Full opinion text
OPINION AND ORDER EDWARD R. BECKER, District Judge. I. Preliminary Statement This suit for damages and injunctive relief arises out of the luminous career of the late Bessie Smith, who may be fairly described as “Empress of the Blues.” See C. Albertson, Bessie (1972). Bessie Smith (“Smith”) was a great singer and composer of the “blues.” During the 1920’s, Smith was one of America’s top box office attractions and recording stars. From 1923 to 1928, the theatres in which she appeared on tour were filled to overflowing and thousands were turned away. During that period Smith earned from $1,500 to $2,000 per week, a staggering sum for anyone then to earn, and an awesome achievement for a black woman of that era. From 1923 until her death in 1937, Smith was an exclusive recording artist for Columbia Phonograph Company, whose successor, Columbia Records, Inc. and its parent corporation, CBS, Inc., are the defendants herein. Some of plaintiffs’ claims relate to Columbia Phonograph Company in the 1920’s and 1930’s and some to actions of its corporate successors in the 1950’s and 1970’s. For convenience defendants will simply be referred to as “Columbia.” Smith died on September 26, 1937, in a tragic automobile accident near Clarksdale, Mississippi. She'was survived by her husband, Jack Gee, Sr., who died in 1975. His executor, William D. Harris, is one of the plaintiffs herein. The other plaintiff is one Jack Geé, Jr., who claims to be the adopted son of Smith and Jack Gee, Sr. The multifaceted suit asserts a variety of claims against Columbia arising out of its dealings with Smith and her recordings during her lifetime, and out of Columbia’s posthumous issue and reissue of those recordings. The case was originally filed only by Jack Gee, Jr., and its initial allegations concerned only federal copyright protection which Smith either obtained or might have obtained for the approximately forty (40) songs she composed, as well as recorded, between 1924 and 1934. The original complaint alleged that this copyright protection was subsequently infringed by defendants. Columbia filed a motion to dismiss, based on plaintiff’s failure to allege ownership of the copyrights and renewals upon which he based his claim. At this juncture, alleging that many if not all of the copyright registrations referred to in the original complaint were renewed in the name of Jack Gee, Sr. “as spouse and heir of Bessie Smith” and that they were still in effect, Jack Gee, Jr. filed an amended complaint adding Mr. Harris, Jack Gee, Sr.’s executor, as party plaintiff. What is now before us, however, on defendants’ motion to dismiss, or in the alternative for summary judgment, is plaintiff’s second amended complaint (“complaint”) which adds a number of additional claims which may be summarized as follows. First, the complaint asserts that all the recording contracts and copyright agreements entered into by Smith and Columbia between 1924 and 1933 are invalid because of their unconscionability and Columbia’s overreaching: Columbia is said to have taken advantage of Smith’s illiteracy and lack of sophistication in business affairs. Complementing these allegations are the claims that the invalid contractual dealings were the product of race discrimination. On the average, Smith received a flat fee of $200 per selection recorded for Columbia with no royalties, allegedly in contrast to much larger sums, including royalties, paid to white artists then recording for Columbia such as Eddie Cantor, Ted Lewis, Rudy Vallee, Sophie Tucker and Bing Crosby. The complaint alleges that this corporate racism constituted wilful and intentional violation of the civil rights of Smith and of others similarly situated “by failing to afford them the opportunity to make and enforce contracts to the full extent as is enjoyed by white citizens, in violation of 42 U.S.C. § 1981.” Plaintiffs have also advanced a novel theory of § 1981 liability by contending that these original contract discriminations are actually direct wrongs to themselves, as Smith’s heirs. The § 1981 claims are asserted in Count I of the complaint; Count II alleges invalidity of the 1924-33 recording contracts as a matter of state contract law. Count III focuses exclusively on copyrights, apparently under both federal and state (common) law. Counts IV and V, also added in the second amended Complaint, concern actions taken by Columbia in the past two decades. Columbia decided to re-issue Smith’s records in album form in the early 1950’s, and again in the early 1970’s. On both occasions it re-recorded the songs using available new technology, re-assembled the original 78 r. p. m. records into 33 r. p. m. album format, wrote biographical and descriptive notes for the album jackets and printed photographs of Smith on the jacket covers. In Count IV, plaintiffs claim that by rerecording the original 78 r. p. m. songs in the 1950’s and again in the 1970’s without the permission of Bessie Smith’s heirs, Columbia infringed property rights protected under state law. Those property rights are said to have vested in Smith at the time she originally recorded the songs between 1923 and 1933, and relate not to her composition of forty of the songs, but to her singing style on the 160 records. In essence, the claim is that Smith acquired rights in her artistic performance which have descended to her heirs, the present plaintiffs, which rights were abridged in the early 1950’s and again in the early 1970’s. Count IV also contains a claim focusing on the reissuance in 1952 of one record (“At the Christmas Ball”) for which Smith was never paid at the time of its original recording, and another claim focusing on the re-issuance of eight songs for which plaintiffs claim Smith was not fully paid in the 1930’s. Under the rubric “misappropriation of artistic property,” these nine songs are also the subject of a motion for summary judgment by the plaintiffs. Count V concerns “publicity rights.” These are analogous to, but somewhat distinct from, the “artistic performing rights” which are the subject of Count IV. Plaintiffs complain in Count V that defendant has exploited the image and likeness of Bessie Smith on record jackets and elsewhere, without their permission. Upon analyzing plaintiffs’ claims, one is struck at once by their vintage. The claims asserted in Counts I & II arose more than forty years ago (and some as much as fifty years ago). The claims in the other counts are also hoary, except for those relating to the 1970’s reissues. Accordingly, defendants have invoked the applicable statutes of limitations. Such statutes, in the words of the Supreme Court are: designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). Plaintiffs on the other hand contend that notwithstanding the age of the claims, under the facts of record the applicable statutes of limitations must be tolled. Plaintiffs have propounded four different tolling theories which we shall, in due course, consider in detail: 1) tolling because of inherent fraud in the transactions; 2) tolling because of subsequent fraudulent concealment by defendant; 3) tolling because of a breach of fiduciary or agency duty and subsequent concealment of that breach; and 4) tolling because of a “revival” of a stale claim by a recent