Plaintiffs Secure Split Decision on Statute of Limitations Issues in a Professional Negligence Case

In the case of Boyanowski v. Carl J. Babushko, CPA, P.C., No. 2021-CV-1975 (C.P. Lacka. Co. Feb. 12, 2026 Nealon, J.), the court addressed a statute of limitation issue in a professional negligence claim filed by taxpayers against their former accountant and his employer for allegedly failing to timely prepare and file their individual and business tax returns.

According to the Opinion, the Plaintiffs asserted causes of action for “professional negligence,” “negligence,” and “breach of contract.”

The court noted that, even when viewing the case in a light most favorable to the Plaintiffs as required by the standard of review, the record shows that, for more than two (2) years prior to the commencement of the action, the Plaintiffs had actual or constructive knowledge that the accountant had failed to timely file their tax returns due to alleged accountant malpractice. Accordingly, the court dismissed the claims in professional negligence and negligence.

However, relative to the breach of contract claims, the court found that there were triable issues of fact as to whether the parties’ words and course of conduct created an enforceable contract under which the accountant and his employer allegedly agreed to timely file the Plaintiffs’ federal and state tax returns. As such, the Motion for Summary Judgment with respect to the breach of contract claim was denied.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Recha Oktaviani on www.unsplash.com.

Court Applies Discovery Rule to Extend Statute of Limitations

In the case of Goldstein v. Finley Catering Co., Inc., No. 2:24-CV-00069-CSMW (E.D. Pa. Nov. 14, 2025 Moore Wells, M.J.), a Magistrate Judge in the Eastern Federal District Court applied the discovery rule to allow a Plaintiff to add a Defendant over a year after the statute of limitations had expired on a slip and fall claim.

The court reviewed the record before it and noted that the Defendant originally sued initially misrepresented that it owned and operated the premises where the Plaintiff was allegedly injured. The court had noted that the Plaintiff had no reason to believe that this initial representation was false until that Defendant came clean.

As such, the court applied the discovery rule to support the Plaintiff’s joinder of the entity that actually owned the premises as a Defendant in the matter.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Source: Article – “Defendant Properly Added to Slip-and-Fall Outside of Statute of Limitations, Fed. Judge Rules” By Riley Brennan Pennsylvania Law Weekly (Nov. 18, 2025).

Source of image:  Photo by Nihar Manyalli on www.pexels.com.

ARTICLE: Appellate Courts Disagree on Whether the Discovery Rule Applies in Breach of Contract Actions

 The below article written by myself and my son, Daniel E. Cummins, Jr., who is a second year student at Virginia Law School and a member of the Virginia Law Review, was recently published in the September 25, 2025 edition of the Pennsylvania Law Weekly.

    Daniel E. Cummins, Jr.                                        Daniel E. Cummins, Esq.

Expert Opinion // Discovery

Appellate Courts Disagree on Whether the Discovery Rule Applies in Breach of Contract Actions

September 25, 2025

By

Daniel E. Cummins, Esq.

and

Daniel E. Cummins Jr.

It seems that, with respect to breach of contract actions, there is no meeting of the minds as to whether the discovery rule applies to toll the running of the statute of limitations.

In recent years, Pennsylvania law has remained unsettled over whether the discovery rule is applicable to actions based on an express written contract. The Pennsylvania Supreme Court has not issued any decisions extending the discovery rule to such cases. However, the Commonwealth Court and the Superior Court have taken opposite positions on this issue. The Commonwealth Court has refused to apply the discovery rule to breach of written contract cases, while the Pennsylvania Superior Court has held that the discovery rule applies in all cases.

The Importance of Statutes of Limitations

Pennsylvania courts have repeatedly emphasized the important purposes that statutes of limitations serve. The courts have noted that “statutes of limitations ‘are designed to effectuate three purposes: preservation of evidence; the right of potential defendants to repose; and administrative efficiency and convenience.’” See Lesoon v. Metropolitan Life Insurance, 898 A.2d 620, 626–27 (Pa. Super. Ct. 2006) (quoting Kingston Coal v. Felton Mining, 690 A.2d 284, 288 (Pa. Super. Ct. 1997)). Statutes of limitations also serve to give defendants prompt notice that claims are being made against them, prevent stale claims that may prejudice defendants, and promote finality and stability with respect to civil disputes. See Estate of Gasbarini v. Medical Center of Beaver County, 409 A.2d 343, 346 (Pa. 1979).

As such, a statute of limitations defense is not a mere technicality, but rather a "substantial and meritorious” defense that is “vital to the welfare of society and ... favored in the law." See Schmucker v. Naugle, 231 A.2d 121, 123 (Pa. 1967).

Statute of Limitations in Contract Actions

Under Pennsylvania law, a four-year statute of limitations applies to contract actions. See 42 Pa.C.S. Section 5525.

In Erie Insurance Exchange v. Bristol, 174 A.3d 578, 585–86 (Pa. 2017), the Pennsylvania Supreme Court held that this statute of limitations begins to run when the defendant is alleged to have breached the contract. The court noted that its holding was “in accord with the law across the country.” This decision is consistent with 42 Pa.C.S. Section 5502(a), which provides that “[t]he time within which a matter must be commenced ... shall be computed ... from the time the cause of action accrued.”

The Pennsylvania Supreme Court has also generally held that “the lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” See Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237, 246 (Pa. 2021). However, this article discusses the discovery rule, an equitable exception to this general rule.

The Discovery Rule

The discovery rule is a doctrine that suspends or tolls the running of a statute of limitations until an injured party knows or reasonably should know of their injury, and its cause. See Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). This doctrine ensures that, in certain limited circumstances, a plaintiff is not barred from bringing suit simply because they could not discover their injury and its cause in time.

