J-A32021-14

*

Former Justice specially assigned to Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GEORGE KURUVILA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ARASU RAJARATNAM,

Appellee No. 421 EDA 2014

Appeal from the Judgment Entered March 28, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): May 2012 Term – No. 000450

BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 06, 2015

Appellant, George Kuruvila, appeals from the judgment entered on 

March 28, 2014. We vacate in part and remand.

On May 9, 2012, Appellant initiated the current action by filing a 

complaint against Arasu Rajaratnam (hereinafter “Defendant Rajaratnam”). 

Within his complaint, Appellant averred the following.

In September 1995, Appellant successfully bid, at a private auction, 

upon a seven-unit apartment building that was located at 229 West Harvey 

Street, in Philadelphia (hereinafter “the Property”). Appellant’s Complaint, 

5/9/12, at ¶¶ 4-5. Appellant’s winning bid for the Property was $51,500.00. 

Id. at ¶ 5.

“[Appellant] paid a deposit of $5,150[.00], representing 10% of the 

winning bid, and was given [approximately] one month to pay the balance of 
J-A32021-14

- 2 -

the purchase price.” Id. at ¶¶ 5-6. In an attempt to pay the remaining 

amount owed, Appellant contacted Defendant Rajaratnam. Defendant 

Rajaratnam obtained the necessary financing and then paid the balance of 

the purchase price for the Property. Id. at ¶¶ 6-9.

On October 27, 1995, Appellant and Defendant Rajaratnam entered 

into a written contractual agreement in regards to the Property. Id. at ¶ 10. 

The brief contract reads:

[Defendant Rajaratnam] and [Appellant] agree as follows:

RE: [The Property]

1) Name of Corporation to own abovementioned property[] 

is to be called “Raj Villa” Corporation.

2) Our objective is to minimi[z]e costs, maximi[z]e returns.

3) [Defendant Rajaratnam] is to hand over 49% of total 

shares to [Appellant] within five [] working days from date 

of initial financing[.]

4) All decisions should be jointly made and approved jointly: 

major decisions in writing and signed by both parties.

Contract between Appellant and Defendant Rajaratnam, dated 10/20/95, at 

1.

On January 15, 1996, Appellant and Defendant Rajaratnam elected to 

form a small business corporation named the “Raj Villa Corporation.” 

Appellant’s Complaint, 5/9/12, at ¶ 12. Defendant Rajaratnam received 

51% of the shares of the corporation and was named the president of the 

corporation; Appellant received the remaining 49% of the corporate shares. 
J-A32021-14

- 3 -

Id. at ¶¶ 10-12. However, as Appellant averred: “[Appellant] and 

[Defendant Rajaratnam] verbally agreed to share the [corporate] profits 

equally notwithstanding that [Defendant Rajaratnam] held 51% of the 

shares in the small business corporation.” Id. at ¶ 13. Title to the Property 

was apparently transferred to the Raj Villa Corporation – and the Raj Villa 

Corporation then began to manage and rent units in the Property. Id. at 

¶ 37; see also id. at “Exhibit 4.”

As the trial court explained:

Both parties managed the Property from October 1995 [] 

until September 1997, when [Appellant] permanently 

moved back to India.[1] [Id. at ¶¶ 18-19.] Defendant 

Rajaratnam kept all the financial records and books for the 

[Raj Villa] Corporation [and continued to manage] the 

Property after [Appellant’s] departure. [Id. at ¶ 19.]

Upon suffering losses, the [Raj Villa] Corporation listed the 

Property for sale in November 2005. [Id. at ¶¶ 20-21.] On 

or about February 27, 2006, the Property sold for 

$325,000[.00]. [Id. at ¶ 22.] In [May] 2006, [Appellant] 

first learned the Property was sold. [Id. at ¶ 23.] After the 

sale, Defendant Rajaratnam wire transferred [Appellant] 

$24,577.55[, which, according to Defendant Rajaratnam, 

represented] 49% of the [sale] proceeds. [Id. at ¶ 22; id.

at “Exhibit 4.” Appellant received this money on May 10, 

2006. Id. at ¶ 23].

Once [he] receiv[ed] his share of the Property’s sale 

proceeds, [Appellant] [e-mailed] and [telephoned] 

Defendant Rajaratnam[,] inquiring [as to] why he received 

____________________________________________

1 Appellant, an Indian national, resided in Philadelphia, Pennsylvania for 

approximately 18 years before he permanently returned to India in 1997. 

Appellant’s Complaint, 5/9/12, at ¶ 1.
J-A32021-14

- 4 -

only $24,577.55 [given that] the Property [] sold for 

$325,000[.00]. [Id. at ¶ 25.] Defendant Rajaratnam 

provided [Appellant] with a Settlement Statement[, which] 

referenc[ed] three deductions [that were] taken from the 

gross amount of $325,000[.00]: (a) settlement charges to 

the seller in the amount of $157,966.03; (b) payoff of [the] 

existing loan to First Penn Bank in the amount of 

$118,238.05; and[,] (c) payoff of [the] existing loan to First 

Penn Bank in the amount of $150[.00]. [Id. at ¶ 25-26.] 

