These consolidated appeals arose from two separate actions brought by E. Cy Gurenlian (“Appellant”) against his son and daughter-in-law, George and Pamela Gurenlian. The appeal which is docketed in this Court as No. 2357 Philadelphia 1990 involves the amount of prejudgment interest to be awarded appellant on a constructive trust imposed in his favor on appellees’ real estate. The appeal docketed in this Court as No. 1940 Philadelphia 1990 involves the statute of limitations in appellant’s action for repayment of an alleged loan to appellees. On October 12, 1990, these appeals were consolidated for our review. The pertinent factual and procedural history of each appeal is as follows.
A. Appeal at No. 2357 Philadelphia 1990
In 1982, appellant and his two sisters sold their interest in property located on Valley View Road to appellant’s son and daughter-in-law, George and Pamela Gurenlian. Pamela typed the agreement of sale which reflected a total purchase price of $45,000.00, consisting of $5,000.00 in cash to appellant and purchase money mortgages of $20,000.00 to each of appellant’s sisters. The settlement sheet, however, indicated consideration of $20,000.00 in purchase money mortgages to each sister, but no consideration to appellant. After George and Pamela moved into the Valley View Road property, appellant ate and slept there approximately three times a week from 1982 to 1985. In early 1985, a dispute arose between George and appellant. On May 1, 1985, George notified appellant by certified letter that he would have to vacate the property on Valley View Road.
On August 12, 1985, appellant brought a suit in equity against George and Pamela and requested that the court establish a constructive trust in his favor. The trial court imposed a constructive trust on appellant’s behalf in the amount of $5,000.00. Both parties filed appeals. The Superior Court, in an unpublished memorandum, affirmed the trial court’s judgment establishing a constructive trust on appellant’s behalf, but remanded the case so that the trial court could fashion a decree specifying the manner in which the judgment should be satisfied.
On November 1, 1989, the trial court issued an amended decree awarding appellant $6,500.00, which included the $5,000.00 constructive trust plus an award of 6% interest from May 1, 1985, with interest continuing to accrue at the legal rate. Appellant filed a motion to modify the amended decree, but it was denied, and a final order was entered on August 9, 1990. On August 13, 1990, appellant filed an appeal to this Court which has been docketed at 2357 Philadelphia 1990. On appeal, appellant argues that the
B. Appeal at No. 1940 Philadelphia 1990
In June 1982, appellant learned that George and Pamela owed the Internal Revenue Service $5,782.89 in unpaid income taxes. Appellant paid the debt to the I.R.S. for George and Pamela and gave them a receipt. On April 20, 1988, appellant instituted a second action against George and Pamela alleging that they owed him $6,000.00 which he had paid on their behalf to the I.R.S. in 1982. At trial, appellant testified that he had loaned George and Pamela $6,000.00, N.T. 9/7/89, at 7; that there was no oral or written agreement regarding repayment, N.T. 9/7/89, at 7-8; but that appellant understood that George and Pamela would pay him back when they were able, N.T. 9/7/89, at 8; and that George had never tried to pay appellant back, N.T. 9/7/89, at 11, 63. George testified that appellant gave him $4,000.00, N.T. 9/7/89, at 45-46, and that, although George tried to pay appellant back twice in 1982, appellant refused, N.T. 9/7/89, at 47, 51. The trial court found that George attempted to repay the money to appellant but that appellant refused to accept the money and indicated that he did not expect to be repaid. T.C. Op. 12/13/90, at 2.
On November 14, 1989, the trial court concluded that appellant’s claim was barred by the statute of limitations and entered a verdict in favor of George and Pamela. Appellant filed post-trial motions which were denied in an order entered on June 21, 1990. On July 2, 1990, appellant appealed to this Court. The appeal was docketed at No. 1940 Philadelphia 1990. On August 7, 1990, judgment was entered on the trial court’s order of June 21, 1990. On appeal, appellant argues that the trial court erred in holding that appellant’s cause of action was barred by the statute of limitations.