For the discovery rule to apply, a plaintiff must have been unaware of their injury and unable to discover its cause despite the "exercise of reasonable diligence.” See Fine, 870 A.2d at 858. The Pennsylvania Supreme Court has defined “reasonable diligence” in this context as “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.”

Under this standard, “there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful.” Stated otherwise, “a party fails to exercise reasonable diligence when they fail to make an inquiry when ... information regarding their injury becomes available.” See Mariner Chestnut Partners v. Lenfest, 152 A.3d 265, 279 (Pa. Super. Ct. 2016).

The party seeking to invoke the discovery rule bears the burden of establishing their inability to discover their injury despite the exercise of reasonable diligence. See Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997). In this regard, the courts have noted that “the polestar of the Pennsylvania discovery rule is not a plaintiff's actual acquisition of knowledge but whether the information, through the exercise of due diligence, was knowable to the plaintiff. The failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law.” See DiDomizio v. Jefferson Pulmonary Associates, 280 A.3d 1039, 1046 (Pa. Super. Ct. 2022).

Whether an injured party exercised reasonable diligence is typically a question for the jury. See Wilson v. El-Daief, 964 A.2d 354, 362 (Pa. 2009). Nonetheless, because of the objective nature of the test, a court may determine the applicability of the discovery rule as a matter of law where "the facts are so clear that reasonable minds cannot differ." See Schmidt v. Skolas, 770 F.3d 241, 251 (3d Cir. 2014).

The Pennsylvania Supreme Court has applied the discovery rule to a wide variety of tort actions. However, to date the Supreme Court has not yet applied the rule by name to a case involving allegations of a breach of a written contract.

Does the Discovery Rule Apply in Breach of Contract Actions?

In 2019, the Pennsylvania Commonwealth Court noted that, based on its research as of that time, the Pennsylvania Supreme Court had never applied the discovery rule to a breach of contract claim. See Carulli v. North Versailles Township Sanitary Authority, 216 A.3d 564, 580 (Pa. Commw. Ct. 2019) (en banc).

The Commonwealth Court is correct that the Pennsylvania Supreme Court has never applied the discovery rule by name to a breach of contract case. However, in the case of Romeo & Sons v. P.C. Yezback & Son, 652 A.2d 830, 832 (Pa. 1995), the Pennsylvania Supreme Court held that the statute of limitations on a construction contract “will not start to run until the injured party becomes aware, or by the exercise of reasonable diligence should become aware, of the defect.” In this case, the Supreme Court did not adopt a broad rule for breach of contract actions. Given that this decision was limited to “the case of a latent defect in construction,” whether the discovery rule applies to breach of contract actions in general remains an open question.

In one other case, a justice of the Pennsylvania Supreme Court touched upon the issue in a dissenting and concurring opinion. See Crouse v. Cyclops Industries, 745 A.2d 606, 613 n.1 (Pa. 2000) (Saylor, J., dissenting and concurring). In Crouse, then-Justice Thomas Saylor wrote that "although the discovery rule, which evolved in the tort context, has been applied by Pennsylvania courts in some discrete categories of cases involving contractual or quasi-contractual claims ... , its use has not been adopted on a wholesale basis in this area” with regard to breach of contract claims.

In the absence of a concrete ruling from the Pennsylvania Supreme Court, the Commonwealth Court and the Superior Court have taken opposite positions on whether the discovery rule applies to breach of contract actions generally.

The Commonwealth Court’s View

In Carulli, 216 A.3d 564, the en banc Commonwealth Court held that the discovery rule does not apply to breach of contract actions.

The Commonwealth Court in Carulli employed three different rationales to come to this conclusion. First, the Commonwealth Court noted that the Pennsylvania Supreme Court “has neither expressed a blanket prohibition nor has it applied the discovery rule ... to a breach of contract action where a party is seeking to enforce an express written contract that the party negotiated.” See Carulli, 216 A.3d at 583.

Second, the Commonwealth Court asserted that equitable considerations do not require applying the discovery rule to breach of contract claims. In support of this rationale, the Commonwealth Court noted that “parties to a contract are not without recourse.” Rather, parties to a contract have the chance to draft provisions to protect their interests, including provisions requiring inspections along with terms outlining the rights of parties in the event of a breach. Under the Commonwealth Court’s rationale in Carulli, there should be no situation in which contract parties are unable to discover a breach in time to bring suit.

Third, the Commonwealth Court reviewed the substantive differences between tort claims and contract claims. The Commonwealth Court reiterated that parties to a contract can protect themselves from undiscovered injuries or damages in ways that tort plaintiffs cannot. The court also noted that “in a breach of contract action, the injury is ... the breach,” whereas “a tort action cannot be brought until the plaintiff suffers appreciable injury.” The court thus implied that because contract parties presumably have the ability to discover breaches and may bring suit immediately upon a breach, it makes little sense to apply the discovery rule in this context.

The court in Carulli also cited the general rationale behind statutes of limitations, noting that it is unjust to compel a party to defend a lawsuit long after the alleged injury has occurred, when memories have faded, witnesses have died and/or evidence has been lost.

The Superior Court’s View

In sharp contrast, in Morgan v. Petroleum Products Equipment, 92 A.3d 823, 828 (Pa. Super. Ct. 2014), the Pennsylvania Superior Court held that “the discovery rule in Pennsylvania applies to all causes of action, including breach of contract.” In support of this contention, the Superior Court cited its previous decision in Sadtler v. Jackson-Cross, 587 A.2d 727, 731 (Pa. Super. Ct. 1991) in which the court also applied the discovery rule to a breach of contract claim. However, neither case contained any detailed discussion of the rationale for applying the discovery rule to contract actions; rather, the courts simply held that the discovery rule did apply.