[However, “despite repeated requests from Appellant, 

Defendant Rajaratnam did not provide Appellant with any 

explanation or documents which evidenced how and why 

these deductions related to the management of the 

property nor did he explain why such a large amount of 

financing was obtained that had to be paid off at 

settlement.” Id. at ¶ 27.] . . .

[Appellant] also requested Defendant Rajaratnam to provide 

a detailed and accurate written accounting of the sale 

proceeds and the income and operating expenses from the 

period the Property was owned and managed by the [Raj 

Villa] Corporation. [Id. at ¶¶ 28 and 36. In response, 

Defendant Rajaratnam supplied Appellant with a “purported 

balance sheet,” which provided “only one line representing 

rental and other income for each year between 1995 

through 2006 and [failed] to list the monthly income for 

each of the seven apartments during those years despite 

[Appellant’s] repeated requests to Defendant [Rajaratnam] 

to provide this information.” Id. at ¶ 38.]

Trial Court Opinion, 7/11/14, at 2-3.

On May 9, 2012 – which was approximately six years after Appellant 

first learned that the building was sold – Appellant initiated the current 

action by filing a complaint against Defendant Rajaratnam. The complaint 

listed the following six counts:

 Count 1: Accounting (claiming that Appellant is entitled to an equitable 

accounting, directing Defendant Rajaratnam to “account to [Appellant] 

[] all monies received from the management of the property, including 
J-A32021-14

- 5 -

but not limited to monthly income and expense statements for the 

years 1995-2006, and for any deductions that were made from the 

$325,000[.00] sales proceeds in 2006”);

 2) Count 2: Breach of Fiduciary Duty (claiming that Defendant 

Rajaratnam breached the fiduciary duties he owed to Appellant under 

“Pennsylvania’s Uniform Partnership Act” and as “a majority 

shareholder,” to “account for and hold any and all [] profits from 

October 27, 1995 until the property was sold in 2006, at which time 

[Defendant Rajaratnam] was required to pay [Appellant] half of the 

sales proceeds and half of the net rental income generated before the 

property was sold”);

 3) Count 3: Commingling and Diversion of Assets2(claiming that 

Defendant Rajaratnam commingled and diverted “the net operating 

income and sales proceeds” of the corporation the Property for his own 

benefit);

 4) Count 4: Breach of Contract (claiming that Appellant and Defendant 

Rajaratnam “had a verbal agreement to share the profits equally” and 

that Defendant Rajaratnam breached this contract when he failed to 

____________________________________________

2 With respect to the third count in Appellant’s complaint, the full title of this 

count is: “Defendant’s apparent co-mingling [sic] and diversion of net 

operating income and sales proceeds with his own or other accounts instead 

of maintaining separate accounts related solely to the management and/or 

sale of the property and not paying [Appellant] his 50% share.” Appellant’s 

Complaint, 5/9/12, at Count 3.
J-A32021-14

- 6 -

pay Appellant “half of the $325,000[.00] sales proceeds” and “half of 

the net operating income earned during the years 1995-2006”);

 5) Count 5: Unjust Enrichment (claiming that, from 1995 until 1997, 

Appellant “provided services to Defendant [Rajaratnam],” which 

enriched the business and that it would be inequitable for Defendant 

Rajaratnam to retain the benefits without proper compensation to 

Appellant); and,

 6) Count 6: Constructive Fraud (claiming that Defendant Rajaratnam 

breached his fiduciary duty to Appellant by failing to provide Appellant 

with an accounting and by concealing, destroying, falsifying, and 

failing to keep documents which could allow for an accurate 

accounting).

On June 18, 2012, Defendant Rajaratnam filed preliminary objections 

to Appellant’s complaint. The preliminary objections claimed that: 1) but 

for Appellant’s breach of contract claim, all of Appellant’s claims were barred 

by the gist of the action doctrine; 2) Appellant’s claim for commingling and 

diversion of assets (Count 3) failed to state a claim upon which relief may be 

granted, as it “is not a recognized cause of action in Pennsylvania;” 3) 

Appellant’s claim for unjust enrichment (Count 5) fails as a matter of law 

because Appellant alleged the existence of a written and an oral contract and 

because Appellant failed to “specify the type of work, the amount of labor 

involved, the character and nature of the work performed the skill and 

experience called for in providing the work, or the value of the services 
J-A32021-14

- 7 -

rendered in connection with the [c]ontract;” and, 4) Appellant’s claim for 

breach of fiduciary duty (Count 2) and Appellant’s claim for constructive 

fraud (Count 6) failed as a matter of law because Appellant alleged that the 

fiduciary duty arose out of Pennsylvania’s Uniform Partnership Act – yet 

Appellant and Defendant Rajaratnam were not partners, but were 

shareholders in a closely held corporation. Defendant Rajaratnam’s 

Preliminary Objections, 6/18/12, at 1-6.

