No. 55 April Term, 1979, No. 56 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division, at Nos. 195 and 196 November Term, 1977
Franklin E. Conflenti, Pittsburgh, for appellant.
John W. Jordan, IV, Pittsburgh, for Richardson, appellee.
Charles C. Keller, Washington, for Washington Hospital, appellee.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham, Brosky, Wieand, Johnson, Montemuro, Popovich, DiSalle and Shertz, JJ. Wickersham, J., files dissenting statement. DiSalle and Shertz, JJ., did not participate in the consideration or decision of this case.
[ 302 Pa. Super. Page 128]
Eric Stein appeals from the order of the trial court granting the preliminary objections of James Richardson, M.D., appellee, and The Washington Hospital, appellee, and granting a motion for judgment on the pleadings to the Hospital. The primary question involved in this case concerns the discovery rule as applied to the statute of limitations in medical malpractice cases and the burden upon the plaintiff to plead the nondiscoverability of his injury where the action is brought more than two years after the injury was inflicted. Eric Stein contends that prior to our decision in Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978) (hereinafter Acker), that the plaintiff was not so burdened. He argues that his case is a pre- Acker decision and that as such the trial court improperly held that his actions were barred by the statute of limitations. We affirm in part and reverse and remand in part the order of the trial court.
Raymond Stein and Dolores Stein commenced causes of action against Richardson and the Hospital by writ of summons in trespass on November 16, 1977 alleging that Richardson and the Hospital had negligently rendered medical care to their son, Eric Stein, on the day of and related to his birth. They claim the negligently rendered care resulted in cerebral trauma manifested in the form of cerebral palsy.
Raymond and Dolores Stein subsequently obtained new counsel who filed separate complaints on August 29, 1978 against Richardson and, on July 26, 1978, against the Hospital in which two counts were raised: one count seeking damages for the parents arising out of the alleged negligence and the second count seeking damages on behalf of Eric Stein arising out of alleged malpractice. Richardson and the Hospital each responded to their complaint by way of a preliminary objection, in the form of a demurrer, stating that all claims arose out of alleged injuries sustained by Eric Stein, who was barred from recovery by the applicable
[ 302 Pa. Super. Page 129]
two-year statute of limitation.*fn1 They contended that the injury must have been discovered or should have been discovered on or after July 26, 1976 and August 29, 1976, respectively, if Eric Stein's claim was to prevail. The hospital also filed an answer and new matter raising the statute of limitation defense.*fn2
Raymond, Dolores and Eric Stein, collectively, subsequently filed preliminary objections contending: That it was apparent from the writ of summons filed by Raymond and Dolores Stein that the child was a party and therefore their actions and that of Eric Stein were not barred by the statute of limitations. They also asserted that Richardson had improperly raised the affirmative defense of the statute of limitations by not raising it as an affirmative defense in "new matter."*fn3 They at no time in their pleadings asserted that the injury was nondiscoverable until some date on or after July 26, 1976 or August 29, 1976.
The trial court consolidated the cases for argument on the motions presented in the foregoing pleadings and upon the Hospital's motion for judgment on the pleadings. The court sustained Richardson's and the Hospital's preliminary objections
[ 302 Pa. Super. Page 130]
and granted the Hospital's motion for judgment on the pleadings. The court held that the action of Eric Stein was barred by the statute of limitations. This appeal by Eric Stein, alone, followed.
Several questions are raised on appeal. They are essentially: 1. Whether the trial court correctly decided that the statute of limitations had run in light of the unavailability of our decision in Acker at the time of argument before the trial court? 2. Whether the mandatory language of the Pennsylvania Rules of Civil Procedure required that the affirmative defense of statute of limitations be raised by new matter, therefore rendering the preliminary objections raised by Richardson and the Hospital improper? 3. Whether the trial court properly determined that the causes of action raised by Raymond Stein and Dolores Stein was a separate and distinct cause of action from that raised by Eric Stein? 4. Whether the lower court had any authority to dispose of the Hospital's motion for judgment on the pleadings when outstanding preliminary objections continued to exist? 5. Whether the trial court's order improperly dismissed the cause of action raised by the parents along with that raised by Eric Stein?
The first three claims raised by Eric Stein involve interrelated contentions all involving statute of limitations arguments. We will discuss Eric Stein's first three claims as a group.
Eric Stein contends that our decision in Acker established a more lenient interpretation of the statute of limitations in medical malpractice cases. He argues essentially, that prior to our decision in Acker that Pennsylvania courts required a plaintiff in a malpractice action to commence his action within two years of the date at which the injury was inflicted if the injury was discovered or should have been discovered within two years of the actual date of the injury. Eric Stein was born on December 5, 1975, his injuries were allegedly inflicted on that same day, thus, he would be
[ 302 Pa. Super. Page 131]
obliged to commence his action prior to December 5, 1977 if he discovered or should have discovered the cause of his injury prior to December 5, 1977.*fn4 Alternatively, if the injury was discovered or should have been discovered after December 5, 1977 then Eric Stein would have two years from the date of the discovery to bring his action. Eric Stein contends that the Acker decision of this court changed this analysis entirely and permitted the plaintiff two years from the date of the discovery of his injury without regard to when it was discovered. Thus, Eric Stein argues that because the Acker decision was not available for his use at trial*fn5 that he quite logically did not plead that he discovered his injury on the date his parents filed their writs of summons in trespass, November 16, 1977 because, to have done so would have barred his claim which was not brought until 1978.
Eric Stein contends that the pre- Acker law in Pennsylvania was clearly stated in Judge Price's dissenting opinion to the majority opinion in Acker in which Judge Price wrote:
The majority has adopted without qualification the "discovery" rule in applying the applicable statute of limitations. In so doing they have stretched the somewhat elastic rule of law heretofore applicable in Pennsylvania. Whether this stretching is beyond the breaking point of the elastic or not is, I suppose, ultimately for our Supreme Court. For now, however, I must dissent for to my view
[ 302 Pa. Super. Page 132]
the elastic snapped early in my reading of the majority opinion.
Accepting for the purpose of this appeal fraud and concealment, active or passive, on the part of appellees and reasonable diligence or the inherently unknowable nature of the injury for the appellant, the fact remains, uncontroverted, that appellant discovered the injury on August 9, 1973, a period of 15 months prior to the November 16, 1974 run date of the statute. The removal of the eye was some 13 months prior to the run date of the statute. I find no case in Pennsylvania that extends the statute under such circumstances. My reading convinces me that the present law of Pennsylvania permits extension of the statute only if the injury could not be discovered by reasonable diligence within the time period, or fraud and concealment covered the injury during the time period.
Acker v. Palena, supra, 260 Pa. Superior at 224-225, 393 A.2d at 1235. We believe Eric Stein has misinterpreted Judge Price's view.
Judge Price stated in Donnelly v. DeBourke, 280 Pa. Super. 486, 492, 421 A.2d 826, 829 (1980):
It is true, as appellant notes, that in certain situations, the statute of limitations does not begin to run on the date injury-causing event occurs, but rather on the date the injury is or reasonably should have been "discovered." These exceptional situations include medical malpractice cases, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), Puleo v. Broad Street Hospital, 267 Pa. Super. 581, 407 A.2d 394 (1979), . . .
Thus it is clear that his view is that the statute commences to run when the injury is or should have been discovered. In Acker, Judge Price certainly took the position that the injury should have been discovered on the date that it was inflicted. His disagreement with the majority in Acker went to the facts in that case not to the principles upon which the discovery rule is based. The decision ...