J-A25014-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

POLINA TERTYSHNAYA, INDIVIDUALLY 

AND ON BEHALF OF ALEXANDER 

TERTYSHNAYA, HER MINOR SON,

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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Appellant :

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v. :

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STANDARD SECURITY LIFE INSURANCE 

COMPANY OF NEW YORK, HCC

SPECIALTY UNDERWRITERS, INC. A/K/A 

AMERICAN SPECIALTY UNDERWRITERS, 

INC., HCC INSURANCE HOLDINGS, 

INC., A/K/A AMERICAN SPECIALTY 

UNDERWRITERS, INC., AMERICAN 

SPECIALTY UNDERWRITERS, INC., 

MICHAEL S. CHAUT, MICHAEL CHAUT & 

ASSOCIATES, JAY M. GROSSMAN AND 

PUCKAGENCY, LLC,

:

:

:

:

:

:

:

:

:

:

:

:

Appellees : No. 449 EDA 2014

Appeal from the Order entered December 16, 2013,

Court of Common Pleas, Philadelphia County,

Civil Division at No. 3803 May Term 2010

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 19, 2014

Appellant, Polina Tertyshnaya (“Tertyshnaya”), appeals from the order 

entered on December 16, 2013 by the Court of Common Pleas of 

Philadelphia County, Civil Division, granting the motion for summary 

judgment of Appellees, Standard Security Life Insurance Company of New 

York (“SSLIC”), HCC Specialty Underwriters, Inc. (“HCC”), and American 
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Specialty Underwriters, Inc. (“ASU”) (collectively, the “Insurance 

Defendants”). After careful review, we affirm.

The relevant facts and procedural history of this case are as follows. 

SSLIC is a licensed insurance company. Insurance Defendants’ Motion for 

Summary Judgment on All Claims Because All Claims are Barred by the 

Statute of Limitations, 8/19/13, ¶ 14. ASU, now known as HCC, was the 

managing and supervising underwriter for SSLIC’s insurance policies at all 

times applicable to this case. See id. ¶ 15. In 1999, Dmitri Tertyshny 

(“Tertyshny”) was a professional hockey player in the National Hockey 

League and a member of the Philadelphia Flyers (“Flyers”). Id. ¶ 13. 

Tertyshny retained Jay Grossman (“Grossman”) of The Marquee Group1

(“TMG”) to represent him as his sports agent. Id. ¶ 2. Michael Chaut 

(“Chaut”) was the designated broker for Tertyshny for an insurance policy he 

allegedly purchased in 1999. Id. ¶ 4. 

On July 23, 1999, Tertyshny was participating in a Flyers summer 

training camp in British Columbia, Canada. Second Amended Complaint, 

11/6/12, ¶ 19. That evening, Tertyshny died in a tragic boating accident, 

leaving behind his wife, Tertyshnaya, who was four-months pregnant at the 

time of his death. This litigation stems from the insurance policy allegedly 

 

1

 Grossman is no longer part of TMG. He is now the sole member of the 

Puck Agency, LLC. See Insurance Defendants’ Motion for Summary 

Judgment on All Claims Because All Claims are Barred by the Statute of 

Limitations, 8/19/13, ¶ 2. 
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purchased by Tertyshny from the Insurance Defendants in 1999. 

Tertyshnaya believes that Tertyshny purchased a policy with permanent total 

disability (“PTD”) and accidental death and dismemberment (“AD&D”) 

coverage. See Tertyshnaya’s Brief at 4. Conversely, the Insurance 

Defendants maintain that Tertyshny purchased a policy with only PTD 

coverage. See Insurance Defendants’ Brief at 5. Tertyshnaya contends that 

fraud perpetrated by the Insurance Defendants prevented her from receiving 

death benefits and filing suit within the statute of limitations. See

Tertyshnaya’s Brief at 19.

