J-S71019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF ROSEMARIE 

MONTEVERDE, DECEASED

APPEAL OF: ELIZABETH ADAMS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1995 EDA 2019

Appeal from the Order Entered June 17, 2019

In the Court of Common Pleas of Chester County Orphans' Court at 

No(s): 1513-0205

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 12, 2020

Elizabeth Adams (Appellant), executrix of the estate of Rosemarie 

Monteverde (Decedent), appeals from the orphans’ court’s order sustaining 

the preliminary objections of Bank of America, N.A. (Bank of America), and 

dismissing Appellant’s third amended petition for surcharge with prejudice. 

We affirm. 

The orphans’ court recounted the factual and procedural background: 

[Decedent] died on November 11, 2012. Decedent was the 

sole trustee of a trust (The Monteverde Irrevocable Family Trust) 

created by her husband Joseph Monteverde with $100,000 in cash 

at United Jersey Bank. Joseph Monteverde died in 1993. The 

trust named as successor trustees Decedent’s children[,] John 

Monteverde and [the Co-Executrixes: Appellant and Cecilia 

Rooney]. In 2009, Decedent was diagnosed with Alzheimer’s 

disease and Co-Executrixes obtained Power of Attorney for her. 

In 2011, under the authority of the POA, Co-Executrixes went to 

a Bank of America (successor by merger of United Jersey Bank) 

branch office in New Jersey to close all accounts with [Bank of 

America], and all safety deposit boxes. On July 31, 2011, nine 
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accounts were closed with [Bank of America] together with all 

safety deposit boxes. 

In 2012, Co-Executrixes noticed an amount of money, less 

than $100, was deposited into one of Decedent’s Bank of America 

accounts. The funds were thereafter withdrawn by [Bank of 

America]. This happened again in 2013, 2014, 2015[,] and 2016. 

In 2012, 2013, 2014, 2015[,] and 2016, [Bank of America] billed 

the estate for the safety deposit box that had been closed in 2011.

 

On May 9, 2016, Co-Executrixes received notice from Legal 

Complaint Services of the existence of The Monteverde 

Irrevocable Family Trust account. Co-Executrixes learned that the 

trust account was at Bank of America, valued in excess of 

$93,000. [Appellant] obtained original trust documents and a 

bank statement from 1993 showing a balance of $96,849.53. On 

May 20, 2016, [Appellant] presented the original trust paperwork 

to Bank of America. [Appellant] claimed that Bank of America 

failed to answer her questions regarding the funds and history of 

earnings. Bank of America contends that the funds in the account 

were distributed to [Appellant] on May 20, 2016. Co-Executrixes 

claim that the funds were released on November 9, 2018. 

On October 12, 2018, Co-Executrixes filed a Petition for 

Surcharge. On November 8, 2018, Co-Executrixes filed an 

Amended Petition for Surcharge. On December 10, 2018, [Bank 

of America] filed Preliminary Objections to the Amended Petition 

for Surcharge. On December 28, 2018, Co-Executrixes filed a 

Second Amended Petition for Surcharge. On January 17, 2019, 

[Bank of America] filed Preliminary Objections to the Second 

Amended Petition for Surcharge. On February 5, 2019, CoExecutrixes filed a Third Amended Petition for Surcharge. On May 

22, 2019, [Bank of America] filed Preliminary Objections to the 

Third Amended Petition for Surcharge. 

* * *

On June 17, 2019, [the orphans’ court] sustained the 

Preliminary Objections to the Third Amended Petition, and 

dismissed with prejudice the claims against [Bank of America]. 

On July 15, 2019, [Appellant] filed the instant appeal. 

Orphans’ Court Opinion, 8/28/19, at 1-4. 
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Both Appellant and the orphans’ court have complied with Pennsylvania 

Rule of Appellate Procedure 1925. Appellant presents three issues for review: 

1. WHETHER THE COURT ERRED AS A MATTER OF LAW AND 

DISREGARDED ISSUES OF FACTS IN SUSTAINING [BANK OF 

AMERICA’S] PRELIMINARY OBJECTIONS TO THE THIRD AMENDED 

PETITION FOR SURCHARGE, WHEN APPELLANT’S CLAIMS ARE 

NOT TIME BARRED. 

