judgment to
various other Grasso entities.

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Objections, 12/1/15, at ¶ 20.           As such, the correct party was sued and

Defendants could not be deemed to have breached a duty of care owed to

Plaintiff.   By order dated January 13, 2016, the trial court sustained

Defendants’     preliminary     objections     and   dismissed   Plaintiff’s   amended

complaint with prejudice.

        Plaintiff appealed the trial court’s dismissal to this Court, which reversed

the dismissal of Plaintiff’s legal malpractice claim and remanded for further

proceedings. Heldring, 151 A.3d at 646. Upon remand, Defendants filed an

answer with new matter on January 26, 2017, raising as a defense the statute

of limitations. Specifically, Defendants averred that Plaintiff became aware of

the identities of the underlying defendants on or about March 4, 2010. As

Plaintiff filed its complaint in the instant matter over five years later, on May

21, 2015, Defendants asserted Plaintiff’s claims are barred by the two year

statute of limitations on negligence claims3 and the four year statute of

limitations on breach of contract claims.4

        Plaintiff having failed to respond to Defendants’ new matter within 20

days, see Pa.R.C.P. 1026(a), Defendants filed a motion for judgment on the

pleadings on February 22, 2017, on the basis that Plaintiff’s action was barred

by the statute of limitations. Thereafter, on February 23, 2017, Plaintiff filed

a response to Defendants’ new matter in which it generally denied Defendants’

____________________________________________


3   42 Pa.C.S.A. § 5524.

4   42 Pa.C.S.A. § 5525.

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averments as to the statute of limitations.        On March 14, 2017, Plaintiff

answered Defendants’ motion for judgment on the pleadings. On March 16,

2017, Defendants filed a reply to Plaintiff’s answer and, on March 17, 2017,

Plaintiff filed a sur-reply brief.

      By order dated April 24, 2017, the trial court granted Defendants’

motion for judgment on the pleadings and dismissed Plaintiff’s complaint with

prejudice on the basis that the complaint was not filed within the time allowed

by the applicable statutes of limitations.          Plaintiff filed a motion for

reconsideration, which was denied, followed by a timely notice of appeal to

this Court. On appeal, Plaintiff raises the following claims for our review:

      1. Did the [trial] court below err when it held that Plaintiff’s failure
         to file a timely [r]eply to [n]ew [m]atter resulted in admissions,
         thus permitting the entry of judgment on the pleadings,
         because:

          a. Defendant’s [n]otice to [p]lead was in the incorrect form?

          b. Plaintiff’s reply was only eight days late, a delay that
             should have been disregarded in the interest of justice?

          c. Said admissions were insufficient for a grant of the
             motion for judgment on the pleadings?

      2. Did the [trial] court below abuse its discretion when it denied
         Plaintiff’s request to file an [a]mended [r]eply to [n]ew
         [m]atter?

      3. Did the [trial] court below err by granting a motion for
         judgment on the pleadings when an issue of fact exists as to
         when Plaintiff, a client, knew or should have known that its
         attorneys committed malpractice by naming the incorrect party
         as a defendant in a lawsuit?

Brief of Appellant, at 5-6 (issues renumbered for ease of disposition).



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      Pennsylvania Rule of Civil Procedure 1034 governs motions for judgment

on the pleadings and provides that “[a]fter the pleadings are closed, but within

such time as not to unreasonably delay trial, any party may move for

judgment on the pleadings.” Pa.R.C.P. 1034(a). On appeal from the grant of

a motion for judgment on the pleadings, our scope and standard of review are

as follows:

         Appellate review of an order granting a motion for judgment
         on the pleadings is plenary. The appellate court will apply
         the same standard employed by the trial court. A trial court
         must confine its consideration to the pleadings and relevant
         documents. The court must accept as true all well[-]
         pleaded statements of fact, admissions, and any documents
         properly attached to the pleadings presented by the party
         against whom the motion is filed, considering only those
         facts which were specifically admitted.

      Lewis v. Erie Ins. Exchange, 753 A.2d 839, 842 (Pa. Super.
      2000) (quotation omitted). “We will affirm the grant of such a
      motion only when the moving party’s right to succeed is certain
      and the case is so free from doubt that the trial would clearly be
      a fruitless exercise.” Holt v. Lenko, 791 A.2d 1212, 1214 (Pa.
      Super. 2002) (quotation omitted).

