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LOUIS D. PULEO v. BROAD STREET HOSPITAL AND DR. EUGENE SPITZ (06/08/79)

decided: June 8, 1979.

LOUIS D. PULEO, APPELLANT,
v.
BROAD STREET HOSPITAL AND DR. EUGENE SPITZ



Nos. 488 & 489 (Consolidated) October Term, 1978, Appeal from the Orders dated November 15, 1977, by the Hon. Julian F. King of the Court of Common Pleas, Philadelphia County, Civil Division, No. 1463 April Term, 1976.

COUNSEL

Jay Goldstein, Philadelphia, for appellant.

Justin J. McCarthy, Philadelphia, for appellee Broad Street Hospital.

Jay J. Lambert, Philadelphia, for appellee Dr. Eugene Spitz.

Van der Voort, Wieand and Lipez, JJ. Van der Voort, J., concurs in the result.

Author: Wieand

[ 267 Pa. Super. Page 584]

This is an appeal from the entry of a judgment on the pleadings in favor of defendant-appellees on the grounds that plaintiff-appellant's cause of action was barred by the statute of limitations.

Plaintiff's action was commenced on April 13, 1976 by the filing of a praecipe for summons in trespass against Broad Street Hospital and Dr. Eugene Spitz. By complaint thereafter filed, the plaintiff, Louis D. Puleo, charged that unnecessary surgery had been performed on his back on May 30, 1973 and again on June 8, 1973. Spitz and the Hospital filed separate answers in which they alleged, as new matter, that plaintiff's cause of action was barred by the applicable two year statute of limitations.*fn1 Plaintiff-appellant's reply contained a general averment that his action had been commenced within the time allowed therefor. Motions for judgment on the pleadings were filed by both defendants and granted by the court below. Plaintiff thereupon filed an appeal to this Court and also an application for reconsideration by the trial court.*fn2 The application for reconsideration was accompanied by an affidavit averring that appellant's "injury was first discovered on May 16, 1974." The trial court denied appellant's application to reconsider and also his request to be allowed to file an amended reply. A second appeal was then filed. Both appeals were consolidated for argument.

Judgment may be entered on the pleadings only in the clearest of cases, when trial would be a fruitless exercise. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967). When considering a motion for judgment on the pleadings a court must limit its review of the facts to those appearing in the pleadings themselves. Johnson v. United School District Joint School Board, 201 Pa. Super. 375, 191 A.2d 897 (1963). In the

[ 267 Pa. Super. Page 585]

    instant case, the pleadings disclosed clearly and unequivocally that plaintiff's action against the defendants had not been commenced within two years following the allegedly unnecessary surgery. Moreover, the pleadings disclosed no good reason for delaying the accrual of plaintiff's cause of action beyond the dates on which the allegedly unnecessary surgical procedures had been performed.

The applicable rule of law is that a cause of action for malpractice does not accrue until discovery of the injury or at such time as the injury should reasonably have been discovered. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). The plaintiff's pleadings, however, failed to aver that his discovery of injury had been other than simultaneous with or immediately after the performance of surgery. Therefore, the judgment on the pleadings in favor of defendant-appellees was properly entered.

We are of the opinion, however, that when appellant's application for reconsideration was accompanied by an affidavit reciting that appellant had not become aware of injury from unnecessary surgery until May 16, 1974, an amended pleading should have been allowed. The trial court was of the opinion that, having granted judgment on the pleadings, it could not ...


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