*1 A.2d STEIN, parents guardians, Eric a minor his natural Stein, Raymond his and Dolores A. wife and Dolores A. Stein, husband, right Raymond in their own Stein and her
v. E. RICHARDSON James v. HOSPITAL.
The WASHINGTON STEIN, parents Appeal of a minor his and natural Stein, guardians, Raymond his wife. Stein and Dolores STEIN, guardians, parents and minor his natural a Stein, Raymond and Dolores A. his wife and Dolores A. Stein, husband, right Raymond their own Stein and her HOSPITAL v. The WASHINGTON James E. RICHARDSON. STEIN, parents
Appeal his and natural of Eric minor Stein, guardians, Raymond wife. Stein and Dolores his Pennsylvania. Superior Court of 23, 1981. Argued April Filed July *4 Conflenti, Franklin E. for Pittsburgh, appellant. Jordan, IV, Richardson, Pittsburgh, appellee.
John W. for Keller, Washington, Washington Hospital, Charles C. appellee. CERCONE, PRICE, Judge,
Before President and SPAETH, HESTER, CAVANAUGH, WICKERSHAM, MONTEMURO, JOHNSON, POPO- WIEAND,
BROSKY, SHERTZ, JJ. VICH, and DiSALLE BROSKY, Judge: of the trial from the order appeals
Eric Stein
Richardson,
of James
the preliminary
granting
and
Hospital, appellee,
M.D.,
Washington
and
appellee,
pleadings
for judgment
a motion
granting
con-
involved in this case
question
The primary
Hospital.
to the statute of limita-
rule as applied
cerns the
upon
cases and
burden
medical malpractice
tions in
of his
where
nondiscoverability
plead
plaintiff
after the injury
than two years
more
brought
the action is
to our decision
prior
contends that
Eric
was inflicted.
Stein
(1978)
Raymond, That it was contending: filed preliminary objections ly filed and writ of summons by Raymond from the apparent and their the child was a therefore party Dolores Stein that were not barred the statute actions and that of Eric Stein that Richardson had of limitations. also asserted They of the statute of the affirmative defense raised improperly not it as an affirmative defense raising limitations by asserted pleadings “new at no time in their They matter.”3 until some date on or was nondiscoverable 29, 1976. after 1976 or August July for on the argument the cases The trial court consolidated and foregoing pleadings upon motions presented judgment pleadings. motion for Hospital’s objec- and the Hospital’s preliminary sustained Richardson’s (repealed) 12 P.S. § 1. Act of June P.L. § 5524(2). replaced by 42 Pa.C.S.A. § against joined filed it and the in the case 2. Richardson Hospital joined The cases were consolidated Richardson in its case. appeal. for trial and on 1030—“NewMatter”—states Rule of Civil Procedure except in “New Matter” all affirmative defenses must be raised statute of limitations which the defenses of statute of frauds and previously sustained. raised demurrer and IWatter RULE 1030. New defenses, including but not limited to the defenses All affirmative satisfaction, award, discharge in arbitration and of accord and consideration, fraud, duress, estoppel, ille- bankruptcy, gality, license, failure of laches, suit, performance, impossibility immunity from and, release, judicata, unless payment, and waiver res sustained, previously the defenses of stat- raised demurrer and limitations, pleaded shall be in a and statute of ute of frauds party heading responsive pleading “New Matter”. A under the any may material facts which are not new matter other set forth as preceding pleading. merely denials of the averments added.) (Emphasis on motion for judgment tions and granted Hospital’s *6 the of Eric Stein was held that action pleadings. by Eric appeal the of limitations. This barred statute by Stein, alone, followed. are on essen- They are raised questions appeal.