On May 27, 2010, nearly 11 years after Tertyshny’s death, 

Tertyshnaya filed a complaint against the Insurance Defendants raising 

claims of breach of contract, quantum meruit/unjust enrichment, and bad 

faith. On December 20, 2010, Tertyshnaya filed an amended complaint, 

which added claims for violating the Pennsylvania Unfair Trade Practices and 

Consumer Protection Law, fraudulent misrepresentation, and negligent 

misrepresentation. On November 6, 2012, the trial court granted 

Tertyshnaya’s motion for leave to amend the complaint again and to join 

additional defendants. That same day, Tertyshnaya filed a second amended 

complaint in which she joined Chaut, Michael Chaut & Associates (“MCA”), 

Grossman, and the Puck Agency, LLC as defendants. 

In the Second Amended Complaint, Tertyshnaya alleged the following. 

In March 1999, Tertyshnaya and Tertyshny sought and purchased a policy of 
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PTD and AD&D insurance from the Insurance Defendants for $1,000,000 in 

coverage, for which she signed as the beneficiary. Second Amended 

Complaint, 11/6/12, ¶¶ 15, 17. 

In April 1999, Tertyshnaya and Tertyshny provided Grossman with 

$3,700, representing their payment for the premium of the alleged PTD and 

AD&D policy. Id. ¶ 18. Tertyshnaya claimed that neither she nor Tertyshny 

received a copy of the alleged PTD and AD&D policy prior to Tertyshny’s 

death on July 23, 1999. Id. ¶ 20. She asserted that on July 28, 1999, 

shortly following Tertyshny’s death, the Insurance Defendants cancelled the 

alleged PTD and AD&D policy. Id. ¶ 22. Tertyshnaya complained that she 

has not yet received any of the death benefits to which she believed she was 

entitled. Id. ¶ 23.

Tertyshnaya averred that Attorney Jerrold Colton (“Colton”) 

represented her from late 1999 through 2004. Id. ¶ 24. Colton 

investigated whether she was entitled to AD&D benefits resulting from 

Tertyshny’s death. Id. Tertyshnaya contends that Grossman told Colton 

that she and Tertyshny never purchased any insurance policy. Id. 

Tertyshnaya claimed that in 2005, she retained Attorney James McNally 

(“McNally”) and he likewise looked into whether she had any right to AD&D 

benefits stemming from Tertyshny’s death. See id.; see also Deposition of 

McNally, 10/17/12, at 20. Tertyshnaya asserted that McNally and his law 

firm confirmed Grossman’s, and subsequently Colton’s, belief that she and 
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Tertyshny never purchased any insurance policy. See Second Amended 

Complaint, 11/6/12, ¶ 24; see also Deposition of McNally, 10/17/12, at 38. 

Nonetheless, Tertyshnaya stated that she persisted in her investigation. 

Second Amended Complaint, 11/6/12, ¶ 24.

Tertyshnaya claimed that in December 2008, her second husband, 

Michael Moy (“Moy”), attempted to contact the Insurance Defendants 

seeking information about Tertyshny’s alleged PTD and AD&D insurance 

policy. See id.; see also Deposition of Moy, 7/13/12, at 82. Tertyshnaya 

asserted that SSLIC explained that if Tertyshny had purchased an insurance 

policy, that TMG would have held it, that TMG would have issued the 

certificate of insurance for the policy, and that TMG is an insurance agent for 

ASU. Second Amended Complaint, 11/6/12, ¶ 24. Tertyshnaya also 

contended that SSLIC confirmed that AD&D coverage would be part of a PTD 

insurance policy. Id. ¶ 24. Tertyshnaya alleged that Grossman, TMG, 

Chaut, and MCA are agents for the Insurance Defendants. Id. ¶ 26. 

Tertyshnaya bases this contention on her assertion that Grossman, TMG, 

Chaut, and MCA solicit and process insurance applications for the Insurance 

Defendants. Id. ¶¶ 25-26. 