In two recent cases over the past year and a half, the Superior Court has again held that the discovery rule applies to breach of contract actions. See Spiritrust Lutheran v. Wagman Construction, 314 A.3d 894, 907 (Pa. Super. Ct. 2024); Wasielewski v. Goebel Insurance Agency, 334 A.3d 372, 372 (Pa. Super. Ct. 2025) (unpublished table decision). No Superior Court decision has strayed from that court’s repeated application of the discovery rule to contract cases.

A number of Pennsylvania federal court judges from each of the districts have also followed the Superior Court’s decision in Morgan, holding that the discovery rule applies to all actions, including breach of contract actions. See Handy v. Delaware River Surgical Suites, 2024 U.S. Dist. LEXIS 174030, at *12 (E.D. Pa. Aug. 29, 2024); Walden v. Bank of N.Y. Mellon, 2024 U.S. Dist. LEXIS 65250, at *49 (W.D. Pa. Apr. 10, 2024); see also Canfield v. Statoil USA Onshore Properties, 2017 U.S. Dist. LEXIS 40870, at *40 (M.D. Pa. Mar. 22, 2017) [other citations omitted].

Grounds for Varying Arguments

The review of the above jurisprudence confirms that there remains a split of authority on whether the discovery rule applies to toll the statute of limitations in breach of written contract actions. Given the unsettled nature of the law, there remains grounds for the defense to oppose the application of the rule as well as grounds for plaintiffs to press for the application of the doctrine.

Until this matter proceeds back up the appellate ladder to the Pennsylvania Supreme Court, it appears that, for the time being, both the bench and the bar will have to continue to grapple with the issue of whether the discovery rule applies to breach of written contract actions.



Daniel E. Cummins is the managing partner at Cummins Law in Clarks Summit, Pennsylvania. Contact him at dancummins@cumminslaw.net. Daniel E. Cummins Jr. is a second-year law student at the University of Virginia School of Law, where he is a member of the Virginia Law Review. He is also the director of operations for the Virginia Law Moot Court Team and a member of the Virginia Law Mock Trial Team.

Reprinted with permission from the September 25, 2025 edition of the Pennsylvania Law Weekly © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Court Finds Medical Malpractice Claim To Be Barred By Statute of Limitations

In the case of Swart v. UPMC Pinnacle Hospital, No. 2020-CV-10091 MM (C.P. Dauph. Co. May 3, 2023 McNally, J.), the Plaintiff appealed a trial court Order which dismissed her medical malpractice Complaint based upon the application of the statute of limitations.

According to the Opinion, the Plaintiff alleged medical negligence relative to hip replacement surgeries. The Plaintiff asserted that the doctor utilized prosthetics that were too short during each of the Plaintiff’s surgeries, causing a painful limp. The Plaintiff also alleged that she consulted a different doctor, who performed a third surgery, and concluded that the prosthetics that the Defendant had implanted were too short and made the Plaintiff’s legs uneven.

In this matter, there was a dispute between the parties as to when the Plaintiff’s cause of action arose.

The Defendants asserted that the latest date that the Plaintiff’s cause of action could have accrued was around July of 2018 when the Plaintiff obtained a third opinion confirming that her hip replacement surgery caused her to have a shorter right leg and corresponding pain.

The Plaintiffs asserted that the discovery rule should be applied such that the accrual of the cause of action would not be until after the third surgery was completed in October of 2018 when the first doctor’s alleged negligence was allegedly confirmed.

The trial court considered the discovery rule and concluded that the Plaintiff’s cause of action accrued no later than July of 2018 as evidenced by the record and the Plaintiff’s own deposition testimony. 

More specifically, the record indicated that the Plaintiff was, at that point, aware of significant harm and a causal connection between the harm and the doctor’s actions, even though the Plaintiff did not have complete knowledge of the injury’s full extent or precise cause of the same. 

The court confirmed that the Plaintiff testified at her deposition with admissions that she knew by July of 2018 that she was suffering pain, leg length discrepancy, and physical limitations after the second surgery and that she believed that the doctor’s surgeries were responsible.

Accordingly, since the Plaintiff filed suit beyond the two (2) year statute of limitations, the court ruled in favor of the Defendants and dismissed the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 22, 2023).

Source of image:  Photo by Anna Shvets on www.pexels.com.

Superior Court Addresses "Inquiry Notice" Doctrine Under Discovery Rule As Applied to Statute of Limitations in Med Mal Case

In the case of DiDomizio v. Jefferson Pulmonary Associates, No. 1999 EDA 2021 (Pa. Super. Aug. 2, 2022 McLaughlin, J., McCaffery, J., and Pellegrini, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in favor of certain Defendants in a medical malpractice case.  The trial court had based its decision upon a statute of limitations defense.

In its ruling, the court accepted the Plaintiff’s argument that the trial court had erred in relying on the case of Rice v. Dioceses of Altoona-Johnston, 255 A.3d 237 (Pa. 2021) to find that the Plaintiff, under the discovery rule affiliated with the statute of limitations analysis, had “inquiry notice” of her injury more than two years before she filed suit, making her action fall outside of the statute of limitations.

According to the Opinion, in essence, "inquiry notice" relates to facts and circumstances that would put a reasonable person on notice to inquire further as to the status of their medical condition and whether a medical error had occurred.   

