J-A09013-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES J. CAMPBELL

v.

ANDREW S. DREGER, JAN DREGER 

AND ARTHUR F. DREGER, JR.

v.

ROBERT CAMPBELL

APPEAL OF: ANDREW S. DREGER 

AND ARTHUR F. DREGER, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1210 EDA 2018

Appeal from the Judgment Entered, April 16, 2016,

in the Court of Common Pleas of Delaware County,

Civil Division at No(s): 2016-006579.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 07, 2019

Andrew S. Dreger and Arthur F. Dreger, Jr. (son and father) appeal from 

the entry of judgment in favor of Robert Campbell (Andrew’s ex-father-inlaw). The court of common pleas held, as a matter of law, that the statute of 

limitations time barred all of Andrew’s and Arthur’s causes of action against 

Robert. Andrew and Arthur argue that they offered sufficient evidence to 

create a question of fact as to whether Robert fraudulently concealed his 

failure to transfer certain real estate to Andrew. Because there is no evidence 
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that Robert concealed his alleged breaches of promise or his alleged fraud

from the Dregers (much less conduct that would lead a reasonable person to 

believe that Robert had transferred the property in question), we affirm.

The trial court related the facts from the Dregers’ case-in-chief as 

follows:

Prior to 2004, brothers James and Robert Campbell 

managed a bar and restaurant known as Campbell’s Boat 

House[.] The Campbell brothers owned equal shares of 

Campbell’s Boat House, Inc. (“CBH”), the corporate entity 

which operated Campbell’s Boat House. At that time, James 

and Robert also owned the real estate on which CBH

stood[.]

In 2004, [James] sold his interest in CBH to [Andrew.] 

At the time, [Andrew] and [Robert’s] daughter, [Jan,] were 

husband and wife. On April 10, 2004, [Andrew, Jan, and 

James] signed a letter of intent which confirmed “in 

principal” the purchase of [James’] portion of CBH.

On October 27, 2004, [Andrew] executed a Sale 

Agreement for the purchase of shares of CBH from [James]. 

In the Sale Agreement, [Robert] authorized the sale of the 

shares in CBH to [Andrew by James] and also executed a 

Guaranty of [Andrew’s] debt for the purchase of the shares. 

As part of the Sale Agreement, [James] transferred his 

interest in the [property] to [Robert] and executed a Deed 

to memorialize the transfer. [Arthur] executed a Guaranty 

as surety for [Andrew’s] financial obligations under the Sale 

Agreement.

In addition, on October 27, 2004, [Andrew and 

Robert] executed a Side Agreement “. . . for the purpose of 

setting forth their understanding as to certain matters 

between them and as relate to [CBH and the property]”. 

The Side Agreement further contained a buy/sell agreement 

as to the transfer of the [property to Andrew by Robert’s 

widow] or estate should [Robert’s] wife predecease him. 

The Side Agreement did not provide for the transfer of the 

property to [Andrew]. 
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The instant matter was instituted on August 1, 2016 

by [James] seeking to collect on a Note against [Andrew and 

Jan], who were divorcing. [Andrew and Arthur] filed crossclaims and joined [Robert] as an additional defendant. In 

their Answer and Counter/Cross-claims, [Andrew and 

Arthur] asserted claims for fraud, promissory estoppel, and 

unjust enrichment. 

At trial, [Andrew and Arthur] claimed that oral

assurances were made prior to the execution of the Sale 

Agreement and Side Agreement. Specifically, [they] 

asserted that, sometime in July 2004, [Robert] promised to 

transfer [James’] interest in the [property to Andrew and 

Jan] within “one and one and one-half years” of the 

execution of the Sale Agreement. It was claimed the 

agreement was made to avoid the payment of Pennsylvania 

realty transfer tax. This Agreement was never placed in 

writing.

At all relevant times between the execution of the 

Letter of Intent and the execution of the Sale Agreement 

and Side Agreement, [Andrew] was represented by counsel, 

Christine Berry, Esquire. On July 26, 2004, [Andrew] had a 

telephone consultation with [Ms. Berry], during which [she] 

informed [Andrew] that, to assure the [property] would be 

transferred to him, an additional written and executed “Side 

Agreement” setting forth the terms of the alleged real estate 

transfer agreement [was] required. Ms. Berry counselled 

[Andrew] not to execute the Sale Agreement and Side 

Agreement absent a memorialization of the alleged promise 

to transfer the [property to Andrew]. [Arthur] also 

recommended [Andrew] not execute the Sale Agreement or 

Side Agreement prior to the closing of the transaction. 

Despite the recommendation of counsel and his father, 

[Andrew] voluntarily executed the Sale Agreement and Side 

Agreement.

At trial, following the close of [Andrew and Arthur’s] 

case-in-chief, [Robert moved] for compulsory nonsuit,

pursuant to Pa.R.C.P. 230.1.

