Martin, H. v. Seedorf, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HARRY MARTIN IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
JOHN SEEDORF
Appellee No. 876 MDA 2019
Appeal from the Order Entered May 1, 2019
In the Court of Common Pleas of Luzerne County
Civil Division at No: 2018-02265
BEFORE: BOWES, J., STABILE, J. AND MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 27, 2019
Appellant, Harry Martin, appeals from an order granting summary
judgment against him in this personal injury action on the ground that his
action was time-barred under Pennsylvania’s two-year statute of limitations,
42 Pa.C.S.A. § 5524. Appellant contends that the statute did not begin
running until twenty-three days after he was involved in a motor vehicle
accident, because only at that time did he realize he suffered a “substantial”
injury with “significant” damages. We affirm.
On February 13, 2016, Appellant was involved in a motor vehicle
accident with Appellee, John Seedorf. A police report of the accident stated
that Appellant had a “suspected minor injury.” Second Amended Complaint
(“SAC”), ¶ 9. Two years and nine days later, on February 22, 2018, Appellant
filed a writ of summons. Subsequently, Appellant filed a complaint, an
amended complaint and finally the SAC.
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Appellant averred in the SAC that prior to the accident, his right wrist
was asymptomatic. Id. at ¶ 13. After the accident, he took one month off
from work in the hope that rest would aid his recovery. Id. at ¶ 11. On or
about March 7, 2016, however, he
discovered that the pain in his right wrist became excruciating,
contrary to his and his medical providers’ expectations that his
injury would improve in a relatively short period of time; to the
degree that [he] felt compelled to seek medical treatment as soon
as possible, although the initial bruises and traumas he endured
had initially seemed as though they would improve within a month
or two.
Id. at ¶ 11. “Because of his unique physiology,” Appellant continued, “the
trauma caused by the impacts of the initial accident led to an unexpected and
unnatural accelerated version of Kienbock’s disease because of the short time
over which his lunate bone became completely deprived of blood and oxygen.”
Id. at ¶ 18. The “sudden onset” of late-stage Kienbock’s disease required
“months of treatment” culminating in surgery on February 7, 2017. Id. at ¶¶
20, 26. “But for [Appellee’s] negligent ... driving,” Appellant concluded, he
would not have endured pain and suffering and would have enjoyed a much
greater quality of life. Id. at ¶ 30.
Appellee raised the statute of limitations as an affirmative defense in his
responsive pleading and then in a motion for summary judgment. In
response, Appellant argued that the statute did not begin running until March
7, 2016, twenty-three days after the accident, when he learned that his injury
was more significant than he originally understood it to be.
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On May 1, 2019, the trial court entered an opinion and order granting
summary judgment to Appellee. On May 31, 2019, Appellant filed a timely
notice of appeal to this Court.
Appellant raises the following issues in this appeal:
A. Whether the trial court erred as a matter of law and/or abused
the discretion afforded to trial courts by granting a Motion for
Summary Judgment through construing the pleadings in favor of
the moving party and failed to recognize that [Appellant]’s cause
of action did not accrue until he had a significant injury with
substantial damages tied to the fault of [Appellee] on or about
March 7, 2016.
B. Whether the trial court erred as a matter of law and/or abused
the discretion afforded to trial courts by declining to grant a
hearing to [Appellant] on the jury issue of whether [Appellant]
exercised reasonable diligence in not discovering [the seriousness
of his injury] until he experienced excruciating pain in his wrist
and a medical professional described an uncharacteristic lack of
degenerative changes associated with what otherwise appeared
to be late-stage Kienbock’s disease[,] which led to an
excruciatingly painful necrosis of his right lunate bone [and
showed] that he had a significant injury with substantial damages
tied to the fault of [Appellee].
C. Whether the trial court erred as a matter of law and/or abused
the discretion afforded to trial courts by granting a Motion for
Summary Judgment on the issue of whether [Appellant]’s leg
injury, the significant exacerbation of which occurred as a direct
and proximate result of his emergent need to attend to the
excruciating pain in his right wrist on or about March 7, 2019, and
was, therefore, directly attributable to the alleged negligence of
[Appellee,] in spite of the requirement of viewing the pleadings in
a light most favorable to the non-moving party and that the actual
date of the accrual of that injury was when it became a significant
injury with substantial damages.
D. Whether the trial court erred as a matter of law and/or abused
the discretion afforded to trial courts by assuming that
[Appellant]’s initial choice to rest his leg was based, a choice
afforded to him at any time he chooses, as an independent
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trucker, in some significant way, upon what initially only appeared
to be a minor insignificant injury to his wrist, without substantial
damages, affording him no means of discovering the wrist injury
until the pain became excruciating and a doctor explained to him
that the minimal degenerative changes to his wrist did not
comport with the late-stage Kienbock’s disease which his
symptoms otherwise reflected[,] leading him to inescapably
conclude that his new significant injury with substantial damages
was directly tied to the fault of [Appellee].