acknowledgment. The third argument stems from the fact that during most of Bessie’s recording career her alleged “manager,” Frank Walker, was a Columbia executive. The fourth argument results from the fact that in 1974, Columbia’s President, Bruce Lundvall, noting the disparity between sums paid to the artists circa 1974 and those paid in days past, announced that Columbia was donating some of the proceeds of sale of the 1970-72 reissue to a scholarship fund for needy black students. Needless to say, a 'significant portion of this opinion will be concerned with statute of limitations matters. However, the statute of limitations arguments are not the only points of substance raised by Columbia. Equally cogent are their arguments about plaintiffs’ standing to bring the action (and the real party in interest rule) and their arguments against the cognizability of plaintiffs’ Count IV & V claims. As we have noted, the matter is before us not only on a motion to dismiss but also on partial (cross) motions for summary judgment. The various arguments raised by the defendants in support of these motions — including the important statute of limitations points — are thus presented on a factual record. That factual record is an extensive one, coming to us in the form of affidavits (filed mainly by the plaintiffs); certain copyright assignments executed by Jack Gee, Sr. (filed by the defendants); and pretrial discovery (principally deposition transcripts) filed of record. Interestingly, it is apparent that the vast bulk of the data accumulated by plaintiffs derives either from Chris Albertson’s biography of Smith, which is itself part of the record (as an exhibit to the deposition of one John Hammond), or from Albertson’s research. Albertson has chronicled Smith’s life and times in great detail, drawing mainly upon interviews with persons who knew her. His volume sheds helpful background light upon the statute of limitations problem by demonstrating that many, if not most of the people who might have had knowledge of the events of the 1920’s surrounding Smith’s relationship with Columbia, are now dead. It is worth noting too that the Albertson book (and research) seems veritably to be the wellspring of plaintiff’s case. For example, whole paragraphs of the complaint are copied almost verbatim from the volume. We shall not summarize the extensive record at this juncture. Rather, we will make reference to the necessary record facts as we confront each argument. Suffice it to say now that for reasons set forth in the extensive discussion which follows,’ judgment under either Rule 12 or Rule 56 will be granted for defendants on all of plaintiffs’ claims. We engage in such extensive discussion notwithstanding what we deem to be an inexorable result (given the many problems with plaintiff’s claims) for two reasons. First, we are impressed with the great resourcefulness and sophistication of the arguments advanced by plaintiffs’ counsel. Second, given the great stature of Bessie Smith in the history of American music and the consequent importance of this case, we can do no less. II. The Civil Rights Claim (42 U.S.C. § 1981) A. Introduction In Count I plaintiffs assert a claim based upon 42 U.S.C. § 1981, which provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Plaintiffs’ § 1981 claim rests specifically on the “to make and enforce contracts” phrase of § 1981, and is, at first blush, straightforward: Columbia Records, during the 1920’s and 1930’s, discriminated against all black performers by fraudulently signing them to contracts with low payment terms and no royalty provisions, while at the same time signing white performers to contracts for much greater sums, including royalty provisions; Bessie Smith was one of many performers who suffered from this contractual discrimination. Since Smith died in 1937, plaintiffs realize they must connect the alleged wrong to Smith in the 1920’s and 1930’s with a protected right of their own. They have attempted to do so on two different theories. One is by action of the appropriate survival statute: Since plaintiffs are the putative son of Bessie Smith and the heirs of Bessie Smith’s husband, they can sue in a representative capacity for any cause of action which Bessie Smith had at her death which survived her. Plaintiffs’ alternative theory is far more ingenious. It is based on the notion that the contractual discrimination suffered by Smith is a “continuing wrong” to plaintiffs. Since she was allegedly defrauded in her various contracts (which governed copyright, performing rights, royalties, et alia), instant plaintiffs are foreclosed from signing contracts today which would entitle them to benefits on the renewal of those copyrights, performing rights, royalties, et alia. On this theory, plaintiffs are alleging it is their § 1981 contractual rights which are implicated, and that they are not suing simply in a representative capacity by virtue of a survival statute, but on their own behalf for wrongs done in the present to themselves. Defendants’ response to the first theory is that while § 1981 causes of action that accrued to Bessie Smith by the time of her death would indeed have survived on behalf of her representatives, the plaintiffs are not those representatives hence are not real parties in interest under Fed.R.Civ.P. 17. Additionally, they rejoin that the statute of limitations period would have permitted suit for six years after her death at most. Plaintiffs counter the statute of limitations point by arguing that any statute of limitations was tolled by defendants’ duplicity, and did not begin to run until Chris Albert-son revealed that duplicity in 1972 by publishing his biography, Bessie. Defendants’ response to the second or continuing wrong theory is that plaintiffs have no standing to proceed. Since it is an alleged contract wrong to Smith that is at the root of the claim, defendants maintain that plaintiffs are attempting to assert her rights vicariously, which they may not do under any of the civil rights acts, including § 1981. We consider first the theory predicated on the survival of causes of action which once belonged to Bessie Smith. B. Survivorship and Suit in a Representative Capacity 1. Introduction Consideration of plaintiffs’ first theory requires the following steps. Initially, we must locate the sources of a) the survivor-ship statute that will determine which causes of action survive a person’s death and who is entitled to bring suit on those causes of action; b) the statute of limitations that will govern the § 1981 claim; and c) the law that will govern tolling of this statute of limitations. In each case, since § 1981 is “deficient in the provisions necessary to furnish suitable remedies,” § 1988 instructs us to look to Pennsylvania law, provided that law is “not inconsistent with the Constitution and laws of the United States.” Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974). The phrase “not inconsistent with” has been recently interpreted by the Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). The appropriate survival statute is 20 Pa. Cons.Stat.Ann. § 3371 (Purdon), which provides: All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants. Robertson v. Wegmann, supra, held that a Louisiana statute was “not inconsistent” with the broad remedial purposes of § 1983 simply because it provided for survival of certain actions only in favor of certain categories of relatives, rather than decedent’s personal representative. Since it was “not inconsistent,” the federal district court was bound to employ the statute in the § 1983 action. Employing Robertson as a model to determine whether the above survivorship statute is “inconsistent” with the Constitution and laws of the United States, we will find it to be not inconsistent, because it is compatible with the broad remedial purpose of the civil rights acts generally, and § 1981 in particular. As to the appropriate statute of limitations, defendants agree that that six year Pennsylvania statute found in 12 Pa.Stat. Ann. § 31 (Purdon) is appropriate in the § 1981 action for the reasons set forth in Judge Fogel’s opinion in Jones v. United Gas Improvement Corporation, 383 F.Supp. 420 (E.D.Pa.1974). The Third Circuit recently decided, in a § 1981 claim, that the underlying type of action must be examined to determine which Pennsylvania statute of limitations is appropriate, and that for a claim of wrongful employment discharge the six year statute is the appropriate one. Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978). In this case many of the claims are basically contractual in nature, although some appear to sound in lost business opportunities, an admixture of tort and property law. We need not, however, decide which statute is appropriate for each. Instead, we will assume the six year statute applies to all aspects of the § 1981 count, since it is the longest one possible under Pennsylvania law. As such, it gives plaintiffs the benefit of any doubt that would be raised by characterizing their various § 1981 claims as essentially “contract” or “tort” or “property” and applying different statutes of limitations to them. Moreover, in this particular case, the discussion of which statute applies is largely academic. Since the claims at issue involve events that transpired over forty years ago, the real issue is not choosing a particular statute, but rather whether any tolling principles may apply. Finally, it seems logical that if Pennsylvania law provides the statute of limitations, Pennsylvania law should also supply the circumstances for tolling that statute, since the tolling provisions are essentially judicial gloss on the statute. This result seems to us compelled by the decision in Ammlung v. City of Chester, 494 F.2d 811, 816 (3d Cir. 1974): given the absence of a federal limitation period in the Civil Rights Act, the court has no basis for fashioning federal tolling principles, and due regard for our system of federalism requires that state concepts of tolling be applied to state statutes of limitations. . We hold that state tolling principles govern the tolling of the applicable state statutes of limitations in federal civil rights actions arising under 42 U.S.C. § 1983. We think Ammlung dictates the same conclusion in a § 1981 suit. We add the proviso, which we think consistent with the interpretation given Ammlung by Chief Judge Lord in Eubanks v. Clarke, 434 F.Supp. 1022, 1032 (E.D.Pa.1977), that we are not foreclosed from fashioning a federal tolling remedy. But we may only do so if we determine in the first instance that the state remedy mandated by § 1988 and Ammlung is “inconsistent” with our Constitution or federal law. We will look first to Pennsylvania law on tolling, and to the extent that law is “inconsistent” with the purposes of § 1981 we will then look to federal common law. Having identified the appropriate rules to use, we now turn to an examination of the survival statute. 2. The Survival Statute and the Real Party in Interest Rule. In applying the survivorship statute of 20 Pa.Cons.Stat.Ann. § 3371 (Purdon), we note first its “derivative” nature: The cause of action created by the survival statute is strictly derivative. It is, as it is named, a surviving action. It is grounded upon an existing personal cause of action which the deceased could have but did not institute during his or her lifetime. Carroll v. Skloff, 415 Pa. 47, 48, 202 A.2d 9, 10-11 (1964) (emphasis added). Since it applies to all kinds of actions, it must apply to any claims Bessie Smith might have had under § 1981 for racially discriminatory contracts at the time of her death in 1937. By operation of law, any such claims may be pursued by, and ultimately redound to the benefit of her estate and thence her heirs. However, a crucial limitation on the survival statute is contained in 20 Pa.Cons. Stat.Ann. §§ 3372 and 3373 (Purdon); suit may only be brought by the personal representative of decedent, meaning (under 20 Pa.Const.Stat.Ann. § 102), the executor or administrator of the estate. Burns v. Goldberg, 210 F.2d 646, 650 (3d Cir. 1954); Gebhardt v. Edgar, 251 F.Supp. 678, 680 (W.D. Pa.1966); Johnson v. Trustees of General Assembly, 408 Pa. 31, 35, 182 A.2d 724, 726-27 (1962). We cannot ignore this limitation, which is part and parcel of the Pennsylvania survival statute, any more than the district court in Robertson v. Wegmann, supra, could rightfully ignore the Louisiana statutory limitation that certain kinds of actions could only survive in favor of certain kinds of relatives. In our case,' the executor or administrator of Bessie Smith’s estate is not before us. Rather, there is one plaintiff who claims to be her adopted son, and another who is the executor of her husband's estate. Neither plaintiff is entitled to avail himself of the Pennsylvania survival statute. This statutory requirement that a surviving cause of action must be brought by decedent’s administrator or executor is not a hollow formality. On the contrary, it is the vehicle for insuring that a decedent’s assets are fairly and equitably distributed among heirs and creditors. In Pennsylvania, the procedure is governed by Title 20 of the Consolidated Purdons Statutes. These statutory procedures would apply to Bessie Smith’s estate by virtue of 20 Pa.Cons.Stat.Ann. § 3151 (Purdon), since it is uncontroverted that she died domiciled in Pennsylvania. For an executor or administrator to be appointed now to administer Bessie Smith’s estate, a petition would have to be made for a grant of letters of administration or letters testamentary pursuant to 20 Pa.Cons.Stat.Ann. § 3151 (Purdon). Since more than twenty-one (21) years have elapsed since decedent’s death, the Pennsylvania Orphans Court of the appropriate county (id. at § 3151) would have to determine if there is sufficient “cause shown” to grant such letters. Id. at § 3152. If the instant § 1981 derivative claim went to trial and were ultimately successful — or if it settled for a monetary amount pre-trial — the proceeds could only benefit Bessie Smith’s estate, for as stated in Burns v. Goldberg, 210 F.2d 646, 650 (3d Cir. 1954) the Pennsylvania survival statute “gave the personal representative a distinct action on behalf of the estate . . . ” (emphasis supplied). If that happened, and the proceeds were intact after Bessie Smith’s creditors, if any, came forward, the Orphans Court would be called upon to distribute them according to her will or the statute of distribution. In doing so, the Orphans Court might have to decide whether