Trial Court Opinion, 7/9/18, at 1-4 (citations omitted). 
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Applying the statute of limitations and finding all of Andrew and Arthur’s 

claims untimely, the trial court granted that motion. Andrew and Arthur filed 

a post-trial motion to remove the nonsuit, which the trial court did not rule 

upon. After 120 days, the prothonotary entered judgment in favor of Robert, 

and this timely appeal followed. Andrew and Arthur and the trial court have 

complied with Pennsylvania Rule of Appellate Procedure 1925.

Andrew and Arthur raise one issue on appeal. They ask:

Did the trial court err in granting a compulsory nonsuit, 

where the evidence, construed in the light most favorable 

to Andrew, demonstrates that the statute of limitations did 

not begin running until the fall of 2015, less than two years 

before Andrew’s counterclaims, thus making Andrew’s 

counterclaims timely?

See Andrew and Arthur’s Brief at 6.

Andrew and Arthur believe that Robert is equitably estopped from 

asserting the statute of limitations as a defense in this action, because he 

fraudulently concealed the fact that he did not transfer the CBH property to 

Andrew. See id. at 19. They argue that Robert made oral admissions

between 2004 and 2015 indicating that he (a) should have and (b) would 

eventually transfer the property to Andrew. “Robert promised to carry it out 

and said that he simply had never got around to it.” Id. at 21. Andrew and 

Arthur claim that the evidence of record, when viewed in their favor, can 

establish that these statements amounted to fraudulent concealment.

In reviewing a grant of compulsory nonsuit our scope of review is all the 

evidence adduced at trial, “giving the appellant the benefit of every reasonable 
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inference and resolving all evidentiary conflicts in his favor. . . .” Agnew v. 

Dupler, 717 A.2d 519, 523 (Pa. 1998). Also, we afford the trial court’s award 

of judgment as a matter of law no deference; thus, our standard of review is 

de novo. See Id. We must decide whether Robert deserved judgment as a 

matter of law, because no genuine issues of material fact remained in dispute 

at the close of Andrew and Arthur’s case.

In dismissing the case on statute-of-limitations grounds, the trial court 

opined:

An action to recover damages for injury to person or 

property which sounds in fraud is governed by a two-year 

statute of limitations. See 42 Pa.C.S.A. § 5524(7). 

Typically, the two-year period begins to run as soon as the 

right to institute and maintain a suit arises. See Crouse v. 

Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000); Toy v. 

Metro. Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. 2004), 

aff’d, 928 A.2d 186 (Pa. 2007). Actions sounding in 

promissory estoppel, which renders otherwise 

unenforceable agreements binding, sounds in contract law 

and thus is governed by a four-year limitations period for 

contract actions, rather than the six-year, “catch-all” 

limitations statute. 42 Pa.C.S.A. §§ 5525, 5527; Crouse v. 

Cyclops Indus., 745 A.2d 606 (Pa. 2000). Similarly, the 

statute of limitations on an unjust-enrichment claim is four 

years. See 42 Pa.C.S.A. § 5525(a)(4)[.] 

There is a strong policy in Pennsylvania courts favoring 

the strict application of statutes of limitations. Statutes of 

limitations are designed to effectuate three purposes: (1) 

preservation of evidence; (2) the right of potential 

defendants to repose; and (3) administrative efficiency and 

convenience. Kingston Coal Co. v. Felton Min. Co., 690 

A.2d 284, 288 (Pa. Super. 1997) (internal citations 

omitted). 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 the facts and 

circumstances upon which a potential right of recovery is 
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based and to institute suit within the prescribed statutory 

period. Id. Thus, the statute of limitations begins to run 

as soon as the right to institute and maintain suit arises; 

lack of knowledge, mistake, or misunderstanding do not toll 

the running of the statute of limitations. Id.

At trial . . . this Court determined the [Sale 

Agreement] was executed by the parties, including [Andrew 

and Robert on October 27, 2004. The testimony of Christine 

Berry, Esquire corroborated her notes made 

contemporaneously with discussions among the parties and 

counsel, stating that, within one and a half (11⁄2) years of 

October 27, 2004, a conveyance would be made by [Robert 

to Andrew].

One and a half (11⁄2) years following the October 27, 

2004 execution would be April 27, 2006. The applicable 

statute of limitations on a cause of action sounding in fraud 

is two (2) years, and the applicable statute of limitations on

a cause of action sounding in either promissory estoppel or 

unjust enrichment is four (4) years. Two (2) years after 

April 27, 2006 is April 27, 2008, and correspondingly, four 

(4) years after April 27, 2006 is April 27, 2010. Even in the 

light most favorable to [Andrew and Arthur], the evidence 

admitted in [Andrew and Arthur’s] case-in-chief revealed 

[they] took no action to investigate whether the final 

conveyance of the real estate to [Andrew] occurred until 

November 2015. Moreover, [they] did not bring a cause of 

action related to the ownership of the [property] until 2016. 

