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 the reasonableness of the plaintiff’s mental and emotional reaction when she encounters the defendant. Accordingly, we affirm the order of the Superior Court.

Chief Justice Baer and Justices Todd, Donohue and Dougherty join the opinion.

Justice Saylor files a concurring opinion.

Justice Mundy files a concurring and dissenting opinion.

STATUTE OF LIMITATIONS-SEXUAL MISCONDUCT-COVERUP

Rice v. Diocese of Altoona-Johnstown, 2021 Pa. LEXIS 3081 (July 21, 2021) (Donohue, J.). In this appeal, we address the proper application of the statute of limitations to a tort action filed by Renee’ Rice (“Rice”) against the Diocese of Altoona-Johnstown and its bishops (collectively, the “Diocese”) for their alleged role in covering up and facilitating a series of alleged sexual assaults committed by the Reverend Charles F. Bodziak. Rice alleged that Bodziak sexually abused her from approximately 1974 through 1981. She did not file suit against Bodziak or the Diocese until June 2016, thirty-five years after the alleged abuse stopped.

For the reasons set forth herein, we conclude that a straightforward application of Pennsylvania’s statute of limitations requires that Rice’s complaint be dismissed as untimely. Accordingly, we reverse the order of the Superior Court and reinstate the trial court’s dismissal of the case.

We conclude, as the Superior Court properly did fifteen years ago under the same circumstances, that the inquiry notice approach to the discovery rule required Rice to investigate the Diocese as a potential additional cause of her injuries during the limitations period. Whether courthouse doors should be opened for suits based on underlying conduct that occurred long ago is an exercise in line drawing that includes difficult policy determinations. “Although any statute of limitations is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 463-64, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975). The judiciary is ill-equipped to make that call. See, e.g., Lance v. Wyeth, 624 Pa. 231, 85 A.3d 434, 454 n.26 (Pa. 2014) (recognizing the General Assembly’s superior ability to examine social policy issues and determine appropriate balancing of competing concerns). Indeed, we are constitutionally barred from doing so. Clark, 242 A.3d at 1256. Even in view of the reprehensible circumstances depicted in this case, and others like it, we must follow the rule of law and enforce the value judgments expressed by the General Assembly. We therefore reverse the order of the Superior Court and reinstate the trial court’s dismissal of the case.

Chief Justice Baer and Justices Saylor, Dougherty and Mundy join the opinion.

Chief Justice Baer files a concurring opinion.

Justice Wecht files a dissenting opinion in which Justice Todd joins.

STATUTE OF LIMITATIONS-ATTORNEY MALPRACTICE-CONTINUITY RULE

Clark v. Stover, Pa. No. 2 MAP 2020 (S. Ct. December 22, 2020) (Saylor, C.J.) This is an attorney malpractice case. It involves a contest over an estate. Summary judgment was granted based upon the statute of limitations for a two-year tort breach, four-year contract breach. The court found the claims untimely. The question is whether the continuous representation rule should apply. There is nothing in the relevant statutes that would militate in favor of application of a continuous representation rule. Therefore, the decision of the Superior Court is affirmed, which affirmed dismissal of the case. Summary judgment had been entered by the trial court. The continuous representation rule says that the statute of limitations would not begin to run until the date on which the representation was terminated.

STATUTE OF LIMITATIONS-CONTRACT-CONTINUING CONTRACT

Hoagland v. Bernstein, No. 20-0618 (C.P. Lycoming November 2020) (Lovecchio, J.) Statute of limitations on contract did not begin to run until termination of the contract, where the relationship is continuing. This was a contract for providing caretaking services. The contract is a continuing one. If services are rendered under an agreement that does not fix any certain time for payment or termination of the services, the contract will be treated as continuous. The court interprets the contract as one ongoing for an indefinite duration.