Jack Gee, Jr. is in fact the adopted son of Bessie Smith, and hence entitled to take a share of the estate. It would also have to decide whether there are any other heirs of Bessie Smith’s now living not represented in our lawsuit who are entitled to a statutory share, and whether Jack Gee, Sr.’s heirs (who are represented in our lawsuit) are by law entitled to take from Bessie Smith’s estate under the Pennsylvania statute. Our point is that if, as plaintiffs have asked us to do, we were to waive the requirement that only the personal representative of the decedent (here Bessie Smith) has the capacity to sue under Pennsylvania’s survival statute, we would be short-circuiting all the orderly legal procedures enumerated above. We, and not the Pennsylvania Orphans Court, would be deciding “cause” exists for granting letters of administration more than 21 years after decedent’s death; we would be dispensing with the requirement that a bonded, qualified individual oversee the estate procedure; and most importantly, we would be dispensing with the heart of the survival statute itself, that the causes of action (and therefore all proceeds from successful prosecution of such cause of action) benefit the decedent’s estate. Such would not be the case in our lawsuit: creditors of Smith’s estate would have no opportunity to share in any award, nor would any heirs share in any award except instant plaintiffs (if indeed they are her rightful heirs under the distribution statute). Finally, as the last parenthetical pointed out, we would have to make the determination that instant plaintiffs are indeed heirs entitled to inherit by virtue of the Pennsylvania distribution statute (including a determination that Jack Gee, Jr. is actually Bessie Smith’s son) — or alternatively, we would have to dispense with the distribution statute entirely and award proceeds to instant plaintiffs regardless of whether they are lawful heirs. In short, far from being a hollow formality, the requirement that a qualified administrator or executor sue under the survival statute reflects the heart of the statute, which is that a cause of action survives in favor of the decedent’s estate. We would be evading and circumventing this core if we permitted instant plaintiffs to be proper parties plaintiff under the survival statute. We implement these principles in this case pursuant to Rule 17(a) of the Federal Rules of Civil Procedure, which requires that “Every action shall be prosecuted in the name of the real party interest.” Wright & Miller instruct that: To determine whether the requirement that the action be brought by the real party in interest has been satisfied, the court must look to the substantive law creating the right being sued upon to see if the action has been instituted by the party possessing the substantive right to relief. 6 C. Wright & A. Miller, Federal Practice & Procedure § 1544 at 647 (1971). The “substantive law creating the right being sued upon” in our case is the Pennsylvania survival statute. (In the related Erie context, Wright & Miller observe that the survival statute is indeed substantive, and not procedural. Id. § 1952 at 642.) Under that statute only the personal representative of decedent is entitled to institute and maintain a survival suit. Accordingly, we conclude that the real party in interest is not before us, and that Count I must be dismissed because Rule 17(a) has not been complied with. Rule 17(a) prohibits dismissal of an action solely on the grounds that the real party in interest is not a party to the action. Accordingly, we would normally grant plaintiffs leave to amend to substitute Bessie Smith’s personal representative as plaintiff. In this case, however, we do not do so for two reasons. First, as will appear, we find that the § 1981 action is conclusively barred by the statute of limitations. Therefore, permitting substitution of the personal representative at this time would not avail plaintiffs in the disposition of this claim. Under these circumstances, we see no reason to grant leave to amend under 17(a). See Wright & Miller, supra, § 1555: “The rule [calling for substitution rather than dismissal] should be applied only to cases in which substitution of the real party in interest is necessary to avoid injustice.” Id. at 707. Alternatively we could deny plaintiffs’ leave to amend because they have already amended their complaint twice; i. e., they have had “three strikes” and to give them a fourth opportunity to get their pleadings in order goes beyond the pale of justifiable judicial indulgence. 3. The Statute of Limitations and the Matter of Tolling (a) Introduction Even if there were no real party in interest objection, we would still confront the enormous obstacle of the statute of limitations. The statute of limitations defense to the § 1981 claim, as well as to the other counts, is obviously of critical significance in a lawsuit based on events which occurred between 1923 and 1933. Applying the six year statute of limitations found in 12 Pa. Stat.Ann. § 31 (Purdons) means that suit should have been brought on the last of these contracts by 1939 at the latest. Since Bessie Smith died in 1937, the executor or administrator of her estate would have had to have brought suit within two years of her death. Thus the crucial question before us is that of the tolling of the statute. We turn to the (second) amended complaint. The following allegations are the only ones which could conceivably affect the running of the statute of limitations: 9. Bessie Smith recorded 180 songs for Columbia Records from 1923-1933, of which, on information and belief, 20 were never released at that time or since, and the maters are now lost. Because she was an “exclusive artist” for Columbia, Bessie Smith’s total recorded output, with one exception, was recorded under the Columbia label, with her last 4 sides in 1933 being issued on the Okeh label, a Columbia subsidiary corporation. Her records were and are also issued worldwide during her lifetime and to the present, under various labels of Columbia subsidiaries, affiliates or licensees. 11. Bessie Smith was born in Chattanooga, Tennessee, between 1895 and 1900. She did not have any formal education. For all of her unparalleled musical talents, she was nevertheless unsophisticated and ignorant in legal and financial matters and was easily taken advantage of by those who managed her business and financial affairs. 12. In June 1923, Bessie Smith married Jack Gee (Sr.) [who] . finished only a couple of years of grade school and was unable to read or write for his entire life. ... 14. In 1923 Frank Walker was then Director of Recording for Columbia Records and sought to initiate Columbia’s ‘Race Record’ series, a new venture for the company which had gone bankrupt the year before. 17. When Bessie went to Frank Walker’s office after obtaining contractual releases from [former manager Clarence] Williams, Walker offered her an exclusive contract with Columbia for a one-year contract commencing April 20, 1923. The contract required Bessie to record 12 selections at $125 per usable side. It guaranteed her $1500 and included a 1 year renewal option for 12 sides at $150. Because Williams had not yet received her fee for 4 sides made during April, Walker gave Bessie a check for $500. Walker struck out the royalty clause in the contract, thus making a lucrative deal for Columbia. Because neither Bessie nor Jack were aware of such things as royalties, they felt that Walker was generous with her and Bessie appointed him her manager. 