December 15th, 2022 by Rieders Travis in Statute of Limitations

Reibenstein v. Barax, 2022 Pa. LEXIS 1787 (December 12, 2022) (Wecht, J.)  MCARE § 513(d) provides that its two-year limitations period on death actions, which commences upon death, will be tolled when there is an affirmative misrepresentation or fraudulent concealment of the cause of death. Appellee Linda Reibenstein undisputedly brought her claims against Appellant Patrick Conaboy, M.D., after the two-year period had run, and the death certificate undisputedly and correctly noted the medical cause of Reibenstein's decedent's death. The trial court ruled that the phrase "cause of death" refers specifically and only to the direct medical cause of death. Accordingly, it granted summary judgment to Dr. Conaboy under Section 513(d). The Superior Court reversed, interpreting "cause of death" more broadly to encompass considerations associated with the manner of death (i.e., legal cause) in the sense alluded to above. We hold that MCARE's tolling provision cannot bear the breadth of that reading. Accordingly, we reverse.  Decedent Mary Ann Whitman consulted with Dr. Conaboy on April 12, 2010, complaining of a persistent cough, fever, and lower back pain. Dr. Conaboy ordered an aortic duplex ultrasound scan and a CT scan of Whitman's abdominal area, both of…


October 19th, 2022 by Rieders Travis in Statute of Limitations

Venema v. Moser Builders, Inc., 2022 Pa. Super. LEXIS 414 (October 4, 2022) (Pellegrini, J.)  Matthew P. Venema and Liza A. Squires (Appellants) seek review of an order of the Court of Common Pleas Chester County (trial court) awarding judgment on the pleadings to Moser Builders, Inc., d/b/a/ Moser Homes and Moser Homes, LLC, and Moser Construction Management, LLC d/b/a Moser Homes (referred to collectively as "Moser"). In 2019, Appellants filed several claims against Moser alleging that the defective construction of their residence had caused them damages. Moser moved for judgment on the pleadings on the ground that Appellants' claims were time-barred by the 12-year Statute of Repose (42 Pa.C.S. § 5536) for actions concerning construction defects. The trial court granted Moser's motion and dismissed Appellants' complaint with prejudice. Appellants now argue that their complaint was timely filed because the Statute of Repose period was tolled by Moser's ongoing repairs to the residence. We affirm. Appellants cite no cases or statutes (and we find none) supporting their contention that Moser's repairs to the residence delayed the completion of the residence's construction or tolled the Statute of Repose period. Rather, our Supreme…


August 25th, 2022 by Rieders Travis in Statute of Limitations

Kornfeind v. New Werner Holding Co., 2022 Pa. LEXIS 1172 (August 16, 2022) (Mundy, J.)  This case says that 42 Pa.C.S. § 5521(b) does not apply where the accident happened in Illinois but lawsuit was initiated in Philadelphia.  Claim means any right of action which may be asserted in a civil action or proceeding.  The Supreme Court agreed with the lower court that the uniform statute of limitations on Foreign Claims Act does not require the application of a foreign jurisdiction statute of repose.  Statute of repose is substantive; statute of limitations is procedural.  Therefore, the order of the Superior Court that affirmed the trial court denying a motion for summary judgment was likewise affirmed by the Pennsylvania Supreme Court.


August 24th, 2022 by Rieders Travis in Statute of Limitations

Didomizio v. Jefferson Pulmonary Assocs. & Asthma Allergy & Pulmonary Assocs., P.C., 2022 Pa. Super. LEXIS 323 (August 2, 2022) (Pellegrini, J.)  Gilda DiDomizio (DiDomizio) appeals from the order entered in the Court of Common Pleas of Philadelphia County (trial court) granting reconsideration and entering summary judgment in favor of Jefferson Pulmonary Associates and Asthma Allergy and Pulmonary Associates, P.C., Thomas Jefferson University Hospital, Jefferson University Physicians and Sandra B. Weibel, M.D. (Hospital Defendants). She argues that the trial court erred in relying on Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237 (Pa. 2021), to find she had "inquiry notice" of her injury in 2015 making her action fall outside of the statute of limitations. We reverse. On August 15, 2017, DiDomizio commenced a medical malpractice action by writ of summons against the Hospital Defendants, filed her complaint on November 20, 2017, and the amended complaint on January 28, 2018. The amended complaint claimed that the Hospital Defendants misdiagnosed her with sarcoidosis, and this misdiagnosis delayed the cancer diagnosis and limited her treatment options. She maintains that it was not until she sought a second opinion at HUP in 2016…


August 22nd, 2022 by Rieders Travis in Statute of Limitations

Coello v. Dileo, 2022 U.S. App. LEXIS 21820 (3rd Cir. August 8, 2022) (Ambro, C.J.)  Yasmine Coello, convicted of harassment in 2007, succeeded over a decade later in having that conviction vacated. Only then did she file this civil rights action to recover for various abuses suffered during her criminal proceedings. The District Court dismissed most of her claims, concluding that Coello waited too long to bring them. In this appeal we decide when Coello's filing clock began to run. The District Court held that it started at the time of her criminal trial and sentencing, when Coello first had reason to know of her alleged injuries. If so, her over-ten-year delay in bringing suit bars this action. According to Coello, however, that holding ignores the special timeliness rules governing her precise claims. Relying on Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), she argues that her claims all imply the invalidity of her criminal prosecution, such that she could not file suit until her conviction was vacated. If she is right, then her lawsuit was timely. Because we agree with Coello…

