            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


West Brandywine Township,                      :
                     Appellant                 :
                                               :
                      v.                       :
                                               :
John P. Diromualdo, Inc., and                  :   Nos. 38 and 198 C.D. 2016
John P. Diromualdo, individually               :   Argued: October 17, 2016




BEFORE:        HONORABLE RENÉE COHN JUBELIRER Judge
               HONORABLE JOSEPH M. COSGROVE, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                  FILED: February 8, 2017


               West Brandywine Township (Township) appeals from two orders of
the Court of Common Pleas of Chester County (trial court). The first, dated
August 26, 2015, granted John P. Diromualdo, Inc. and John P. Diromualdo’s
(collectively Appellee) Motion for Judgment on the Pleadings. The second, dated
September 23, 2015, denied the Township’s Motion for Leave to File an Amended
Complaint. Upon review, we affirm.

               In 2009, West Brandywine Township (Township) retained Appellee
to perform a real estate appraisal on a parcel of land that the Township wanted to
acquire. Section 1503 of the Second Class Township Code1 requires the township
board of supervisors, when acquiring real estate, to obtain at least one appraisal of
      1
          Act of May 1, 1933, P.L. 103, as amended, 35 P.S. § 66503.
the property, and the price paid for the real estate may not exceed the price
established in the appraisal.   Appellee issued the appraisal to the Township
manager on March 20, 2009, assessing the value of the parcel at $744,000.00 as of
the date of inspection, February 27, 2009. (Reproduced Record (R.R.) at 26a.)
Subsequently, on July 9, 2009, the Township acquired the property for
$744,000.00.

            In March of 2014, following an investigation into the Township’s
acquisition of the property, the Township Police Department advised the Township
that the 2009 appraisal did not consider a deed restriction on the property which
limited use of the land to public open space and/or public use. (Township’s Brief
at 10.) Appellee performed a second appraisal of the property and issued a report
on April 16, 2014 in which he assessed the property’s value at $211,000.00.

            On March 25, 2015, the Township commenced an action against
Appellee, asserting claims for professional negligence, breach of contract, and
intentional and negligent misrepresentation, and seeking to recover the difference
in appraisal values. Appellee defended on the basis that the deed restriction was
not accessible at the time of the first appraisal, having been filed on February 24,
2009, three days prior to the date Appellee performed his inspection. Appellee
further averred that Township was aware, or should have been aware, of the deed
restriction, and did not advise Appellee of its existence. Appellee filed a Motion
for Judgment on the Pleadings, raising the affirmative defense that the Township’s
claims were barred by the statute of limitations. The Township filed a Motion for
Leave to File an Amended Complaint. The trial court granted Appellee’s Motion




                                          2
on August 26, 2015 and denied the Township’s Motion on September 23, 2015.
The Township appealed2 both decisions to this court.

               The Township raises two issues on appeal: whether the trial court
improperly assumed the role of fact-finder in holding that the Township should
have known of the appraiser’s negligence before the statute of limitations expired;
and whether the trial court committed an error of law and/or abuse of discretion in
denying the Township leave to amend when the proposed amendments are not
futile.

               The Township first argues that the trial court interjected its factual
assessment of when the Township should have known of the appraiser’s
negligence. Citing Sadtler v. Jackson-Cross Co., 587 A.2d 727 (Pa. Super. 1991),
the Township argues “a lay person cannot be expected to possess the knowledge
and expertise of an appraiser and, therefore, the determination of when the
limitation period begins is an issue of fact that should be decided by a jury.” Id. at
732. The Township claims it did not learn of Appellee’s professional negligence
until advised of the issue by its zoning officer in 2014.3 (Township’s Brief at 12.)

               The trial court held that the Township’s right to commence suit began
when Appellee issued the 2009 Summary Appraisal Report which failed to
          2
         Our review of a trial court's decision granting a motion for judgment on the pleadings is
limited to determining whether the trial court committed an error of law or whether there were
facts presented which warranted a jury trial. Travelers Casualty & Surety Company v.
Castegnaro, 772 A.2d 456, 459 (Pa. 2001). As this appeal presents a question of law, our scope
of review is plenary. Lindstrom v. City of Corry, 763 A.2d 394, 396 (Pa. 2000).
          3
          The Township is not disputing it knew the deed restriction existed. The Township had
knowledge of the deed restriction when it entered into the Sewer Agreement on December 11,
2008. It is asserting it did not know the 2009 Summary Appraisal Report did not take the deed
restriction into consideration until March of 2014 when the Township’s Police Department
brought the omission to its attention.

                                                 3
consider the existing deed restriction. In its opinion issued pursuant to Pa.R.A.P.
1925, the trial court explained that the Township conceded it was aware of the
deed restriction prior to Appellee’s issuance of the March 20, 2009 appraisal, the
Township did not make Appellee aware of the deed restriction, or call omission of
the deed restriction in the appraisal to Appellee’s attention. (Appellant’s Brief,
Appendix A at 8.) The trial court concluded that “even a layperson’s review of the
Report indicates that the Deed Restriction was not known” to Appellee at the time
of its issuance. Id. at 10. The trial court found the facts “so clear that reasonable
minds cannot differ in concluding that the [Township] either knew or should have
known of the deed restriction on the property as it was the subject of negotiations
in the ‘Sewer Agreement’ prior to the Township’s acquisition of the subject
property on July 9, 2009.” (R.R. at 555a.)