Several 1. Whether trial court decided correctly tially: light unavailability had run of statute limitations time before the decision in at the of argument of our Acker 2. of the language trial court? Whether the mandatory that required of Civil Procedure Rules Pennsylvania be raised by affirmative defense of statute limitations matter, rendering new therefore preliminary 3. Wheth- and the by improper? raised Richardson that causes of er the trial court determined properly was a raised Stein and Dolores Stein action Raymond that of action from raised by and distinct cause separate any the lower court had to authority Eric Whether Stein? the plead- on judgment motion dispose Hospital’s continued to when outstanding preliminary objections ings improperly order dis- 5. Whether the trial court’s exist? with along cause raised the parents missed the of action that raised Eric Stein? involve interre- three raised Eric Stein
The first claims limitations argu- statute of involving lated contentions all a three claims as ments. We will discuss Stein’s first group.
I. in Acker established that our decision Eric Stein contends of limitations in statute a more lenient interpretation that essentially, He argues prior cases. malpractice medical required courts that to our decision Acker his action commence action in a to malpractice plaintiff injury at which the was of the date years within two have should been was discovered or if injury inflicted of the actual date injury. within two years discovered his on December born Eric Stein thus, he be same would day, inflicted that on allegedly action 1977 if prior to commence his to December obliged have he discovered or should discovered the cause of his to December 1977.4 if the prior injury Alternatively, was discovered or should have been discovered after injury December 1977 then Eric would have two years his action. Eric discovery bring from the date Acker decision of this court changed Stein contends that the two this and permitted years analysis entirely without regard from the date of the of his Thus, argues when it was discovered. not available for his use at because the Acker decision was he discovered trial5 that he did not quite logically plead their his on the date his filed writs of parents *7 16, because, summons in November to have trespass, not brought done so would have barred his claim which was until 1978. the law in pre-Acker Pennsylva- contends that dissenting
nia was stated in Price’s to Judge opinion clearly in Acker in which Price wrote: Judge majority opinion has without the “dis- majority adopted qualification statute of limita- rule in covery” applying applicable the somewhat tions. In so have stretched doing they elastic law in applicable Pennsylvania. rule of heretofore of breaking point Whether this is stretching beyond is, the elastic or not I for our suppose, ultimately Supreme now, I for to view however, Court. For must dissent my complaints were without 4. In the filed Eric Stein his listed regard argument they any regarding to the date on which trauma; (a) (b) injuries discovered as: to his central nerv- cerebral (d) peripheral system; (c) palsy; learning ous and nervous cerebral tissue; disabilities; (f) (e) injuries spasticity to his brain and cortical muscles, (h) joints; (g) impaired speech; impaired in his tissues and abilities; learning (i) aggravations of the and/or activation above injuries; (j) personal injuries. referred various other questionable proposition. argument was held in the 5. This is a Oral 1978. While the Acker decision did not below on December appear Publishing Company in sheets until Janu- the West advance Thus, 1, 1979, ary on 1978. the decision was decided October not, however, opinion We do was available as of October 1978. a new standard which would hold that our Acker decision articulated presented have affected the case below. early reading majority the elastic snapped my opinion. this fraud and purpose appeal of
Accepting or concealment, passive, part appellees active and or the unknowable diligence inherently reasonable remains, nature for the fact injury appellant, on uncontroverted, discovered the appellant injury 15 months the Novem- 9,1973, prior August period ber 1974 run date of the statute. removal months to the run date of the some 13 eye prior case in that extends the Pennsylvania statute. I find no My statute convinces reading under such circumstances. law exten- me that the present permits if could not sion of be discover- only the statute the time period, within or fraud diligence ed reasonable injury during peri- covered the the time concealment od. 224-225, at 393 A.2d Palena,
Acker v. supra, Pa.Superior has Judge misinterpreted at We believe Price’s view. DeBourke, Donnelly Price stated
Judge 826, 829 (1980): 421 A.2d notes, situations, true, It is certain appellant as not run on the date begin of limitations does statute occurs, rather on the date the event but injury-causing have should been “discovered.” reasonably or *8 include medical malpractice These situations exceptional 282, (1959), 154 788 cases, v. 397 Pa. A.2d Ayers Morgan, 581, 267 407 v. Hospital, Pa.Super. Puleo Broad Street A.2d 394 . . . that the statute
Thus it is clear that his view is commences have run is or should been discovered. injury when the took the Acker, position In Price Judge certainly it was been discovered date that should have injury in Acker with disagreement majority inflicted. His not to principles upon went to the facts in case The interpreting rule is based. decision which discovery cases have malpractice present- rule in medical years. ed a view for many consistent
133 The rule” was “discovery adopted our Supreme Court 282, 289-290, v. 397 Pa. Ayers Morgan, 788, 154 A.2d 792 (1959) (hereinafter It Ayers). said:
Both the defendant and the lower court have apparently misevaluated the specific wording 24, the Act of June 1895. It seems they regard crucial words as reading: * * * suit “Every must be within two brought from years the time the act was committed.” statute, The however, that the suit must says be within two “brought from years the time when the was done.” The is done when the act heralding tort inflicts possible a damage which is objective and physically ascertainable. rule” has been “discovery applied in numerous mal
practice cases since Ayers.