2. WHETHER THE COURT ERRED AS A MATTER OF LAW AND 

DISREGARDED ISSUES OF FACTS IN SUSTAINING [BANK OF 

AMERICA’S] PRELIMINARY OBJECTIONS TO THE THIRD AMENDED 

PETITION FOR SURCHARGE, WHERE APPELLANT SUCCESSFULLY 

STATED A CLAIM FOR BREACH OF FIDUCIARY DUTY. 

3. WHETHER THE COURT ERRED AS A MATTER OF LAW AND 

DISREGARDED ISSUES OF FACTS IN SUSTAINING [BANK OF 

AMERICA’S] PRELIMINARY OBJECTIONS TO THE THIRD AMENDED 

PETITION FOR SURCHARGE, WHERE APPELLANT PLEAD SPECIFIC 

FACTS TO ALLEGE FRAUD. 

Appellant’s Brief at 5. 

All three of Appellant’s issues allege that the orphans’ court committed 

an error of law in sustaining Bank of America’s preliminary objections to 

Appellant’s third amended petition for surcharge and dismissing her petition. 

Our standard of review of a [lower] court’s order granting 

preliminary objections is well settled.

[O]ur standard of review of an order of the [lower] court 

overruling or granting preliminary objections is to determine 

whether the [lower] court committed an error of law. When 

considering the appropriateness of a ruling on preliminary 

objections, the appellate court must apply the same standard as 

the [lower] court.

Shafer Elec. & Const. v. Mantia, 67 A.3d 8, 10 (Pa. Super. 2013), aff'd on 

other grounds, 96 A.3d 989 (Pa. 2014).
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Initially, we note that a statute of limitations affirmative defense should 

be pled as new matter, not as a preliminary objection. See Pa.O.C.R. 3.11 

(“All applicable affirmative defenses shall be pleaded in the answer under the 

heading ‘New Matter.’”). Bank of America acknowledges this procedural error. 

See Bank of America’s Brief at 16 n.2. However, Appellant failed to object 

to Bank of America’s procedural error by filing a responsive preliminary 

objection, and therefore, Appellant has waived any claim challenging the

error. See Hvidak v. Linn, 190 A.3d 1213, 1228 (Pa. Super. 2018)

(“[W]here a party erroneously asserts substantive defenses in a preliminary 

objection rather than these defenses by answer or in new matter, the failure 

of the opposing party to file preliminary objections to the defective preliminary 

objections, raising the erroneous defense, waives the procedural defect and 

allows the [lower] court to rule on the preliminary objections.”) (citing Preiser 

v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992)). We therefore turn 

to the merits of Appellant’s appeal. 

In her first issue, Appellant claims the orphans’ court erred in sustaining 

Bank of America’s preliminary objections and concluding that her claims are 

barred by the applicable statute of limitations. See Appellant’s Brief at 17-

20. Both Bank of America and the orphans’ court conclude that both causes 

of action raised by Appellant in her third amended petition for surcharge are 

time-barred. See Bank of America’s Brief at 16-20; Orphans’ Court Opinion, 

8/28/19, at 4-5. 
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We have previously stated that, “[a]bsent issues pertaining to the 

discovery rule, whether the statute of limitations has run on a claim is 

generally a question of law for the [lower court] judge.” Wilson v. Transport 

Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005) (citation omitted). “Which 

statute of limitations applies to a cause of action is also a matter of law for 

the court to determine.” Id. (citation omitted). “Additionally, the 

interpretation and application of a statute is a question of law that compels 

plenary review to determine whether the court committed an error of law.” 

Id. (citations omitted). 

“Generally, the statute of limitations begins to run when the right to 

institute and maintain suit arises.” Mahonski v. Engel, 145 A.3d 175, 183 

(Pa. Super. 2016) (citation omitted). However, Pennsylvania law recognizes 

the discovery rule exception to statutes of limitation: 

The discovery rule is a judicially created device which tolls the 

running of the applicable statute of limitations until that point 

when the plaintiff knows or reasonably should know: (1) that [the

plaintiff] has been injured, and (2) that [the] injury has been 

caused by another party’s conduct. The limitations period begins 

to run 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. 