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007),

quoting Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269,

1275 (Pa. Super. 2005). In other words, “[a] motion for judgment on the

pleadings is similar to a demurrer. It may be entered when there are no

disputed issues of fact and the moving party is entitled to judgment as a

matter of law.” Id., quoting Consolidation Coal Co. v. White, 875 A.2d

318, 325 (Pa. Super. 2005) (citations omitted).




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       Plaintiff first argues that it was not required to respond to Defendants’

new matter, as the notice to plead was not in substantial compliance with

Pa.R.C.P. 1361.5 This claim is waived.

       Plaintiff did not raise the Rule 1361 issue before the trial court, either in

its response in opposition to Defendants’ motion for judgment on the pleadings

or in its motion for reconsideration. It has long been settled that issues not

raised in the lower court cannot be raised for the first time on appeal and are,

therefore, waived. Pa.R.A.P. 302(a); Milicic v. Basketball Mktg. Co., Inc.,

857 A.2d 689, 693 (Pa. Super. 2004), citing ABG Promotions v. Parkway

Publishing, Inc., 834 A.2d 613, 619 (Pa. Super. 2003) (en banc). Because


____________________________________________


5 Pennsylvania Rule of Civil Procedure 1026 requires that “every pleading
subsequent to the complaint shall be filed within twenty days after service of
the preceding pleading, but no pleading need be filed unless the preceding
pleading contains a notice to defend or is endorsed with a notice to plead.”
Pa.R.C.P. 1026. Pennsylvania Rule of Civil Procedure 1361 sets forth the form
of a notice to plead and provides that such notice be in substantially the
following form:

       You are hereby notified to file a written response to the enclosed
       (name of pleading) within twenty (20) days from service hereof
       or a judgment may be entered against you.

Pa.R.C.P. 1361.

Plaintiff asserts that, because the notice to plead affixed to Defendants’ new
matter did not contain the language “or a judgment may be entered against
you” it was not in “substantial compliance” with the Rule 1361. Accordingly,
no responsive pleading was required and all averments contained in
Defendants’ new matter were deemed denied.




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Plaintiff did not raise the issue of Defendants’ failure to comply with Rule 1361

before the trial court, it has waived this argument on appeal.

       Plaintiff next claims that the trial court erred in refusing to grant it leave

to file an amended answer to Defendants’ new matter to properly raise the

issue of the application of the discovery rule.6 In support of its contention,

Plaintiff cites Puleo v. Broad Street Hospital, 407 A.2d 394 (Pa. Super.

1979). There, plaintiff filed an action in trespass against defendants. In new

matter, defendants asserted that plaintiff’s claim was barred by the statute of

limitations.   In its reply to new matter, plaintiff generally averred that his

action had been commenced within the time allowed therefor.               The court

granted judgment on the pleadings in favor of the defendants. Plaintiff filed

a motion for reconsideration containing a request to file an amended reply to

new matter, accompanied by an affidavit averring that plaintiff’s injury was

first discovered on May 16, 1974. Using this date, under the discovery rule,

plaintiff’s complaint would have been within the statute of limitations. The

trial court denied reconsideration, as well as plaintiff’s request to amend.

       On appeal, this Court held that, while the trial court had properly

granted judgment based on the pleadings before it, the court should
____________________________________________


6 Under the discovery rule, the statute of limitations is tolled until the date an
injured party is aware, or reasonably should be aware, of its injury and its
cause. See Ford v. Oliver, 176 A.3d 891, 904 (Pa. Super. 2017) (citation
omitted). Plaintiff argues that, in this case, that date is June 2014, when the
Defendants provided its president, James Heldring, with a copy of the trial
court’s order in the underlying matter denying the motion for clarification filed
by Attorney Milby on Plaintiff’s behalf. The trial court correctly found that
Plaintiff failed to plead the discovery rule in its answer to new matter.

                                           -7-
J-A01005-18



nonetheless have granted plaintiff leave to amend its answer to new matter,

where plaintiff’s application for reconsideration was accompanied by an

affidavit averring that plaintiff did not become aware of his injury until May

16, 1974. The Court stated:

      “[I]t is well settled in this Commonwealth that while the right to
      amend pleadings is ordinarily a matter resting in the sound
      discretion of the trial court, amendments should be allowed with
      great liberality at any stage of the case, unless, of course, they
      violate the law or prejudice the rights of the opposing party.”
      Arzinger v. Baughman, [] 34 A.2d 64, 65 ([Pa.] 1943). See
      also: Bogert v. Allentown Housing Authority, [] 231 A.2d 147
      ([Pa.] 1967). Where a defect in the pleadings can be cured by
      amendment, the opportunity to do so will as a general rule be
      provided. Lehner v. Montgomery, [] 119 A.2d 626, 630 ([Pa.
      Super.] 1956). The reason is a strong reluctance to foreclose a
      party because of the failure or neglect of his counsel. McFadden
      v. Pennzoil Company, [] 191 A. 584, 585 ([Pa.] 1937).