Larzelere,
See: Schaffer v.
410
402,
Pa.
vania, 840-841 F.Supp. (E.D.Pa.1968):
The Pennsylvania Supreme Court has held that
statute of limitations in a personal injury malpractice case
does not
begin
run until the plaintiff or injured party
either is aware or
should be
reasonably
aware of the harm
he has suffered.
In
Ayers
397 Pa.
Morgan,
A.2d 788 (1959), the rule was applied to a sponge left in
abdomen
complainant’s
an ulcer
during
operation.
The source of
which
pain
the complainant suffered was
not discovered for nine
In
years.
Larzelere,
Schaffer v.
134 effect,
In rule Pennsylvania “discovery” delays of of the accrual the cause action from time a time the injury conduct to when negligent defendant’s or It caused that conduct becomes known knowable. is, rule benefit the plaintiff. a intended to obviously, rule has been praised: fairness of the where which result injustice might “Avoidance * * * is at the time ‘inherently unknowable’ seem mo- conduct would of greater defendant’s ment than the administrative desirability respose * * * burden on courts probably expediency [t]he ‘in- increased, for the number of unduly would not be be would necessarily unknowable’ herently Law: of Limita- small.” Statutes Developments tions, 1177, (1950). 1204-5 63 Harv.L.Rev. See, e.g., other courts. approved by
The rule has been
L.Ed.
163,
1018,
v.
337
69
93
Urie
U.S.
S.Ct.
Thompson,
368,
Caldwell,
v.
Mich.
1282
Johnson
371
(1949) (silicosis);
* * *
trend
has been
785,
(“The
791 (1963)
123 N.W.2d
* *
*
Larson, 82
”);
rule’
v.
Agnew
toward
the ‘discovery
(1947).
135 will TARIFF Judge ute limitations start to run. Harry of the Court of Common Pleas of has recent- Philadelphia rule, set excellent forth an statement of the as follows: ly have with the Ayers’ progeny struggled primarily question of reasonableness of conduct in at- plaintiff’s level of taining appropriate cognitive knowledge which a lawsuit. With ultimately prompts timely question of “reasonableness” as a constant qualification law, the decisional running through principle emerges that three independent phases knowledge must be known or knowable to before the plaintiff (1) limitation commences: of the period knowledge inju- ry; (2) knowledge of the cause of the operative injury; and (3) of the causative knowledge relationship between and the conduct. injury operative also, We have held that an which quite logically, injury discovered, but is initially not as such because of appreciated assurances will be by physician completely in time, remedied will toll the statute of limitations. The statute will commence to run once the only plaintiff should discover that is not v. reparable. Barshady Schlosser, 313 Pa.Super. (1974) (HOFF A.2d 296 MAN, Opinion Reversal), also, see Support Anthony Koppers, supra.