STATUTE OF LIMITATIONS-EQUITABLE TOLLING-CIVIL RIGHTS

Nicole B. v. School District of Philadelphia, No. 16 EAP 2019 (Pa. S. Ct. September 16, 2020) Todd, J. In this appeal by allowance, we consider whether principles of equitable tolling found in the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 962(e), or Pennsylvania’s Minority Tolling Statute (“Minority Tolling Statute”), 42 Pa.C.S. § 5533(b)(1), apply to an otherwise untimely complaint filed by a minor’s parent with the Pennsylvania Human Relations Commission (“Human Relations Commission”). For the reasons set forth below, we find that the PHRA’s equitable tolling provision applies to a minor whose parent fails to satisfy the applicable statute of limitations for filing an administrative complaint prior to the minor reaching the age of majority. Thus, we reverse the order of the Commonwealth Court.

The facts underlying this appeal are not in dispute. On October 25, 2011, Appellant Nicole B.’s then-eight-year-old son N.B. was sexually assaulted by three of his male fourth-grade classmates in a bathroom at his public elementary school in the City of Philadelphia. According to Appellant, N.B. had endured two months of pervasive physical and verbal harassment at school leading up to the sexual assault. The harassment included being called, inter alia, “faggot,” “gay,” and “homo” due to his not conforming to norms regarding masculinity, being punched and kicked, having his glasses broken, being urged to kill himself, and being bullied into unwanted sexual acts. During that time, both Appellant and N.B. reported the harassment to his teacher and to school administrators, to no avail. On November 5, 2011, Appellant withdrew N.B. from the elementary school after learning of the attack.

Over two years later, on January 7, 2014, Appellant filed an administrative complaint with the Human Relations Commission against the Philadelphia School District (“District”) in her individual capacity and on N.B.’s behalf, asserting claims of discrimination on the basis of gender and race under the PHRA. The Human Relations Commission rejected Appellant’s complaint as untimely, because it was filed beyond the 180-day time limit. See 43 P.S. § 959(h) (“Any complaint filed pursuant to this section must be so filed within one hundred eighty days after the alleged act of discrimination. . . .”). Thereafter, Appellant filed a complaint against the District in the Philadelphia Court of Common Pleas, reiterating her PHRA-based discrimination claims.

Critically, and transcending all aspects of our analysis, we note that the General Assembly has instructed that the PHRA “shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provisions hereof shall not apply.” 43 P.S. § 962(a); see also 1 Pa.C.S. § 1928(c) (statutes “shall be liberally construed to effect their objects and to promote justice”). Consistent with the legislature’s mandate, we have done so here.

In sum, we determine that the PHRA’s equitable tolling provision is ambiguous, and, after consideration of the occasion and necessity for the PHRA, its goals and objects, and the consequences of including minority tolling as part of equitable tolling, we hold that, under its equitable tolling provision, the PHRA’s limitation periods may be tolled during a child’s period of minority.

Accordingly, the order of the Commonwealth Court is reversed, and the matter is remanded to that court for proceedings consistent with our decision today.

