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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellees 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.
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED MAY 01, 2015
I respectfully dissent from the majority’s decision. I believe that there
exists a genuine issue of material fact as to whether or not Mellow was, or
should reasonably have been, on notice as to Silverblatt’s alleged negligence
in November 2006. Based on the deposition testimony relied upon by the
trial court and the majority, I believe reasonable minds could differ as to
whether Mellow actually suspected negligence, or whether she was merely
dissatisfied and frustrated with the divorce process itself. Accordingly, I
believe the issue of whether the equitable discovery rule might apply to toll
the statute of limitations should have been allowed to be presented to a
jury.
Whether the equitable discovery rule applies ordinarily requires the
jury to make a factual determination as to whether the plaintiff acted with
J-S15033-15
reasonable diligence, unless the facts are so clear that reasonable minds
cannot disagree on the issue. O'Kelly v. Dawson, 62 A.3d 414, 420 (Pa.
Super. 2013). Our Supreme Court has expanded upon the roles of the trial
court and jury as follows:
As the discovery rule has developed, the salient point giving rise
to its application is the inability of the injured, despite the
exercise of reasonable diligence, to know that he is injured and
by what cause. We have clarified that in this context,
reasonable diligence is not an absolute standard, but is what is
expected from a party who has been given reason to inform
himself of the facts upon which his right to recovery is premised.
As we have stated: There are very few facts which diligence
cannot discover, but there must be some reason to awaken
inquiry and direct diligence in the channel in which it would be
successful. This is what is meant by reasonable diligence. Put
another way, the question in any given case is not, what did the
plaintiff know of the injury done him? But, what might he have
known, by the use of the means of information within his reach,
with the vigilance the law requires of him? While reasonable
diligence is an objective test, it is sufficiently flexible to take into
account the differences between persons and their capacity to
meet certain situations and the circumstances confronting them
at the time in question. Under this test, a party’s actions are
evaluated to determine whether he exhibited those qualities of
attention, knowledge, intelligence and judgment which society
requires of its members for the protection of their own interest
and the interest of others.
Therefore, when a court is presented with the assertion of the
discovery rule’s application, it must address the ability of the
damaged party, exercising reasonable diligence, to ascertain
that he has been injured and by what cause. Since this question
involves a factual determination as to whether a party was able,
in the exercise of reasonable diligence, to know of his injury and
its cause, ordinarily, a jury is to decide it. Where, however,
reasonable minds would not differ in finding that a party knew or
should have known on the exercise of reasonable diligence of his
injury and its cause, the court determines that the discovery rule
does not apply as a matter of law.
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Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations and
punctuation omitted).
When confronted with the possibility of litigation, a layperson retains
the services of a lawyer because lawyers are trained in the law and are
presumed to be competent. It is the nature of our adversary system that
laypersons involved in litigation – especially in emotionally charged
situations such as divorce proceedings – are frequently dissatisfied and
frustrated with the legal process, regardless of the competence level of their
attorneys. Based on the record as it now stands, I believe that it is not
sufficiently clear whether there existed “some reason to awaken inquiry,” or
whether Mellow was simply dissatisfied and frustrated with a legal process
that she believed was generally slanted in favor of her politically powerful
husband. For this reason, I would reverse the trial court’s entry of summary
judgment and remand for trial.
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