Thus, the decisional law in since Pennsylvania Ayers has held that the statute of limitations does not consistently commence to run until the discovers or should have discovered his Our decision Acker did not work an injury. expansion application court’s of the .6 rule” in medical “discovery cases Eric malpractice was obliged to his action within two bring years date of his discovery injury. Malpractice, Williams, Medical 6. See Louisell and Published 13.07, “discovery jurisdic- for a discussion of the rule” in other § Brazener, When statute of limitations commences to run tions. And against malpractice leaving foreign actions based on substances in patient’s body, general 70 A.L.R.3rd for a discussion of the dis- covery rule. herein, is entirely procedural. the dispute, Accordingly, sustained Rich- trial court have is: Should question objections, preliminary and the Hospital’s ardson’s motion Hospital’s have granted should the court pleaded by of the facts light on the pleadings, judgment of his injury? his regarding II. 446, 448-449, 420 S., of D. L.
In the Matter
we said:
A.2d
disposition
preliminary
court’s
hearing
*11
“The
which states:
1028(c)
No.
is
Pa.R.C.P.
governed by
objections.
all preliminary
promptly
court shall determine
take evidence
raised, the court
If
fact is
shall
an issue of
added). Luit
(emphasis
or otherwise.”
depositions
530,
Pa.
137
court must apply
of review which this
The standard
proper
whether
determining
preliminary
is
Control Board
Pennsylvania Liquor
sustained
found
ly
Inc.,
42,
We have held
Clouser
Shamokin
361 A.2d
that:
In
whether a demurrer should be sustained
determining
the question presented
and the
dismissed
is
complaint
whether,
averred,
facts
the law
with certainty
says
v. U.
Corp.,
that no
S. Steel
recovery
possible: King
Lawler,
(1968);
Pa.
ment on
is identical to that which
use to
pleadings
review
a demurrer.
v.
Engel
Parkway
sustaining
(1970);
Richardson to responded complaint in the form of a motion with preliminary claim Eric arose out of strike. He asserted that the dur- committed Richardson allegedly alleged malpractice of 1975 and December of between March period ing such, asserted that must be complaint 1975. As he of limitations. Richard- dismissed as it is barred statute to the complaint. son then filed a demurrer to the filed it in complaint against The Hospital responded in the form of mo- Preliminary objections similar fashion. a demurrer were filed contending tion to strike and was barred the statute of limita- complaint Stein’s also filed an answer to the complaint tions. The Hospital raised in the filed allegations complaint which it denied defense of statute of it and raised the affirmative against matter. The then prayed limitations new it action be dismissed. brought against the cause of Richardson’s preliminary objec- responded Steins manner. following tions in the of law. of further By way 4. Denied as a conclusion answer, aver that it was the obvious intention of plaintiffs ac- then counsel to commence the instant this plaintiff’s tion on behalf of the minor defendant plaintiff. fact and as such the statute of limitations well of this [sic] to the minor cause of action plaintiff’s upon was tolled as writ of the aforesaid of summons. praecipe filing law. further as a conclusion of By way Denied well answer, aver that since defendant was plaintiffs action, cause of the inclu- plaintiff’s aware of the minor the minor a cause action on behalf of sion of to an filed did not amount plaintiffs complaint all, reflected the natural inten- merely amendment at but Moreover, the defendant tions of then counsel. plaintiff’s minor at the had full knowledge plaintiff’s and, therefore, of this action time commencement *13 resulted to the defendant no whatsoever prejudice aforesaid. filing complaint matter, new Hospital’s In to the Steins response of cause actions preserved contended that Stein’s Dolores a writ of summons by Raymond filing on November objections, In to the response Hospital’s preliminary answered: Steins law. of further
4. Denied as a conclusion of By way answer, aver it was then plaintiffs’ plaintiffs intention when this lawsuit commencing counsel’s obvious a cause of action for the minor to include by praecipe was well aware of then plaintiffs’ and defendant and of the minor plaintiff’s injuries counsel’s intention action, therefore, defendant is now and resultant cause of the bar of the statute of limita- asserting from estopped and resultant cause tions to the minor plaintiff’s is now from as- action, therefore, estopped defendant statute of limitations to the minor the bar of the serting cause of action. plaintiff’s of law. of further way
5. Denied as a conclusion By and aver that answer, parent believe plaintiffs of the minor independent cause of action is plaintiffs’ is, filed and cause of action and was plaintiff’s timely therefore, this defendant. against viable legally objections response The then filed preliminary Steins in which the Hospital’s preliminary objections Steins pleaded contended that the the affirma- Hospital improperly tive defense of statute of limitations by way prelimi- raised the defense in its nary objection. pre- form of a demurrer and simulta- liminary filed in new it matter. neously
It is pleadings improp clear that Richardson’s er. Rules of Procedure require Civil affirmative defense of statute limitations be pleaded by of new matter Pa.R.C.P. 1030 where a non way excepting 1017(b)(4). waivable statute is Pa.R.C.P. pleaded. ap plicable statute of limitations instant case is waivable have been in new Ac pleaded and therefore must matter. the decision of the we must reverse trial cordingly, *14 140 Richardson and re- complaint against
dismiss Eric Stein’s
with
Ziemba
opinion.
