Mellow, D. v. Silverblatt, A.

Superior Court of Pennsylvania

Mellow, D. v. Silverblatt, A.

DecidedMay 1, 2015

Docket1385 MDA 2014

StatusUnpublished

This text of Mellow, D. v. Silverblatt, A. (Mellow, D. v. Silverblatt, A.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mellow, D. v. Silverblatt, A., (Pa. Ct. App. 2015).

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Opinion

J-S15033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANE M. MELLOW IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

ARTHUR F. SILVERBLATT, ESQUIRE AND SILVERBLATT & ASSOCIATES

Appellee No. 1385 MDA 2014

Appeal from the Order Entered August 5, 2014 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 3780-2010

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MAY 01, 2015

Appellant Diane Mellow appeals from the order of the Luzerne County

Court of Common Pleas entering summary judgment in favor of Arthur F.

Silverblatt, Esquire, and his law firm Silverblatt & Associates (collectively

“Appellees”). After careful review, we affirm.

The underlying facts and procedural posture of this matter are

relatively straightforward. In January of 2006, Appellant engaged Appellees

to represent her in divorce proceedings from her husband, then-state

senator Robert J. Mellow. The parties reached a marital settlement

agreement that provided for, inter alia, monthly alimony payments

supplemented by a portion of Mr. Mellow’s pension payments upon his

retirement. The agreement also included a non-modification clause. Despite

her misgivings about the sufficiency of the alimony payments and Appellees’ J-S15033-15

representation, Appellant executed the marital settlement agreement on

November 14, 2006. The court then terminated the marriage by a divorce

decree entered on November 17, 2006.

In September 2008, Mr. Mellow sold for $350,000.00 a commercial

property he had received through the marital settlement agreement that had

been appraised at only $190,000.00 at the time of the agreement. After

learning of the sale in the summer of 2009, Appellant filed 1 a Petition to

Strike/Set Aside Marital Settlement Agreement,2 which alleged Mr. Mellow

had failed to disclose information relating to the value or potential value of

the couple’s marital and non-marital assets. Mr. Mellow filed preliminary

objections. On December 1, 2009, the court granted Mr. Mellow’s

preliminary objections and dismissed Appellant’s Petition to Strike/Set Aside

Marital Settlement Agreement because Appellant failed to plead and prove

extrinsic fraud.3 ____________________________________________

1 Marguerite Nealon, Esquire, represented Appellant during the challenge to the marital settlement agreement. 2 Appellant originally filed a Petition to Modify/Increase Alimony on July 20, 2009, which she subsequently withdrew and replaced with a Petition to Strike/Set Aside Marital Settlement Agreement on July 24, 2009. On October 22, 2009, she filed an Amended Petition to Strike/Set Aside Marital Settlement Agreement. 3 Appellant incorrectly claims that this “petition was denied due to the non- modification clause.” Appellant’s Brief, p. 7. The lower court’s opinion granting the preliminary objections makes no mention of the non- modification clause. Instead, the lower court based its decision on Appellant’s failure to prove extrinsic fraud, as indicated supra. See (Footnote Continued Next Page)

-2- J-S15033-15

In March 2010, Appellant commenced the instant legal malpractice

lawsuit against Appellees.4 Appellant alleged professional negligence against

Arthur Silverblatt personally, and Silverblatt & Associates under the doctrine

of respondeat superior, for failing to conduct discovery that would have

revealed the extent of the Mellows’ property for the purpose of proper

distribution, and for improperly acquiescing to Mr. Mellow and his counsel’s

demands.5 On February 11, 2013, Appellees filed an answer and new

matter asserting that the applicable statute of limitations barred Appellant’s

claims. On December 19, 2013, Appellees filed a motion for summary

judgment based on the statute of limitations. Appellant answered the

summary judgment motion on January 21, 2014. The trial court conducted

a hearing on March 25, 2014 and granted Appellees’ motion for summary

judgment on July 10, 2014. This appeal followed.6 _______________________ (Footnote Continued)

generally Opinion, No. 06-FC-40056 (C.P. Lackawanna County, filed December 1, 2009). 4 On March 24, 2010, Appellant commenced the action by filing a writ of summons. Appellant then filed a complaint on November 10, 2010. 5 Appellant filed an amended complaint on January 14, 2013 that included the same two claims. See generally, Amended Complaint. 6 Upon order of the trial court, Appellant complied with Pa.R.A.P. 1925(b). The trial court, however, did not issue a Pa.R.A.P. 1925(a) opinion. Nevertheless, the certified record contains the trial court’s July 10, 2014 Opinion and Order (“Opinion and Order”), which adequately explains the court’s reasons for granting summary judgment. Accordingly, we will decide this matter without remanding to the trial court for the filing of a Rule 1925(a) opinion.

-3- J-S15033-15

Appellant raises the following issues for our review:

A. Does a genuine issue of material fact exist as to whether or not Diane Mellow was on notice of Arthur Silverblatt’s negligence as of November 14, 2006?

B. Does a genuine issue of material fact exist as to whether or not Diane Mellow exercised due diligence in discovering Arthur Silverblatt’s breach of his professional duty of care?

Appellant’s Brief, p. 4 (footnotes omitted).

This Court’s scope and standard of review on an appeal from the grant

of a motion for summary judgment is well settled:

In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court.... An appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view 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. As our inquiry involves solely questions of law, our review is de novo.

Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.

Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 107-108

(Pa.Super.2011).

-4- J-S15033-15

We first address whether the applicable statute of limitations bars

Appellant’s claims. As we have explained:

Once the prescribed statutory period for commencing a cause of action has expired, the complaining party is barred from bringing suit. Lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations. The defense of statute of limitations is not a technical defense but substantial and meritorious. Mere delay, extended to the limit prescribed, is itself a conclusive bar. There is a strong policy in Pennsylvania courts favoring the strict application of statutes of limitation.

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