Statute of Limitations

July 23rd, 2019 by Rieders Travis in Statute of Limitations

STATUTE OF LIMITATIONS-PROTECTION OF VICTIMS OF SEXUAL VIOLENCE OR INTIMIDATION ACT K.N.B. v. M.D., 2021 Pa. LEXIS 3611 (September 22, 2021) (Wecht, JJ.).  The main question in this appeal is whether a petition seeking a protective order under the Protection of Victims of Sexual Violence or Intimidation Act ("PVSVIA") is subject to the two-year statute of limitations governing certain enumerated civil actions or the six-year catch-all statute of limitations that applies to non-enumerated actions. Because we conclude that the six-year limitations period applies, we affirm. The Appellee in this case, K.N.B., was a freshman at Clarion University in 2015. K.N.B. claims that a fellow Clarion student, M.D., sexually assaulted her in September 2015. K.N.B. initially did not report the assault to the police. Only after seeing M.D. at a Walmart in early 2018 did K.N.B. report the assault to the Clarion University Police Department. By this time, K.N.B. was no longer a student at the University. In sum, we conclude that petitions filed under the PVSVIA are subject to the six-year catch-all statute of limitations. We also hold that the PVSVIA's continued risk of harm element does not require trial courts to evaluate…


November 28th, 2017 by Rieders Travis in Statute of Limitations

Shifflett v. Lehigh Valley Health Network, Inc., et al., No. 2293 EDA 2016 (Pa. Super. Nov. 9, 2017) Solano, J.  Lehigh Valley Health Network and Lehigh Valley Hospital appeal from the judgment against it on a general damage verdict of $2,391,620.  The appellate court concluded that the second amended complaint pleaded a new cause of action for vicarious liability against Lehigh Valley for the negligent actions of a nurse that did not appear in the plaintiff’s first amended complaint.  This new cause of action was barred by the statute of limitations. Because the verdict returned was general as to damages, it is not possible to tell what damages were awarded because of this error and therefore the case was sent back to the trial court for a trial on damages.  The lower court said that the amendment to the complaint after the statute of limitations ran was merely an amplification of prior pleading.  The court rejected this.  This is a warning to counsel not to rely upon amplification when attempting to amend a complaint after the statute of limitations runs.  The amended complaint added claims of improper medical treatment after…


August 3rd, 2017 by Rieders Travis in Statute of Limitations

Blanyar v. Genova Products, 2017 U.S. App. LEXIS 11685 (3rd Cir. June 30, 2017) Vanaskie, C.J.  Under Pennsylvania law, the statute of limitations for a medical monitoring claim is two (2) years.  The discovery rule tolls the statute of limitations during the plaintiff’s complete inability, due to facts and circumstances not within his control, to discover an injury despite the exercise of due diligence.  The statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable diligence, should have known:  (1) that he has been injured; and (2) that his injury has been caused by another’s conduct.  Plaintiff must use all reasonable diligence to inform himself or herself of the relevant facts.  In a medical monitoring case, the injury occurs when plaintiff is placed at a significantly increased risk of contracting a serious blatant disease.  Thus, for the discovery rule to apply appellants must not have known and reasonably could not have discovered the dangers of chemical exposure two (2) years before the filing of their complaint.  Because none of the appellants have alleged that they have suffered any ill effects due to their work…


July 24th, 2017 by Rieders Travis in Statute of Limitations

Application of the Minor Tolling Statute and the Statute of Limitations in a Sexual Abuse Case S.J. v. Gardner, 2017 Pa. Super. LEXIS 511 (July 11, 2017) Stevens, P.J.E.  S.J., a minor, by and through her guardians, B.J. and C.J. (collectively “Appellants”) appeals the order entered by the Honorable Angela R. Krom of the Court of Common Pleas of Franklin County, granting Appellee Calvin M. Gardner’s cross-motion for summary judgment and dismissing S.J.’s civil action for damages caused by the sexual abuse perpetrated on her by Appellee. Appellants specifically contend that the trial court erred in finding S.J.’s action was time-barred and that the Minority Tolling Statute did not toll the relevant statute of limitations. We reverse the order granting summary judgment and remand for further proceedings.  Appellants argue that the trial court incorrectly found that S.J.’s parents, who filed this lawsuit on S.J.’s behalf, could not invoke the protection of the Minority Tolling Statute and were still required to comply with the two-year statute of limitations applicable to intentional torts. The trial court suggested that the statute must only be applied to allow minors to wait until they reach…


January 26th, 2016 by Rieders Travis in Statute of Limitations

The Statute of Limitations for the Wire Tap Act Is Two Years McCulligan v. Pennsylvania State Police, 123 A.3d 1136 (Pa. Cmwlth. 2015).  McCulligan alleges that detectives and others intentionally violated the Wiretapping and Electronic Surveillance Control Act during the course of an investigation leading to the plaintiff's incarceration.  Preliminary objections were sustained, and the petition for review was dismissed. The action under Section 5725 of the Wiretap Act is barred by the statute of limitations.  The statute of limitations is two years.  Two-year period commences after the plaintiff learned of the alleged unlawful wiretapping.  It was more than two years in this case.  Therefore, the case was properly thrown out.