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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.J

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- [Appellants] co m menced this action against [ W e ll s 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 m ortgage to W ells Fargo which encumbered his residential proper ty at 227 North S umner Avenue , and that after George's loan went into default for nonpayment following his death on December 10, 2004
, We l ls Fargo instituted a mortgage foreclos ure action [] , on October 5
, 2005. They aver that “[ s]ubsequent t h ereto , Wells Fargo unilaterally assumed control over the proper ty after the death of George Gian acopoulos , hiring a company to lock the home and lock out [Appellants]

. ”

I t is alleged in the complaint that W ells Fargo “ took absolutely no action t o protect t he proper ty or to secure the property of the estate, both real and personal ,” as a resu lt of which the prope rty was “ burglarized ” and “ subject to vandalism. ” [Appellants] maintain that W ells Fargo “ failed to pay the taxes on the proper t y, ” which “ resulted in the proper t y being sold at a judicial tax sale on March 25, 2013, as confirmed by the court under Lackawanna C oun t y Docket No. 2012

- CV

- 7 8 07. ” Damages are sought b ase d on the contentions that “ Wells Fargo wasted the assets ,” “ Wells Fargo allowed the assets of [Appellants] to be removed from the proper t y, ” and “W ells Fargo never notified [Appellants] that they were not keeping all proper t y secure. ” In addition, [Elaine] and Andrea [] claim that W ells Fargo negligently

“ caused severe distress ” to them by failing to protect and secure George ’ s property, which distress manifested itself in “ insom nia
, vomiting, and headaches ” and l eft them “ forever emotiona lly scarred. ”

During discovery
, [Appellants] testified that through the efforts of their former attorney, William E. V insko, Jr., Esquire ( “V insko ” ), 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 “r ansacked ” by intruders and that George ’ s residence had been damaged and his personal
proper ty had been stolen or destroyed. S tephen [] videotaped the in t erior of the home and its contents on the day in 2009 that [Appellants] entered and ex amined the proper t y , 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 prope rty on June 14, 2009, th ey did not institute this litigation until more than 54 months later on December 20, 2013. Following the completion of discovery
, and based upon [Appellant s] ’ own testimony, W ells Fargo filed a motion for summary judgment asserting [Appellant]’s claims for waste, c onversation
, misrepresentation, and negligent infliction of emotional distress are ti me

- barred by the two

- year statute of limitations g overn ing those causes of action. I n the alternative, it argues that each of those claims are insufficient as a matter of law.

In opposing W ells 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 [Appellant s]’ 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
purpos es of consideration of [ Wells Fargo ’s] motion for summary judgment ,” the “S ummary Judgment Motion must fai l

. ” [Appellants] further allege that “ [t] he present facts squarely fit within the d o ctrine of res ipsa loquitur ,” and that the “ economic loss doctrine has no application ” in this ca s e. However, [Appellants]’ brief in opposition does not address W ells Farg o’ s statute of limitations argument or otherwise challenge W ells Fargo ’ s assertion that [Appellants]’ claims are time

- barred

. Following the completion of oral argument by the parties ’ counsel on July 6, 2023, W ells Fargo ’ s motion for summary judgment was submitted for a decisio n.

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 m otion for s ummary j udgment based solely upon the expiration of the governing statutes of limitation?J

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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 s tatutes of l imitations 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)

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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 t he 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 limitation s period.

Appellants concede the applicable statute of limitation s period on all of

their claims is two years. See Appellants ’ Brief, at 19 ; see also 42 Pa.C.S.A.J

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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

. Se e 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

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.

T he 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.” F ine 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 runJ

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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 Appellant s’ attorney, Vi n sko, 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 thisJ

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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 1 4, 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.J

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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