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HUBER v. MCELWEE-COURBIS CONSTR. CO.

December 30, 1974

Frank J. HUBER and Louise M. Huber, husband and wife
v.
McELWEE-COURBIS CONSTRUCTION CO. DORR-OLIVER, INC. v. GLACE & GLACE, INC. HARRY A. RESSLER, INC. v. WEST GOSHEN TOWNSHIP and West Goshen Township Sewer Authority


Gorbey, District Judge.


The opinion of the court was delivered by: GORBEY

GORBEY, District Judge.

 This action arises out of an explosion occurring at the West Goshen Township Sewer plant on or about November 14, 1966. Defendant McElwee-Courbis Construction Company has moved for summary judgment on the ground that plaintiffs' claim is barred by the statute of limitations. Defendant Dorr-Oliver, Inc. has joined in that motion. Third-party defendants Glace & Glace, Inc. and Harry A. Ressler, Inc. have filed similar motions. In response, plaintiffs assert that the statute of limitations did not begin to run until sometime in 1973 and that the defendants, because of their fraud and concealment, should be estopped from asserting the statute of limitations as a defense to this action.

 The Pennsylvania statute of limitations for actions involving personal injuries reads as follows:

 
"Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law." 1895, June 24, P.L. 236, § 2.12 P.S. § 34.

 While the statute states that it begins to run from the date of injury, it has been held that this must be read in the light of reason and common sense. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). The Pennsylvania Supreme Court in applying the statute has held that:

 
"The statute, however, says that the suit must be 'brought within two years from the time when the injury was done.' The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Ayers v. Morgan, supra.

 In the Ayers case a surgeon left a surgical sponge in the plaintiff's abdomen. Nine years later, investigation as to the cause of abdominal discomfort revealed the sponge. The court held that the plaintiff's claim was not barred by the statute of limitations because it was filed within two years of the discovery of the injury.

 In the case of Smith v. Bell Tel. Co. of Penna., 397 Pa. 134, 153 A.2d 477 (1959), the Pennsylvania Supreme Court stated the rule as to subsurface injury as follows:

 
"As for the statute of limitations, there seems to be no dispute here that the statute runs, on causes arising from subsurface injury, from the time of discovery of the cause of the harm or the time when the cause of the harm reasonably should have been discovered, whichever is earlier."

 In the Smith case the court held that it was a question for the jury to determine within what time the plaintiff could have reasonably discovered that the cable laid by the defendants was causing plaintiff's sewer pipe to back up into his basement.

 This liberalized interpretation of the Pennsylvania statutes of limitation has been applied to areas other than medical malpractice and subsurface injuries. See, e.g., Med-Mar, Inc. v. Dilworth, 214 Pa.Super. 402, 257 A.2d 910 (1969).

 
"We think the correct rule, distilled from the authorities, is this: the statute begins to run as of the date of injury unless, in the exercise of reasonable diligence, the plaintiff could not have ascertained defendant's culpability within the statutory period. When that culpability could not reasonably have been so ascertained, ...

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