According to the Opinion, the Plaintiff had a complex medical history during an approximately five (5) year period that caused her to treat with many different types of physicians under an ultimate diagnosis of lung cancer. At the relevant time, the Plaintiff was a woman in her 50s with an approximately thirty (30) year history of smoking who initially went to the hospital because she was coughing up blood. She then began a long course of testing and treating with different doctors.

The Plaintiff eventually filed a medical malpractice action alleging that certain Defendants had misdiagnosed her with a different condition and that the misdiagnosis delayed a cancer diagnosis and thereby limited her treatment options for lung cancer. 

In their defense, the hospital Defendants asserted that the Plaintiff’s claims were barred by the statute of limitations. 

In its Opinion, the Pennsylvania Superior Court reviewed the discovery rule as applied to the statute of limitations and whether or not the Rice case was factually distinguishable since there was, according to the Plaintiff, an issue of material fact as to when she could have been reasonably considered to have had notice of her possible misdiagnosis.

The trial court had accepted the argument of the hospital Defendants that the discovery rule did not toll the running of the statute of limitations because any ordinary, reasonable person who is diagnosed with lung cancer under the facts and circumstances as presented in this particular case, including the fact that the record revealed that the Plaintiff allegedly experienced the signs and symptoms of cancer earlier, possessed sufficient critical facts to put her on notice to make an inquiry of the possible misdiagnosis. 

The Defendants asserted that, since the lawsuit was not filed until more than two (2) years after the Plaintiff was placed on “inquiry notice,” the Plaintiff’s claims were time-barred.

On appeal, the Pennsylvania Superior Court reversed and found that there was much uncertainty about what was reasonable under facts of this case. The court noted that, given the lengthy history of attempted contradictory diagnoses and treatments, the date of accrual for inquiry notice purposes could not be determined as a matter of law by the trial court and that these issues should be left for a jury to decide as to when the Plaintiff reasonably knew of a medical error that could be redressed by way of a lawsuit. As such, the appellate court ruled that the trial court erred in granting summary judgment in favor of the hospital Defendants.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Anthony J. Gabriel of the Camp Hill, Pennsylvania office of Margolis Edelstein for bringing this case to my attention.

Source of images:  Photo by Lucas Vasques from www.unsplash.com.

Proper Jurisdiction for Social Media Defamation Claim Reviewed

In the case of Gorman v. Shpetrik, No. 2:20-CV-04759-CMR (E.D. Pa. March 10, 2022 Rufe, J.), the court addressed jurisdiction issues, and other issues, arising out of a claim of defamation related to online post and tweets that allegedly damaged the Plaintiff’s reputation.

With regard to the jurisdiction issue, the court found that the defendant allegedly directed allegedly defamatory messages to a person within the jurisdiction, with the intent to damage the reputation of another person also in that jurisdiction.  The court found that the defendant had therefore been involved in activity expressly directed at the jurisdiction such that the exercise of personal jurisdiction was proper over the case presented.

Relative to a statute of limitations issues raised by one of the Defendants, the court noted that the limitations period began to run when defamatory material was published.

The court also noted that the Plaintiff’s lack of knowledge as to the Defendant’s identity could not support an application of the discovery rule under the facts presented in this case. 

However, the court found that the Plaintiff had sufficiently pled a claim of fraudulent concealment by alleging that the Defendant had provided false information when registering on the social media platforms on which the allegedly defamatory material was allegedly published. As such, the court allowed discovery on this issue before making a determination as to whether the doctrine of fraudulent concealment could serve to toll the statute of limitations on some of the Plaintiff’s claims in this matter.

The court additionally dismissed the Plaintiff’s claims of intentional infliction of emotional distress after finding that this claim failed because the Plaintiff had not alleged any physical injury connected to or caused by the Plaintiff’s alleged emotional distress.

The court also found that the Plaintiff’s claims for civil conspiracy failed because the Plaintiff had not alleged that all members of the purported conspiracy shared a common purpose, but rather, merely alleged that they took acts that furthered the alleged purpose of the conspiracy.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2022).

Discovery Rule Found Inapplicable in Case of Dismissal of Claim Against PennDOT on Statute of Limitations Grounds

In its non-precedential decision in the case of Rupert v. Campus Crafts, Inc., No. 90 C.D. 2020 (Pa. Cmwlth. Oct. 27, 2021 Jubelirer, Jr., Wojcik, J., and Leadbetter, S.J.) (Op. by Wojcik, J.) (Not Reported/Not Precedential), the Pennsylvania Commonwealth court held that the trial court below had properly determined that the discovery rule did not apply in a Plaintiff’s lawsuit over an automobile accident. The court therefore granted the Defendants’ Motions for Judgment on the Pleadings because the applicable statute of limitations had expired.

This matter arose out of a motor vehicle accident.  As part of the claim, the Plaintiff asserted that PennDOT was negligent in the placement of mirrors on the roadway.  Following the accident, the Plaintiff retained accident reconstruction experts to analyze the claim and in an effort to see if such a claim should be included in the Complaint. 

On appeal in this matter, the Plaintiff asserted that his counsel had acted reasonably and diligently in developing the claim and that, as such, the Discovery Rule was applicable and that the issue of the applicability of the Discovery Rule should have been allowed to proceed to the jury.

As noted above, the Commonwealth Court disagreed and affirmed the dismissal of the action on the basis of the statute of limitations defense.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 16, 2021).

Plaintiff's Claims Not Saved By Discovery Rule; Statute of Limitations Applied

In the case of Tily v. Ethicon, Inc., No. 20-2582 (E.D. Pa. Sept. 8, 2020 Quinones Alejandro, J.), the court granted summary judgment in a claim arising out of allegations of liability due to complaints of years of pain and other complications following a pelvic mesh implant surgery. The court found that the Plaintiff’s claims were barred by the statute of limitations and that the Plaintiff’s claims were not saved by the discovery rule. 

