Allan, M. v. Allan, Y.
525 EDA 2017
| Pa. Super. Ct. | Sep 18, 2017Background
- Husband and Wife married in 1990; Husband later convicted and incarcerated. While incarcerated, Wife incorporated Collectible Art & Gallery, Inc.; parties divorced in 2000 but later lived together and Husband worked for Wife and invested in the business.
- The parties separated on or about January 29, 2014; Husband alleges Wife told him she would deprive him of his merchandise, equipment, and proceeds.
- Wife filed an equity complaint in Jan. 2015 seeking to bar Husband from representing they were married; Husband later sought leave to file an amended answer and a conversion counterclaim (filed Mar. 15, 2016).
- Wife moved for summary judgment on Husband’s conversion counterclaim arguing it was time-barred under the two-year statute of limitations for conversion (42 Pa.C.S. § 5524(3)); the trial court granted summary judgment on Dec. 30, 2016.
- Husband appealed challenging (1) waiver and Rule 1033/1035 procedure, (2) the limitations accrual date, (3) whether his Jan. 11, 2016 motion to amend tolled or satisfied limitations, and (4) whether summary judgment was premature before discovery closed.
Issues
| Issue | Plaintiff's Argument (Wife) | Defendant's Argument (Husband) | Held |
|---|---|---|---|
| 1. Waiver under Pa. R.C.P. 1035.3 | Husband failed to raise certain arguments below; trial court may grant SJ when non-moving party does not properly respond | Husband contends his Jan. 11, 2016 motion to amend (with attached counterclaim) made the claim timely | Waived: Court applied Harber and Devine—Husband didn’t raise this below, so appellate review barred |
| 2. Proper standard for summary judgment (Pa. R.C.P. 1035.2/1035.3) | SJ appropriate because no genuine issue of material fact and Husband judicially admitted the accrual date | Husband argued trial court misapplied SJ standards and Rule 1035 | Affirmed: court applied de novo review and proper SJ standard; no material factual dispute |
| 3. Accrual date for conversion / judicial admission | Accrual began Jan. 29, 2014 based on Husband’s verified amended answer that Wife revealed intent to deprive him then | Husband disputed accrual date and argued some conversions occurred later; also argued amendment timing tolled limitations | Accrual Jan. 29, 2014: pleading was a plausible judicial admission; later conversions argument waived; claim filed Mar. 15, 2016 was untimely |
| 4. Prematurity of summary judgment before close of discovery | SJ timely after pleadings; further discovery would not change accrual facts | Husband argued additional discovery was needed to show later accrual | Denied: SJ permissible before discovery closed because additional discovery would not alter the dispositive judicial-admission facts |
Key Cases Cited
- Branton v. Nicholas Meat, LLC, 159 A.3d 540 (Pa. Super. 2017) (standard for de novo review of summary judgment and judicial admission elements)
- PTSI, Inc. v. Haley, 71 A.3d 304 (Pa. Super. 2013) (rule on accrual of conversion claim when possession is unreasonably withheld)
- Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100 (Pa. Super. 2000) (waiver for failure to raise arguments in response to summary judgment under Rule 1035.3)
- Devine v. Hutt, 863 A.2d 1160 (Pa. Super. 2004) (arguments not raised below cannot be raised first on appeal in SJ context)
- Meadows v. Goodman, 993 A.2d 912 (Pa. Super. 2010) (motion to amend filed before limitations expiry may affect timeliness analysis)
- Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938 (Pa. 2001) (summary judgment may be entered prior to completion of discovery when additional discovery would not affect material facts)