Melley v. Pioneer Bank, N.A., 834 A.2d 1191, 1201 (Pa. Super. 2003) 

(citation omitted). While the application of the discovery rule is ordinarily a 

question of fact, where reasonable minds would not differ as to its application, 

the lower court may make the determination as a matter of law. O’Kelly v. 

Dawson, 62 A.3d 414, 420 (Pa. Super. 2013); see also Toy v. Metropolitan 
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Life Ins. Co., 863 A.2d 1, 7-8 (Pa. Super. 2004) (“[W]here the facts are so 

clear that reasonable minds could not differ, the commencement period may 

be determined as a matter of law.”) (citation omitted). 

Turning to the matter before us, the applicable statute of limitations 

provides: 

The following actions and proceedings must be commenced within 

two years: . . . 

(7) Any other action or proceeding to recover damages for injury 

to person or property which is founded on negligent, intentional, 

or otherwise tortious conduct or any other action or proceeding 

sounds in trespass, including deceit or fraud, except an action or 

proceeding subject to another limitation specified in this 

subchapter. 

42 Pa.C.S.A. § 5524(7).

The orphans’ court concluded that both of Appellant’s stated causes of 

action were time-barred by Section 5524(7), explaining: 

Any action or proceeding to recover damages for injury to 

person or property which is founded on negligent, intentional, or 

otherwise tortious conduct or any other action or proceeding 

sounding in trespass, including deceit or fraud shall be 

commenced within two years. 42 Pa. C.S.A. 5524(7). 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. It is the duty of the party asserting a cause of action 

to use all reasonable diligence to properly inform himself of the 

facts and circumstances upon which the right of recovery is based 

and to institute suit within the prescribed period. The exception 

to the statute of limitations, the discovery rule, tolls the running 

of the applicable statute of limitations until that point when the 

plaintiff knows or reasonably should know: (1) that he has been 

injured, and (2) that his injury has been caused by another party’s 

conduct. Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. 

Super. 2002). 
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Since 2011, [Appellant] and [her sister,] Ms. Rooney, as 

agents under the [power of attorney], had access to financial 

records of Decedent’s accounts with Bank of America. Since 2012, 

[Appellant and Ms. Rooney] were aware that deposits were made 

into one of Decedent’s Bank of America accounts. As executors 

of the estate, [Appellant] and Ms. Rooney had a duty to gather 

the assets of the estate since the grant of Letters Testamentary 

on February 4, 2013. In May of 2016, [Appellant and Ms. Rooney] 

were on notice that Bank of America[] had an account titled “The 

Monteverde Irrevocable Family Trust.” The two year Statute of 

Limitations began to run in May of 2016 when [Appellant] learned 

of the existence of the trust account and believed that Bank of 

America failed to disclose to her information regarding the 

account. [Appellant and Ms. Rooney] waited until October 18, 

2018 to file the initial Petition for Surcharge. That was many years 

after they discovered that deposits were still made to Decedent’s 

bank account, and more than two years after May of 2016 when 

they discovered the existence of the Trust account. Thus, [the 

orphans’ court] found that [Appellant’s] claim[s] against Bank of 

America [were] barred by the Statute of Limitations. 

Orphans’ Court Opinion, 8/28/19, at 4-5. 

We agree with the orphans’ court’s determination that the discovery rule 

exception is applicable as a matter of law to Appellant’s claims, and that even 

with its application, Appellant’s claims are time-barred by Section 5524(7).

Appellant’s third amended petition for surcharge raises two causes of 

action: breach of fiduciary duty and fraud. See Appellant’s Third Amended 

Petition for Surcharge, 2/5/19, at 2-8. Pursuant to Section 5524(7), both 

claims allege tortious conduct and therefore “must be commenced within two 

years.” 42 Pa.C.S.A. § 5524(7); see also Zimmer v. Gruntal & Co., Inc., 

732 F.Supp. 1330, 1335-36 (W.D. Pa. 1989) (“Common law fraud is a tort 

claim governed by Pennsylvania’s two-year statute of limitations. . . . 

