J-A29031-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH P. MCDONALD, 

ADMINISTRATOR, D.B.N.C.T.A. OF 

THE ESTATE OF JOSEPH C. 

MARCHESE DECEASED 

Appellant

v.

JOHN J. MCCREESH, III, ESQUIRE

AND JOHN. J. MCCREESH, IV, 

ESQUIRE, AND MCCREESH, 

MCCREESH, & CANNON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1128 EDA 2018

Appeal from the Order Entered March 13, 2018

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): No. 2013-27599

BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 27, 2018

Appellant Joseph P. McDonald, Administrator d.b.n.c.t.a. of the estate 

of Joseph C. Marchese, appeals from the order of the Court of Common Pleas 

of Montgomery County granting the Motion for Judgment on the Pleadings 

filed by John J. McCreesh, III, Esq., John J. McCreesh, IV, Esq., and their law 

practice McCreesh, McCreesh, and Cannon, P.C. (hereinafter referred to 

collectively as “Appellees”). As the trial court correctly found Appellant’s 

malpractice action against Appellees is barred by the applicable statutes of 

limitations, we affirm.
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The trial court aptly summarized the factual background of this case as 

follows:

Joseph C. Marchese (“Marchese Senior”) died in 1998, and 

Letters Testamentary were issued to his son, Joseph Marchese 

(“Marchese Junior”). As Executor of the Estate of Marchese Senior 

(“the Estate”), Marchese Junior engaged [Appellees] to represent 

him in the administration of the Estate. Pursuant to the 

engagement, [Appellees] prepared federal estate and income tax 

returns (IRS Forms 706 and 1041) and the Pennsylvania state tax 

returns (PA Form REV-1500) for the Estate and filed them in June 

1999.

Both the federal estate tax return and the state inheritance 

tax return, as prepared by [Appellees], listed certain bank 

accounts and securities accounts as being jointly owned by 

Marchese Senior (i.e. the Decedent) and Marchese Junior (i.e. the 

Executor). These accounts are hereinafter referred to as “the 

Disputed Accounts.”

Marchese Junior served as Executor until his death in 2004. 

The Register of Wills of Montgomery County then appointed

Michael Marchese as Successor Executor of the Estate. By Order 

dated August 13, 2008, the Orphans’ Court removed Michael 

Marchese as Executor and appointed [Appellant] as Administrator 

d.b.n.c.t.a.

In 2000, the Internal Revenue Service audited the Estate’s 

federal estate tax return. The IRS issued a report dated 

November 1, 2000, identifying two errors made by [Appellees]. 

First, it determined that the federal estate tax and state 

inheritance tax had not been subtracted from the residue of the 

Estate before calculating the amount of assets that passed to 

Marchese Senior’s widow. Second, the IRS adjusted the amount 

of Marchese Senior’s taxable gifts. As a result, the IRS reduced 

the amount of the allowed marital deduction, resulting in 

additional tax owed by the Estate.

On May 1, 2009, [Appellant] filed with the Orphans’ Court a 

Petition for Declaratory Judgment. The Petition alleged, on behalf 

of certain beneficiaries of the Estate, that the Disputed Accounts 

were not in fact jointly owned by Marchese Senior and Marchese 
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Junior, as reported by [Appellees] on the tax returns, but rather 

were the sole property of Marchese Senior and, thus, of the 

Estate.

On July 1, 2009, [Appellees] filed with the Orphans’ Court 

an Amended First and Final Account of Joseph D. Marchese 

(Marchese Junior), as Executor. The Account specifically disclosed 

the adjustments made by the IRS in the Estate’s federal estate 

tax return. Certain beneficiaries filed Objections to the Account 

on August 3, 2009.

Extensive litigation ensued on both the Petition for 

Declaratory Judgment and the Objections to the Account. On 

March 21, 2012, after a hearing, the Orphans’ Court, by the 

Honorable Lois E. Murphy, issued an Opinion and Order, 

determining that the Disputed Accounts were the sole property of 

Marchese Senior and were not jointly owned with Marchese Junior. 

She ordered that the Estate of Marchese Junior (who was by now 

himself deceased) must return all distributions from the Disputed 

Accounts that it had received from the Estate of Marchese Senior. 

The Estate of Marchese Junior has not complied with the Orphans’ 

Court’s Order.

[Appellant], as Administrator of the Estate of Marchese 

Senior, commenced this action against [Appellees] by Writ of 

Summons on September 9, 2013. His Amended Complaint is 

brought in three counts, for breach of fiduciary duty, legal 

malpractice, and breach of contract.1 The basis for all three 

counts is that [Appellees] allegedly failed to properly carry out 

their duties as attorneys for the Estate – in particular, by 

improperly preparing the federal estate tax return and by 

improperly treating the Disputed Accounts as jointly owned with 

Marchese Junior. 

Trial Court Opinion, 3/12/18, at 2-4.