mand for
consistent
this
proceedings
179,
v.
(1969);
v.
Pa.
In Puleo v. Broad Hospital, Street 407 A.2d we said: rule of law is that cause action for applicable does not accrue until malpractice discovery injury or at have injury such time as the should been reasonably Larzelere, discovered. 189 A.2d Schaffer however, failed to plaintiff’s pleadings, aver that had been other than injury his discovery with after the immediately performance simultaneous or Therefore, on the surgery. judgment pleadings favor of was entered. defendant-appellees properly
It is certain that at no time in the did the pleadings Steins assert that were unable to discover the injury or they could not have been able discover until some time after Eric birth on December Stein’s Accord satisfied, are after a we review of the ingly, pleadings in the instant case that the trial court never presented was. with facts confronted was any indicating discovered at such a time as would bring complaints filed within the of limitations It is clear that the period. statute face, on its which complaint presented, contained no facts Thus, would indicate that the claim could be we sustained. are satisfied that the motion for judgment pleadings sustained. brought by properly alternative, an presents argument, Stein which he that his need not have asserted pleadings contends the writ of claim under the rule because any November summons filed on parents, as such as a party, by necessity incorporated not barred the statute of claim raised him is any limitations. to this responded argument The trial its when it stated: opinion counsel plaintiffs’ present
After a change attorneys, *15 filed one on behalf of the minor and complaints, plaintiff In the interim be- the other on behalf of his parents. the of the filing tween the of the summons and filing the of limitations had run. complaint, statute states the 2228(b) correctly Goodrich-Amram 2d Sec. law as follows: alone, the minor
“Where a an action parent brings cannot be after the of Limitations has joined Statute expired. The minor’s claim barred.” We the trial court is hold that the analysis presented by Nickel, In correct. Gould v. 268 407 A.2d Pa.Super. we said: The claim to us is of only argument presented was “derivative” of the conduct of their minor parents son, inconsistent, so that compelling the verdicts grant of a new trial. The lower court rejected this Little, 407 Pa. argument of Meisel authority 180A.2d 772 Rule of Procedure (1962). Pennsylvania Civil 2228(b)1 provides: death,
If an
not
is inflicted
injury,
resulting
upon
minor,
of
person
a
and causes of action therefore accrue
to the minor and also to the
or
parent
parents
minor,
shall be
in one action brought
enforced
they
by
or
and the child. Either
parent
parents
parent may
both;
sue
if the
live
parents
therefor in the name of
but
the action shall be
apart
brought by
parent having
and the control of its services.
child
custody
Our case law
establishes that while the cause of
clearly
tried,
action
remain
be
to be
may
required
jointly
they
distinct causes
action.
Meisel v. Little,
See
supra;
1);
Dellacasse v.