On June 27, 2012, Appellant filed a lengthy response to Defendant 

Rajaratnam’s preliminary objections and, within this response, Appellant 

claimed that the trial court should overrule all of Defendant Rajaratnam’s 

preliminary objections. Appellant’s Response to Preliminary Objections, 

6/27/12, at 1-17. Further, within Appellant’s response, Appellant claimed 

that the trial court should dismiss Defendant Rajaratnam’s preliminary 

objections because they were untimely. Id. at 11. However, Appellant did 

not file preliminary objections to Defendant Rajaratnam’s preliminary 

objections, Appellant’s response did not contain a notice to plead, and, 

within Appellant’s response, Appellant did not claim that the untimely filing 

caused him prejudice. See id. at 1-17.

On September 5, 2012, following oral argument, the trial court 

sustained Defendant Rajaratnam’s preliminary objections and dismissed 

Counts 1, 2, 3, 5, and 6 of Appellant’s complaint. Trial Court Order, 9/5/12, 

at 1. Therefore, the only claim that survived the pleading stage of the 

proceedings was the breach of contract claim. 
J-A32021-14

- 8 -

The trial court summarized the ensuing procedural history of this 

matter as follows:

Defendant [Rajaratnam filed an answer and new matter 

and, within this filing, Defendant Rajaratnam], raised the 

defense of statute of limitations. The defense was the basis 

for Defendant [Rajaratnam’s] motion for judgment on the 

pleadings and motion for summary judgment; both 

[motions] were summarily denied without testimony or 

argument on September 28, 2012 and October 4, 2013, 

respectively.

A trial date certain of December 16, 2013 was ordered. . . . 

Following a conference with counsel and [an] extensive 

review of the docket and pleadings, [the trial] court ordered 

the matter bifurcated on December 11, 2013, scheduling a 

bench trial on the statute of limitations issue and if need be, 

jury selection to commence immediately thereafter on the 

breach of contract claim. The bench trial was conducted 

from Monday, December 16, 2013 through Wednesday,

December 18, 2013. At the conclusion of the bench trial, 

the [trial] court found that [Appellant’s] breach of contract 

action had not been filed within the requisite four year 

statute of limitations period and judgment was entered in 

favor of [Defendant Rajaratnam. As the trial court 

concluded: “at the very least[, Appellant] was aware that 

[Defendant Rajaratnam] was not abiding by the terms of 

their agreement as of June 19, 2006. Accordingly, an 

action against [Defendant Rajaratnam] should have been 

initiated no later than June 19, 2010. The [c]omplaint in 

this matter was not filed until May 9, 2012, nearly two years 

after the limitation period had expired.”]

Trial Court Opinion, 6/18/14, at 4 (some internal capitalization omitted).

Following the denial of Appellant’s timely post-trial motion, Appellant 

filed a timely notice of appeal to this Court. Appellant now raises the 

following claims on appeal:
J-A32021-14

- 9 -

1(a). Did [the trial court] err in ordering a bifurcated bench 

trial for the sole purpose of determining whether to dismiss 

[Appellant’s] case based on the statute of limitations where 

this issue had already been litigated and decided in favor of 

[Appellant] by two other judges of the same level court?

1(b). Did [the trial court] err in reversing the two prior 

decisions of Judge Allen and Judge Robbins-New where they 

had found in [Appellant’s] favor when they denied 

[Appellant’s] motion for judgment on the pleadings and 

motion for summary judgment, both motions based solely 

on the statute of limitations?

2(a). Did [the trial court] err in ruling that the testimony of 

[Appellant’s] witnesses is not relevant to any issue 

concerning the statute of limitations but, rather, their 

testimony is only relevant to damages?

2(b). Did [the trial court] deprive [Appellant] of a fair trial 

by not allowing his witnesses to testify?

3. Did [the trial court] err in ordering a bifurcated bench 

trial on the statute of limitations only two days before 

[Appellant] was scheduled to pick a jury and five days 

before the jury trial was scheduled to begin, depriving 

[Appellant] of his right to a fair trial, where [Appellant] did 

not have sufficient time to prepare simultaneously for both 

the bifurcated bench trial and the jury trial?

4. Did [the trial court] err in dismissing [Appellant’s] case 

based on the statute of limitations where [Appellant] as a 

matter of law acted reasonably or, minimally, reasonable 

jurors could differ on the issue and the matter, therefore, 

should have been decided by a jury?

5. Did [the trial court] err in ruling that the statute of 

limitations began to run from 2006 when the property was 

sold where [Appellant] acted reasonably and could not have 

known about his breach of contract action by that date?