STATUTE OF LIMITATIONS-MESH CASES

Patchcoski v. W.L. Gore & Associates, 2020 U.S. Dist. LEXIS 133277 (M.D. Pa. July 28, 2020) Mannion, D.J. The Plaintiff alleges that he was unaware that his multiple medical problems were related to the GORE Mesh until March 21, 2017, when he was advised by his treating physician and discovered that defects in the GORE Mesh could have led to his medical problems. In cases involving medical devices, the salient question regarding cause under Pennsylvania law is “whether a Plaintiff knows or has reason to know that the device caused her injury, not whether a Plaintiff has actual or constructive knowledge as to precisely how or why her injury occurred.” McLaughlin v. Bayer Essure, Inc., 2019 WL 1382710, at *5 (E.D. Pa. Mar. 27, 2019) (citations omitted). “The Supreme Court of Pennsylvania has clarified that reasonable diligence is not `an absolute standard, but is 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.” Soutner v. Covidien, LP, 2019 U.S. Dist. LEXIS 136586, 2019 WL 3801438, *5 (M.D. Pa. Aug. 13, 2019) (quoting Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005)). Therefore, at this stage of the case, the Plaintiff has sufficiently shown that the cause of the source of his injury was too difficult to identify with reasonable diligence over the years from 2001 through 2017. This issue can be more appropriately considered at the summary judgment stage after discovery is complete. At the outset, the court finds that the Plaintiff’s allegations in his Complaint plausibly state a strict liability claim against Gore in Count I and meet the pleading requirements of Fed.R.Civ.P. 8(a). The cautionary language of Tincher and Lance leads this court to predict that the Pennsylvania Supreme Court would not categorically extend Hahn and comment k to all prescription medical device manufacturers, such as Gore, and would not follow the lead of the Superior Court in Creazzo v. Medtronic, Inc., 2006 PA. Super. 152, 903 A.2d 24. Similarly, in Gross v. Coloplast Corp, 434 F. Supp. 3d at 250-52, the court denied Defendants’ motion to dismiss the Plaintiffs’ strict liability claims based on all three theories concerning an allegedly defective pelvic mesh. In short, this court concurs with the court in Ebert, 2020 WL 2332060, *10, “to predict that the Pennsylvania Supreme Court would not categorically extend Hahn and comment k to all prescription medical device manufacturers.” (citations omitted). As such, “the Court predicts that Pennsylvania’s highest court would instead analyze comment k’s applicability to prescription medical devices on a case-by-case basis, determined largely by each case’s developed factual record and the individual characteristics of the medical device at issue.” Id. Thus, this court will not dismiss the Plaintiff’s strict liability claims without the benefit of a fully developed factual record. See Ebert, supra. Therefore, the court does not find either of Gore’s arguments persuasive and will not grant its motion to dismiss the Plaintiff’s strict liability claims at this stage of the case.

STATUTE OF LIMITATIONS-PRODUCTS LIABILITY-PELVIC MESH

Kennedy v. Ethicon, 2020 U.S. Dist. LEXIS 127393 (E.D. Pa. July 20, 2020) Leeson, Jr., D.J. Summary judgment granted because the court determined that action commenced in multi-district litigation on July 2, 2013. Transferred to the court in January 2020. Plaintiffs’ claims accrued no later than May 4, 2011. The court examined all of the discovery and based its decision on Pennsylvania law. Plaintiffs obviously utilized or attempted to utilize the discovery rule. At her deposition, plaintiff Kennedy testified on multiple occasions and in no uncertain terms that she was aware of the relationship between the medical condition she experienced in March, April and May 2011 and her pelvic mesh. She testified that she thought the Ethicon product was faulty. She said she had observed the migration herself during the cystoscopy by watching the procedure on camera. The court was dismissive of self-serving deposition testimony elicited by plaintiffs’ counsel and by her self-serving affidavit in opposition to the summary judgment. Plaintiffs did not make any attempt to explain the contradiction in Kennedy’s testimony. Kennedy’s problems were not lingering post-surgical conditions and the doctor did not refuse to diagnose the condition in the spring of 2011. The doctor directly connected Kennedy’s conditions to the eroding pelvic mesh.