On April 13, 2016, Appellees filed preliminary objections, which were 

subsequently overruled. On May 23, 2016, Appellees filed an Answer with 

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1 Appellant filed a Complaint against Appellees on March 13, 2015 and an 

Amended Complaint on March 17, 2016.
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New Matter, in which they raised the applicable statutes of limitations as an 

affirmative defense. Appellant did not respond to the Answer with New Matter.

On November 16, 2017, Appellees filed a Motion for Judgment on the 

Pleadings, again arguing that Appellant’s action was barred by the applicable 

statutes of limitations. After Appellee filed a response, the lower court held 

oral argument. 

On March 13, 2018, the lower court entered an order and opinion 

granting Appellee’s Motion for Judgment on the Pleadings. The lower court 

reasoned that the statutes of limitations for claims challenging Appellees’

treatment of the Disputed Accounts began to run on May 1, 2009 when 

Appellant filed the Petition of Declaratory Judgment seeking that the Accounts 

be treated as assets of Marchese Senior’s Estate. Moreover, the lower court 

found the statutes of limitations for claims challenging Appellees’ handling of 

the estate’s tax returns began to run on July 1, 2009, when Appellees filed 

the Amended First and Final Accounting which disclosed the tax errors that 

resulted in the payment of additional taxes and interest by the estate. As this 

action was not filed until September 9, 2013, the lower court found this action 

to be barred by the applicable two and four year statutes of limitations. This 

appeal followed.

The sole issue before this Court is whether the trial court erred in 

determining that Appellant’s causes of action related to Appellee’s treatment 

of the Disputed Accounts were barred by the applicable statutes of 
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limitations.2 When reviewing the entry of judgment on the pleadings, we are 

guided by the following standard:

Entry of judgment on the pleadings is permitted under 

Pennsylvania Rule of Civil Procedure 1034, which provides that 

“after 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). 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.

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.

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.

Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91 

(Pa.Super. 2015) (citation omitted).

As previously noted, Appellant’s lawsuit raised three counts: breach of 

fiduciary duty, breach of contract, and legal malpractice. The statute of 

limitations for a claim of breach of fiduciary duty is two years (42 Pa.C.S.A. § 

5524). A legal malpractice action may be brought in either contract or tort; 

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2 Appellant does not argue that the trial court erred in finding time-barred his 

claims regarding Appellees’ responsibility for the errors in the preparation of

the federal estate tax return. Accordingly, we need not discuss this finding in 

this appeal.
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while legal malpractice claims sounding in tort have a two-year statute of 

limitations, legal malpractice claims sounding in contract have a four-year 

statute of limitations. See 42 Pa.C.S.A. §§ 5524-25; Wachovia Bank, N.A. 

v. Ferretti, 935 A.2d 565, 570 (Pa.Super. 2007). Further:

The elements of a legal malpractice action, sounding in 

negligence, include: (1) employment of the attorney or other basis 

for a duty; (2) failure of the attorney to exercise ordinary skill and 

knowledge; and (3) that such failure was the proximate cause of 

the harm to the plaintiff. With regard to a breach of contract 

claim, an attorney who agrees for a fee to represent a client is by 

implication agreeing to provide that client with professional 

services consistent with those expected of the profession at large.

Id. at 570–71 (citations omitted).

To determine when the statute of limitations begins to run in a 

malpractice action, this Court applies the occurrence rule, which provides that

“the statutory period commences upon the happening of the alleged breach 

of duty.” Id. at 572. However, this Court has recognized that there is an 

exception to the occurrence rule; the equitable discovery rule will toll the 

statute of limitations “when the injured person is unable, despite the exercise 

of due diligence, to know of the injury or its cause. Lack of knowledge, 

mistake or understanding, will not toll the running of the statute.” Id. 

(citations omitted).

The Court has provided further explanation of the discovery rule:

The discovery rule is an exception to the requirement that a 

complaining party must file suit within the statutory period. The 

discovery rule provides that where the existence of the injury is 

not known to the complaining party and such knowledge cannot 

reasonably be ascertained within the prescribed statutory period, 
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the limitations period does not begin to run until the discovery of 

the injury is reasonably possible. The statute begins to run in 

such instances 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. The party seeking to invoke the discovery rule bears the 

burden of establishing the inability to know that he or she has 

been injured by the act of another despite the exercise of 

reasonable diligence.

Commc'ns Network Int'l, Ltd. v. Mullineaux, 187 A.3d 951, 961 

(Pa.Super. 2018) (quoting Meehan v. Archdiocese of Philadelphia, 870 

A.2d 912, 919 (Pa.Super. 2005)).

In this case, even in giving Appellant the benefit of the discovery rule to 

toll the statutes of limitations, the trial court found that there was no question 

that Appellant knew of the erroneous treatment of the Disputed Accounts 

when he filed the Petition for Declaratory Judgment on May 1, 2009. In this 

petition, Appellant requested that the Disputed Accounts be declared assets 

of the Estate and asserted that the Disputed Accounts contained improper 

and/or void beneficiary designations in favor of Marchese Junior. Thus, we 

agree with the trial court’s determination that Appellant knew of the injury to 

the Estate on May 1, 2009.