Tertyshnaya averred that the Insurance Defendants, along with 

Grossman, TMG, Chaut, and MCA, intentionally concealed Tertyshny’s 

alleged PTD and AD&D insurance policy from her by representing that she 

and Tertyshny never purchased any insurance policy in an attempt to avoid 
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paying her death benefits. Id. ¶ 32. Tertyshnaya complained that the 

Insurance Defendants, after the initiation of this litigation, provided her with 

a copy of Tertyshny’s insurance policy, which revealed that on August 30, 

1999, after his death, the Insurance Defendants issued the policy, backdated 

to March 1, 1999, for PTD coverage only. Id. ¶¶ 28-29, 33-35, Exhibit A. 

Tertyshnaya claimed that this fraud, perpetrated by the Insurance 

Defendants and their agents, prevented her from filing suit until 2010. See 

id. ¶ 32.

On December 7, 2012, the Insurance Defendants filed an answer with 

new matter in which they denied all material allegations in the second 

amended complaint. On August 19, 2013, following the completion of 

discovery, the Insurance Defendants filed a motion for summary judgment, 

in which they averred the following.

On February 19, 1999, Grossman contacted ASU requesting a quote 

for PTD insurance for Tertyshny. Insurance Defendants’ Motion for 

Summary Judgment on All Claims Because All Claims are Barred by the 

Statute of Limitations, 8/19/13, ¶ 16. On March 1, 1999, Grossman 

obtained confirmation from ASU that Tertyshny was bound to a one-year, 

24-hour coverage PTD policy for $1,000,000 with a premium of $3,700. Id.

¶ 17. On March 3, 1999, ASU invoiced Grossman for the $3,700 premium. 

Id. ¶ 18. On March 18, 1999, TMG sent Tertyshny material about PTD 

insurance and directed him to sign the application and make out a check for 
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the premium and mail it to them. Id. ¶¶ 19-20. The Insurance Defendants 

claim that there were no instructions for Tertyshnaya to sign anything. Id.

¶ 19. Around April 26, 1999, Tertyshny sent TMG a signed application along 

with a $3,700 check from his and Tertyshnaya’s joint account for the 

premium. Id. ¶¶ 23-25. On June 4, 1999, ASU received a $3,700 check 

from TMG representing the payment for the premium due in connection with 

Tertyshny’s PTD insurance policy. Id. ¶ 26. 

Shortly following Tertyshny’s death on July 23, 1999, the Insurance 

Defendants cancelled his PTD insurance policy. Id. ¶ 38. On August 30, 

1999, the Insurance Defendants sent a $2,775 refund for the premium to 

Grossman and TMG along with a copy of Tertyshny’s PTD policy with all 

addendums, including the cancellation addendum. Id. ¶ 39.

The Insurance Defendants contended that although Tertyshnaya has 

believed since 1999 that she is entitled to AD&D benefits, she has not filed 

with the Insurance Defendants a claim for death benefits. Id. ¶ 42. The 

Insurance Defendants pointed out that neither Colton nor McNally ever 

contacted the Insurance Defendants, despite evidence that both possessed 

documents identifying SSLIC as the insurer of a PTD policy for Tertyshny. 

Id. ¶¶ 48-49; Deposition of McNally, 10/17/12, at 27-29; see also

Insurance Defendants Motion for Summary Judgment on Counts I, II, III, 

and VIII, 8/19/13, Exhibit 21 (Letters From McNally to Colton, 3/9/05). 
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The Insurance Defendants maintained that they had no relationship 

and were in no way affiliated with Grossman and TMG and that neither 

Grossman nor TMG received any compensation stemming from Tertyshny’s 

purchase of a PTD insurance policy from them. Insurance Defendants’ 

Motion for Summary Judgment on All Claims Because All Claims are Barred 

by the Statute of Limitations, 8/19/13, ¶¶ 8-10. Rather, the Insurance 

Defendants identified Chaut as the designated broker for Tertyshny’s 

acquisition of PTD insurance and point out that he received compensation for 

Tertyshny’s purchase of a PTD policy.2 Id. ¶¶ 11-12. The Insurance 

Defendants further claimed that no employee of the Insurance Defendants 

ever told Moy, Tertyshnaya’s second husband, that Tertyshny purchased a 

policy with AD&D benefits. Id. ¶ 61. 