6(a). Did [the trial court] err in ignoring that [Defendant 

Rajaratnam’s] fraud tolled the statute of limitations until 

[Appellant’s] discovery of [Defendant Rajaratnam’s] fraud, 

which only occurred since after the initiation of this lawsuit, 
J-A32021-14

- 10 -

within the four-year statute of limitations for breach of 

contract?

6(b). Did [the trial court] err in not submitting to the jury 

the question of whether Defendant [Rajaratnam] had made 

false statements to [Appellant] and whether [Appellant] was 

reasonable in relying on them?

6(c). Did [the trial court] err in not finding that [Defendant 

Rajaratnam] breached his duty of disclosure which existed 

by virtue of his being the majority managing shareholder 

and sole maintainer of the Raj Villa corporate books and 

records, and in not finding that said breach constitutes 

fraud as should toll the statute of limitations until actual 

discovery of [Defendant Rajaratnam’s] fraud?

6(d). Did [the trial court] err in not finding that [Defendant 

Rajaratnam] both breached his fiduciary duty to [Appellant] 

which existed by virtue of [Appellant] being the majority 

managing shareholder and sole maintainer of the corporate 

books and records, and committed fraud, and that 

[Defendant Rajaratnam’s] fraud and self-dealing should 

have tolled the statute of limitations?

7(a). Did [the trial court] err in dismissing [Appellant’s] 

count for an accounting based on the gist of the action and 

economic loss doctrines where [Appellant’s] accounting 

count is not a tort remedy?

7(b). Did [the trial court] err in dismissing [Appellant’s] 

counts for an accounting, breach of fiduciary duty[,] and 

fraud based on the gist of the action and economic loss 

doctrines?

7(c). Did [the trial court] err in not finding that [Appellant’s] 

claims against [Defendant Rajaratnam] sounded in tort, that 

[Defendant Rajaratnam] owed duties to [Appellant] which 

existed independent of the parties’ contract, and that 

parties to a contract can recover for breach of fiduciary duty 

and fraud if the contract is collateral to the tort remedies 

that arise by virtue of social policies rather than by virtue of 

mutual consensus?
J-A32021-14

- 11 -

7(d). Did [the trial court] err as a matter of law in not 

recognizing that the gist of [Appellant’s] action is his action 

for an accounting, without which he could not determine 

whether [Defendant Rajaratnam] breached the contract, 

and that the breach of contract count was collateral 

thereto?

7(e). Did [the trial court] err in concluding that [Appellant’s] 

counts for an accounting, breach of fiduciary duty[,] and 

fraud are contract based where they, in fact, are 

relationship based related to [Defendant Rajaratnam’s] 

breach of duties that arise from the parties’ 

majority/minority shareholder relationship?

8. Did [the trial court] err in dismissing [Appellant’s] count 

for an accounting which has a six-year statute of limitations 

where this resulted in [the trial court] dismissing 

[Appellant’s] case based on the four-year statute of 

limitations for breach of contract?

9. Did [the trial court] err in dismissing [Appellant’s] breach 

of fiduciary duty count based on [Appellant] purportedly not 

alleging that the parties entered into a partnership?

10. Did [the trial court] err in dismissing [Appellant’s] 

wrongful commingling count?

11. Did [the trial court] err in not enforcing the 20-day 

deadline proscribed by the Rules of Civil Procedure when he 

failed to dismiss [Defendant Rajaratnam’s] late filed 

preliminary objections where [Defendant Rajaratnam] did 

not provide any explanation for his delay and where 

[Appellant] was extremely prejudiced by the granting of 

[Defendant Rajaratnam’s] untimely preliminary objections?

12. Did [the trial court] err in denying [Appellant’s] motion 

to amend the pleadings to conform to the evidence made at 

the trial in accordance with Pennsylvania Code § 35.49?
J-A32021-14

- 12 -

Appellant’s Brief at 7-10 (some internal capitalization omitted).3

According to Appellant’s claims “1(a)” and “1(b),” the trial court 

violated the coordinate jurisdiction rule when – following a bench trial – it 

concluded that Appellant’s breach of contract claim was barred by the 

statute of limitations. As Appellant contends, Defendant Rajaratnam raised 

the identical statute of limitations defense in his motion for judgment on the 

pleadings and motion for summary judgment – and the respective trial 

judges denied Defendant Rajaratnam’s claims for relief. Appellant’s Brief at 

31. Appellant claims that, following a trial, the coordinate jurisdiction rule 

prevented the trial court from concluding that the statute of limitations 

barred Appellant’s claims – when two prior judges from the same court 

already ruled on the issue and arrived at a contrary conclusion. Id. 

Appellant’s claim is frivolous. 

