STATUTE OF LIMITATIONS-NEGLIGENCE-MAINTENANCE OF STORM WATER MANAGEMENT SYSTEM PREVENTING RUN-OFF

April 4th, 2019 by Rieders Travis in Statute of Limitations

Kowalski v. TOA Pa. 2019 Pa. Super LEXIS 281 (March 27, 2019) Bowes, J.-The Superior Court affirmed the entry of judgment on trespass claim against Condo Association, reversed the order of nominal damages and remanded for new trial as to the damages on the Condo Association’s cross claim against TOA. Brian Kowalski owned property downhill from Liberty Hill’s Condominiums. Mr. Kowalski sued for surface water run-off. Mr. Kowalski said that the trial court erred in concluding that his breach of contract and negligence claims were barred by the statute of limitations. The trial court’s termination that the breach of contract claim expired in 2011 and was therefore barred by the four year statute of limitations was sustained. Likewise, the two year statute of limitations for negligence was sustained. The record did not evidence a permanent change or permanent injury to Mr. Kowalski’s property as the result of the increased surface water flowing from the Liberty Hills Development. The Superior Court affirmed the trial court’s entry of judgment against the Condo Association because of a continuing trespass that included an overflowing pond they didn’t do anything about. The trial court determined…

STATUTE OF LIMITATIONS-ARBITRATION

March 27th, 2019 by Rieders Travis in Statute of Limitations

Morse v. Fisher Asset Mgmt., LLC, 2019 Pa. Super. LEXIS 244 (March 15, 2019) Murray, J.-Dismissal of an arbitration action for statute of limitations purposes was proper. There was no stay where the court had previously granted POs. When the complaint was filed in 2009, appellant could have sought enforcement of the arbitration agreement by filing POs or Petition to Compel Arbitration. If the Petition to Compel had been filed, and the court granted it, the matter would have included a stay of proceedings. However, appellees filed preliminary objections seeking dismissal. The court agreed with appellees that when the court sustained the POs and dismissed the complaint in 2009, the action was not stayed. No appeal was filed either.  

STATUTE OF LIMITATIONS-FAIR DEBT COLLECTION PRACTICES ACT-VIOLATION OCCURRENCE

May 29th, 2018 by Rieders Travis in Statute of Limitations

Rotkiske v. Klemm,  No. 16-1668 (3d Cir. May 15, 2018), Hardiman, C.J. This appeal requires us to determine when the statute of limitations begins to run under the Fair Debt Collection Practices Act (FDCPA or Act), 91 Stat. 874, 15 U.S.C. § 1692 et seq. The Act states that “[a]n action to enforce any liability created by this subchapter may be brought in any appropriate United States district court . . . within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). The United States Courts of Appeals for the Fourth and Ninth Circuits have held that the time begins to run not when the violation occurs, but when it is discovered. See Lembach v. Bierman, 528 F. App’x 297 (4th Cir. 2013) (per curiam); Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009). We respectfully disagree. In our view, the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.” 15 U.S.C. § 1692k(d).

STATUTE OF LIMITATIONS-VICARIOUS LIABILITY-AMENDMENT OF COMPLAINT-AMPLIFICATION

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…

STATUTE OF LIMITATIONS-MEDICAL MONITORING CLAIM-TOLLING

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…

STATUTE OF LIMITATIONS-MINORS TOLLING STATUTE-SEXUAL ABUSE

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

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 the age of majority (eighteen years old) to file such an action in their individual capacity…

STATUTE OF LIMITATIONS-STATUTE OF REPOSE-RIGHT TO FARM ACT

April 22nd, 2016 by Rieders Travis in Statute of Limitations

Gilbert v. Synagro Cent., LLC, 131 A.3d 1 (2015).  This case involved interpretation of Right to Farm Act where a biosolid had been placed on farmer's property.  The trial court, not the jury, is entitled to determine the applicability of whether the statute is one of repose.  The Act permits a nuisance action be brought within one year after a certain event occurs, after the defendant has acted, regardless of when the harm is alleged to have occurred.  This operates as the statute of repose.  Statutes of repose generally are jurisdictional and the scope is a question of law for the courts to determine.  The court found application of biosolids is a normal agricultural operation.  The trial court was within its province in determining the applicability of the statute where application of biosolids was the cause of complaint.  It was to be interpreted as the statute of repose.  Nuisance claims are therefore barred by the statute of repose and summary judgment

STATUTE OF LIMITATIONS-WIRE TAP ACT-TWO YEARS

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

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.

STATUTE OF LIMITATIONS-INDIVIDUALS WITH DISABILITIES EDUCATION ACT

December 10th, 2015 by Rieders Travis in Statute of Limitations

The statute of limitations under the IDEA requires parents to file a due process complaint no more than two years after the parents knew or should have known about the alleged deprivation; that is, within two (2) years of the reasonable discovery of that violation.  The court concluded, after careful consideration, that the statute reflects a 2-year filing deadline for due process complaint after reasonable discovery of an injury and the statute neither imposes a pleading requirement nor in any respect alters the court's broad power under the IDEA to provide a complete remedy for the violation of the child's right to a free appropriate public education.  G.L. v. Ligonier Valley School District Authority, 802 F.3d 601 (3rd Cir. 2015).

STATUTE OF LIMITATIONS-SEXUAL MISCONDUCT

October 29th, 2015 by Rieders Travis in Statute of Limitations

An appeal was taken from dismissal of sexual battery claim.  In the Court of Appeals, it was urged that the discovery rule tolled the statute of limitations for federal claims and that Pennsylvania's longer statute of limitations for childhood sexual abuse should have applied to the sexual battery claims.  Without the discovery rule, civil redress would be unavailable to those victims of child pornography who are unaware during the statutory period of the distribution of visual depictions of their sexual abuse.  Congress intended Section 2255 to create a remedy for those victims.  The structure and text of Section 2255 supports recognition of the discovery rule for the claims.  Nevertheless, the federal claims are not preserved.  Unfortunately the victim was aware for more than two years of the infliction of the injury and the person who did it.  The victim did not bring suit until after the 6-year statute of limitations had expired, and also more than three years after the victim became an adult.  Therefore the discovery rule did not aid him at all.  New York law does not help the victim either.  Stephens v. Clash, 796 F.3d 281 (3rd…