Generally, a plaintiff is required to exercise reasonable 

diligence to inform himself of the facts upon which his right 

to recovery is premised. Fine v. Checcio, 870 A.2d 850, 

859 (Pa. 2005).

Trial Court Opinion, 7/9/18, at 6-9 (some citations omitted). Accordingly, the 

trial court found that the Andrew and Arthur’s 2016 counter-claims came at 

least six years too late.

Andrew and Arthur have not appealed the trial court’s recitation of the

general rules regarding the statute of limitations or its calculation of the time 
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frames. Instead, they argue that the trial court counted from the wrong date, 

because the doctrine of fraudulent concealment allegedly estopped Robert 

from relying upon the statute of limitations until no earlier than 2015. Hence, 

if Andrew and Arthur did not prove a fraudulent concealment upon which they 

could reasonably rely, the trial court’s application of the statute of limitations 

must stand.

The doctrine of fraudulent concealment “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.” Fine, 870 A.2d at 860. “The plaintiff has the burden of proving 

fraudulent concealment by clear, precise, and convincing evidence”, and “it is 

for the court to determine whether an estoppel results from established facts”. 

Id.

Moreover, fraudulent concealment and the discovery rule (also explored

in Fine) dovetail; both require plaintiffs to investigate claims based upon what 

they know or should reasonably know. The Fine Court said, “the standard of 

reasonable diligence, which is applied . . . under the discovery rule, also should 

apply when tolling takes place under the doctrine of fraudulent concealment.” 

Id. at 861. Thus, even with an affirmative act of concealment, the statute of 

limitations starts to run “when the injured party knows or reasonably should 

know of his injury and its cause.” Id.

Here, the Andrew and Arthur’s fraudulent-concealment theory fails on 

two grounds. 
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First, “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 plaintiffs justifiably relied.” 

Kingston Coal, 690 A.2d at 291. Andrew and Arthur point to no evidence of 

record showing an affirmative, independent act by Robert concealing anything 

from them. Nor does our review of the record reveal such an act of 

concealment.

In 2015, when Andrew and Arthur confronted Robert about not 

transferring the property to Andrew, Robert did not conceal his shortcoming. 

He flatly admitted that he had not deeded the property to Andrew. Thus, 

rather than hide any unjust enrichment, fraud, or promissory estoppel, Robert

confessed to his inaction. The fact that he said he would make good on the 

promise in the future – i.e., after Andrew paid James in full – likewise did not

hide the alleged breach or toll the statute of limitations. It underscores that 

a breach (if any) already occurred – on April 27, 2006 – as the trial court 

found. Thus, there is no genuine issue of material fact as to whether Robert 

committed a fraudulent concealment, because there is no evidence of record 

that he kept anything secret.

Second, even if Robert had attempted to conceal his alleged breach and 

fraud by mere words – i.e., if he had said something like, “I transferred the 

property to you already; it’s all yours” – that statement would not cause a

reasonable person to relax his or her vigilance in a real estate transaction, as 

a matter of law. A reasonable person in Andrew’s place should have known 
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that the transfer had not occurred, because Andrew never attended a closing 

or received a deed naming him owner of the property. 

To transfer title to real estate in this Commonwealth certain formalities 

must be observed, not the least of which is delivery of a deed. “Delivery of a 

deed is necessary to render it legally operative. The general principle of law 

is that the formal act of signing, sealing, and delivering is the consummation 

of the deed.” In re Estate of Plance, 175 A.3d 249, 260 (Pa. 2017) (citations 

omitted). Accordingly, there is no way for a grantor to conceal the fact that 

he failed to transfer legal title to land, unless the grantor forged a deed and 

tricked the grantee into thinking that a transfer had occurred. None of the

steps for transferring land occurred here, and Andrew and Arthur make no 

suggestion that Robert forged a deed or orchestrated a fake closing. 

They had no reasonable basis to believe for ten years that Andrew was 

the owner of the property, when clearly he was not. Thus, Robert did not trick 

or lull them into believing that he had kept his October 27, 2004 promise to 

convey the land, the promise upon which the Dregers’ entire counter-claim is 

founded.

The trial court rightly entered a compulsory nonsuit against Andrew and 

Arthur, because they presented absolutely no evidence of a concealment by 

Robert. They also did not produce any evidence from which a reasonable 

person could believe that Robert had transferred the property to Andrew. As 

such, Robert did nothing of record to conceal his alleged breach of promises 

or his alleged fraud from Andrew and Arthur, as a matter of law.
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The trial court correctly granted compulsory nonsuit in favor of Robert.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/19