Our Supreme Court has held that, “upon transfer of a matter between 

trial judges of coordinate jurisdiction, the transferee trial court may not alter 

the resolution of a legal question previously decided by the transferor trial 

____________________________________________

3 We remind Appellant that the better practice on appeal is to distill one’s 

claims down to those with a meaningful likelihood of success. See 

Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004), quoting

Ruggero J. Aldisert, The Appellate Bar: Professional Competence and 

Professional Responsibility–A View From the Jaundiced Eye of the Appellate 

Judge, 11 Cap. U.L. Rev. 445, 458 (1982) (emphasis in original) (“when I 

read an appellant’s brief that contains ten or twelve points, a presumption 

arises that there is no merit to any of them.”).
J-A32021-14

- 13 -

court.” Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). Yet, 

as our Supreme Court explained:

When determining whether the coordinate jurisdiction rule 

applies . . . [the court] looks to where the rulings occurred 

in the context of the procedural posture of the case. . . . 

Where the motions differ in kind, as preliminary objections 

differ from motions for judgment on the pleadings, which 

differ from motions for summary judgment, a judge ruling 

on a later motion is not precluded from granting relief 

although another judge has denied an earlier motion. 

However, a later motion should not be entertained or 

granted when a motion of the same kind has previously 

been denied, unless intervening changes in the facts or the 

law clearly warrant a new look at the question. 

Riccio v. Am. Republic Ins. Co., 705 A.2d 422, 425 (Pa. 1997) (internal 

quotations and citations omitted).

In this case, the coordinate jurisdiction rule obviously did not prevent 

the trial court from concluding that Appellant’s breach of contract claim was 

barred by the statute of limitations: the trial court’s conclusion followed a 

trial and was based upon the factual determinations the trial court made

during the trial. This is in contrast to the two prior rulings, which were made 

in response to a motion for judgment on the pleadings and a motion for 

summary judgment – where no fact-finding occurred or was permitted. 

Therefore, since the trial court’s final statute of limitations ruling 

“occurred in the context of [a different] procedural posture of the case,” the 

trial court’s ruling did not violate the coordinate jurisdiction rule. Appellant’s 

claim to the contrary is frivolous. 
J-A32021-14

- 14 -

Appellant’s claims “2(a)” and “2(b)” contend that the trial court erred 

when it precluded his proposed witnesses from testifying at the statute of 

limitations bench trial because, Appellant claims, the witnesses would have 

provided rebuttal testimony and would have “given testimony relevant to the 

issue of fraud as tolls [sic] the statute of limitations.” Appellant’s Brief at 

35-36. However, within Appellant’s brief to this Court, Appellant has not: 

explained the substance of his proposed witnesses’ testimony; explained 

how the proposed witnesses would have qualified as rebuttal witnesses; or 

explained how their testimony would have been “relevant to the issue of 

fraud as tolls [sic] the statute of limitations.” See id. Instead, Appellant 

simply refers this Court to pages in the reproduced record, which, Appellant 

declares, constitute a summary of his witnesses’ proposed testimony. Id.

In essence, Appellant requests this Court to construct his appellate 

argument for him. We will not do so. Appellant’s second numbered claim is 

thus waived. See Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa. 

Super. 2011) (the Superior Court “may not act as counsel for an appellant 

and develop arguments on his behalf”).

Third, Appellant claims that the trial court erred in ordering a

bifurcated bench trial “only two days before [Appellant] was scheduled to 

pick a jury.” According to Appellant, the trial court’s scheduling order did 

not provide Appellant with “sufficient time to adequately prepare for either 

the bench trial or the jury trial” and the trial court thus “depriv[ed Appellant] 

of his right to a fair trial.” Appellant’s Brief at 37. This claim is waived, as 
J-A32021-14

- 15 -

Appellant did not request a continuance from the trial court. Appellant thus 

did not provide the trial court with any notice that the scheduling order failed 

to provide Appellant with sufficient time to prepare for trial. Pa.R.A.P. 

302(a) (“[i]ssues not raised in the lower court are waived and cannot be 

raised for the first time on appeal”); see also Commonwealth v. 

Kennedy, 959 A.2d 916, 924-925 (Pa. 2008) (holding that counsel’s failure 

to request a continuance waives the issue on appeal).

Within Appellant’s fourth, fifth, and sixth numbered claims on appeal, 

Appellant contends that the trial court erred when it determined that the 

statute of limitations barred Appellant’s breach of contract claim; determined 

that Defendant Rajaratnam’s fraud did not toll the statute of limitations; 

and, refused to allow a jury to consider the statute of limitations and fraud 

issues. Appellant’s Brief at 38-48. These claims fail.

At the outset, Appellant’s claim that the trial court erred when it 

refused to allow a jury to consider the statute of limitations and fraud issues 

is waived, as Appellant did not object to the trial court’s decision to act as 

the fact-finder on those issues. Pa.R.A.P. 302(a) (“[i]ssues not raised in the 

lower court are waived and cannot be raised for the first time on appeal”).