STATUTE OF LIMITATIONS-FEDERAL TORT CLAIMS ACT-TOLLING

D.J.S.-W. v. United States of America, 2020 U.S. Appl LEXIS 19311 (3^rd Cir. June 22, 2020) Fisher, C.J. The parties agree that plaintiff’s case which was first filed in state court almost seven years after her birth, the date on which her claim accrued, was not timely presented to the appropriate agency in accordance with the requirements of the law. Although plaintiff’s counsel deliberately delayed filing her case in reliance on Pennsylvania’s tolling statute for minors, that law cannot save plaintiff minor’s untimely claim against the United States because state law tolling statutes do not apply to the Federal Tort Claims Act limitations period. The sole issue thus is whether minor plaintiff has shown that she is entitled to the extraordinary remedy of equitable tolling of the FTCA’s limitations period. The two requirements for tolling, extraordinary circumstances and diligence, are distinct elements both of which must be satisfied for litigant to be eligible for tolling. We clarify that following Supreme Court’s guidance the litigant will only meet the extraordinary circumstances prong of the test for equitable tolling once she shows that her delay was attributable to circumstances that were both extraordinary and beyond her control. In sum, for litigant to be entitled to equitable tolling she must establish two elements: (1) that she has been pursuing her rights diligently; and (2) that some extraordinary circumstance stood in her way and prevented timely filing. The two components are distinct elements, both of which must be satisfied. To meet the extraordinary circumstances element the litigant must show that the circumstances were extraordinary and beyond her control. Here, minor plaintiff fails to satisfy either prong. She did not diligently pursue her rights because she failed to take reasonable steps to confirm Dr. Gallagher’s employment status. Nor did any circumstances both extraordinary and outside her control stand in the way of preventing her from discovering Dr. Gallagher’s true affiliations. The court distinguished this case from Santos, 559 F.3d at 204. Santos was also a minor. Santos obtained medical records and yet did not have a clue as to the federal involvement. Santos’ counsel went to further lengths to confirm her alleged tortfeasor’s employment status than the minor plaintiff’s counsel did here. Santos performed a public records search on, corresponded with and visited York Health as part of the investigation. Here, counsel merely assumed that Dr. Gallagher was employed by Sharon Hospital, which she knew to be a private entity, because the minor was born there and Dr. Gallagher was listed as a “team member” on its website. But, as counsel admits, he never corresponded with, called or visited Sharon Hospital or Dr. Gallagher to confirm this belief. The court also said there were numerous red flags that would have caused a diligent plaintiff or her counsel to investigate Dr. Gallagher’s employment status. The court said that it was strange that counsel did not ask the minor’s mother where she normally saw Dr. Gallagher for her prenatal care or expand the temporal scope of his record request to ensure that Dr. Gallagher had not treated her at another facility. Plaintiff’s own counsel sent record requests to Sharon Hospital and Dr. Gallagher at different addresses. Had counsel visited or searched the addresses to which his office sent the request to Dr. Gallagher, he would have discovered that it was a street address for Primary Health Network. Finally, plaintiff’s counsel should have been on heightened alert given his own personal experience in litigating a malpractice case involving the substitution of the United States for a defendant physician because he was an employee of a “deemed” federal entity. Counsel did not investigate red flags. Plaintiff’s counsel could have easily discovered that Dr. Gallagher was employed by Primary Health Network and then would have investigated Primary Health Network and discovered that it was a “deemed” federal entity. In sum, plaintiff’s counsel did not exercise due diligence to meet the equitable tolling standard, and the case was dismissed. The court said there was no trap set here for plaintiff as there was in the Santos case. Had counsel discussed the issue with his client, expanded the temporal scope of his record request, called Sharon Hospital or Dr. Gallagher, or investigated the address to which he sent one of his record requests and which appeared on some records he reviewed, he would have discovered Gallagher’s true employer. He would then have had to investigate the employer to see that they were deemed a federal entity.

STATUTE OF LIMITATIONS-DISCOVERY RULE-MEDICAL MALPRACTICE

Selective Way Insurance v. MAK Services, 2020 Pa. Super. LEXIS 342 (April 24, 2020) Bowes, J. This case involved an exclusion for snow and ice. Somebody fell on the insured’s property and a lawsuit followed. There was a Reservation of Rights letter. Pennsylvania law does not require an insured company to list every potential defense to coverage in its Reservation of Rights letter. However, a small body of recent case law discussing this precise issue suggests that some level of specificity is necessary. The lack of specificity in the letter speaks of deficient investigation. Snow and ice removal exclusion was evident on the face of the policy. The insurance company knew of the exclusion from the onset. In spite of this, the insurance company waited 18 months to raise the exclusion and provided no further intervening notice to the insured that it might have to mount a defense to the civil action on its own. Under these facts, Selective Way failed to conduct and adequate investigation and summary judgment in their favor was reversed by the Superior Court.