The court found that the Plaintiff failed to prove the applicability of the discovery rule. The record revealed to the court that, had the Plaintiff been reasonably diligent, she would have discussed her years of pain and other complications with her doctor. 

It was also noted that, more than two (2) years before suing, the Plaintiff had attributed her problems to the Defendant’s product and had already undergone revision surgery. 

The court found that, as a matter of law, these facts placed the Plaintiff on notice that she should conduct a further inquiry of her injuries and investigate the cause of the same, which the Plaintiff did not do. 

The court also noted that, despite the fact that there was publicly available information on the implant device, the Plaintiff never sought out more information. 

The court additionally rejected any claims of fraudulent concealment asserted against the Defendant. The court found no evidence in the record of any affirmative acts on the part of the Defendant to conceal from the Plaintiff her right to pursue a recovery. 

Anyone wishing to review a copy of this decision may click this LINK.  The Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Discovery Rule/Statute of Limitations Applied in Products Case

In the case of Kennedy v. Ethicon, Inc., No. 5:20-CV-00185 (E.D. Pa. July 20, 2020 Leeson, J.), the court granted a Defendant’s summary judgment under the two (2) year statute of limitations and after an application and review of the discovery rule.   The case involved a pelvic mesh products liability action.

The court noted that Pennsylvania’s discovery rule tolls the statue of limitations only until an injury is discoverable and can be linked to another person’s conduct.

Judge Leeson noted that the discovery rule is objective and requires that a Plaintiff exercise reasonable diligence in pursuing a claim.

In this matter, it was indicated that the Plaintiff had first learned that her new and unusual pain was caused by something associated with the Defendant’s product more than two (2), and possibly more than four (4), years before she filed suit.  According to the record before the court, the Plaintiff’s treating doctor’s diagnosis had linked the Plaintiff’s injuries to the product.  Given the Court's finding that the Plaintiff had failed to act timely in filing the claim, the case was dismissed.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Third Circuit Reviews Statute of Limitation Issues in Context of Bad Faith Claim (Not Precedential)

In the case of Finegold v. Brooks, No. 19-1495 [Not Precedential] (3d. Cir. Jan. 24, 2020 Jordan, J., Scirica, J, Rendell, J.) (Op. by Scirica, J.), the Third Circuit Court of Appeals affirmed a trial court’s finding that the two (2) year statute of limitations for bad faith action barred this suit where the alleged bad faith conduct occurred in 2011 and the suit was not filed until 2019.

The Third Circuit rejected the Plaintiff’s argument under the discovery rule as well as the Plaintiff’s argument that there was a continuing breach that restarted the statute of limitations.

In this regard, the Third Circuit noted that, in terms of an alleged continuing breach, under Pennsylvania law, the statute of limitations “runs when the first denial occurs, but continuing or subsequent denials do not newly trigger the statute of limitations.”

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Lee Applebaum, the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog and of the Philadelphia law firm of Fineman Krekstein and Harris for bringing this case to my attention.

Third Circuit Applies Statute of Limitations Discovery Rule in Med Mal Context

Should a Plaintiff be charged with knowledge of an injury being the result of a defective product to start the clock running on the statute of limitations where the product was implanted in the Plaintiff's body during a medical procedure?

That was the issue in the case of Adams v. Zimmer US, Inc., No. 18-3011 (3d. Cir. Nov. 20, 2019), in which the Third Circuit Court of Appeals held that the district court erred in granting the Defendant’s summary judgment based upon the statute of limitations in a products liability suit involving a hip implant.  The Court of Appeals ruled that the Plaintiff could not be charged with constructive knowledge of an allegedly defective hip implant where even her own doctor did not realize there was a problem with the implant until the Plaintiff underwent revision surgery.

The Court of Appeals noted that, under Pennsylvania’s discovery rule, the commencement of the limitations period is based upon an inquiry notice, which is tied to some knowledge of some form of significant harm and of a factual cause linking that harm to another’s conduct. The Court noted that the discovery rule does not require notice as to the full extent of the injury, the fact of actual negligence, or the precise cause of the injury.

The court also emphasized that, under the discovery rule, the statute of limitations begins to run when the Plaintiff knew, or in the exercise of reasonable diligence, should have known that she was injured and that the injury was caused by another person. The court noted that, in a medical malpractice context, “diagnostic uncertainty usually creates a jury question.”

The court further noted that the discovery rule does require a patient to have a precise medical diagnosis to start the running of a statute of limitations. Rather, a lay person in the medical malpractice context is only charged with the knowledge communicated to him or her by the medical professionals who provided treatment and diagnosis.

Here, the court found that, if the treating doctor did not realize a problem with the implant that was injuring the Plaintiff until the revision surgery, then the Plaintiff certainly could not be charged with such constructive knowledge. Therefore, given that factual disputes remained regarding the application of the discovery rule to the case presented, the court held that the lower court had erred in granting the Defendant summary judgment.

Anyone wishing to review a copy of this decision may click this LINK.

Judge Nealon Addresses Application of Statute of Limitations Discovery Rule in Med Mal Action

In the case of Monahan v. Reedy, No. 2015-CV-6698 (C.P. Lacka. Co. Sept. 12, 2019 Nealon, J.), the court addressed the application of the statute of limitations discovery rule in the context of a medical malpractice action.  

According to the Opinion, this matter involved a medical malpractice action in which the Plaintiff alleged that the Defendant doctor damaged the female Plaintiff’s ureter during surgery, which gradually led to permanent damage to the Plaintiff’s left kidney such that the kidney had to be surgically removed four (4) years after the original alleged negligence.  