On October 25, 2013, Tertyshnaya filed her memorandum in 

opposition to the Insurance Defendants’ motion for summary judgment. On 

December 16, 2013, the trial court granted the Insurance Defendants’ 

motion for summary judgment, finding Tertyshnaya’s claims barred by the 

statute of limitations. On January 14, 2014, Tertyshnaya’s timely notice of 

appeal followed.3

On appeal, Tertyshnaya raises the following issues for review:

 

2

 On May 22, 2013, the trial court ultimately dismissed Chaut and MCA from 

the case. 

3

 The trial court did not order a concise statement of errors complained of 

on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate 

Procedure in this case.
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[1.] In deciding a motion for summary judgment, 

may the trial court resolve factual disputes 

against the non-moving party?

[2.] Whether the trial court improperly dismissed 

the case based on the statute of limitations?

[3.] Whether the trial court erred in holding the 

statute of limitations began to run against 

[Tertyshnaya], the beneficiary, and the unborn 

son of the insured, [Tertyshny],

a. upon the death of [Tertyshny] on July 

23, 1999[,] despite evidence that 

[Tertyshnaya] and her attorneys were 

told by the [Insurance Defendants’] 

agent, defendant [Grossman], that no 

policy was ever purchased, and

b. no later than August 30, 1999 when the 

[Insurance Defendants] allegedly sent 

the policy without the death benefits to 

[their] agent Grossman who claims he 

never received it, and

c. by imputing alleged knowledge of the 

[Insurance Defendants’] agent 

Grossman, who claims he was unaware 

the policy was ever issued, [sic] to the 

beneficiary [Tertyshnaya] with whom the 

agent had no relationship?

[4.] Whether the trial court erred in holding there 

was no evidence that the [Insurance 

Defendants] fraudulently concealed the policy 

from [Tertyshnaya], the beneficiary, or that 

the discovery rule and the fraudulent 

concealment doctrine did not toll the statute of 

limitations?

[5.] Whether the trial court erred or abused its 

discretion in relying upon documents that (1) 

were misrepresented by the [Insurance 
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Defendants] as having been in [Tertyshnaya]’s 

possession prior to this case, (2) were not 

properly authenticated, (3) were characterized 

without basis by [the Insurance Defendants’] 

counsel in violation of [Pa.R.C.P.] 1035.1 and 

1035.2 – which characterizations were 

disputed by [Tertyshnaya]’s insurance expert’s 

report, and (4) as to which the completeness 

of such document production by the Insurers is 

disputed and cannot be resolved by the court?

Tertyshnaya’s Brief at 2-4 (footnote omitted).4

The standard of review for an order granting a motion for summary 

judgment is as follows:

A reviewing court 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. Pa.R.C.P. 

1035.2. 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 non-moving 

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 it bears the 

burden of proof establishes the entitlement of the 

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

we will view the record in the light most favorable to 

the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be 

resolved against the moving party.

 

4

 We have reordered the issues that Polina raises on appeal for ease of 

review.
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JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261–62 (Pa. 

Super. 2013) (quoting Murphy v. Duquesne Univ. of the Holy Ghost,

777 A.2d 418, 429 (Pa. 2001)).

We begin by addressing Tertyshnaya’s first, second, third (including its 

sub-issues), and fourth issues together, as these issues collectively raise the 

question of whether the trial court erred in deciding that Tertyshnaya’s 

claims were time barred by the statute of limitations.5 See Tertyshnaya’s 

Brief at 24-36. The primary basis for Tertyshnaya’s arguments on appeal is 

that the trial court incorrectly determined that the doctrine of fraudulent 

concealment and the discovery rule did not apply in this case to toll the 

statute of limitations. See id. at 24. 

