J-A12001-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ELAINE O'HEARN, INDIVIDUALLY 

AND AS ADMINISTRATRIX OF THE 

ESTATE OF GEORGE 

GIANACOPOULOS, ANDREA 

BETRESS, AND STEPHEN J. 

GIANACOPOULOS 

Appellants

v.

WELLS FARGO HOME MORTGAGE, 

INC. F/K/A WELLS FARGO BANK, 

N.A.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1252 MDA 2023

Appeal from the Order Entered August 4, 2023

In the Court of Common Pleas of Lackawanna County 

Civil Division at No(s): 2013-07170

BEFORE: PANELLA, P.J.E., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.E.: FILED: AUGUST 5, 2024

Elaine O’Hearn, individually and as Administratrix of the Estate of 

George Gianacopoulos, Andrea Betress, and Stephen J. Gianacopoulos 

(collectively “Appellants”) appeal from the order granting summary judgment 

in favor of Wells Fargo Home Mortgage, Inc. F/K/A Wells Fargo Bank, N.A.

(“Wells Fargo”) based on the statute of limitations on Appellants’ claims. After 

careful review, we affirm. 

The trial court summarized the factual and procedural history as follows: 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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[Appellants] commenced this action against [Wells Fargo]

on December 20, 2013, asserting claims for “waste,” conversion, 

misrepresentation, and negligent infliction of emotional distress. 

They allege that prior to George’s death, he provided a mortgage 

to Wells Fargo which encumbered his residential property at 227 

North Sumner Avenue, and that after George's loan went into 

default for nonpayment following his death on December 10, 

2004, Wells Fargo instituted a mortgage foreclosure action [], on 

October 5, 2005. They aver that “[s]ubsequent thereto, Wells

Fargo unilaterally assumed control over the property after the 

death of George Gianacopoulos, hiring a company to lock the

home and lock out [Appellants].”

It is alleged in the complaint that Wells Fargo “took 

absolutely no action to protect the property or to secure the 

property of the estate, both real and personal,” as a result of 

which the property was “burglarized” and “subject to vandalism.” 

[Appellants] maintain that Wells Fargo “failed to pay the taxes on 

the property,” which “resulted in the property being sold at a 

judicial tax sale on March 25, 2013, as confirmed by the court 

under Lackawanna County Docket No. 2012-CV-7807.” Damages 

are sought based on the contentions that “Wells Fargo wasted the 

assets,” “Wells Fargo allowed the assets of [Appellants] to be 

removed from the property,” and “Wells Fargo never notified 

[Appellants] that they were not keeping all property secure.” In 

addition, [Elaine] and Andrea [] claim that Wells Fargo negligently 

“caused severe distress” to them by failing to protect and secure 

George’s property, which distress manifested itself in “insomnia, 

vomiting, and headaches” and left them “forever emotionally

scarred.”

During discovery, [Appellants] testified that through the 

efforts of their former attorney, William E. Vinsko, Jr., Esquire 

(“Vinsko”), they were able to access and enter their father’s 

property at 227 North Sumner Avenue in 2009. At that time, they 

discovered that the property had been “ransacked” by intruders 

and that George’s residence had been damaged and his personal 

property had been stolen or destroyed. Stephen [] videotaped the 

interior of the home and its contents on the day in 2009 that

[Appellants] entered and examined the property, and the 

videotape that was produced by [Appellants] in discovery reflects 

that it was recorded on June 14, 2009. 
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Although [Appellants] discovered the foregoing damages 

and losses when they inspected the property on June 14, 2009, 

they did not institute this litigation until more than 54 months later

on December 20, 2013. Following the completion of discovery, and 

based upon [Appellants]’ own testimony, Wells Fargo filed a 

motion for summary judgment asserting [Appellant]’s claims for 

waste, conversation, misrepresentation, and negligent infliction of 

emotional distress are time-barred by the two-year statute of 

limitations governing those causes of action. In the alternative, it 

argues that each of those claims are insufficient as a matter of 

law.

In opposing Wells Fargo’s request for summary judgment, 

[Appellants] contend that the motion for summary judgment is 

based upon “facts which are disputed by the Complaint of 

[Appellants],” and that [Appellants]’ Complaint lays out specific 

facts that a trier-of-fact could reasonably find constitute violations 

of Pennsylvania law.” They posit that in light of the “factual 

averments set forth in [Appellants]’ Complaint and all inferences

reasonably deducible therefrom that must be admitted as true for 

purposes of consideration of [Wells Fargo’s] motion for summary 

judgment,” the “Summary Judgment Motion must fail.” 

[Appellants] further allege that “[t]he present facts squarely fit 

within the doctrine of res ipsa loquitur,” and that the “economic 

loss doctrine has no application” in this case. However, 

[Appellants]’ brief in opposition does not address Wells Fargo’s 

statute of limitations argument or otherwise challenge Wells 

Fargo’s assertion that [Appellants]’ claims are time-barred.

Following the completion of oral argument by the parties’ counsel 

on July 6, 2023, Wells Fargo’s motion for summary judgment was 

submitted for a decision. 

Trial Court Opinion, 8/4/23, at 2-5 (citations and footnotes omitted). On 

August 4, 2023, the trial court entered an opinion and order granting summary 

judgment. This timely appeal followed. 

