IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Brandywine Township, : Appellant :

:

v. :

:

John P. Diromualdo, Inc., and : Nos. 38 and 198 C.D. 2016

J ohn P. Diromualdo, individually : Argued: October 17, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: February 8, 2017

West Brandywine Township (Township) appeals from t wo orders of

the Court of Common Pleas of Chester County (trial court)

. The first, dated

August 26, 2015, granted John P. Di r omualdo, Inc. and John P. Di r omualdo’s

(collectively Appellee) Motion for Judgment on the Pleadings. The second, dated

September 23, 2015, denied the Township’s Motion for Leave to File an Amended

Complaint. Upon review, w e affirm.

In 2009, West Brandywine Township (Township) retained Appellee

to perform a real estate appraisal on a parcel of land that the Township want ed to

acquire. Section 1503 of the Second Class Township Code 1 requires the township

board of supervisors, when acquiring real estate, to obtain at least one appraisal of

1 Act of May 1, 1933, P.L. 103, as amended, 35 P.S. § 66503.2

the property, and the price paid for the real estate may not exceed the price

establ ished in the appraisal. Appellee issued the appraisal to the Township

manager on March 20, 2009, assessing the value of the parcel at $744,000.00 as of

the date of inspection, February 27, 2009. (Reproduced Record (R.R.) at 26a.)

Subsequently, on July 9

, 2009, the Township acquired the property for

$744,000.00.

In March of 2014, following an investigation into the Township’s

acquisition of the property, the Township Police Department advised the Township

that the 2009 appraisal did not consider a dee d restriction on the property which

limited use of the land to public open space and/or public use. (Township’s Brief

at 10.) Appellee performed a second appraisal of the property and issued a report

on April 16, 2014 in which he assessed the property’s value at $211,000.00.

On March 25, 2015, the Township commenced an action against

Appellee, asserting claims for professional negligence, breach of contract, and

intentional and negligent misrepresentation, and seeking to recover the difference

in appra isal values. Appellee defended on the basis that the deed restriction was

not accessible at the time of the first appraisal, having been filed on February 24,

2009, three days prior to the date Appellee performed his inspection. Appellee

further averred that Township was aware, or should have been aware, of the deed

restriction, and did not advise Appellee of its existence. Appellee filed a Motion

for Judgment on the Pleadings, raising the affirmative defense that the Township’s

claims were barred by the statute of limitations. The Township filed a Motion for

Leave to File an Amended Complaint. The trial court granted Appellee’s Motion3

on August 26, 2015 and denied the Township’s Motion on September 23, 2015.

The Township appealed 2 both decisions to th is court.

The Township raises two issues on appeal: whether the trial court

improperly assumed the role of fact

- finder in holding that the Township should

have known of the appraiser’s negligence before the statute of limitations expired;

and whether t he trial court committed an error of law and/or abuse of discretion in

denying the Township leave to amend when the proposed amendments are not

futile.

The Township first argues that the trial court interjected its factual

assessment of when the Township should have known of the appraiser’s

negligence. Citing Sadtler v. Jackson

- Cross Co.

, 587 A.2d 727 (Pa. Super. 1991),

the Township argues “a lay person cannot be expected to possess the knowledge

and expertise of an appraiser and, therefore, the determina tion of when the

limitation period begins is an issue of fact that should be decided by a jury.” Id. at

732. The Township claims it did not learn of Appellee’s professional negligence

until advised of the issue by its zoning officer in 2014. 3 (Township’ s Brief at 12.)

The trial court held that the Township’s right to commence suit began

when Appellee issued the 2009 Summary Appraisal Report which failed to

2 Our review of a trial court's decision granting a motion for judgment on the pleadings is

limited to determining whether the trial court committed an error of law or whether there were

facts presented which warranted a jury trial. Travelers Casualty & Su rety Co mpany v.

Castegnaro, 772 A.2d 456, 459 ( Pa. 2001). As this appeal presents a question of law, o ur scope

of review is plenary. Lindstrom v. City of Corry, 763 A.2d 394, 396 ( Pa. 2000).

3 Th e Township is not disputing it knew the deed restriction exis ted. The Township had

knowledge o f the deed restriction when it entered into the Sewer A greement on December 11,

2008. I t is asserting it did not know the 2009 Summary Appraisal Report did not take the deed

restriction into consideration until March of 2 014 when the Townsh ip’s Police Department

brought the omission to its attention.4

consider the existing deed restriction. In its opinion issued pursuant to Pa.R.A.P.

1925, the tri al court explained that the Township conceded it was aware of the

deed restriction prior to Appellee’s issuance of the March 20, 2009 appraisal, the

Township did not make Appellee aware of the deed restriction, or call omission of

the deed restriction in t he appraisal to Appellee’s attention. (Appellant’s Brief,

Appendix A at 8.) The trial court concluded that “even a layperson’s review of the

Report indicates that the Deed Restriction was not known” to Appellee at the time

of its issuance. Id. at 10. T he trial court found the facts “so clear that reasonable

minds cannot differ in concluding that the [Township] either knew or should have

known of the deed restriction on the property as it was the subject of negotiations

in the ‘Sewer Agreement’ prior to the Township’s acquisition of the subject

property on July 9, 2009.” (R.R. at 555a.)

The statute of limitations begins to run when a cause of action

accrues; i.e.

, when an injury is inflicted and the corresponding right to institute a

suit for damages arises. Gleason v. Borough of Moosic

, 15 A.3d 479, 484 (Pa.