18. Frank Walker, Columbia Record executive, served also as Bessie’s manager until the late 1920’s for all purposes, and until 1931 for her recording dealings. While Walker may not have personally benefited financially, while serving in this conflicting role, he took advantage of Bessie’s color and ignorance and he made Columbia Records rich through Bessie’s efforts, and made others like Clarence Williams, rich as well. Bessie’s later recording arrangements with Columbia were made on her behalf by Walker, and even at her prime in the middle 1920’s, Bessie never received more than a maximum of $200 flat fee per selection with no royalties. This small flat fee per selection arrangement with no royalties was part of a pattern and practice of race discrimination by Columbia Records and its officers to exploit black artists who were recording “exclusively” and otherwise for Columbia’s race record series. Only white artists and others who were sophisticated in entertainment law were given substantial sums per selection, or a royalty package by Columbia. 19. By way of contrast, in 1925 when Bessie was the top black entertainer in the country, and a recognized superstar, and when her records had already outsold those of any other Columbia artist— white or black who preceded her — Bessie, through Frank Walker (Columbia’s Recording Director and simultaneously her manager) was receiving a flat fee of $200 per selection with no royalties as an “exclusive artist” for Columbia. In that same year, 1925, Phonofilm publicity announced that Al Jolson had received $15,-000 for 2 sides from Brunswick Records, and that he received $10,000 for a single song on Phonofilm. White artists who were then recording for Columbia at about this time such as Eddie Cantor, Ted Lewis, Ruth Etting, Paul Whitman, Rudy Vallee, Sophie Tucker, Bing Crosby, Kate Smith, Blossom Seely, and others, were on information and belief, all receiving very substantial fees per selection or else receiving a royalty arrangement, even though Bessie Smith record sales were outstripping theirs. 20. Moreover, Bessie Smith authored and composed many of her own songs which she recorded for Columbia. On information and belief, as a routine matter, Frank Walker entered into copyright license agreements for Columbia to record these tunes, by signing such agreements “Frank Walker for Bessie Smith.” These agreements paid no or nominal payments by Columbia to Bessie for the privilege of recording her copyrighted songs. On information and belief, Bessie never received any sums from Columbia under such purported agreements. 21. On information and belief, Jack Kapp, a Columbia Records official during the period when Bessie was recording, paid Bessie a few dollars for her tunes during the regular course of business with Columbia. He would then copyright the tunes under a dummy publishing company and collect royalties himself, at the expense of Bessie. On information and belief, these activities, were carried on with the actual and constructive knowledge of Columbia and no reasonable payment or accounting to Bessie or her heirs has ever been made as a result of these activities. 22. In 1933, Bessie recorded her last 4 selections for Columbia, which were later issued on the Okeh Record label, a Columbia subsidiary which made a lower priced record produce which sold for 35$ in contrast to the usual 75$ for a Columbia single. John Hammond, while an official of Columbia, made financial arrangements on Bessie’s behalf for this recording session and paid Bessie $37.50 per selection or a total of $150 for the 4 sides pursuant to a verbal contract. While Hammond did not personally benefit financially while serving simultaneously in the conflicting positions of Columbia executive and agent for Bessie Smith with respect to the 1933 78 rpm recordings, these recordings were sold at a profit by Columbia and were subsequently re-issued and re-recorded in LP 33Vs albums many years later with a major profit being reaped by Columbia as a result thereof, for which no further monies or accounting has ever been paid to Bessie, or her heirs. 23. From the limited discovery to date and from the contentions of defendants, Bessie Smith was supposed to have entered into the following contracts with Columbia for her artistic recording efforts: Date of Contract Period Terms (a) approx. February, 1923 2/16/23-4/20/23 $125 flat fee per selection. Royalties for records sold: NONE. Copyright royalties for authoring or composing tunes: NONE. On information and belief, plaintiffs aver that Bessie signed no contract with Columbia but a contract was signed or implied without Bessie’s consent, but with collusion of Walker and Columbia, between Clarence Williams, Manager for Bessie Smith and Columbia providing for the payment to Bessie, c/o Clarence Williams of a flat fee of $125 per selection. During the period of this self-appointed collusive managerial contract, Bessie recorded some of her most important records including: Down Hearted Blues 2/16/23 Gulf Coast Blues 2/16/23 Aggravatin Papa 4/11/23 Beale Street Mama 4/11/23 'Taint Nobody’s Business If I Do 4/11/23 Keeps on A-Rainin 4/11/23 Baby Won’t You Please Come Home Blues 4/11/23 Oh Daddy Blues 4/11/23 Columbia ledger sheets for this time period do not reflect any recording contract under Bessie Smith’s name, and defendants have produced none. Date of Contract Period Terms (b) 4/20/23 4/20/23-4/20/24 1 year, with 1 year renewal option on same terms by Columbia Exclusive Artist 12 songs at $125 each, with $1500 guarantee Royalties for records sold: NONE. Payment to Bessie as song composer or author (copyright owner) for right to make records: NONE (c) 12/22/23 (revision of preceding contract) 12/22/23-1/22/25 with 1 year renewal option on same terms by Columbia Exclusive Agent 12 songs at $200 each with $2400 guarantee Royalties on records sold: NONE Payment to Bessie as song composer or author for right to make records: NONE (d) 12/22/23 (renewal option exercised) 1/22/25-1/22/26 Same terms, (e) 1/22/26 1/22/26-3/16/27 with 1 year renewal option on same terms by Columbia Exclusive Artist 12 songs at $200 each, with no guarantee Royalties on records sold: NONE Payment to Bessie as song composer or author, for right to make records: reserved to artist (f) 1/22/26 (renewal option exercised) 3/16/27-4/9/28 (same terms) (g) 4/9/28 4/9/28-9/5/29 Exclusive Artist 12 songs at $200 each, with no guarantee Royalties on records sold: NONE Payment to Bessie as composer or author, for right to make records: reserved to artist. Columbia has radio broadcasting rights without payment. (h) 7/11/30 7/11/30-8/11/31 (contract not renewed at end of term) Exclusive Artist 12 records at $125 each, $1500 guarantee Royalties on records sold: NONE Payment to Be-sie as composer or author, for right to make records: NONE Date of Contract Period Terms (i) 11/24/38 (verbal contract with John Hammond, officer of Columbia) 11/24/33 4 sides at $37.50 each, for total of $150 Royalties on records sold: NONE 24. On information and belief, while Columbia ledger sheets show the existence of such contracts from April 20,1923 to August 11, 1931, plaintiffs aver that Bessie Smith neither saw nor signed any written contracts with Columbia for this period. Columbia has not produced any such contracts, or any copy thereof. Columbia has produced 3 unsigned form contracts, which Columbia claims were effective between Bessie and Columbia for the «period of January 22, 1926 to August 11, 1931. On information and belief, if any such contracts existed in writing or prior thereto between Bessie Smith and Columbia, plaintiffs aver that they were signed “Frank Walker for Bessie Smith” or the equivalent, without Bessie Smith’s knowledge or consent but with the collusion, approval and acquiescence of Columbia, as was customary by Columbia with respect to “race record” recording artists. 