The Defendants filed Motions for Summary Judgment seeking the dismissal of the suit on the ground the lawsuit was barred by the statute of limitations based upon the application of the discovery rule which required that a plaintiff file this personal injury action within two (2) years of the date that the plaintiff knew, or in the exercise of reasonable diligence should have known, that he or she had been injured and that the injury had been caused by the doctor’s negligence.   

The court note that, reviewing the records in light most favorable to the Plaintiff as required by the summary judgment standard of review, the facts revealed that the Plaintiff did not experience any immediate or continuous signs of ureteral injury following the initial surgery and that, as she progressively developed symptoms indicative of such an injury and diminished kidney function through 2012, she was advised by her doctors that the problems were “probably hormonal.”  

After a CT scan was completed three (3) years after the original surgery, which revealed a ureteral obstruction and swelling of the kidney, that interpreting radiologist indicated that these findings could be related to the original surgery.   The Plaintiff provided the CT scan report to her doctor who informed her that the CT scans were unrelated to the surgery and were instead related to other medical conditions.  

The court noted that, prior to the filing of this suit, no other healthcare providers who treated the Plaintiff ever suggested that the Plaintiff’s symptoms or the need for a kidney removal was related to the original surgery.   

Based upon these facts, the court found that there were issues of fact as to whether the Plaintiffs, in the exercise of reasonable diligence, should have ascertained more than two (2) years prior to initiating this lawsuit that the Plaintiff had been the victim of negligence.  As such, the Motions for Summary Judgment were denied.  

Anyone wishing to review a copy of this decision may click this LINK.

Discovery Rule Related to Statute of Limitations Reviewed

The discovery rule pertinent to the statute of limitations was reviewed in the case of Vidra v. Hertz Corp., No. 18-2939 (E.D. Pa. Oct. 4, 2018 Beetlestone, J.)(mem.op.).  

This case arose out of a motor vehicle accident that occurred in 2012.  The Plaintiff, who was pro se, asserted that he had rented a Camaro from Hertz and that, due to a defect in the vehicle, the rental vehicle suddenly accelerated outside of his control and was involved in an accident. 

Two people in the other vehicle involved in the accident died in the accident  The Plaintiff was convicted of homicide by vehicle and sentenced to 22 years in prison. 

The Plaintiff continued to assert a defect with the vehicle and alleged that Hertz did not cooperate in his efforts to uncover the defect.

The Defendants removed the Plaintiff's state court Complaint to federal court and filed a motion to dismiss.

In this matter, the court ruled that it was apparent on the face of the Plaintiff’s Complaint that the statute of limitations had run.   The Plaintiff pled in his Complaint that he had complained about a product defect to the police at the time of the accident, but waited more than six (6) years to file a lawsuit.

The court noted that traumatic injuries from a motor vehicle accident are immediately apparent, triggering a Plaintiff’s inquiry notice, such that the statute of limitations begins to run immediately.   The court stated that, as automobile accidents are specific events, a burden is placed upon the injured party to determine whether the other parties involved in the accident might be liable for any potential injuries.

The court found that an argument of fraudulent concealment did not apply in this matter because, even if the Defendants had refused to respond to the Plaintiff’s inquiries, the Defendants did nothing to cause the Plaintiff to relax his vigilance in determining the cause of his injuries.   

The court additionally noted that silence cannot be considered to be fraud unless there is an affirmative duty to disclose due to a fiduciary or similar relationship between the parties.   In this regard, the court stated that product sellers do not have a special relationship with product consumers in this context.  

Anyone wishing to review of a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm from bringing this case to my attention.

Pennsylvania Supreme Court Rules in Favor of Plaintiffs on the Discovery Rule as Applied to the Statute of Limitations

In the case of Nicolaou v. Martin, No. 44 MAP 201 (Pa. Oct. 17, 2018)(Op. by Baer, J.), the Pennsylvania Supreme Court handed down its latest decision on the application of the Discovery Rule relative to the statute of limitations in a civil litigation matter.

According to the Opinion, sometime in 2001, the Plaintiff was bitten by a tick on her left ankle, after which she developed symptoms. 

This case presented the issue of whether the Plaintiff satisfied the Discovery Rule so as to toll the running of the statute of limitations on their medical malpractice action filed against the Defendant health care providers for failing to diagnose and treat her Lyme's disease. 

The Pennsylvania Supreme Court noted that the Discovery Rule tolls the statute of limitations where a plaintiff is reasonably unaware that she or he has been injured and that her or his injury was caused by the negligence of another.  In this regard, a reasonable diligence standard is applied against plaintiffs.  The Court also noted that the question as to whether the Discovery Rule serves to save a plaintiff's case is generally one for a jury to decide. 

In this matter, the trial court and the Superior Court had both ruled that the Defendants were entitled to summary judgment, holding that the Discovery Rule did not toll the statute of limitations because, as a matter of law, appellants failed to establish that they pursued their action with reasonable diligence. 

The Pennsylvania Supreme Court reversed and held that the determination of whether appellants acted with due diligence under the circumstances presented in this matter was one of fact for a jury to decide.  As such, the entry of summary judgment was overturned and the case was remanded for further proceedings.

Anyone wishing to review this case may click this LINK.

Application of Discovery Rule Compels Court To Grant Summary Judgment Based Upon Statute of Limitations

The discovery rule pertinent to the statute of limitations was reviewed by the court in the case of Adams v. Zimmer US, Inc., No. 17-621 (E.D. Pa. Aug. 14, 2018 Smith, J.). 