Likewise, breach of fiduciary duty is tortious conduct and subject to the two 
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year limitations period[.]”) (citing, inter alia, 42 Pa.C.S.A. § 5524(7); 

Restatement (Second) of Torts, § 874 (1979)). 

Appellant alleges that on July 21, 2011, acting under their power of 

attorney for Decedent, she and Ms. Rooney went to the Bank of America 

location in Oradell, New Jersey, to close all of the Decedent’s accounts and 

safety deposit boxes. Appellant’s Third Amended Petition for Surcharge, 

2/5/19, at ¶ 9. At the conclusion of the July 21, 2011 visit, Bank of America 

“assured [Appellant and Ms. Rooney] that all of the accounts were closed and 

paid.” Id. at ¶ 12. 

Appellant further alleges in her petition that “[o]n or about April 25, 

2016, [Appellant and Ms. Rooney] received notice from Legal Claimant 

Services” of the existence of “The Monteverde Irrevocable Family Trust of 

Rosemarie Monteverde.” Id. at ¶¶ 20, 21. Legal Claimant Services also 

informed Appellant that the trust contained an excess of $93,000. Id. at ¶ 

22. 

In her petition, Appellant asserts that on or about May 8, 2016, an 

attorney provided her with “a copy of the original Trust documents and a 

United Jersey Bank statement from 1993, with a then balance of . . . 

[]$96,849.53[].” Id. at ¶ 27. Appellant further alleges she presented the 

original trust documents and account statement to a representative of Bank 

of America on May 20, 2016. Id. at ¶ 29. Appellant avers, however, that 

Bank of America withheld all of its records pertaining to the Trust until August 

14, 2017, and therefore argues that she was “unaware of [Bank of America’s] 
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breaches and misconduct until receiving the records” on that date. Appellant’s 

Third Amended Petition for Surcharge, 2/5/19, at ¶¶ 34, 35. 

Without the application of the discovery rule exception, the statute of 

limitations would begin to run when Bank of America allegedly expressed to 

Appellant that all of the Decedent’s accounts were closed on July 21, 2011 —

the date the alleged breach and fraudulent representation occurred. See

Appellant’s Third Amended Petition for Surcharge, 2/5/19, at ¶ 12. However, 

in analyzing Appellant’s causes of action, the orphans’ court correctly 

determined, as a matter of law, that the discovery rule exception to the statute 

of limitations is applicable to her claims. See Orphans’ Court Opinion, 

8/28/19, at 5. We conclude that Appellant did not have sufficient information 

on July 21, 2011 to know that she had been injured as a result of Bank of 

America’s alleged misrepresentation. O’Kelly, 62 A.3d at 420; Melley, 834 

A.2d at 1201. 

We also agree with the orphans’ court’s conclusion that the limitations 

period for Appellant’s claims began to run in May 2016, when “[Appellant] 

learned of the existence of the trust account and believed that Bank of America 

failed to disclose to her information regarding the account.” Orphans’ Court 

Opinion, 8/28/19, at 5; see also O’Kelly, 62 A.3d at 420; Melley, 834 A.2d 

at 1201.

Appellant first raised her breach of fiduciary claim against Bank of 

America in her original petition for surcharge filed on October 12, 2018, and 

asserted a claim of fraud in her second amended petition for surcharge filed 
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on December 28, 2018. Because the applicable two-year statute of limitations

began to run in May 2016, Appellant had until May 2018 to raise both her 

breach of fiduciary duty and fraud claims. See 42 Pa.C.S.A. § 5524(7). The 

orphans’ court therefore correctly determined that both of Appellant’s causes 

of action are time-barred, and properly sustained Bank of America’s 

preliminary objections asserting the statute of limitations as an affirmative

defense. 

Accordingly, the orphans’ court did not err when it determined, as a 

matter of law, that the statute of limitations barred Appellant’s breach of duty 

and fraud claims. Due to our conclusion that Appellant’s claims are timebarred, we need not address Appellant’s second or third issues, which examine 

whether Appellant adequately pled the causes of action in her petition. We 

therefore affirm the orphans’ court’s order sustaining Bank of America’s 

preliminary objections and dismissing Appellant’s petition with prejudice. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/20