Appellant also contends that the evidence was insufficient to support 

the trial court’s determinations that the statute of limitations barred 

Appellant’s breach of contract claim and that Defendant Rajaratnam’s fraud 

did not toll the statute of limitations. Appellant’s contentions are meritless. 

As the trial court thoroughly explained: 
J-A32021-14

- 16 -

Despite the numerous filings by [Appellant], the crux of this 

case is whether or not [Appellant] timely filed a breach of 

contract action against [Defendant Rajaratnam]. The 

statute of limitations for a contract action is [four] years. 

42 Pa.C.S.A. § 5525. [Appellant] failed to bring his cause of 

action within the requisite time period and no action or 

inaction on the part of [Defendant Rajaratnam] tolled the 

limitation period.

The record reveals that although it may have been earlier, 

at the very least [Appellant] was aware that [Defendant 

Rajaratnam] was not abiding by the terms of their 

agreement as of June 19, 2006. Accordingly, an action 

against [Defendant Rajaratnam] should have been initiated 

no later than June 19, 2010. The complaint in this matter 

was not filed until May 9, 2012, nearly two years after the 

limitation period had expired.

. . .

Per the testimony and documentary evidence presented at 

trial, the parties entered into an agreement in October [] 

1995 and managed the [P]roperty jointly until [Appellant] 

returned to India in 1997. Once [Appellant] returned to 

India, he did not receive rental income and was advised that 

the [P]roperty was operating at a loss. [Appellant] 

repeatedly e-mailed [Defendant Rajaratnam] for an 

accounting and updates regarding the [P]roperty and 

received sporadic responses from [Defendant Rajaratnam] 

until the sale of the [P]roperty.

According to [Appellant’s] evidence, he e-mailed [Defendant 

Rajaratnam] approximately [20] times between June 28, 

2002 and July 13, 2006. The majority of the 

communications were requesting rental and expenditure 

information on the [P]roperty.

The [P]roperty was sold on February 27, 2006, for 

$325,000[.00]. [Defendant Rajaratnam] wired [Appellant’s] 

account in India $24,577.55 on May 10, 2006. On June 16, 

2006, [Appellant e-mailed Defendant Rajaratnam,] 

challenging the amount that had been wired, but confirming 

its receipt. In the e-mail, [Appellant] states that “This 
J-A32021-14

- 17 -

amount is too little considering the large equity after 

purchase and rehabilitation of the property.”[fn.1] 

[fn.1.] At this point, [Appellant] had received his initial 

investment with 12% interest, had been reimbursed for 

his costs in rehabbing the [P]roperty, had not paid any 

additional funds to maintain the [P]roperty[,] and had 

received $24,577.55 from the sale proceeds.

[Appellant] again e-mailed [Defendant Rajaratnam] on June 

19, 2006, asserting that at a minimum, he was entitled to 

approximately $130,000[.00] from the sale. He also 

contested that the sale was undertaken without his written 

authorization as required by the contract. During this same 

time frame, [Appellant] made an inquiry to a friend who 

was a lawyer since he was concerned about his status as an 

officer of the corporation. He was told he was not listed as 

one.

[The trial court] finds that the statute of limitations ran on 

June 19, 2010, four years from the date that [Appellant] 

first challenged the amount of proceeds that he had 

received from the sale of his property.

. . .

[Appellant’s] insistence that without an accounting he could 

not know that he was injured and that actual knowledge of 

[Defendant Rajaratnam’s] fraud was required before he was 

bound to pursue his claim is both disingenuous and contrary 

to what the law requires of [Appellant]. [Defendant 

Rajaratnam’s] failure to provide an accounting only 

addresses the extent of [Appellant’s] damages[,] not the 

fact that a breach had occurred.

Trial Court Opinion, 6/18/14, at 7 and 13-14 (emphasis in original) (some 

internal capitalization omitted).

The evidence thoroughly supports the trial court’s factual conclusion 

that “at the very least [Appellant] was aware that [Defendant Rajaratnam] 

was not abiding by the terms of their agreement as of June 19, 2006.” Trial 
J-A32021-14

- 18 -

Court Opinion, 6/18/14, at 7. Moreover, since the evidence supports the 

trial court’s conclusion that Appellant knew, on June 19, 2006, that 

Defendant Rajaratnam breached the contract, breached the duties he owed 

to Appellant, and did not pay Appellant what was owed, the evidence also 

supports the trial court’s conclusion that Defendant Rajaratnam’s alleged 

fraud did not toll the running of the statute of limitations beyond June 19, 

2010. See Fine v. Checcio, 870 A.2d 850, 861 (Pa. 2005) (“a statute of 

limitations that is tolled by virtue of fraudulent concealment begins to run 

when the injured party knows or reasonably should know of his 

injury and its cause”) (emphasis added). Appellant’s claims fail.

