Loading...
HomeMy WebLinkAbout97-2562 civilJOHN H. HOCKER Vo MARY JANE SPENCER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : : · NO. 97-2562 CIVIL TERM IN RE' OPINION PURSUANT TO PA. R.A.P. 1925 Guido, J., April 4, 2001 This action was commenced by a Writ of Summons filed on May 14, 1997. A complaint was filed on June 8, 1998. The complaint alleges that the parties resided together from March, 1987 until February 1996. It further alleges that after separation plaintiff discovered several unauthorized checks written against his business account by defendant. The disputed checks amounted to more than $54,000 and were all written between February and May of 1991 .~ Defendant filed an answer with new matter in which she raised, inter alia, the statute of limitations as a defense.2 Plaintiff replied to the new matter alleging that defendant "had maintained exclusive control over all documentation associated with plaintiff' s checking account" and that he "could not reasonably have discovered defendant's inappropriate conversion of funds" until February 1996.3 A trial before a jury commenced on October 30, 2000. At the conclusion of plaintiff' s case, we granted defendant's motion to dismiss based upon the statute of limitations.4 Plaintiff filed a timely motion for a new trial, which we denied on January ~ Complaint paragraphs, 3, 6 and 7. 2 Answer with new matter paragraphs, 11 - 13. 3 Reply to new matter paragraphs, 12 - 13. The parties have agreed that this action is governed by the two year statute of limitations contained in 42 Pa.C.S.A. § 5524. 4 The proper motion should have been for a compulsory non-suit. Pa. R.C.P. 230.1. 97-2562 CIVIL TERM 9,2001.5 This timely appeal followed. On appeal plaintiff claims that a close confidential relationship existed between the parties and that such relationship was sufficient to estop defendant from asserting the statute of limitations.6 FACTUAL BACKGROUND 7 While he was Plaintiff was a general contractor who built residential housing. married, his wife balanced his business checkbook.8 After he moved in with defendant, she tbok over the job of balancing that checkbook.9 Defendant also had authority to sign his business checks.~° Plaintiff normally kept the business checkbook and check register with him in his truck.~l The disputed checks were properly recorded in the check register.~2 Plaintiff had access to both the checkbook and check register at all times.~3 In April of 1992, plaintiff received notice of an IRS audit for his construction business.TM He attended that audit with the accountant who had been involved in preparing his business tax returns over the years.~s He took along his bank statements and check register.~6 5 The proper motion would have been for a removal of the non-suit. Pa. R.C.P. 230.1. 6 See "Brief Statement of Matters Complained of on Appeal." In his Motion for New Trial, plaintiff also alleged that we erred in holding as a matter of law that he did not exercise due diligence in discovering the alleged conversion of funds. Since this issue has not been raised in his "Brief Statement of Matters Complained of on Appeal," it is deemed to have been waived. In re: Estate of Daubert, 757 A.2d 962 (Pa. Super. 2000). 7 Trial Transcript, p. 10. 8 Trial Transcript, p. 12. 9 Trial Transcript, p. 12. l0 Trial Transcript, pp. 12 - 13. t~ Trial Transcript, pp. 24- 25, 29. 12 Trial Transcript, p. 25. ~3 Trial Transcript, pp. 24- 25. ~4 Trial Transcript, pp. 38 - 39, 46- 47. ~5 Trial Transcript, pp. 46- 47. 16 Trial Transcript, p. 47- 48. 97-2562 CIVIL TERM Plaintiff was suspicious that defendant might be converting money to her own use well before he discovered the questionable checks upon which this action is based. In fact, the following exchange took place between defense counsel, plaintiff and the Court' Qo mo So you had access to your checkbook? Yes, I did. And you wrote checks out of it during this time period? Sometimes I did. It depends on what it was for. Okay. And did you see that the check register was filled in? Sure, the check register was filled in. That's how I found this. But you didn't question in 1991 any of these checks that had been written - - May I make a statement here now? - - is that correct? May I make a statement now? I asked Mary Jane possibly a dozen times what became of my money. That is the money that I got from my divorce, plus the sale of a property. THE COURT: THE WITNESS: THE COURT: THE WITNESS: THE COURT: THE WITNESS: When did you ask her that, sir? Off and on through the disturbance. Back in the '91 time frame or '92 or '937 Well, it's been a good while, but I would say Somewhere in that area, yes. Okay. I know I asked her at least a dozen times or more what happened to my money, and I never got an 1/ answer. DISCUSSION At the beginning of the case the following dialogue took place between the court and plaintiff's counsel: THE COURT: MR. ROMINGER: Good morning. I want to put a couple things on the record here before we start. We have two things. Judge Oler's pretrial order directed both parties to file a brief on the statute of limitations issue five days before trial. We have received the brief of the defendant. We have not received that brief of the plaintiff, and I understand that was an oversight on your part; is that correct, Mr. Rominger? That's correct, Your Honor. Trial Transcript, pp. 24- 25. 