Puleo, 407 A.2d at 396.

      We agree with Plaintiff that the trial court should have granted it leave

to amend its answer to new matter to plead the discovery rule. As in Puleo,

Plaintiff’s request to amend was accompanied by an affidavit from its

president, James Heldring, stating that he did not discover Defendants’

negligence until June 2014. This Court has previously stated its preference

for allowing amendment of pleadings, even after the opposing party has

moved for judgment on the pleadings.

      [W]here there is any uncertainty or doubt, it should not be
      assumed that a party cannot plead with more specificity. The
      court should consider the advisability of directing a party to
      amend.    Moreover, in close cases, it would seem that the
      preferable approach is to await the filing of affidavits and



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      depositions and then to consider the issue on a motion for
      summary judgment.

Pilotti v. Mobil Oil Corp., 565 A.2d 1227, 1229 (Pa. Super. 1989), quoting

Del Quadro v. City of Philadelphia, 437 A.2d 1262, 1263 (Pa. Super. 1981)

(citations omitted). Only where there is no apparent possibility that plaintiff

will be able to set forth a better case by amendment, is there no abuse of the

court’s discretion in refusing the amendment.      Williams By & Through

Williams v. Lewis, 466 A.2d 682, 685 (Pa. Super. 1983). Additionally,

      [a] court may disallow leave to amend the pleadings only where
      prejudice to the other party would result. Gallo v. Yamaha
      Motor Corp. U.S.A., [] 484 A.2d 148, 150 ([Pa. Super.] 1984).
      Prejudice must amount to something more than the removal of
      the procedural defect that the amendment is intended to cure. Cf.
      W.I. Snyder Corp. v. Caracciolo, [] 541 A.2d 775, 778 ([Pa.
      Super.] 1988). Rather, a trial court may not deny a party leave
      to amend unless unfair surprise or some comparable prejudice will
      result from the amendment. Robinson Protective Alarm Co. v.
      Bolger and Picker, [] 516 A.2d 299 ([Pa.] 1986). The timeliness
      of the request to amend is a factor to be considered, but it is to
      be considered only insofar as it presents a question of prejudice
      to the opposing party, as by loss of witnesses or eleventh hour
      surprise. See Brooks v. McMenamin, [] 503 A.2d 446 ([Pa.
      Super.] 1986).

Pilotti, 565 A.2d at 1229.

      Here, the trial court's entry of judgment on the pleadings was an abuse

of discretion, contrary to the policy of the law of this Commonwealth. This

Court has already held that Plaintiff has stated a viable cause of action for

professional malpractice based on Defendants’ failure to name the proper

defendants in the underlying collections action. See Heldring, supra. In its

motion for reconsideration and request for leave to amend, as well as in its

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proposed amended answer to new matter,7 Plaintiff sets forth facts which

could, if proven, satisfy the discovery rule and render its claims timely under

the applicable statutes of limitations.            Moreover, no prejudice has been

suggested in this case to warrant denial of Plaintiff’s prompt request to amend

its answer to correct inadequacies.8

        In sum, because there exists a reasonable possibility that Plaintiff will

be able to set forth a legal theory and facts which, if proven, could toll the

relevant statutes of limitations, we conclude that the trial court abused its

discretion in refusing to grant Plaintiff’s timely request to amend its answer to

new matter.      Accordingly, we remand the case to the trial court to allow

Plaintiff to file an amended answer to new matter.9

        Order reversed.     Case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.




____________________________________________


7 The trial court concluded that, even if Plaintiff had properly raised the
discovery rule, its negligence claim would still be barred because it should
have known of Defendants’ alleged negligent conduct not later than May 17,
2013, the date on which Attorney Milby filed the motion to clarify judgment.
However, Plaintiff’s proposed amended answer raises sufficient questions of
fact so as to call that conclusion into question.

8The trial court granted Defendants’ motion for judgment on the pleadings
by order dated April 24, 2017. Plaintiff filed its motion for reconsideration,
containing a request to amend its answer to new matter, ten days later, on
May 4, 2017.

9   Because of our disposition, we need not address Plaintiff’s remaining issues.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18




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