Appellants raise the following issues on appeal: 

1. Did the [trial court] err as a matter of law or abuse its discretion 

in granting [Wells Fargo]’s motion for summary judgment based 

solely upon the expiration of the governing statutes of limitation?
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2. Did the [trial court] err as a matter of law or abuse its discretion 

in failing to find that the applicable statutes of limitations were 

equitably tolled as a result of fraudulent concealment on the part 

of [Wells Fargo]?

Appellants’ Brief, at 3 (suggested answers and unnecessary capitalization 

omitted). 

We review a challenge to the entry of summary judgment as follows:

[We] may disturb the order of the trial court only where it 

is established that the court committed an error of law or abused 

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary

judgment, we focus on the legal standard articulated in the

summary judgment rule. The rule states that where there is no 

genuine issue of material fact and the moving party is entitled to 

relief as a matter of law, summary judgment may be entered.

Where the nonmoving party bears the burden of proof on an issue, 

he may not merely rely on his pleadings or answers in order to 

survive summary judgment. Failure of a non-moving party to 

adduce sufficient evidence on an issue essential to his case and 

on which he bears the burden of proof establishes the entitlement 

of the moving party to judgment as a matter of law. Lastly, we 

will review the record in the light most favorable to the nonmoving 

party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party.

E.R. Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citations omitted).

The trial court granted summary judgment after determining Appellants’ 

causes of action were barred due to their failure to file their claims within the 

applicable statute of limitations period.

Appellants concede the applicable statute of limitations period on all of 

their claims is two years. See Appellants’ Brief, at 19; see also 42 Pa.C.S.A. 
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§ 5524 (3), (4), and (7). Further, Appellants concede they first discovered the 

damages and losses that constitute the basis of their complaint on June 14, 

2009. See Appellants' Brief, at 19. 

However, Appellants argue the trial court erred by granting Wells 

Fargo’s motion for summary judgment as Wells Fargo’s fraudulent 

concealment constitutes a basis for tolling the statute of limitations. See

Appellants' Brief, at 20-21.

The doctrine of fraudulent concealment tolls the applicable statute of 

limitations under specific circumstances. Based on a theory of estoppel, the 

doctrine holds that a “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 v. Checcio, 870 A.2d

850, 860 (Pa. 2005) (citation omitted). The doctrine does not require proof of 

an intent to deceive, but requires proof of an unintentional deception. See id.

However,

[t]he defendant must have committed some affirmative 

independent act of concealment upon which the plaintiffs 

justifiably relied. Mere mistake or misunderstanding is insufficient. 

Also, mere silence in the absence of a duty to speak cannot suffice 

to prove fraudulent concealment.

McClean v. Djerassi, 84 A.3d 1067, 1070 (Pa. Super. 2013) (citation

omitted).

Appellants are held to a standard of reasonable diligence and “a statute 

of limitations that is tolled by virtue of fraudulent concealment begins to run 
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when the injured party knows or reasonably should know of his injury and its 

cause.” Fine, 870 A.2d at 861. Further, “[t]he plaintiff has the burden of 

proving fraudulent concealment by clear, precise, and convincing evidence.”

Id. at 860 (citation omitted).

On appeal, Appellants assert Wells Fargo representatives “[lied] to the 

Appellants by lulling them to believe that the []attorneys were working it out 

in order to permit them access to the Decedent’s real property.” Appellants’ 

Brief, at 22. To support this claim, Appellants point to Andrea’s deposition, in 

which she testified that Appellants’ attorney, Vinsko, had told them several 

times that “Wells Fargo agreed to give us a key to get what we owned inside, 

but that always fell through, through firing attorney, hiring attorney, firing 

attorney, hiring attorney, starting from scratch, so there was no gaining 

access to our belongings.” Deposition of Andrea Betress, 11/21/22, at 39. 

First, Appellants failed to address the timeliness of their complaint at all 

in their answer to the motion for summary judgment. As such, their claim that 

the statute of limitations should have been tolled based on the doctrine of 

fraudulent concealment was not raised with the trial court. Accordingly, the 

trial court did not have a chance to address this claim. It is therefore waived.

See Pa.R.A.P. 302(a) (providing that issues not raised before the lower court 

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

In any event, Appellants fail to impute this claim to Wells Fargo. See,

e.g., Deposition of Andrea Betress, 11/21/22, at 39 (Andrea admitting this 
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information was received secondhand, through their own attorney). We 

cannot find any relevance between something their own attorney told them, 

and any improper action committed by Wells Fargo.

Finally, even if this assertion could be imputed to Wells Fargo, Appellants 

fail to explain how this alleged fraud caused them to “relax [their] vigilance or 

deviate from [their] right to inquiry into the facts” during the applicable time 

period. Fine, 870 A.2d at 860. Again, Appellants concede they discovered the 

damages and losses on June 14, 2009. Therefore, “reasonable minds cannot 

differ” in concluding Appellants knew of their injuries and should have known 

of the cause of their injuries by June 14, 2009, at the latest. The causes of 

action therefore existed on that date. Notably, Appellants do not make clear 

when the fraudulent concealment occurred. It appears Appellants are still 

referring to the time period between 2005 and 2009 when they claim they did 

not have access to the property. This does not explain why it took them four 

years after gaining access to the property to file a complaint. 
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Appellants claim that the limitations period was tolled is waived and 

otherwise without merit. Accordingly, the trial court did not abuse its 

discretion in granting Wells Fargo’s motion for summary judgment based on 

the statute of limitations.

Judgments affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 8/5/2024