In this matter, the Plaintiff had undergone a hip replacement surgery in 2011 and had continuing pain and complications thereafter.  She had a repeat surgery in 2015 to remove and replace the prosthesis.  She filed a products liability suit against the manufacturer for an allegedly defective prosthesis.

The court noted that it felt constrained to grant summary judgment in this matter under the rationale that the Plaintiff’s claims were barred by the statute of limitations and the application of the discovery rule.   In so ruling, the court found that Pennsylvania’s narrow discovery rule tolls the statute of limitations only until the injured party discovers, or by reasonable efforts should discover, the injury and that it was caused by another party’s negligent conduct. 

The court reaffirmed the principle of law that the discovery rule does not require knowledge of tortious conduct, precise cause, or the full extent of injury.  

In this matter, the Plaintiff knew that she had some form of injury before undergoing her replacement surgery.    The Plaintiff’s denial that her doctor told her what appears in his notes is insufficient.  The court stated that insufficient memory does not create a genuine dispute because “I don’t recall” does not rebut affirmative testimony to the contrary on the issues presented.  

The court additionally noted that the Plaintiff’s signed informed consent form mentioning “metallosis” more than two (2) years before the Plaintiff brought suit, satisfied the mandates discovery rule even if the Plaintiff allegedly did not read the consent form.  

The court otherwise held that the discovery rule takes an objective view of what a person in the injured party’s situation knew or should have known under the circumstances presented.   Consistent with the above law, the court held that knowledge that a product is defective is not necessary.  

Anyone wishing to review a copy of this Opinion may click this LINK.  The Court's Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Superior Court Affiims That Discovery Rule Does Not Extend Statute of Limitations in Wrongful Death/Survival Actions (Non-Precedential)

Tort Talkers may recall the prior Tort Talk post on the decision of Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Estate of Marsh v. Lizza, No. 2106-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.) in which the court granted Preliminary Objections of a Defendant in a case where a Plaintiff attempted to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or court and beyond the applicable statute of limitations in this wrongful death and survival action.  

As an update, it is noted that the Pennsylvania Superior Court has affirmed the trial court’s decision in a non-precedential Opinion under the caption of Marsh v. Lizza, No. 532 MDA 2017 (Pa. Super. Feb. 13, 2018 Olson, J., Dubow, J., and Strasberger, J.) (Non-Precedential Mem. Op. by Olson, J.).

Notably, in affirming the trial court’s decision, the Pennsylvania Superior Court agreed that the 2-year statute of limitations applicable to wrongful death and survival actions under 42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, and that the latest date on which the statute of limitations begins to run for wrongful death and survival claims is the date of the decedent’s death.  

Accordingly, the Superior Court found that, as a matter of law, the trial court properly sustained a Defendant’s Preliminary Objections and struck the Complaint.  

 Anyone wishing to review the Pennsylvania Superior Court's Non-Precedential Decision in this case may click this LINK.

Pennsylvania Supreme Court to Address Impact of Facebook Posts on Discovery Rule Related to Statute of Limitations

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court has issued an Order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she suffered from the disease years before filing the suit.  

 

The court has agreed to more specifically address the issue of whether the Plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the Plaintiff “did not and was financially unable to, confirm [the Defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”  

 

Here is a LINK to the Pennsylvania Supreme Court's Order.

 

A split Pennsylvania Superior Court panel previously ruled that the Plaintiff’s claims were barred by the two (2) year statute of limitations.  

 

Source:  Article: “Pa. Justices Agree to Eye Facebook Post’s Impact on Discovery Rule By Max Mitchell of The Legal Intelligencer (Aug. 21, 2017).  

Superior Court Begrudgingly Applies Statute of Limitations Discovery Rule in Limited Tort Context

In its decision from earlier this week in the case of Varner-Mort v. Kapfhammer, No. 261 WDA 2014, 2015 Pa. Super. 14 (Pa. Super. Jan. 21, 2015 Ford Elliott, P.J.E, Allen, and Strassburger, J.J.)(Op. by Strassburger), the Pennsylvania Superior Court addressed the application of the discovery rule in the context of a limited tort case.  In the end, the court reversed a trial court's entry of summary judgment in favor of a defendant.

This matter arose out of a motor vehicle accident that occurred on May 6, 2009.  There was no dispute that the Plaintiffs were covered by the Limited Tort Election.

Over two years later, on June 27, 2011, the husband and wife Plaintiffs filed their negligence personal injury/loss of consortium Complaint. 

In his Answer and New Matter, the Defendant asserted a statute of limitations defense.  The defense later filed a motion for summary judgment alleging, in part, that medical records produced in discovery confirmed that the Plaintiff sought out medical treatment on the date of the accident and was diagnosed with injuries.  The injuries were initially diagnosed as a back sprain with paresthesia (numbness and tingling) to the lower extremity. 

Accordingly, it was the defense position that the injured party Plaintiff was aware of her alleged car accident-related injuries from the date of the subject accident.   The defense also noted that the records confirmed that the Plaintiff continued to treat for low back complaints up through 2011. 

As such, it was the defense position that, pursuant to the applicable two year statute of limitations, the Plaintiffs were required to file their claim by May 6, 2011.  The defense contended that, since the Complaint was not filed until June of 2011, the Plaintiffs' claims were barred by the statute of limitations.

Given the application of the limited tort election, the Plaintiffs countered with the creative argument that, under the discovery rule, the statute of limitations should not be deemed to begin to run until the injured party Plaintiff discovered that she sustained a "serious injury" as a result of the accident.  In this regard, the Plaintiffs argued that the injured party did not have an MRI until August of 2009.  Accordingly, there was an alleged genuine issue of material fact as to when the Plaintiff discovered that she sustained a "serious injury" such that the motion for summary judgment should be rejected and the case allowed to proceed to a jury.