E. Whether the trial court erred as a matter of law and/or abused
the discretion afforded to trial courts by failing to recognize that
[Appellant]’s wrist injury was a latent injury, producing no
significant pain, evidencing no substantial damages or need for
treatment, and leading to no prior doctor’s visits, until on or about
March 7, 2016, when for the first time, the pain in his wrist
became excruciating, alerting him to seek medical treatment,
causing him to mobilize when he could have otherwise rested, and
leading him to the realization when a medical professional
explained to him that the lack of degenerative changes in his wrist
was uncharacteristic for the late-stage Kienbock’s disease
symptoms he was otherwise experiencing, leading [Appellant] to
discover for the first time that his new emergent significant injury
(which may not have occurred in a million other patients who
experienced the same initial minor and insignificant injury), which
then, for the first time, produced a situation where Martin would
incur substantial damages, was directly tied to the negligence of
[Appellee].
F. Whether the trial court erred as a matter of law and/or abused
the discretion afforded to trial courts by failing to recognize that,
absent [Appellant]’s sudden and urgent need to address the
excruciating pain that struck without warning on or about March
7, 2016, the extraordinary exacerbation of his leg injury resulting
in severe Achilles tendon issues, would not have occurred,
resulting for the first time in a significant injury, with substantial
damages, requiring medical attention for the first time,
attributable to the fault of [Appellee], and, therefore, resulting in
the accrual of that cause of action as well.
Appellant’s Brief at 4-8.
When this Court reviews an order granting summary judgment,
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[o]ur scope of review . . . is plenary, and our standard of review
is clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused its
discretion. Summary judgment is appropriate only when the
record clearly shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of
law. The reviewing court must view the record in the light most
favorable to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1043-44 (Pa.
Super. 2017), aff’d, 206 A.3d 474 (Pa. 2019). Moreover, “[i]n response to a
summary judgment motion, the nonmoving party cannot rest upon the
pleadings, but rather must set forth specific facts demonstrating a genuine
issue of material fact.” Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464
(Pa. Super. 2014).
The seven questions raised in Appellant’s brief reduce to one argument:
the statute of limitations does not bar Appellant’s action because the statute
only began to run on March 7, 2016, the date a “significant” injury with
“substantial” damages manifested in the form of excruciating wrist pain from
Kienbock’s disease. We disagree.
Pennsylvania law requires individuals to commence an action to recover
damages for injuries to the person caused by another’s negligence within two
years. 42 Pa.C.S.A. § 5524. Generally, the statute of limitations begins to
run “as soon as the right to institute a suit arises.” Pocono International
Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). In
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most cases, the statute of limitations begins to run on the date the plaintiff
sustains an injury. Haines v. Jones, 830 A.2d 579, 585 (Pa. Super. 2003).
“Lack of knowledge, mistake, or misunderstanding does not toll the running
of the statute of limitations.” Pocono International Raceway, 468 A.2d at
471. Once the plaintiff becomes aware of an injury, and who occasioned it,
he has a duty to investigate the matter and commence a cause of action.
Wilson v. El-Daief, 964 A.2d 354, 356 (Pa. 2009).
There is no dispute in this case that the motor vehicle accident occurred
on February 13, 2016. Appellant failed to commence this action until February
22, 2018, the date he filed a praecipe for a writ of summons. Appellant
admitted in the SAC that he knew on the date of the accident that he had
sustained some injuries (bruising and trauma), and that he took off from work
to recuperate. Thus, the statute of limitations began running on February 13,
2016, and his action is time-barred because he filed his writ of summons nine
days after the statute expired.
Nonetheless, Appellant argues at length that his cause of action did not
accrue until he realized he had a “significant” injury with “substantial”
damages as a result of Appellee’s negligence. Again, we disagree.
“A cause of action accrues upon actual or constructive knowledge of at
least some form of significant harm and of a factual cause linked to another’s
conduct, without the necessity of notice of the full extent of the injury,
the fact of actual negligence, or precise cause.” Carlino v. Ethicon, Inc.,
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208 A.3d 92, 103 (Pa. Super. 2019) (emphasis added). The SAC makes clear
that Appellant immediately knew at the time of the accident that that he
suffered some injury. Indeed, the SAC avers that immediately after the
accident, he took a month off from work in the hope that bruising and swelling
from the accident would subside. Thus, the statute of limitations began
running on the date of the accident, even if he did not know the full extent of
his injuries at that time.
Three decisions cited by Appellant in support of tolling the statute of
limitations, Bond v. Gallen, 469 A.2d 556 (Pa. 1983), Walls v. Scheckler,
700 A.2d 532 (Pa. Super. 1997), and Nicolau v. Martin, 195 A.3d 880, 892
(Pa. 2018), are distinguishable.
In Bond, the plaintiff was involved in a motor vehicle accident in
February 1977 but did file suit until April 1979, more than two years later.