“Summary judgment is appropriate if a plaintiff’s cause of action is 

barred by the statute of limitations.” Gojmerac v. Naughton, 915 A.2d 

1205, 1206 (Pa. Super. 2006). The Superior Court of Pennsylvania has 

stated the following regarding the statute of limitations:

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 

 

5

 In a footnote, Polina also attempts to argue that the statute of limitations 

has not yet begun to run on the claims of her and Tertyshny’s minor son. 

Polina’s Brief at 32 n.13. We find that Polina has waived this argument on 

appeal for failure to develop it. See Umbelina v. Adams, 34 A.3d 151, 161 

(Pa. Super. 2011). In the footnote, Polina merely quotes 42 Pa.C.S.A. 

§ 5533(b)(1)(i), which provides for the tolling of the statute of limitations for 

the claims of unemancipated minors, and provides no further support or 

basis for this argument. See Polina’s Brief at 32 n.13.
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the facts and circumstances upon which a 

potential right of recovery is based and to 

institute suit within the prescribed statutory 

period. Thus, 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[,] even though a person may 

not discover his injury until it is too late to take 

advantage of the appropriate remedy, this is incident 

to a law arbitrarily making legal remedies contingent 

on mere lapse of time. Once the prescribed statutory 

period has expired, the party is barred from bringing 

suit unless it is established that an exception to the 

general rule applies which acts to toll the running of 

the statute.

Hopkins v. Erie Ins. Co., 65 A.3d 452, 460 (Pa. Super. 2013) (emphasis 

added; internal citations omitted) (quoting Pocono Int’l Raceway, Inc. v. 

Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)). 

The exceptions that act to toll the running of a statute of limitations 

include the doctrine of fraudulent concealment and the discovery rule. Fine 

v. Checcio, 870 A.2d 850, 858 (Pa. 2005). In regards to the doctrine of 

fraudulent concealment, our Court has stated: 

[T]he doctrine of fraudulent concealment serves to 

toll the running of the statute of limitations. The 

doctrine is based on a theory of estoppel, and 

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. The doctrine does not require fraud in the 

strictest sense encompassing an intent to deceive, 

but rather, fraud in the broadest sense, which 

includes an unintentional deception. The plaintiff has 

the burden of proving fraudulent concealment by 
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clear, precise, and convincing evidence. While it is 

for the court to determine whether an estoppel 

results from established facts, it is for the jury to say 

whether the remarks that are alleged to constitute 

the fraud or concealment were made. 

Id. at 860 (internal citations omitted). Importantly, “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 

plaintiff justifiably relied.” Baselice v. Franciscan Friars Assumption 

BVM Province, Inc., 879 A.2d 270, 278 (Pa. Super. 2005) (citation and 

quotations omitted). 

Additionally, this Court has held that “[t]he discovery rule is a 

‘judicially created device which tolls the running of the applicable statute of 

limitations until the point where the complaining party knows or reasonably 

should know that he has been injured and that his injury has been caused by 

another party’s conduct.’” Coleman v. Wyeth Pharm., Inc., 6 A.3d 502, 

510 (Pa. Super. 2010) (quoting Crouse v. Cyclops Indus., 745 A.2d 606, 

611 (Pa. 2000)).

Tertyshnaya argues that the doctrine of fraudulent concealment 

applied in this case because of misrepresentations made by Grossman and 

the Insurance Defendants. Tertyshnaya’s Brief at 24-36. Tertyshnaya 

claims that Grossman was an agent for the Insurance Defendants and that 

he committed an affirmative independent act of concealment by allegedly 

informing her and Colton that Tertyshny never purchased any insurance 
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policy. Id. at 26-28, 32. Additionally, Tertyshnaya asserts that the 

Insurance Defendants committed an affirmative independent act of 

concealment by issuing an insurance policy for PTD coverage, as opposed to 

AD&D coverage, on August 30, 1999, after Tertyshny’s death, backdated to 

March 1, 1999. Id. at 32. Tertyshnaya argues that her insurance expert’s 

report supports her contention that the Insurance Defendants issued a 

backdated policy that fraudulently only provided PTD coverage so that they 

could avoid paying her AD&D benefits. Id. at 24. 