25. On information and belief, copyright contracts giving rights to Columbia to record songs authored or composed by Bessie Smith without payment to Bessie Smith, or in return for a nominal payment, were routinely signed “Frank Walker for Bessie Smith” without her knowledge or consent and with the collusion, approval and acquiescence of Columbia, as was customary. 26. Bessie Smith never had a royalty agreement with Columbia during all of her smash hit years as an Exclusive Artist. Bessie received a total of $28,575, “a fraction of what many young performers of lesser talent receive on signing a recording contract today.” 29. During the course of Bessie Smith’s life, and continuing thereafter to the present, Columbia has misrepresented to the world that Columbia is the exclusive property owner of all rights, title and interest to Bessie’s recordings. In 1951, when Columbia re-recorded and re-issued a four long-playing record album series of Bessie Smith’s stories, the liner notes for Volume I, The Bessie Smith Story, prominently state, “She [Bessie] left behind her 160 recordings (every one of them, incidentally, the property of Columbia Records).” Similar representations are made in other literature and liner notes disseminated by Columbia. Until his death in 1973, Jack Gee (Sr.) was unable to read or write. During his lifetime, Columbia had never revealed to him, nor did he have access to any information concerning the defendants’ activities in fraudulently misappropriating the personal and property rights of his wife, Bessie Smith. Jack Gee, Jr., son of Bessie Smith, was a minor at the time of Bessie’s death in 1937. Upon his inquiry in later years, his father Jack Gee, Sr. advised him that he, Jack Gee, Sr., was taking care of all of the rights flowing from Bessie’s estate. Jack Gee, Sr. and Jack Gee, Jr. did not get along well, with Jack Sr. often placing Jack, Jr. in various homes and institutions during Bessie’s life, and thereafter communicating infrequently with him. In any event, by virtue of defendants’ concealment activities, and Jack Gee, Sr.’s illiteracy, plaintiffs had no knowledge and could not have reasonably obtained any knowledge of defendants’ unlawful activities as aforesaid, or of any fact which might have led to the discovery thereof, until the publication of the biography of Bessie Smith by Chris Albertson by Stein & Day Publishers in 1972. The author had special access to archive records of Columbia that were not generally available to the plaintiffs. Plaintiffs could not have discovered the unlawful activities of defendants at an earlier date by the exercise of due diligence, since the unlawful activities as set forth herein had been fraudulently concealed by the defendants by various means and methods to avoid their detection. 30. In 1974, Bruce Lundvall, President of Columbia, appeared live on a public television program and he re-affirmed earlier and continuing obligations of Columbia to Bessie Smith and her heirs. Mr. Lundvall stated with respect to the re-recordings of Bessie’s songs in five double album sets in 1970 to 1972, that “There was a royalty paid, a payment made to the Bessie Smith Foundation . We made one payment initially, but the royalties have accumulated in an account and will be used for a fund for needy black students in the future . . ” No payment or accounting to the plaintiffs has ever been made by Columbia, in connection with any accumulated “royalties” by Columbia with respect to record sales from the 1970-72 album series, and after demand, Columbia has refused to make any such payments to plaintiffs. In a recent annual report to shareholders, Columbia referred to the Bessie Smith re-issues as the biggest-selling re-issues in the history of the record industry, and on information and belief gross sales to Columbia of the re-issues are currently in excess of $6 million. We consider all the foregoing allegations to bear upon the statute of limitations questions in the § 1981 claim since it is broadly asserted that the § 1981 claim applies to every contract Bessie Smith actually entered into with Columbia Records or might have entered into but for racial discrimination, including, inter alia, contracts for royalties and flat fees on recorded performances, those for royalties and flat fees on compositions which she actually did or might have copyrighted, and those for use of her name and likeness. The question before us is whether the allegations we have enumerated above are sufficient, under the Pennsylvania law we are bound to apply by virtue of 42 U.S.C. § 1988 and the Third Circuit’s Davis v. United States Steel Supply and Ammlung decisions, to toll the six year statute of limitations which would have long since run on all the events transpiring between Bessie Smith and Columbia Records between 1923 and 1933. As we understand the case law, there are several separate inquiries we must make under facts as alleged here. The first is whether the underlying events being sued upon — here, the course of dealings between Bessie Smith and Columbia Records during 1923-33 — sound inherently in fraud or deceit. If they do then that, without more, will toll the statute of limitations until such time as the fraud has been revealed, or should have been revealed by the exercise of due diligence by plaintiffs. This doctrine finds expression in Justice Frankfurter’s opinion in Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946): [T]his Court long ago adopted as its own the old chancery rule that where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar to the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party. Holmberg is based on the premise that fraud as a common-law cause of action is self-concealing by its nature. Its elements were stated nearly a century ago as: First. That the defendant has made a representation in regard to material fact; Second, that such representation is false; Third, that such representation was not actually believed by the defendant, on reasonable grounds, to be true; Fourth, that it was made with intent that it should be acted on; Fifth, that it was acted on by complaint to his damage; and Sixth, that in so acting on it the complainant was ignorant of its falsity, and reasonably believed it to be true. Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed. 678 (1888), quoted in 2A Moore’s Federal Practice, ¶ 9.03 at 1923 (2d ed. 1978). As long as plaintiff continues to reasonably rely to his detriment on the knowingly misleading representation the fraud continues, and of necessity it is concealed from plaintiff. No additional special efforts of concealment are then necessary. Pennsylvania case law has worked a slight modification on the Holmberg doctrine. In Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964), the Pennsylvania Supreme Court announced that the fraud or deceit necessary to toll the statute of limitations “does .not mean fraud in the strictest sense encompassing an intent to deceive, but rather fraud in the broadest sense which includes an unintentional deception.” Id. at 96, 204 A.2d at 476. It is also clear that under Pennsylvania law there must be a misrepresentation of material fact. See in Guy v. Stoecklein Baking Co., 133 Pa.Super. 38, 1 A.2d 839 (1938). Apparently the Pennsylvania rule is that once plaintiff has shown that such a misrepresentation has occurred, and that he reasonably relied to his detriment on it, he need not also show the opposing party intended he should act on it; the fact that he did so is a sufficient showing. In terms of the elements of fraud enumerated in Southern Development Co., Nesbitt and Guy apparently eliminate element number four — the requirement that the misrepresentation was made with intent that it should be acted on. None of the other elements is affected by Nesbitt and Guy; all are necessary to show fraud sufficient to toll the statute of limitations. Furthermore, under the Pennsylvania view, the showing that must be made to invoke fraud as a grounds for tolling the statute requires particularity: “an estoppel becomes operative only in clear causes of fraud, deception or concealment.” Walters v. Ditzler, 424 Pa. 445, 449-50, 227 A.2d 833, 835 (1967) (emphasis in original). Under Holmberg and Nesbitt then, our first line of inquiry is whether the facts alleged concerning the transactions between Bessie Smith and Columbia from 1923 to 1933 constitute either “intentional” or “unintentional” fraud. If so, we must determine when the fraud ended, or whether it is alleged to have continued unabated to the present. Our second line of inquiry involves the doctrine of “fraudulent concealment.” Fraudulent concealment does not depend, as do Holmberg and Nesbitt, on the underlying cause of action — here the 1923-1933 transactions — being inherently fraudulent. Rather, it requires independent acts of “fraudulent concealment” of the events or circumstances constituting the underlying cause of action, irrespective of whether those underlying events are inherently fraudulent or not. See Dawson, Fraudulent Concealment and Statutes of Limitations, 31 Mich.L.Rev. 875 (1933). This doctrine, as explicated by Judge Goodrich in Overfield v. Pennroad Corporation, 146 F.2d 889, 896 (3d Cir. 1944), finds expression in Pennsylvania case law: The plaintiffs say, however, that there was concealment and such concealment would toll the running of the statute under Pennsylvania law. We are confronted at the outset, however, with the proposition, laid down over and over again in the Pennsylvania decisions that the concealment'which tolls the statute must be an affirmative, independent act of concealment; mere silence or nondisclosure, even by corporate officials is not enough. The time at which it takes place is immaterial: whether before, contemporaneous with or subsequent to the act complained of. But independent act, “affirmative efforts to divert, mislead, or prevent discovery” there must be. We do not see here any such conduct independent of the very things about which the plaintiffs complain. The plaintiffs complain of investments and say that they were made with an eye not to Pennroad’s interest, but that of the Pennsylvania Railroad. But the sum and substance of that complaint is a series of transactions which alone make up the gravamen of the alleged offenses. We see no independent acts, designed to “divert, mislead, or prevent discovery.” (citations to Pennsylvania case law omitted). Nearly thirty years later Judge Gibbons affirmed the correctness of Over-field’s statement of the Pennsylvania law by citing it as the “governing standard” in Knuth v. Erie-Crawford Dairy Cooperative Ass'n., 463 F.2d 470, 482 (1972). Judge Gibbons emphasized that there must be an “affirmative effort ... to conceal.” Id. at 482. In sum, the “fraudulent concealment” doctrine directs our attention to the following question: even if none of the transactions between Columbia Records and Bessie Smith between 1923 and 1933 involved inherent fraud, was there a subsequent “affirmative effort to divert, mislead, or prevent discovery,” so as to constitute “fraudulent concealment” sufficient to toll the statute of limitations? Plaintiffs’ third basis for tolling the statute of limitations consists of the allegations that Frank Walker and John Hammond served in conflicting roles as Smith’s agents and as officials for Columbia in negotiating and executing Smith’s recording contracts, to her financial detriment. In plaintiffs’ view, the “breach of fiduciary duty” resulting from these conflicting roles, and manifested in allegedly pro-Columbia Records recording contracts, stops the running of the statute. Plaintiffs’ fourth basis for tolling is found in ¶ 34, alleging that Bruce Lundvall “revived” the contract actions underlying the § 1981 claim in 1974 by publicly acknowledging the existence of money owed to Bessie Smith. We examine the sufficiency of the allegations to support each of the above four theories of tolling seriatim. In each case, we read the complaint in the context of the instruction of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) that we construe the allegations in the light most favorable to plaintiffs. In the case of (b) and (c) infra (inherent fraud and fraudulent concealment) we also read the complaint bearing in mind the salutary provision of Fed.R.Civ.P. 9(b) that “In all averments of fraud . . . the circumstances constituting fraud shall be stated with particularity.” (Our emphasis). This requirement would be necessitated in any event by the holding of Walters v. Ditzler, supra, that “an estoppel becomes operative only in clear cases of fraud, deception, or concealment.” (b) The Doctrine of Inherent Fraud: The Existence of Fraud in the Underlying 1923-33 Transactions Between Bessie Smith and Columbia Records Our starting point under this theory is whether any of the facts as alleged concerning the original course of dealings between Bessie Smith and Columbia Records constitute fraud in the Nesbitt sense. We refer here to ¶¶ 11,12,14,17,18,19, 20, 21, 22, 23, 24, 25, and 26 of the complaint. Paragraphs 11 and 12, which relate to the lack of education and sophistication of Smith and Jack Gee, Sr., might be relevant if a subjective standard for deception were used, because they could help demonstrate that Bessie Smith was in fact misled. However, the appropriate standard is an objective or reasonable person one, see p. 626 infra, so these allegations are not relevant to our inquiry. Paragraphs 14, 17, 18 and 19. together allege that while Frank Walker served in a dual capacity as record company official and agent, he signed Bessie Smith to contracts. Plaintiffs admit Smith was paid the amounts