97-2562 CIVIL TERM THE COURT: MR. ROMINGER: THE COURT: MR. ROMINGER: THE COURT: MR. ROMINGER: THE COURT: But you do agree that the statute of limitations is set forth in 42 Pa. C.S. Section 5524? Correct, the two year statute of limitations. The two year statute of limitations. And then we have a motion in limine that has been filed by the defense requesting that there not be any testimony dealing with fraudulent concealment. My understanding is that that motion in limine is rendered moot by the position that the plaintiff is taking, that fraudulent concealment is not an issue, but that the discovery rule is an issue. In other words, that - - and correct me if I'm wrong. You're indicating that your client simply did not discover this because the checkbook was solely in the control of the defendant until 1996; is that correct? That's correct, Your Honor. And that she didn't do anything affirmatively to mislead him or conceal what was there. It was simply the fact that the checkbook was within her control; is that correct: One second to confirm. Yes, Your Honor. Okay. Then we will proceed on that basis. At trial plaintiff testified that he did, in fact, have possession of, as well as access to, the checkbook and check register. He also had access to all bank records. He even had an accountant prepare his business taxes and accompany him to IRS audits. One such audit was for the year in which the questionable checks were written and occurred almost five (5) years before the instant action was commenced. In light of the testimony elicited from plaintiff at trial, defendant moved for dismissal at the conclusion of plaintiff's case. We granted defendant's motion. In doing so, we relied upon the case ofBickel v. Stein, 291 Pa. Super. 145,435 A.2d 610 (1981) which provides: The plaintiff has the burden of justifying any delay beyond the date on which the limitation would have expired if computed from the date on which the acts giving rise to the cause of action allegedly occurred. He Trial Transcript, pp. 3- 4. 97-2562 CIVIL TERM must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why he was unable to discover the operative facts for his cause of action sooner than he did. Where the facts are neither disputed nor close, the decision on reasonableness is made by the court as a matter of law, instead of by the jury as a matter of fact. 435 A.2d at 612 (citations omitted). Plaintiff then raised, for the first time, the issue of estoppel based upon a confidential relationship. However, plaintiff neither pled a confidential relationship in his complaint nor did he allege it in his reply to new matter. In his pleadings, as well as · at the commencement of trial, plaintiff indicated that he was relying on defendant's exclusive control over the checkbook as the reason to toll the statute of limitations. When the evidence adduced at trial was contrary to this position, he raised the issue of an alleged confidential relationship. In effect, he changed the entire theory of his case, without any n6tice whatsoever to defendant. Clearly the equities would dictate against allowing him to pursue that novel theory at such a late date. In any event, we are satisfied that no such confidential relationship existed.. In support of his "'confidential relationship" argument, plaintiff cited the case of G__urenlian v. Gurenlian_, 407 Pa. Super. '102, 595 A.2d 145 (1991). The Gurenlian court recognized that: In situations where "because, in whole or in part, of the confidential or fiduciary nature of such family relationship, it would be inequitable to permit the action to be barred by limitations," courts have held that defendants are estopped from pleading the statute of limitations. However, where courts reject the contention that, due to the confidential or fiduciary nature of the relationship, it would be inequitable to permit the action to be barred by limitations, defendants are not estopped from pleading the statute of limitations. A confidential relationship occurs when, because of a family relationship or otherwise, "one occupies toward another such a position of advisor 97-2562 CIVIL TERM or counselor as reasonably to inspire confidence that he will act in good faith for the other's interest." 595 A.2d 151 (citations omitted). In the instant case, plaintiff did not prove the requisite close relationship with, or confidence in, the defendant necessary to toll the statute of limitations. The record merely shows that defendant had access to and balanced plaintiff's checkbook. While she had check writing authority, plaintiff maintained control over the finances of his business. He was an experienced businessman who retained an accountant to help in his financial affairs. Further, it was obvious that plaintiff did not have confidence in the defendant to act in his best interest. By his own testimony, he questioned her at least "a dozen times or more" about his money. Clearly, he did not trust her. Just as clearly, he could have discovered the alleged irregularities if he had looked.~9 Under these circumstances, it would not be inequitable to allow this action to be barred by the statute of limitations. APRIL 4 ,2001 Edward E. Guido, J. Karl Rominger, Esquire For the Plaintiff Sally Winder, Esquire For the Defendant :sld ~9 By plaintiff's own admission defendant never did anything to conceal the questionable checks, or to mislead him about her handling of his money.