STATUTE OF LIMITATIONS-RISPERDAL LITIGATION

Adams v. Zimmer, 2019 U.S. App. LEXIS 34513 (3d Cir. November 20, 2019) Scirica, C.J. Pennsylvania’s discovery rule delays the start of the statute-of-limitations period until a plaintiff knows or reasonably should know she has suffered an injury caused by another. This appeal requires us to decide whether a reasonable juror could credit plaintiff Marilyn Adams’s contention that she reasonably did not know until February 12, 2015 that the hip implant made by defendant Zimmer, Inc., caused her the injuries for which she now sues. When Adams brought a defective design claim against Zimmer in February 2017, Zimmer contended she should have discovered her injury by January 2015, when she agreed to undergo hip implant revision surgery. The District Court accepted Zimmer’s argument and granted summary judgment on the ground that Adams’s claim was untimely under the discovery rule and two-year statute of limitations. In doing so, however, the District Court resolved issues of fact regarding the timing of Adams’s discovery that her hip pain was caused not by her poor adjustment to the implant but instead by the implant itself. Because Pennsylvania law delegates to a factfinder any genuine dispute over when a plaintiff in Adams’s position should reasonably have discovered her injury, we will reverse and remand.

The central issue in this case is whether a jury could conclude Adams reasonably did not discover her injury until February 12, 2015, when Dr. Ververeli apprised her of his intraoperative finding that her implant had deteriorated and emitted metal shards into her hip. The District Court concluded there can be no dispute that the information available to Adams in her preoperative visits would have put a reasonably diligent person on notice of her injury as a matter of law. In reviewing that determination at summary judgment we must “view the record and draw inferences in a light most favorable to” Adams as “the non-moving party.” Debiec v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003). Doing so, we cannot conclude that summary judgment was appropriate. As in the several Pennsylvania Supreme Court cases before this one, the question “[w]hether [a plaintiff] should have acted with greater diligence to investigate” or otherwise should have known of her injury earlier “can only be seen as an issue of fact.” Gleason, 15 A.3d at 487.

To be sure, Pennsylvania’s discovery rule asks only when Adams knew she was injured and that her injury was caused by another. For the statute of limitations to start, she “need not know that [the] defendant’s conduct is injurious.” Wilson, 964 A.2d at 363. But that limitation on the requirements for notice was developed in order to hold plaintiffs to a standard of reasonable diligence: it operates to bar a claim where “the plaintiff has failed to exercise diligence in determining injury and cause by another, but has limited relevance in scenarios in which the plaintiff has exercised diligence but remains unaware of either of these factors.” Id. Zimmer does not dispute that Adams investigated her claim in coordination with Dr. Ververeli, and a factfinder could reasonably determine that Adams had exercised reasonable diligence. This strongly counsels against determining notice as a matter of law.

A reasonable jury could accept Dr. Ververeli’s conception of the injury and cause changed during the revision surgery. And if Dr. Ververeli did not realize a problem with the implant was injuring Adams until the revision surgery, under Pennsylvania law Adams too cannot be charged with that constructive knowledge. Reasonable jurors could accordingly find Adams, though she knew she had trouble adjusting to her implant, could reasonably not have known that the implant itself was the cause of her injury.

While a jury may ultimately credit Zimmer’s contention that Adams knew or should have known about her injury at some point before the February 2015 revision surgery, Adams has raised factual issues of notice and knowledge that Pennsylvania law requires a jury to resolve.

