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filed: October 16, 1981.


No. 1087 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County, at No. 79-5619.


Matthew S. Donaldson, Jr., Media, for appellant.

Stephen C. White, Media, for appellee.

Cercone, P. J. and Spaeth, Hester, Wickersham, Brosky, DiSalle, Johnson, Popovich, and Shertz, JJ. Johnson, J., files a dissenting opinion, in which Cercone, P. J., joins.

Author: Spaeth

[ 292 Pa. Super. Page 208]

This is an appeal from an order granting a motion for judgment on the pleadings. The issue is when the two year limitations period starts to run in a case arising from a motor vehicle accident where the right to bring a tort action is limited by the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. In Donnelly v. DeBourke, 280 Pa. Superior Ct. 486, 421 A.2d 826 (1980), we held that the limitations period starts to run on the date of the accident. However, it does not appear that the court in Donnelly was asked to consider the significance of Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). We therefore ordered reargument of

[ 292 Pa. Super. Page 209]

    this case before the court en banc in order to reconsider our decision in Donnelly in light of Singer. We now overrule Donnelly and hold that the two year limitations period does not start to run until the claimant knows or in the exercise of reasonable diligence should have known that one of the thresholds specified in section 301(a) of the No-fault Act had been reached.

The facts of this case are quite simple. Appellant was injured on February 3, 1977, when the automobile she was driving was struck by an automobile driven by appellee. Appellant did not file her complaint until more than two years later, on April 12, 1979. However, in her complaint she detailed the course of treatment for the injuries she suffered in the accident, alleging that it was not until December 2, 1978, that she first believed that her medical expenses would exceed $750, and not until sometime after December 17, 1978, when she was admitted to a hospital for surgery, that her expenses actually did exceed $750. Appellee filed an answer to the complaint with new matter alleging that appellant's claim was barred by the statute of limitations, and then filed a motion for judgment on the pleadings, which by order of April 21, 1980, the lower court granted. This appeal followed.

At this stage we must take appellant's allegations as true. Engel v. Parkway Company, 439 Pa. 559, 266 A.2d 685 (1970). Accordingly, the case may be summarized by saying that while appellant's complaint was filed more than two years after the accident, it was filed less than two years, specifically, only four months, after appellant met a no-fault threshold allowing tort recovery.

In Singer v. Sheppard, supra, the Supreme Court held that the No-fault Act does not violate Article 1, Section 11, and Article 3, Section 18, of the Constitution of Pennsylvania because, instead of limiting the damages recoverable in a tort action, the Act abolishes the right to recover any damages, unless the claim falls within one of the exceptions contained in section 301(a). Id. 464 Pa. at 397, 346 A.2d at 902-03. The Court interpreted the Constitution as requiring

[ 292 Pa. Super. Page 210]

    only that when a cause of action exists, access to the courts may not be restricted nor damages limited. The Constitution, said the Court, does not deprive the General Assembly of the power to abolish a cause of action. Thus, when we are asked to decide when the statute of limitations starts to run, we must give an answer consistent with the Court's interpretation of the No-fault Act as not a limitation on a remedy but as an abolition of a cause of action.*fn1 Upon reflection, it is clear that the holding in Donnelly v. DeBourke, Page 211} supra, is not consistent with Singer. To say, as Donnelly did, that the statute of limitations starts to run from the date of the accident, even when none of the No-fault Act's thresholds has been reached, is to say that the statute starts to run from a date on which, and even though, the cause of action did not exist.

This point may perhaps be made clearer by imagining a dialogue between a trial judge required to follow the holding of Donnelly and a disappointed claimant. Suppose the accident was on January 1, 1978, but the $750 threshold was not reached until February 1, 1980. Judge: "Your claim is barred because the statute of limitations started to run on January 1, 1978." Claimant: "But under Singer I didn't have any cause of action on January 1, 1978. In fact, I didn't get a cause of action until February 1, 1980. By then, according to you, the statute had already run." Judge: "That's true, and it's too bad. What you should have done is, before the statute had run, file a claim saying that although you had no cause of action, because the $750 threshold hadn't been reached, maybe you would have one, because maybe the threshold would be reached. That way you would have protected yourself." Although stated in colloquial language, this dialogue fairly summarizes the holding in Donnelly.

This holding is unacceptable for two reasons: First, it cannot be supposed that in enacting the No-fault Act, the General Assembly intended such a result. In this regard it may be noted that although Donnelly does discuss policy considerations favoring its result, it cites no provisions of the Act in support of its conclusions.*fn2 Second, the result is

[ 292 Pa. Super. Page 212]

    unjust and unnecessary. Why should such a claimant be barred? What sense does it make to tell claimants -- i. e., tell their lawyers -- that to protect themselves, they must file fictitious, precautionary, claims? How can such claims be reconciled with Pennsylvania's system of fact pleading -- not to mention, with simple honesty?

It is true that the present case is not quite so dramatic as the case just supposed. For here the threshold was reached twenty-two months after the accident, instead of twenty-five. In other words, here we could say to appellant: "You

[ 292 Pa. Super. Page 213]

    knew two months before the statute ran that you had a cause of action. It was therefore up to you to file your claim within those two months." This answer, however, will not withstand examination. For the fact remains that it cannot be supposed that the General Assembly intended thus to construct a claimant's right to assert a cause of action. Suppose the threshold is reached one month before the statute -- according to Donnelly -- runs. Did the General Assembly intend that unless the claimant asserts the cause of action within that one month, the cause is barred? Suppose the threshold is reached two weeks before the statute -- according to Donnelly -- runs. One week. One day.

Thus, in every case, Donnelly's answer to the claimant is the same: "Your cause of action is barred unless you assert it within two years of the date of the accident, and this is so no matter when you reach the threshold, whether two months before the two year period expires, or one month, two weeks, one week, one day, or even afterwards."

Given that when reexamined in the light of Singer, Donnelly is not acceptable, the question becomes: "How, then, should the limitations period be computed?" We believe, and now hold, that the limitations period does not start to run until the claimant knows or in the exercise of reasonable diligence should have known that one of the section 301(a) thresholds had been reached, in other words, until the claimant has a cause of action that can be pleaded, consistent with the fact-pleading requirements of Pa.R.C.P. 1019(a).*fn3 Donnelly v. DeBourke, supra is overruled.*fn4

[ 292 Pa. Super. Page 214]

We recognize that this result is not entirely satisfactory, for cases may occur where the threshold is reached only after many years. Such cases, however, will be rare, and in any event, the difficulty they present may readily be avoided by the General Assembly. For example, the General Assembly could enact a statute of repose similar to the Act of July 9, 1976, P.L. 142, § 2, as amended, 42 Pa.C.S.A. § 5536, which provides that after 12 years, an action based on a defect in the design or construction of any improvement to real property is barred, regardless of when the defect was discovered or discoverable or the injury occurred. In this regard, it should be noted that neither a statute of repose nor a limitations period triggered by an event subsequent to the date of the accident is foreign to the No-fault Act as it now exists. Section 106(c)(1) provides, in part:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the ...

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