Thus, it is clear that the of action by cause brought the Stein parents separate and distinct from an action brought The filed complaints Stein. distinct causes of action for parents the Stein Stein. procedural the claims be tried requirement jointly doesn’t, therefore, give to the any validity argument raised Stein that the claim Eric parents Stein must implication and of have been filed when the necessity parents filed writs of The trial their summons. court cor rectly reasoned that the filed in behalf complaint of Eric a Thus, cause of action. represented separate the trial that the claim Eric properly held Stein was properly barred by the statute of limitations. See Frishberg v. Ro sen, 65 (1974); D&C 2d 652 (2d) Goodrich-Amram 2232(c):3. § a proof upon burdens placed plaintiff
medical malpractice dispute, should seek to argue that his action is not barred the statute of limita *16 tions, is to plead injury was not discoverable at the time it was inflicted. The actually alone has the facts to demonstrate what facts rendered it unrea necessary sonable to him to discover his when it expect oc curred. This is established in our principle clearly decisional law and the procedural process which it must be by proven as established the Rules of Civil by Pennsylvania Procedure Furthermore, is settled in law. our case as the rule’s pur pose is protect to the interests of the certainly plaintiff as to applied cases, medical it is malpractice quite logical the to assert the responsibility non-discoverability should plaintiff. burden decision in Acker Our established no new burdens of it proof, rather restated only burdens to a existing placed upon parties medical malpractice dispute. Rules of Civil Procedure articulate the
precise
which
procedure by
the affirmative defense of stat-
correctly
be raised. The Hospital
is to
ute of limitations
limitations
their statute of
filing
followed that procedure
1030, 1017(b)(4).
matter. Pa.R.C.P.
defense in new
the trial court has
Next, Eric
asks whether
Stein
judgment
motions for
Hospital’s
dispose
authority
outstanding preliminary
when
pleadings
on the
without merit. The
This
argument
continued to exist.
and
Hospital
matter filed
answered the new
Steins
for
on the
judgment
the court on the motion
before
argued
concerning
made
No
Steins
pleadings.
objection
Eric
cannot
the court followed.
Stein
which
procedure
when he
procedure
now on
attack the trial court’s
appeal
Valley
to it at trial.
objection
Dilliplaine Lehigh
made no
Co.,
In his final contends that argument, the cause of action of his trial court dismissed improperly As we read the order and Dolores Stein. parents, Raymond it have been court, of the trial could although admittedly hold that the cause of action was clearer, parents’ we now to be a viable and subsisting not dismissed and continued cause of action. hold the trial court properly granted Hospi-
We as to the cause of pleadings tal’s motion for judgment action brought Stein. court in the we affirm the order of the trial
Accordingly,
v. Richard
case of
et al. v. The Washington
Term,
reverse the order of the
son, (No.
1979),
April
Stein,
case
et al. v. Richardson v. The
trial court in the
Term,
and remand
(No.
1979),
Washington Hospital,
April
consistent with this
proceedings
opinion.7
very appealing,
opinion
Judge
Wickersham
we
7. While we find the
obliged
hold that
child’s cause of action is
are nevertheless
timely
by of limitations when it is not
filed and
barred
statute
*17
quite
parent
of a
which
cannot be tacked on to the cause
action
damages alleged
clearly
from an
arise out of
to have resulted
parent’s
Supreme
said in Von Colln v.
to the
child. Our
Court
232,
Company,
Railroad
WICKERSHAM, Judge, dissenting: Stein, Stein, of Eric filed a and Dolores Raymond parents 16, 1977 writ summons in on November trespass timely defendants, the named against medical alleging malpractice Richardson, Washington Hospital. James E. M.D. and were filed both de against Thereafter separate complaints fendants forth the claim rendered setting negligently care resulted in cerebral trauma manifested form cerebral palsy.1
I
hold that the
of writ of summons
timely filing
would
16, 1977 carried with it the
on November
by
parents
Eric, which
was the basis of
claim of their son
indisputedly
suit,
their
even
his name was not included on the
though
either
writ. There could be no
Dr.
possible prejudice
Hospital,
Richardson nor to The
both of which
Washington
knew that the suit filed was intended
defendants obviously
I would hold that the statute
as a claim for Eric’s injuries.
of limitations is not here involved and would reverse the
case is clearly distinguishable
trial court for so
This
finding.
Yaw,
from