STATUTE OF LIMITATIONS-MEDICAL DEVICE-DISCOVERY RULE-IMPLANT PROBLEM

STATUTE OF LIMITATIONS-DISCOVERY RULE-CONTRACTS-EXPRESS CONTRACTS

Carulli v. North Versailles Township Sanitary Authority, 2019 Pa. Commw. LEXIS 768 (August 13, 2019) Fizzano Cannon, J. Port Vue Plumbing appealed a judgment from Allegheny County entered against Port Vue and in favor of North Versaille Township Sanitary Authority awarding damages in the amount of $39,033.69 in a breach of contract action. The court applied the discovery rule, reasoning that the Authority had no reason to know of a breach of contract until it received a complaint from residents alleging damage to their residence 10 years later. The Superior Court vacated and remanded.

Port Vue argues that the statute of limitations begins to run upon the occurrence of the breach. The Authority, on the other hand, argues the discovery rule applies, pursuant to which the statute of limitations does not begin to run until a party, using reasonable diligence, discovers the breach. The trial court applied the discovery rule.

We therefore consider whether grounds exist to deviate from the general rule concerning the statute of limitations in a breach of contract action and whether the application of the discovery rule to such breach of contract claim is appropriate.

Our Supreme Court, however, has not pronounced the applicability of the discovery rule to a breach of contract action based on an express written contract negotiated at arms’ length.

In sum, we are faced with the binding precedent of this Commonwealth wherein the discovery rule has been extended from the tort context to breach of implied warranty actions and quasi-contractual matters of promissory estoppel and unjust enrichment. However, our Supreme Court has neither expressed a blanket prohibition nor has it applied the discovery rule— a judicially created doctrine— to a breach of contract action where a party is seeking to enforce an express written contract that the party negotiated. Further, although the Superior Court has applied the discovery rule to a breach of contract action, its decisions are not controlling authority for this Court. Additionally, as noted by Justice Saylor, other jurisdictions are split on the application of the discovery rule in a breach of contract action.

Because our Supreme Court has not extended the discovery rule, a judicially created equitable doctrine, to the arena of breach of contract actions involving express written negotiated contracts, we decline to do so.

We must address the Authority’s alternative argument that Port Vue is estopped from asserting the statute of limitations as a defense under the doctrine of fraudulent concealment.

We vacate the trial court’s order and remand the matter to the trial court to issue a new decision determining whether Port Vue is estopped from asserting the statute of limitations as a defense to the Authority’s claim under the doctrine of fraudulent concealment.

STATUTE OF LIMITATIONS-MEDICAL MALPRACTICE-GYNECOLOGICAL PROBLEMS

Monahan v. Reedy, No. 15 CV 6698 (C.P. Lackawanna September 12, 2019) Nealon, J. Plaintiffs filed this malpractice action in 2015 alleging that the defendant-gynecologist damaged the female plaintiff’s ureter during laparoscopic surgery in 2009, which gradually caused her ureter to obstruct and inhibited the drainage of urine from the kidney to the bladder during the ensuing 3-1/2 years, thereby resulting in such permanent damage to her left kidney that it had to be surgically removed in 2013. Defendants have filed motions for summary judgment seeking the dismissal of this suit on the ground that it is barred by the statute of limitations based upon the application of the discovery rule which required the plaintiffs to file this personal injury action within two years of the date that they knew, or in the exercise of reasonable diligence should have known, that the female plaintiff had been injured and that the injury had been caused by another’s negligence. The question presented by the defense motions is whether it is undeniably clear that the plaintiffs did not use reasonable diligence in timely ascertaining the female plaintiff’s injury and its cause, such that reasonable minds could not differ in coming to the conclusion that they knew or should have been reasonably aware of her injury and its cause more than two years prior to the commencement of this litigation.