In regards to Tertyshnaya’s fraudulent concealment argument, the 

trial court found the following:

[N]one of [Tertyshnaya’s] unsupported allegations 

are sufficient to show that the statute of limitations 

on [her] claims should have been tolled under the 

fraudulent concealment doctrine. [The] Insurance 

Defendants presented evidence that they did not 

[backdate] [Tertyshny]’s policy as evidenced by a 

conditional coverage note dated March 5, 1999, 

before the policy was issued. More importantly, 

neither [Tertyshnaya] nor her attorney contacted 

[the] Insurance Defendants until December of 2008 

regarding the existence of a policy for [Tertyshny] 

providing [AD&D] benefits. When [Tertyshnaya] 

contacted [the] Insurance Defendants in December 

of 2008 inquiring as to why death benefits were not 

paid, the statute of limitations had expired for all of 

[her] claims.

* * *

In [s]ummary, [Tertyshnaya] alleges a scenario in 

which she was actively prohibited from discovering 

the true state of affairs through [the] Insurance 

Defendants[’] fraud and concealment. Although [the] 
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Insurance Defendants did contact Grossman, and 

stated that the [PTD] policy was cancelled due to 

death, [Tertyshnaya] has produced no coherent facts 

indicating that [the] Insurance Defendants 

affirmatively concealed [an AD&D policy]. Nor has 

[Tertyshnaya] produced any facts to show that she 

made any attempt to learn of [an AD&D policy] by 

August of 2005. There is also no evidence that [the] 

Insurance Defendants produced a [backdated] 

policy.

Trial Court Opinion, 12/16/13, at 9-10.

We conclude that the trial court did not err in determining that the 

statute of limitations had run on all of Tertyshnaya’s claims and that the 

doctrine of fraudulent concealment did not apply in this case to toll the 

statute of limitations. Despite the fact that Tertyshnaya has consistently 

maintained, since 1999, the belief that Tertyshny’s policy contained AD&D 

coverage, she failed to use all reasonable diligence to become properly 

informed of the facts upon which her potential right of recovery is based. 

The undisputed material facts in this case establish the following. 

Tertyshny died on July 23, 1999. Tertyshnaya admits, both in her brief and 

in her deposition testimony, that she was involved in the purchase of an 

insurance policy for Tertyshny and always maintained the belief that she was 

entitled to AD&D benefits under Tertyshny’s insurance policy. Tertyshnaya’s 

Brief at 17; Deposition of Tertyshnaya, 6/26/12, at 78, 88, 202-03. 

Tertyshnaya even claims in her brief that “[she] did not sleep on her rights” 

and that “[she] could not sleep because she was certain a life insurance 
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policy had been purchased from the [Insurance Defendants].” Tertyshnaya’s 

Brief at 17. 

In fact, in October 1999, Tertyshnaya asked Colton to determine if she 

was entitled to AD&D benefits under Tertyshny’s insurance policy. 

Deposition of Colton, 7/11/12, at 30-31. In 2004, subsequent to Colton’s 

inquiries into whether Tertyshnaya was entitled to AD&D insurance benefits, 

she engaged McNally to investigate whether she had a claim for AD&D 

benefits. Deposition of McNally, 10/17/12, at 20. Neither Colton nor 

McNally have any recollection of contacting the Insurance Defendants to see 

if Tertyshny’s policy included AD&D coverage, despite evidence indicating 

that both Colton and McNally had insurance documentation identifying SSLIC 

in conjunction with Tertyshny’s policy. Id. at 27-29, 40-41; Deposition of 

Colton, 7/11/12, at 77; see also Insurance Defendants Motion for Summary 

Judgment on Counts I, II, III, and VIII, 8/19/13, Exhibit 21 (Letters From 

McNally to Colton, 3/9/05). It was not until December 2008 that Moy, 

Tertyshnaya’s second husband, contacted the Insurance Defendants to 

determine if she had a right to any AD&D benefits. Deposition of 

Tertyshnaya, 6/26/12, at 204. 