Whereas the trial court in Blair County rejected the Plaintiffs' argument and granted summary judgment on the statute of limitations issue, the Pennsylvania Superior Court accepted this argument of the Plaintiffs and overruled the trial court.

In so ruling the Varner-Mort relied upon the prior similar case of Walls v. Scheckler, 700 A.2d 532 (Pa. Super. 1997), which addressed the same issue and came to the same result, i.e.,  the statute of limitations in limited tort case should be deemed to start to run when a Plaintiff is aware that he or she may have sustained a "serious injury."

The Walls court reasoned that "Since, under the provisions of [Section 1705, the limited tort statute], a limited tort plaintiff does not have a valid cause of action unless and until an injury rises to the level of a 'serious injury,' and since the statute of limitations period does not ordinarily begin to run until a cause of action accrues, we conclude that the statute of limitations period cannot begin to run on a limited tort plaintiff until he knows or reasonably should know that he has sustained the requisite serious injury."  Walls, 700 A.2d at 533-534.

Notably, the Judges deciding this Varner-Mort case stated that, while they were bound to follow the Walls decision as binding precedent, the Varner-Mort majority viewed the Walls decision as being "just plain wrong."  Varner-Mort at p. 7.  The Varner-Mort majority would have preferred to follow the discovery rule in its ordinary application.

This was particularly so given that, regardless of the Plaintiff's tort status, the Plaintiff was still entitled to pursue a claim economic damages, such as wage losses or medical expenses, even if the Plaintiff failed to show that she sustained a serious injury.  The Varner-Mort majority failed to see why a limited tort plaintiff should be treated any differently in terms of the statute of limitations beginning to run when the Plaintiff was aware of her physical injury from the accident at the scene or when it was diagnosed in the emergency room on the day of the accident.

Nevertheless, the Varner-Mort court obviously reluctantly applied the law as stated in the Walls case and ruled that genuine issues of material fact existed as to when the Plaintiff would have been aware that she sustained a serious injury such that the trial court's entry of summary judgment would be reversed and the case remanded for further proceedings.

Anyone wishing to review this Opinion may click this LINK.

President Judge Kate Ford-Elliott's Concurring Opinion can be viewed HERE.  In her Concurring Opinion, President Judge Ford-Elliott noted her agreement with the result and distanced herself from the statement that the Walls decision was wrongly decided.


Judge Minora of Lackawanna County Addresses Statute of Limitations and Discovery Rule in Medical Malpractice Case

In his recent December 23, 2014 Opinion in the case of Peoples v. Philbin, No. 2010-CV-6623 (C.P. Lacka. Co. 2014 Minora, J.), Judge Carmen D. Minora granted certain Defendants a judgment on the pleadings based upon the expiration of the statute of limitations in a medical malpractice case.  

By way of background, this medical malpractice case alleges a failure to timely detect or diagnose the presence of Hodgkin’s Lymphoma.   The Plaintiff filed an original Writ of Summons naming two (2) Defendants and, later, filed Amended Complaints to join two (2) more Defendants after the statute of limitations expired.    

Judge Carmen D. Minora
Lackawanna County

The Defendants who were joined later in the action filed a Motion for Judgment on the Pleadings asserting that the Plaintiff did not file her claim against those particular Defendants within the two (2) year statute of limitations and further argued that, given that the Plaintiff had joined those Defendants more than four (4) years after her diagnosis, the discovery rule was inapplicable to toll the statute of limitations.  

In his Opinion, Judge Minora reviewed the relevant law.  Under Pennsylvania, a cause of action for negligence accrues when the Plaintiff could have first maintained the action to a successful conclusion.   Stated otherwise, in a suit to recover damages for personal injuries, the right to sue generally arises when the injury is inflicted.  

Once a cause of action has accrued and the statute of limitations period has run, an injured party is barred under Pennsylvania law from bringing his action.   Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005).  

As noted by Judge Minora, the Pennsylvania Supreme Court in Checcio emphasized that statute of limitations “are designed to effectuate three (3) purposes:  (1) preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative efficiency and convenience.”   Baselice v. Franciscan Friars Assumption BVM Province, Inc., 379 A.2d 270, 275-276 (Pa. Super. 2005).  

Under the above law, the court found that the actions against the later joined Defendants were barred by the applicable two (2) year statute of limitations.  

With regard to the Plaintiff’s argument to extend the statute of limitations under the discovery rule, the court noted that the purpose of the discovery rule is to exclude from the running of the statute of limitations that period of time during which a party who has suffered an injury is reasonably unaware that he has been injured, in order that that party may essentially have the same rights as those who have suffered a known injury.  

When the discovery rule applies, the statute of limitations does not commence the run at the instant   Rather, the statute is tolled, and does not begin to run until the injured party discovers, or reasonably should have discovered, that he or she has been injured and that his injury has been caused by another party’s acts or omissions.  
the right to bring suit arises, i.e., when the injury occurs.

Judge Minora noted that, while the questions as to when a party’s injury and its cause were discovered or discoverable is typically for a jury, under the circumstances of this matter, where even the discovery period does not sufficiently toll the statute, the court is able to rule, as a matter of law whether the statute of limitations has run on a claim presented. 

More specifically, given that the later joined Defendants were not joined until four (4) years after the discovery of the Plaintiff’s actual condition, (i.e. not within two years of the discovery of the injury), the discovery rule was found not to require a different result.   As such, the court granted the later joined Defendants’ Motion for Judgment on the Pleadings.
 

Anyone desiring a copy of this decision, may contact me at dancummins@comcast.net.