However, Appellant’s next claim on appeal does entitle Appellant to 

relief. According to Appellant, the trial court erred when it dismissed his 

accounting claim at the pleading stage, based upon the gist of the action 

doctrine. We agree. Moreover, since our Supreme Court has held that the 

statute of limitations for an accounting claim is six years – and since 

Appellant filed his complaint within six years of June 19, 2006 – we conclude 

that the trial court’s error in dismissing the accounting claim cannot be 

considered harmless. Therefore, we must vacate the trial court’s order in 

part and remand for further proceedings.

We have stated:

A preliminary objection in the nature of a demurrer is 

properly [sustained] where the contested pleading is legally 

insufficient. Preliminary objections in the nature of a 

demurrer require the court to resolve the issues solely on 

the basis of the pleadings; no testimony or other evidence 
J-A32021-14

- 19 -

outside of the complaint may be considered to dispose of 

the legal issues presented by the demurrer. All material 

facts set forth in the pleading and all inferences reasonably 

deducible therefrom must be admitted as true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine 

the averments in the complaint, together with the 

documents and exhibits attached thereto, in order to 

evaluate the sufficiency of the facts averred. The impetus 

of our inquiry is to determine the legal sufficiency of the 

complaint and whether the pleading would permit recovery 

if ultimately proven. This Court will reverse the trial court’s 

decision regarding preliminary objections only where there 

has been an error of law or abuse of discretion. When 

sustaining the [preliminary objections] will result in the 

denial of claim or a dismissal of suit, [the preliminary 

objections may be sustained] only where the case [is] free 

and clear of doubt.

Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009) 

(internal citations, quotations, and corrections omitted).

Here, the trial court sustained Defendant Rajaratnam’s preliminary 

objection in the nature of a demurrer, and dismissed Appellant’s accounting 

claim based upon the “gist of the action” doctrine.

The gist of the action doctrine “is designed to maintain the conceptual 

distinction between breach of contract claims and tort claims.” eToll Inc. v. 

Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002). It 

does so by “preclud[ing] plaintiffs from recasting ordinary breach of contract 

claims into tort claims.” Id. Thus, “[w]hen a plaintiff alleges that the 

defendant committed a tort in the course of carrying out a contractual 

agreement, Pennsylvania courts examine the claim and determine whether 
J-A32021-14

- 20 -

the ‘gist’ or gravamen of [the action] sounds in contract or tort.” Erie Ins. 

Exch. v. Abbott Furnace Co., 972 A.2d 1232, 1238 (Pa. Super. 2009). 

This Court has explained:

Although they derive from a common origin, distinct 

differences between civil actions for tort and contractual 

breach have been developed at common law. Tort actions 

lie for breaches of duties imposed by law as a matter of 

social policy, while contract actions lie only for breaches of 

duties imposed by mutual consensus agreements between 

particular individuals. To permit a promisee to sue his 

promisor in tort for breaches of contract inter se would 

erode the usual rules of contractual recovery and inject 

confusion into our well-settled forms of actions.

However, a breach of contract may give rise to an 

actionable tort where the wrong ascribed to the defendant is 

the gist of the action, the contract being collateral. The 

important difference between contract and tort claims is 

that the latter lie from the breach of duties imposed as a 

matter of social policy while the former lie from the breach 

of duties imposed by mutual consensus. In other words, a 

claim should be limited to a contract claim when the parties’ 

obligations are defined by the terms of the contracts, and 

not by the larger social policies embodied by the law of 

torts.

Hart v. Arnold, 884 A.2d 316, 339-340 (Pa. Super. 2005) (internal 

quotations, citations, corrections, and emphasis omitted).

However, an action for an accounting does not sound in tort. Rather, 

as pleaded in Appellant’s complaint, an accounting is an equitable action that 

is “defined as an adjustment of the accounts of the parties and a rendering 

of a judgment for the balance ascertained to be due.” 1 Am. Jur. 2d 

Accounts & Accounting § 52; 14 Standard Pennsylvania Practice 2d § 81:1. 

Therefore, by definition, the gist of the action doctrine cannot preclude 
J-A32021-14

- 21 -

Appellant’s claim for an accounting – and, on this basis alone, the trial court 

should have overruled Defendant Rajaratnam’s preliminary objections to the 

accounting claim. Further, since Defendant Rajaratnam did not seek the 

dismissal of Appellant’s accounting claim on any basis other than the gist of 

the action doctrine, the trial court erred when it dismissed Appellant’s 

accounting claim. 

Further, as our Supreme Court held, an action for an equitable 

accounting “is subject to the six-year [statute of] limitation.” Ebbert v. 