Thus, although Tertyshnaya made allegations of fraud against the 

Insurance Defendants that she claims prevented her from knowing whether 

Tertyshny’s insurance policy existed and from filing suit within the limitations 

period, she has also consistently maintained that she and Tertyshny 
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purchased an insurance policy that included AD&D coverage. In an effort to 

determine what her rights were under Tertyshny’s alleged PTD and AD&D 

policy, Tertyshnaya had three attorneys and her second husband investigate 

the alleged PTD and AD&D policy. Despite her consistent belief that she was 

entitled to AD&D benefits, however, Tertyshnaya never submitted a claim for 

AD&D benefits following Tertyshny’s death. Id. at 224. In fact, no one 

working on her behalf contacted the Insurance Defendants until December 

2008.

Tertyshnaya also finds it significant that she did not receive a copy of 

Tertyshny’s insurance policy until after she initiated the instant litigation. 

See Tertyshnaya’s Brief at 5, 10, 14, 17, 28. As a result, Tertyshnaya 

contends that prior to filing this lawsuit, she did not have the basis for a 

claim. See id. at 13-14. However, the fact that Tertyshnaya did not have a 

copy of Tertyshny’s insurance policy until after filing suit only underscores 

her lack of reasonable diligence in this case. At the time she filed suit in 

May 2010, Tertyshnaya possessed the same information about Tertyshny’s 

alleged insurance policy providing AD&D coverage that she did when 

Tertyshny died in 1999. Moreover, Tertyshnaya had as much evidence of 

the purported fraud on the part of the Insurance Defendants in 1999 as she 

did in 2010. Given her persistent belief that she was entitled to AD&D 

benefits stemming from Tertyshny’s death, none of the Insurance 

Defendants’ purported acts of fraud prevented her from bringing this lawsuit. 
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Filing suit within the statute of limitations would have begun the discovery 

process – the process upon which she ultimately relied to gain the 

information she currently possesses. 

Accordingly, the trial court did not err in concluding that the statute of 

limitations had run on all of Tertyshnaya’s claims and that the doctrine of 

fraudulent concealment did not apply in this case to toll the statute of 

limitations. Tertyshnaya did not exercise reasonable diligence by waiting to 

file suit until May 2010 because she had no more evidence then of her 

alleged right to AD&D benefits or the Insurance Defendants’ purported fraud 

than she did following Tertyshny’s death. See Hopkins, 65 A.3d at 460. 

Additionally, none of the Insurance Defendants’ alleged acts of fraud caused 

Tertyshnaya to relax her vigilance or deviate from her right of inquiry into 

the facts. See Fine, 870 A.2d at 860. Therefore, the trial court was correct 

in finding Tertyshnaya’s delay in filing suit inexcusable.

Tertyshnaya also argues that the discovery rule applied in this case to 

toll the statute of limitations. Tertyshnaya’s Brief at 24-36. We find that 

Tertyshnaya has waived this claim based upon her failure to raise it before 

the court below. “Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.” Majorsky v. Douglas, 58 A.3d 

1250, 1268 (Pa. Super. 2012), appeal denied, 70 A.3d 811 (Pa. 2013); see 

also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). Here, Tertyshnaya did not 
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raise the discovery rule as an exception to the statute of limitations in her 

memorandum in opposition to the Insurance Defendants’ motion for 

summary judgment. See Plaintiff’s Memorandum in Opposition to the 

Insurance Defendants’ Motion for Sanctions for Spoliation of Evidence and 

Four Motions for Summary Judgment, 10/25/13, at 27-29. The fact that the 

trial court did not address the discovery rule in its opinion further supports 

the notion that Tertyshnaya failed to raise this issue. See Trial Court 

Opinion, 12/16/13, at 5-10. Tertyshnaya cannot now raise this issue for the 

first time on appeal. See Majorsky, 58 A.3d at 1268; Pa.R.A.P. 302(a). 