indicated in the recording contracts, i. e., the allegedly “small” flat fee payments. (“. . . even at her prime . Smith never received more than a maximum $200 flat fee per selection with no royalties.” ¶ 18). These paragraphs also contain the allegation Walker struck out the royalty provision in the form contracts to which he signed Smith’s name. We cannot find any allegations of inherent fraud in these paragraphs. We infer that Smith must have been aware of the amounts she actually received. There is no allegation that she was misled, for example, by being induced to believe she was going to be paid royalties when in fact she wasn’t. Quite the contrary, Frank Walker is alleged to have crossed out that provision, conforming the form contract with the reality of her apparently oral contractual arrangement. Paragraph 18 simply states that Bessie was paid less than white performers because of racial discrimination. There is no allegation that she was deceived or misled in- any fashion. Reading ¶¶ 17 and 18 together, the most that can be inferred is that Bessie Smith was not told that such things as royalties were possible to receive. Such nondisclosure is categorically different from common law fraud, which requires a “false representation of a material fact.” Nor can these allegations suffice to allege fraud under the “unintentional fraud” formulation of Nesbitt. In that case, as in Guy v. Stoecklein Baking Co., supra, and in every other case in Pennsylvania we have reviewed, the predicate for even considering whether “unintentional fraud” exists is an actual misrepresentation of a material fact. We cannot find any such misrepresentation alleged in ¶¶ 14, 17, 18, or 19, whether read singly or together. As to whether these allegations state a valid § 1981 claim, we express no opinion at this juncture. But they are manifestly insufficient to allege the kind of inherent fraud necessary to toll the statute of limitations. As for paragraph 20, at first blush it sounds as though Smith was defrauded with respect to copyrights owned by her, i. e., that she held the copyrights, and that in executing licensing agreements to make records derived from these copyrights, Columbia fraudulently signed her name without paying her any licensing proceeds. Crucially, however, paragraph 20 fails to allege that Bessie Smith owned any of the copyrights which Columbia Records licensed. The only phrase suggesting she (as opposed to someone else) owned any copyrights is contained in the ambiguous phrase “her copyrighted songs.” The confusion is augmented by reading ¶ 20 along with ¶ 21, the latter of which she clearly states she didn’t own copyrights. However, bearing in mind the mandate of Conley v. Gibson, supra, and giving full rein to the federal rules’ permission for inconsistent pleadings, we give plaintiffs the benefit of any doubt and construe the pleadings to allege that she did own at least some copyrights. This is the first allegation we can infer to even remotely sound in fraud. Paragraph 21 itself contains no allegation of fraud It simply states that Bessie Smith sold the copyrights to songs she composed to a Columbia subsidiary. There is no allegation that the subsidiary or Columbia made a knowingly false representation on which she justifiably relied to her detriment. The allegations in paragraph 21 may well state a valid claim under the substantive law of § 1981, the copyright laws or appropriate state law protecting property. We express no opinion on those questions here. We simply note that ¶ 21, like ¶¶ 17 and 18, does not describe any inherently fraudulent activity, as that term is defined to determine the statute of limitations issue. The facts alleged in ¶22 do not constitute fraud any more than do those in ¶¶ 17,18, or 21. They say only that she was paid too little (in relation to what she potentially could have commanded with the help of a devoted agent) for her recordings. Smith clearly was paid the money, and clearly must have known how much she was paid. There is no allegation of any attempt to pretend to pay her more than she actually received. At most, it alleges nondisclosure of how much other performers were earning, which may or may not be an actionable wrong under various laws, but which is not common law fraud. Paragraphs 23 and 24 allege that there exist a number of form contracts Smith neither saw nor consented to, but to which her name was signed by her agent who was simultaneously a Columbia official. The Columbia executive is not alleged to have forged her name. Rather he signed them in his name “for Bessie Smith.” According to the allegations and plaintiffs’ motion papers, Columbia paid Smith the amounts stated in the contracts, (with the possible exception of eight songs discussed in Part V of this opinion) and reflected those amounts in its ledger book. We can find no element of fraud here. Finally, ¶ 25 seems to contain exactly the same allegations as ¶ 20: that Bessie Smith owned copyrights (this is nowhere clearly stated in ¶ 25, just as it was not in ¶ 20), and that Columbia defrauded her out of licensing proceeds by signing her name as copyright holder and licensor to licensing contracts with Columbia as licensee. We construe ¶¶ 20 and 25 together as one allegation, and it is the only allegation we c.an discern in this complaint that in any way suggests inherent fraud in the 1923-33 course of dealings between Bessie Smith and Columbia Records. In sum, none of the allegations allege inherent fraud with any cogency or specificity as demanded by Fed.R.Civ.P. 9(b) and the Pennsylvania case law on tolling the statute of limitations. The only allegations we can even construe to sound in fraud are those contained in ¶¶ 20 and 25. As to those allegations (which we can only read as in reality the same allegation stated twice), our next inquiry under Holmberg is whether the fraud is alleged to have concealed itself by reason of its inherent nature from the 1920’s to the 1970’s, without the reasonable possibility of detection. Turning to that inquiry we cannot find, and cannot reasonably construe, any allegation which would support the proposition that a scheme to defraud Bessie Smith between 1923 and 1933 (by obtaining licensing agreements to songs of which she was the copyright holder by signing her name to the agreements and not paying her licensing fees, as alleged in ¶¶ 20 and 25) was inherently self-concealing until the 1970’s. Quite the contrary, the only reasonable inference we can draw is that if Bessie Smith were indeed the copyright holder, she knew, or should have known, that certain legal rights, including the rights of licensing, were hers by virtue of those copyrights. We are precluded from drawing any other inference because, under the allegations of the complaint, she recorded those very songs she composed (and for which by hypothesis she held the copyright) for Columbia, and she had to know Columbia was making the records and releasing them to the public for sale. The applicable legal standard is that inherent fraud continues to be concealed as long as the person defrauded “ha[s] failed in [the exercise of] reasonable diligence to discover” the alleged deception. Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946) (emphasis added); “In Pennsylvania . the statute