II. APPEAL AT NO. 2357—PREJUDGMENT INTEREST
Appellant first argues that the trial court abused its discretion when it limited the award of prejudgment interest
The determination of whether to award pre-judgment interest and the rate of such interest is left to the sound discretion of the trial court in equity.
Sack v. Feinman,
In the instant suit in equity, appellant acknowledges that the rate of pre-judgment interest to be awarded was within the discretion of the trial court. Appellant claims, however, that the trial court, by awarding interest at the statutory rate of six percent, did not exercise its discretion. He contends that an award of prejudgment interest at a rate higher than the statutory rate was necessary to avoid unjust enrichment to George and Pamela. He also contends that the rate of interest awarded to him should have been either 12%, which his two sisters, the noteholders on the
Appellant relies on both Pennsylvania and federal cases to support his contention that the trial court abused or failed to exercise its discretion in awarding prejudgment interest at only the statutory rate of six percent. However, the cases on which appellant relies are readily distinguishable from the instant case. In
Rizzo v. Haines,
Haines must pay interest at the market rate on the $50,000 that he fraudulently induced his client to transfer to him. Courts in this Commonwealth should not permit a person guilty of fraudulently withholding the funds of another to profit therefrom. Accordingly, where funds are wrongfully and intentionally procured or withheld from one who seeks their restoration, the court should calculate interest on these monies at the market rate.
Rizzo v. Haines,
In
Sack v. Feinman,
In
Lexington Ins. Co. v. Abington Co.,
The intentional nature of defendants’ conduct factors significantly in my decision to apply the market rate. Damages for delay or detention serve the two-fold purpose of affording full compensation to an injured plaintiff and providing a disincentive for a defendant to delay and defend a clearly meritorious lawsuit. In this case, I believe those objections will only be fulfilled by application of the market rate of interest as the basis for calculating a delay award.
Lexington, at 21 (citations omitted).
In
Peterson v. Crown Financial Corp.,
Unless a rate of interest is assessed which is steep enough to force Crown to disgorge any profit it has made by the use of plaintiffs money, and to compensate plaintiff for the costs he encountered as a result of Crown’s action, Crown will have profited from its wrongful act and plaintiff will remain, despite a judgment on the merits, a substantial loser in the controversy.
Peterson, at 116.
The defendants in the instant case, unlike the defendants in Rizzo, Sack, and Lexington did not fraudulently, intentionally, and wrongfully procure or withhold appellant’s money. Further, unlike the plaintiff in Peterson, appellant has not demonstrated that an award of interest at the market rate is necessary either to compensate him for losses sustained or to force the defendants to disgorge profits realized. Rather, appellant has failed to support the allegations of unjust enrichment contained in his appellate brief with any specific factual averments. The trial court noted that “[a] court, in equity, is accorded maximum flexibility in fashioning a remedy appropriate to the particular circumstances of the case.” T.C. Op. 11/8/90, at 2. However, the trial court concluded that appellant “has suggested no reason nor can this court discern any cause for the imposition of interest in excess of the legal rate which is 6%.” Thus, the trial court acknowledged that it could, in its discretion, award interest at a rate higher than 6%. However, it concluded that such an award was not warranted by the evidence in this case. Finding no abuse of discretion, we affirm the order of the trial court.
III. APPEAL AT NO. 1940—STATUTE OF LIMITATIONS
Appellant next argues that the trial court erred in holding that his cause of action for repayment of a loan was barred by the Statute of Limitations. The parties agree that the
§ 5525. Four year limitation
The following actions and proceedings must be commenced within four years:
$ # # * * #
(3) An action upon an express contract not founded upon an instrument in writing.
42 Pa.C.S.A. § 5525(3). The trial court found that appellant’s loan to George was repayable on demand and that, therefore, the “action for repayment would accrue immediately upon lending the money as payment could be requested at any time.” T.C. Op. 12/13/90, at 3. The trial court also noted that, assuming, arguendo, that appellant intended to allow George a reasonable time period before demanding repayment, “a reasonable amount of time expired when the son sold his house and offered to repay [appellant]____ Hence, by the conclusion of 1982, [appellant’s] cause of action ... commenced.” Id. The trial court concluded that, since appellant did not institute the instant action for repayment until 1988, the action was barred by the statute of limitations.