Accordingly, Tertyshnaya has waived this claim on appeal. However, given 

our analysis and disposition of the claim she raised, the result would be the 

same.

For her next issue on appeal, Tertyshnaya argues that the trial court 

erred in granting the Insurance Defendants’ motion for summary judgment 

because it relied on documents attached to their motion that they 

misrepresented Tertyshnaya to have possessed prior to her filing suit. 

Tertyshnaya’s Brief at 36-38. Tertyshnaya claims the Insurance Defendants 

wrongly stated that these records were “produced by Plaintiff.” Id. 

Tertyshnaya also contends that the Insurance Defendants did not 

authenticate certain other records relied on by the trial court. Id. 

Tertyshnaya further complains that the trial court ignored her objections to 

the Insurance Defendants’ records by denying her motion in limine in 
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regards to the Insurance Defendants’ spoliation of relevant records after she 

filed suit. Id. at 38-39. Tertyshnaya asserts that the trial court improperly 

made factual determinations on an incomplete record. Id.

We conclude that the trial court did not abuse its discretion in its 

consideration of the records attached to the Insurance Defendants’ motion 

for summary judgment. There is no support for Tertyshnaya’s allegations 

that the Insurance Defendants misrepresented any records. The only 

representation that the Insurance Defendants make in their motion for 

summary judgment is that these records were “produced by Plaintiff in 

discovery,” not that she had them prior to filing suit. See, e.g., Insurance 

Defendants’ Motion for Summary Judgment on All Claims Because All Claims 

are Barred by the Statute of Limitations, 8/19/13, ¶¶ 6-7. Although the 

affidavit authenticating several of the Insurance Defendants’ exhibits 

attached to their motion for summary judgment did mistakenly state that 

Tertyshnaya received them “prior to and during this litigation,” the 

Insurance Defendants’ notified the trial court of this error and corrected it. 

See Praecipe to Attach to Motion for Summary Judgment – Exhibit 1, 

11/21/13, ¶ 3; Insurance Defendants’ Reply Supporting Praecipes to Attach

and for Oral Argument, 12/6/13, at 4. 

There is likewise no support for Tertyshnaya’s claims that the trial 

court relied on records that the Insurance Defendants did not properly 

authenticate. First, the Insurance Defendants properly attached each of the 
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records that they relied upon to their motion for summary judgment. See

Kroptavich v. Pennsylvania Power & Light Co., 795 A.2d 1048, 1063 

(Pa. Super. 2002) (finding depositions and various other business record 

exhibits that the moving party attached to the motion for summary 

judgment were properly made part of the certified record). Second, the 

Insurance Defendants filed an affidavit, signed by Brendon Bruner of HCC, 

certifying the authenticity of several of the records relied upon by the 

Insurance Defendants in their motion for summary judgment. See Praecipe 

to Attach to Motion for Summary Judgment – Exhibit 1, 11/21/13, ¶¶ 4-5.

Finally, even if the trial court did improperly consider certain records in 

this case, it would have no effect on the outcome of the case. Here, there is 

no dispute that Tertyshnaya has maintained the belief since 1999 that she 

and Tertyshny bought an insurance policy with PTD and AD&D coverage. 

Despite this belief, and the fact that Tertyshnaya or her attorneys possessed 

documentation identifying the Insurance Defendants concerning this alleged 

policy, Tertyshnaya never filed a claim for death benefits with the Insurance 

Defendants and did not file suit against them for nearly 11 years. These 

facts are either admitted to, by Tertyshnaya or her former attorneys, or 

supported by the record, and are fatal to her claims. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2014