The plaintiff contended that under the No-Fault Act, 40 Pa.C.S.A. §§
1009.101-1009.701 (repealed in 1984), she did not have a right of action,
and the statute of limitations did not begin running, until she knew that her
medical expenses exceeded $750.00. The Supreme Court agreed with the
plaintiff:
The clear language of the Act states that a party does not have a
cause of action unless and until medical expenses exceed
$750[.00] . . . [Therefore,] the two-year statute of limitations on
tort actions allowed by the No-Fault Act does not begin to run until
the claimant knows or, exercising reasonable diligence, should
know that the claimant’s medical and/or dental losses exceed [the
$750.00] threshold.
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Id., 469 A.2d at 558. On its face, Bond does not apply to the present case.
The legislature repealed the No-Fault Act and its medical expense threshold
provision over thirty years ago, and Appellant does not point to any similar
legislative threshold under current law that he must meet in order to trigger
the statute of limitations.
In Walls, the plaintiff selected the “limited tort” option when she
purchased automobile insurance. As a result, under the Motor Vehicle
Financial Responsibility Law (“MVFRL”),1 75 Pa.C.S.A. §§ 1701-1799.7, she
could recover non-economic damages only if she suffered “serious injury,”
that is, “personal injury resulting in death, serious impairment of bodily
function or permanent serious disfigurement.” 75 Pa.C.S.A. § 1702. The
plaintiff was involved in a motor vehicle accident on September 27, 1991 but
did not file suit until September 30, 1993. Her injuries initially appeared to
be minor bruises and contusions, but she alleged that she ultimately lost the
use of her tempro-mandibular joint in her jaw. The trial court held that the
plaintiff’s action was time-barred and entered summary judgment in favor of
the defendant. This Court reversed and remanded for further proceedings,
reasoning that “if [the plaintiff’s] allegations are true, and [she] only
discovered that her facial injury was a ‘serious injury’ when she eventually
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1The MVFRL is the successor to the No-Fault Act, the act under review in
Bond.
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lost the use of her TM joint, then the statute of limitations should not have
started to run until said discovery.” Id., 700 A.2d at 534. In the present
case, Appellant does not allege that he is a limited tort plaintiff. Therefore,
Appellant cannot take advantage of Walls’ decision that a limited tort
plaintiff’s right of action does not accrue until he knew or should have known
that he incurred a “serious injury.”2
In Nicolau, the plaintiff suffered a tick bite in 2001 and underwent four
Lyme disease tests over the next several years. The test results for Lyme
disease were negative, and her physicians diagnosed with multiple sclerosis
instead. In 2009, another health practitioner, Nurse Rhoads, suggested that
the plaintiff’s Lyme disease tests yielded false negatives and recommended
that the plaintiff undergo a different test. At first, the plaintiff declined
because she lacked health insurance and could not pay for it out of pocket,
but she later agreed to take the test. On February 13, 2010, the test came
back positive for Lyme disease. On February 10, 2012, the plaintiff filed a
complaint against various medical providers alleging that they were negligent
for failing to diagnose Lyme disease. The trial court entered summary
judgment for the physicians under the statute of limitations. The Supreme
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2 Notably, a panel of this Court recently criticized Walls as “just plain wrong,”
because “the general rule in Pennsylvania regarding car accident cases is that
the statute of limitations begins to run for an injured plaintiff on the day of
the accident.” Varner-Mort v. Kapfhammer, 109 A.3d 244, 248 (Pa. Super.
2015).
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Court reversed, reasoning that a jury should decide whether the plaintiff knew
or should have known more than two years before she filed suit whether her
physicians had misdiagnosed her medical condition:
[W]e conclude that it is within the province of a jury to determine
whether an untrained lay person who had been repeatedly and
definitively diagnosed with MS by several previous physicians, had
four prior negative Lyme disease tests, and lacked health
insurance to cover the costs of further diagnostic testing
reasonably should have known that she suffered from Lyme
disease after Nurse Rhoads informed her of a “probable” diagnosis
of that disease based on her clinical symptoms, and when some
of her symptoms improved after taking antibiotics prescribed for
that condition.... Moreover, it is for the jury, and not a court, to
determine whether a person in [the plaintiff’s] circumstances
acted reasonably in delaying the administration of a fifth Lyme
disease test to confirm Nurse Rhoads’ probable diagnosis. We
reach this conclusion keeping in mind that the appropriate
formulation of discovery rule jurisprudence applies a reasonable-
diligence requirement, as opposed to an all-vigilance one.
Id. at 895 (quotations and citations omitted).
The facts in the present motor vehicle accident case, however, are
materially different from the intricate circumstances in Nicolau. In motor
vehicle accident cases, the statute of limitations begins to run on the date of
the accident, Varner-Mort, 109 A.3d at 248, due to the obvious connection
between the accident and any post-accident symptoms of injury. We see no
reason to eschew that principle here. While Appellant’s injuries might not
have fully revealed themselves until one month after the accident, their nexus
with the accident was still clear. Consequently, the statute of limitations
began running on the date of Appellant’s accident, and the present lawsuit,
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filed more than two years after the accident, is time-barred under the statute
of limitations.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2019
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