             The statute of limitations begins to run when a cause of action
accrues; i.e., when an injury is inflicted and the corresponding right to institute a
suit for damages arises. Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa.
2011). A party asserting a claim has the duty to use reasonable diligence to
properly inform itself of the facts and circumstances upon which a potential right
of recovery is based and to institute suit within the prescribed statutory period. Id.

             In general, the point at which the complaining party should reasonably
be aware that it has suffered an injury is an issue of fact to be determined by the
jury. Sadtler, 587 A.2d at 732. Where facts are so clear that reasonable minds
cannot differ regarding when the limitations period begins running, the question
can be determined as a matter of law. Glenbrook Leasing Company. v. Beausang,
839 A.2d 437, 444 (Pa. 2003). In addition, if a party has the means of discovery
within its power but neglects to use them, its claim will still be barred. Baselice v.

                                             4
Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270, 278 (Pa. Super.
2005).

             The discovery rule acts as an exception to the statute of limitations
and provides that where the complaining party is reasonably unaware that his or
her injury has been caused by another party’s conduct, the discovery rule suspends,
or tolls, the running of the statute of limitations. Gleason, 15 A.3d at 484. The
discovery rule operates to balance the rights of diligent, injured plaintiffs against
the interests of defendants in being free from stale claims. Id. at 485.

             In Glenbrook, a real estate partnership retained attorneys to prepare an
agreement of sale and deed in connection with the partnership’s proposed purchase
of office space with parking. The agreement was prepared and executed by the
partnership in 1987 and was silent with respect to the parking spaces. In 1994, a
dispute arose over the parking spaces and the partnership was informed it was not
the owner of the parking spaces. At that time the partnership used another law
firm to opine on the matter and that firm stated the partnership had a potential
malpractice claim against its original attorneys. In 2000, the partnership filed suit
against those attorneys for malpractice.

             The Supreme Court found that the partnership’s claims were time-
barred because it was undisputed the partnership learned of the potential
malpractice claim in 1994. The claim was mentioned in the opinion letter from the
law firm that the partnership engaged for a second opinion. The Court further
found that the trial court did not abuse its discretion in determining that the statute
of limitations had begun to run at the time the partnership received the opinion
letter in 1994. Glenbrook, 839 A.2d at 444.


                                            5
             As the trial court noted in its opinion below, the Township conceded it
was aware of the deed restriction. (Appellant’s Brief at 19.) There are no facts or
testimony presented that would suggest that Appellee took any measures to conceal
the deed restriction from the Township. The absence of the deed restriction in the
appraisal report could have been discovered by the Township had it read past the
first page of the report. The Township did not use reasonable diligence to discover
its injury; therefore, the Township’s claims are time-barred by the applicable
statute of limitations. The trial court, not having been presented with evidence to
the contrary that would have caused reasonable minds to differ, made the
determination of the statute of limitations period as a matter of law. We find that
the trial court did not improperly assume the role of fact-finder, but rather made a
judgment as a matter of law due to the uncontroverted facts presented.

             The Township next argues the trial court committed an error of law
and/or abused its discretion in denying the Township leave to amend the pleadings.
It claims that the amendments explain how and when the Township first learned of
the absence of the deed restriction in the appraisal. The Township relies on
Pa.R.C.P. No. 1033, which states that a party, either by filed consent of the adverse
party or by leave of court, may at any time change the form of action, correct the
name of a party or amend the pleading.           The Township presented several
amendments that detail the events that led to the police department notifying it that
the appraisal did not consider the deed restriction. The trial court reviewed the
amendments and determined that they did not alter the analysis regarding the
commencement of the statute of limitations or application of the discovery rule.
The court found that allowance of the amendments would have only served to
delay the inevitable dismissal upon the pleadings.


                                           6
             Rule 1033 has been interpreted to call for the liberal grant of leave to
amend pleadings in order to allow for full development of a party’s theories and
averments. Newcomer v. Civil Service Commission of Fairchance Borough, 515
A.2d 108, 111 (Pa. Cmwlth. 1986). The discretion to grant or deny leave to amend
remains with the trial court, however, and the fundamental purpose of the rule,
which is to prevent cases from turning on purely technical defects, must be kept in
mind. Id. An amendment is properly refused where it appears the amendment is
futile. Weaver v. Franklin County, 918 A.2d 194, 203 (Pa. Cmwlth. 2007).

             As iterated above, the Township’s amendments to the pleading merely
state the events that led to a discovery that the deed restriction was not considered
in the 2009 appraisal report. They do not provide an explanation as to why the
Township did not exercise due diligence in discovering the discrepancy in the
appraisal. Absent any persuasive information regarding the commencement of the
statute of limitations or the application of the discovery rule, the amendments are
futile and, therefore, we find that the trial court committed no error nor did it abuse
its discretion in denying the leave to amend. This Court will not reverse the
decision of the trial court in the absence of a clear abuse of discretion. Weaver,
918 A.2d at 203.

             For these reasons, the orders of the trial court dated August 26, 2015
and September 23, 2015 are affirmed.



                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                            7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



West Brandywine Township,             :
                     Appellant        :
                                      :
                  v.                  :
                                      :
John P. Diromualdo, Inc., and         :   Nos. 38 and 198 C.D. 2016
John P. Diromualdo, individually      :


                                   ORDER


            AND NOW, this 8th day of February, 2017, the orders of the Court of
Common Pleas of Chester County dated August 26, 2015 and September 23, 2015
are affirmed.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