Appellant primarily argues that the statutes of limitations should have 

been tolled until March 2012 when the Orphans’ Court specifically found that 

thirteen of the Disputed Accounts were to be treated as assets of the Estate

and not as joint property of Marchese Senior and Marchese Junior. 

Specifically, Appellant asserts that he could not have filed suit prior to the 
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Orphans’ Court’s determination as he contends that any damages to the Estate 

were speculative until that point.

This Court has previously rejected a similar argument in Wachovia 

Bank, which we find to be controlling precedent. In that case, an attorney 

for Wachovia’s predecessor bank (Meridian) obtained a judgment against a 

real estate development company and its partners. After Meridian entered a 

settlement agreement with one of the partners in 1992, Meridian’s attorney 

failed to file a praecipe to acknowledge the satisfaction of the judgment. In 

1994, the partner filed suit against Meridian, seeking liquidated damages 

based on Meridian’s failure to mark the judgment as satisfied. After prolonged 

litigation, the trial court ultimately ruled in the partner’s favor in June 2003 

and awarded him liquidated damages.

Wachovia, Meridian’s successor, filed a malpractice action in 2005 

against the attorney who had neglected to have the judgment marked as 

satisfied. The trial court granted the attorney’s motion for judgment on the 

pleadings, finding the action to be time-barred. This Court affirmed, finding

that the bank became aware of its potential malpractice claim in 1994 upon 

the filing of the partner’s lawsuit for liquidated damages based on Meridian’s 

failure to mark the judgment as satisfied. 

In addition, this Court dismissed Wachovia’s argument that it could not 

initiate the malpractice lawsuit until it incurred actual loss by the entry of 

judgment in the litigation filed by the partner. This Court explained that:
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the test of whether damages are remote or speculative has 

nothing to do with the difficulty in calculating the amount, but 

deals with the more basic question of whether there are 

identifiable damages.... Thus, damages are speculative only if the 

uncertainty concerns the fact of damages rather than the amount.

Wachovia Bank, 935 A.2d at 572 (citation omitted). As the damages 

allegedly suffered by Wachovia were “identifiable” when the partner initiated 

the litigation against the bank for liquidated damages, the statutes of 

limitations for the bank’s malpractice claim accrued when it was sued for the 

failure to have the judgment marked as satisfied and not when the court made 

a final determination in that matter. Id. at 574.

Likewise, in this case, Appellant demonstrated his knowledge of 

damages to the Estate when he filed the Petition for Declaratory Judgment, 

asking the Orphans’ Court to declare the Disputed Accounts to be assets of 

the Estate and asserting that the Disputed Accounts contained improper 

and/or void beneficiary designations in favor of Marchese Junior. At that point, 

the damages to the Estate were identifiable as Appellant’s petition cited to the 

Pennsylvania Inheritance Tax Return that had been previously filed by 

Appellee John J. McCreesh, III, Esq., which had listed the Disputed Accounts 

as joint property of Marchese Senior and Marchese Junior and reported their 

monetary values. 

In addition, there is no basis in the record to support Appellant’s claim 

that he had no reason to know that Appellees had any involvement with the 

Disputed Accounts until the Orphans’ Court made a determination that the 

accounts were improperly treated as joint accounts. As noted above, 
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Appellant’s May 2009 Petition for Declaratory Judgment relies on the tax 

return filed by Appellee John J. McCreesh, III, Esq. in which the Disputed 

Accounts were improperly classified as joint accounts; the tax return expressly 

lists Atty. McCreesh as the correspondent.

Moreover, even if we were to accept Appellant’s allegation that he did 

not know the identity of the attorney who had responsibility in the improper 

classification of the Disputed Accounts, this fact is irrelevant to our 

determination of when the statutes of limitations began to run. This Court 

has held “once a victim is put on notice that there may be legal responsibility 

on the part of another or others, with the only outstanding problem being the 

identity of the culpable party, the statute's commencement could not be 

delayed[.]” DeMartino v. Albert Einstein Med. Ctr., N. Div., 460 A.2d 295, 

304 (Pa.Super. 1983). When Appellant filed the Petition for Declaratory 

Judgment in May 2009, Appellant clearly had “sufficient critical facts to put 

him on notice that a wrong had been committed and that he need to 

investigate to determine whether [the Estate was] entitled to redress.” See 

Commc’ns Network Int’l, supra. 

As a result, the statute of limitations for the legal malpractice action 

against Appellees was tolled until May 1, 2009. Thus, the two-year statute of 

limitations to commence an action for breach of fiduciary duty expired on May 

1, 2011. In addition, the four-year statute of limitation to commence a 

malpractice action based on a breach of contract claim expired on May 1, 
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2013. As Appellant did not file this action until September 9, 2013, all of 

Appellant’s claims are barred by the applicable statutes of limitations.

For the foregoing reasons, we affirm the trial court’s order.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/18