When the summary judgment record is viewed in the light most favorable to the plaintiffs as the non-moving parties, it reflects that the female plaintiff did not experience immediate and continuous signs of a ureteral injury or blockage following her 2009 surgery, and that as she progressively developed symptoms indicative of ureteral damage and diminished kidney function through 2012, the gynecologist advised her that those problems were “probably hormonal.” After another physician ordered CT scanning in December 2012 which revealed a ureteral obstruction and marked swelling of the kidney due to excessive backup of urine that the interpreting radiologist indicated “could be related” to the 2009 surgery, the female plaintiff provided the CT scan report to the gynecologist who thereafter informed her in early 2013 that her CT scan findings were unrelated to the 2009 surgery and that her urologist had reported that they were, in fact, attributable to other medical conditions. Furthermore, prior to the filing of this suit, none of the health care providers who treated the female-plaintiff ever stated or suggested to the plaintiffs that the ureteral obstruction or kidney removal was related to the 20098 surgery. Thus, there are triable issues of fact as to whether the plaintiffs, in the exercise of reasonable diligence, should have ascertained more than two years prior to initiating this action that the ureter had been damaged and ultimately obstructed as a result of the laparoscopic surgery. Accordingly, the motions for summary judgment will be denied.

STATUTE OF LIMITATIONS-FRAUD-CONCEALMENT-SEXUAL ABUSE

Rice vs. Diocese of Altoona-Johnstown, 2018 PA Super. LEXIS 576, 2019 Pa Super. 186, 2019 PA. 186, Opinion by Judge Kunselman. In 2016, Renee A. Rice read the 37^th Investigative Grand Jury Report detailing a systematic cover-up of pedophile clergy in the Diocese of Altoona-Johnstown. She sued the Dioceses Bishop Adamec, and Monsignor Michael E. Servinsky. (“the Diocesan Defendants”) a few months later. She alleges that they committed fraud, constructive fraud, and civil conspiracy to protect their reputations and that of Reverend Charles F. Bodziak, her childhood priest and alleged abuser. Because Fr. Bodziak allegedly molested Ms. Rice in the 1970s and 1980s, the trial court, relying on this Court’s precedents and the statute of limitations, dismissed her lawsuit. Claiming the trial court misapplied the discovery rule, the fraudulent-concealment doctrine, and the statute of limitations for civil conspiracy, Ms. Rice appealed. Ten months later, the Supreme Court of Pennsylvania decided Nicolaou vs. Martin, 195 A.3d 880 (Pa. 2018). The High Court emphasized the jury’s prerogative, under the discovery rule, to decide whether a plaintiff’s efforts to investigate a defendant were sufficiently reasonable to toll the statute of limitations. Nicolaou has opened the courthouse doors for Ms. Rice’s case to proceed past the pleadings stage, notwithstanding this Court’s precedents to the contrary. Also, Mr. Rice’s alleged circumstances allow her to argue to the finder of fact that the Diocesan Defendants owed her a fiduciary duty to disclose their ongoing cover-up and Fr. Bodzaik’s history of child molestation. By failing to disclose, the Diocesan Defendants’ silence may have induced Ms. Rice to relax her vigilance or to deviate from her right of inquiry. The trial court, therefore, erred by not permitting her case to proceed according to her fraudulent-concealment theory.

STATUTE OF LIMITATIONS-FALSE CLAIMS ACT

Justice Thomas delivered the opinion of the Court. The False Claims Act contains two limitations periods that apply to a civil action under Section 3730 that is, an action asserting that a person presented false claims to the United States Government. 31 U.S.C. §3731(b). The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States officia charged with the responsibility to act knew or should have known the relevant facts, but no more than 10 years after the violation. Whichever period provides the later date serves as the limitations period. This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are civil action[s] under Section 3730 and that the limitations periods in 3731 (b) apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit cannot be deemed the official of the United State. We agree, and therefore affirm. Cochise Consultancy vs. United States ex rel. Hunt, 2019 U.S. LEXIS 3400.

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

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 entry of nonsuit on the trespass claim was error because Mr. Kowalski established that excess water run-off from the Liberty Hills constituted a continuing trespass. Liability should have been opposed against TOA for the continuing trespass. Section 1621 of the Restatement of Torts clearly provided for the imposition of liability on TOA, as an entity which developed Liberty Hills and constructed the storm water management system in a manner which caused excess surface water to flow onto Mr. Kowalski’s property. Liability is subject to the applicable statute of limitations. Mr. Kowalski commenced the action July 2013. His recovery is limited to the actual injury suffered during the two years prior to the filing of the action. TOA is not liable for specific continuing trespass claim encompassed by the present action. It is not responsible.