2011). A party asserting a claim has the duty to use reasonable diligence to

properly inform itself of the facts and circumstances upon which a potential right

of recovery is based and to instit ute suit within the prescribed statutory period. Id

.

In general, the point at which the complaining party should reasonably

be aware that it has suffered an injury is an issue of fact to be determined by the

jury. Sadtler, 587 A.2d at 732. Where facts are so clear that reasonable minds

cannot differ regarding when the limitations period begins running, the question

can be determined as a matter of law. Glenbrook Leasing Company. v. Beausang,

839 A.2d 437, 444 (Pa. 2003). In addition, if a party has th e means of discovery

within its power but neglects to use them, its claim will still be barred. Baselice v.5

Franciscan Friars Assumption BVM Province, Inc.

, 879 A.2d 270, 278 (Pa. Super.

2005).

The discovery rule acts as an exception to the statute of l imitations

and provides that where the complaining party is reasonably unaware that his or

her injury has been caused by another party’s conduct, the discovery rule suspends,

or tolls, the running of the statute of limitations. Gleason

, 15 A.3d at 484. T he

discovery rule operates to balance the rights of diligent, injured plaintiffs against

the interests of defendants in being free from stale claims. Id

. at 485.

In Glenbrook

, a real estate partnership retained attorneys to prepare an

agreement of sale a nd deed in connection with the partnership’s proposed purchase

of office space with parking. The agreement was prepared and executed by the

partnership in 1987 and was silent with respect to the parking spaces. In 1994, a

dispute arose over the parking s paces and the partnership was informed it was not

the owner of the parking spaces. At that time the partnership used another law

firm to opine on the matter and that firm stated the partnership had a potential

malpractice claim against its original attorn eys. In 2000, t he partnership filed suit

against those a ttorneys for malpractice

.

The Supreme Court found that the partnership’s claims were time

barre d because it was undisputed the partnership learned of the potential

malpractice claim in 1994. The claim was mentioned in the opinion letter from the

law firm that the partnership engaged for a second opinion. The Court further

found that the trial court did not abuse its discret ion in determining that the statute

of limitations had begun to run at the time the partnership received the opinion

letter in 1994. Glenbrook, 839 A.2d at 444.6 As the trial court noted in its opinion below, the Township conceded it

was aware of the deed restriction. (Appellant’s Brief at 19.) There are no facts or

testimony presented that would suggest that Appellee took any measures to conceal

the deed restriction from the Township. The absence of the deed restriction in the

appraisal report could ha ve been discovered by the Township had it read past the

first page of the report. The Township did not use reasonable diligence to discover

its injury; therefore, the Township’s claims are time

- barred by the applicable

statute of limitations. The trial c ourt, not having been presented with evidence to

the contrary that would have caused reasonable minds to differ, made the

determination of the statute of limitations period as a matter of law. We find that

the trial court did not improperly assume the rol e of fact

- finder, but rather made a

judgment as a matter of law due to the uncontroverted facts presented.

The Township next argues the trial court committed an error of law

and/or abused its discretion in denying the Township leave to amend the pleadings

.

It claims that the amendments explain how and when the Township first learned of

the absence of the deed restriction in the appraisal. The Towns hip relies on

Pa.R.C.P. No. 1033

, which states that a party, either by filed consent of the adverse

party or by leave of court, may at any time change the form of action, correct the

name of a party or amend the pleading. The Township presented several

amendments that detail the events that led to the police department notifying it that

the appraisal did not co nsider the deed restriction. The trial court reviewed the

amendments and determined that they did not alter the analysis regarding the

commencement of the statute of limitations or application of the discovery rule.

The court found that allowance of the amendments would have only served to

delay the inevitable dismissal upon the pleadings.7 Rule 10 33 has been interpreted to call for the liberal grant of leave to

amend pleadings in order to allow for full development of a party’s theories and

averments. Newcomer v. Civil Service Commissio n of Fairchance Borough

, 515

A.2d 108, 111 (Pa. Cmwlth. 1986). The discretion to grant or deny leave to amend

remains with the trial court, however, and the fundamental purpose of the rule,

which is to prevent cases fro m turning on purely technical defects, must be kept in

mind. Id

. An amendment is properly refused where it appears the amendment is

futile. Weaver v. Franklin County

, 918 A.2d 194, 203 (Pa. Cmwlth. 2007).

As iterated above, the Township’s amendments to the pleading merely

state the events that led to a discovery that the deed restriction was not considered

in the 2009 appraisal report. They do not provide an explanation as to why the

Township did not exercise due diligence in discovering the discrepa ncy in the

appraisal. Absent any persuasive information regarding the commencement of the

statute of limitations or the application of the discovery rule, the amendments are

futile and, therefore, we find that the trial court committed no error nor did it abuse

its discretion in denying the leave to amend. This Court will not reverse the

decision of the trial court in the absence of a clear abuse of discretion. Weaver,

918 A.2d at 203.

For these reasons, the order s of the trial court dated August 26, 2 015

and September 23, 2015 are affirmed.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Brandywine Township, : Appellant :

:

v. :

:

John P. Diromualdo, Inc., and : Nos. 38 and 198 C.D. 2016

John P. Diromualdo, individually :

O R D E R

AND NOW, this 8 th day of February

, 2017, the order s of the Court of

Common Pleas of Chester County dated August 26, 2015 and September 23, 2015

are affirmed.

___________________________ JOSEPH M. COSGROVE, Judge