Plymouth Oil Co., 34 A.2d 493, 495-496 (Pa. 1943).4 Therefore, since the 

trial court concluded that, “at the very least [Appellant] was aware that 

____________________________________________

4

In Ebbert, our Supreme Court expressly held that an equitable accounting 

action is subject to a six-year statute of limitations. Ebbert, 34 A.2d at 

495-496. The Ebbert Court reached this conclusion by first recognizing the 

legal principle that “equity will frequently adopt and apply the statute of 

limitations which controls analogous proceedings at law.” Id. at 495. The 

Ebbert Court then held that, since an action for an accounting at law is “on 

the same plane, in practice, as an action in assumpsit,” and since an action 

in assumpsit was subject to the six-year statute of limitations, an equitable 

account action was also subject to the six-year statute of limitations. Id. at 

495-496.

Obviously, much has changed since Ebbert was decided. This includes the 

fact that, today, the vast majority of contractual claims are subject to the 

four-year statute of limitations, which is set forth in 42 Pa.C.S.A. § 5525. 

Nevertheless, since the Ebbert Court expressly held that an equitable 

accounting claim is subject to a six-year statute of limitations, we must 

conclude that Appellant’s current equitable accounting claim is subject to a 

six-year statute of limitations. See Fiore v. White, 757 A.2d 842, 847 (Pa. 

2000) (“[u]ntil a court of greater jurisdiction reverses a decision of a lower 

court, or a court of equal jurisdiction overrules a decision, the law emanating 

from the decision remains law”).
J-A32021-14

- 22 -

[Defendant Rajaratnam] was not abiding by the terms of their agreement as 

of June 19, 2006” – and since Appellant initiated the current action within six 

years of that date – Appellant’s accounting claim is not time-barred. The 

trial court’s error in this case was thus not harmless. We must, therefore, 

vacate the portion of the trial court’s order that dismissed Appellant’s 

accounting claim and remand for further proceedings. 

Next, Appellant claims that the trial court erred when it dismissed his 

claims for breach of fiduciary duty, fraud, and commingling at the pleading 

stage. Appellant’s Brief at 50-63. Yet, even if we were to assume that the 

trial court erred when it dismissed these claims, the trial court’s error would 

be harmless. This is because the trial court already arrived at the factual 

conclusion that Appellant knew – as of June 19, 2006 – that Defendant 

Rajaratnam wronged him by breaching the duties he owed to Appellant and 

refusing to pay to Appellant what was owed. Since Appellant’s breach of 

fiduciary duty claim is subject to the two-year statute of limitations set forth 

in 42 Pa.C.S.A. § 5524(7) – and since Appellant’s separately-stated claims 

for “fraud” and “commingling” are mere subcategories of Appellant’s breach 

of fiduciary duty claim – Appellant’s claims are all barred by the applicable, 

two-year statute of limitations. Therefore, even if the trial court erred when 

it dismissed Appellant’s claims for breach of fiduciary duty, fraud, and 

commingling, the error is harmless and does not entitle Appellant to relief. 

Appellant’s claims thus fail. See Donnelly v. Bauer, 720 A.2d 447, 454 

(Pa. 1998) (an appellate court “may affirm [the] decision [of the] court 
J-A32021-14

- 23 -

below on any ground, without regard to [the] ground[] which the court 

below relied”).

For Appellant’s eleventh numbered clam on appeal, Appellant argues 

that the trial court erred when it refused to strike Defendant Rajaratnam’s 

untimely preliminary objections. Appellant’s Brief at 65-67. This claim is 

waived, since Appellant did not file preliminary objections to Defendant 

Rajaratnam’s preliminary objections. Instead, Appellant simply filed a 

“response” to the preliminary objections – and Appellant’s “response” 

neither contained a notice to plead nor asserted that Appellant was 

prejudiced by Defendant Rajaratnam’s untimely filing. Appellant’s clam on 

appeal is thus waived. See Button v. Button, 548 A.2d 316, 318 (Pa. 

Super. 1988) (the failure of an opposing party to file preliminary objections 

to improper or faulty preliminary objections waives the defect); see also 

Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167, 170 (Pa. 1996) 

(holding that Pennsylvania Rule of Civil Procedure 1026 “is not mandatory 

but permissive. [The Supreme Court] has held that late pleadings may be 

filed if the opposite party is not prejudiced and justice requires. Much must 

be left to the discretion of the lower court”) (internal quotations and citations 

omitted).

Finally, Appellant claims that the trial court erred when – following the 

trial – the trial court denied Appellant’s “motion to amend the pleadings” so 

that Appellant could re-plead his claims for breach of fiduciary duty, fraud, 

and commingling (which were the claims that the trial court dismissed in 
J-A32021-14

- 24 -

response to Defendant Rajaratnam’s preliminary objections). This Court 

already held that the trial court erred when it dismissed Appellant’s claim for 

an accounting. Further, this Court also held that, even if the trial court erred 

in dismissing Appellant’s claims for breach of fiduciary duty, fraud, and 

commingling, the error is harmless, as the claims are barred by the two-year 

statute of limitations. Therefore, Appellant’s final claim on appeal does not 

entitle Appellant to relief.

Judgment vacated in part. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015