STATUTE OF LIMITATIONS-ARBITRATION

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

Rotkiske v. Klemm, No. 16-1668 (3^d 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

STATUTE OF LIMITATIONS-MEDICAL MONITORING CLAIM-TOLLING

Blanyar v. Genova Products, 2017 U.S. App. LEXIS 11685 (3^rd 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 at the chemical plant, they may not be foreclosed from bringing personal injury actions if they later contract diseases related to their alleged occupational exposure. Although the instant claims for medical monitoring are time barred, the statute of limitations to bring personal injury actions would begin to run anew where appellants manifest symptoms of occupational disease 300 weeks after the last exposure to hazardous substances.

STATUTE OF LIMITATIONS-MINORS TOLLING STATUTE-SEXUAL ABUSE

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 as adults, when their parents failed to do so on their behalf within the applicable statute of limitations. The trial court’s interpretation of the Minority Tolling Statute is incorrect and conflicts with existing decisional law in which our courts have previously interpreted the same provision. In other words, the limitations period for a minor’s claim is measured from the time the minor turns eighteen, irrespective of the date the cause of action accrues and regardless of whether the action is filed by the minor’s guardians or by the minor in his or her individual capacity once he or she turns eighteen. See Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1060–61 (Pa.Super. 2015), reargument denied (Oct. 26, 2015). J-A11032-17 – 7 – Thus, in the instant case, the applicable time period for S.J. to file this civil suit against Appellee did not begin to run when S.J. revealed to her parents that she had been subjected to Appellee’s sexual abuse. Although this discovery marked the accrual of S.J.’s cause of action, the limitations period for S.J.’s claim was suspended until S.J.’s eighteenth birthday pursuant to the Minority Tolling Statute. Thus, S.J.’s parents commenced this lawsuit on S.J.’s behalf before the period of limitations began to run. We reject the trial court’s suggestion that the Minority Tolling Statute should be interpreted to require S.J. to wait until she turns eighteen to pursue her legal action against Appellee for childhood sexual abuse. Accordingly, this civil action, which S.J.’s parents filed on minor S.J.’s behalf, was not time-barred as the Minority Tolling Statute had suspended J-A11032-17 – 9 – the applicable statute of limitations.2 For the foregoing reasons, we conclude the trial court erred in granting Appellee’s motion for summary judgment.

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

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

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

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 (3^rd Cir. 2015).

STATUTE OF LIMITATIONS-SEXUAL MISCONDUCT

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 (3^rd Cir. 2015).

STATUTE OF LIMITATIONS-JUDICIAL CODE-NOTICE REQUIREMENT

Township appealed from decision against it under the Political Subdivision Tort Claims Act. The court, however, applied the statutory grant and reduced the verdict. The court dismissed the challenge that notice was not provided under 5522 of the Judicial Code. The record reveals that the association did not become aware of the cause of the sediment problems in time to comply with the statute. The statutory cap under 8553 of the PSTCA is legal and constitutional. The verdict was properly molded downward. The jury could find that the township’s improvements resulted in a dangerous condition which created a reasonably foreseeable risk of the kind of injuries suffered by the Association and the township could be reasonably charged with notice under these circumstances. Hence the trial court did not err in failing to conclude that the Association’s plaintiff’s claims were barred by the immunity granted. The trial court did not err in failing to grant a directed verdict, set aside the verdict, award a new trial or enter judgment in its favor. The court addressed motions in limine with respect to expert testimony. The court disagreed with the school district’s claim that the judgment was barred by the immunity provision of the PSTCA under the real property exception. The exception applied. The statutory cap is not unconstitutional. Glencannon Homes Association v. North Strabane, 116 A.3d 706 (Pa. Cmwlth. 2015).