Appellant contends that the statute of limitations did not begin running until 1) a demand for payment was made, 2) a reasonable time had elapsed, or 3) George was able to repay the debt. He further contends that the statute of limitations was tolled when George acknowledged the debt. Finally, he contends that the family and confidential relationship between himself and George estops George from raising the statute of limitations as a bar to the instant action. We will address each of appellant’s contentions seriatim.
A. Commencement of Limitations
Appellant argues that the statute of limitations did not begin to run until a demand for payment was made. “[W]here the contract is to pay on the future performance of a condition ... or at a certain time after demand, there a demand is necessary to a right of action,” and the statute of
Appellant also argues that the statute of limitations did not begin to run until either a reasonable time had elapsed or George and Pamela had the ability to repay the debt. Appellant notes that other jurisdictions have held that the statute of limitations accrues after a reasonable period of time or when the debtor is able to pay.
See
Annotation,
When Statute of Limitations Begins to Run
B. Tolling
Appellant next argues that the statute of limitations was tolled and began to run anew when, at his deposition on October 30, 1985, George acknowledged the debt. A promise to pay a debt may toll the statute of limitations. 22 P.L.E.
Limitation of Actions,
§ 121 (1959). The promise to pay may be express, or it may be implied from an acknowledgement of the debt.
Id.
However, “[b]oth promises to pay and acknowledgments of indebtedness must be unequivocal and unconditional” to take the case out of the statute of limitations.
Receiver of Anthracite Tr. Co. v. Loughran,
A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute. There must, however, be no uncertainty either in the acknowledgment or in the identification of the debt; and the acknowledgment must be plainly referable to the very debt upon which the action is based; and also must be consistent with a promise to pay on demand and not accompanied by other expressions indicating a mere willingness to pay at a future time. A simple declaration of an intention to discharge an obligation is not the equivalent óf a promise to pay, but is more in the nature of adesire to do so, from which there is no implication of a promise.
Maniatakis’ Estate,
In the instant case, the following exchange took place during George Gurenlian’s deposition:
Q. [Appellant’s attorney]: In 1981 did you borrow a substantial sum of money from your father for federal income taxes?
A. [George Gurenlian]: Yes.
Q. Do you recall what the sum was?
A. I think it was either five or six thousand dollars, yes.
Deposition 10/30, 1985, at 22. Although George acknowledged borrowing money from appellant, he did not state that he still owed money to appellant and did not, expressly or impliedly, promise to repay money to appellant. Thus, George’s statement at his deposition was not sufficient to toll the statute of limitations.
C. Estoppel
Finally, appellant argues that the family and confidential relationship between himself and George takes this case out of the statute of limitations. 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. Annotation,
Fiduciary or
In
Silver v. Silver, supra,
a mother placed the title to her property in the names of her sons, who promised to reconvey the property to her. The Court noted that a mother-son relationship, without more, was insufficient to establish a confidential relationship. However, the Court concluded that evidence of “the mother-son relationship, along with the evidence that the mother depended upon her sons for advice and [had] customarily abided by their decisions” in similar matters in the past, established a confidential relationship warranting the imposition of a constructive trust.
Id.,
At the appeal docketed at No. 1940 Philadelphia 1990, the judgment entered on August 7, 1990 is affirmed; at the
Notes
. In his concurring opinion, Judge Wieand noted that the trial court mistakenly believed that it lacked discretion to award interest at a rate higher than the market rate.
See Rizzo v. Haines,
. In such cases where a demand is necessary to perfect the cause of action and the time of the demand is within the plaintiff’s control, the demand must be made within a reasonable time.
Bell v. Brady,
. As to the accrual of the statute of limitations in actions on written instruments, see 42 Pa.C.S.A. § 5525(7).