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CONNIE INGBER v. RALPH MEZROW (11/21/85)

decided: November 21, 1985.

CONNIE INGBER, APPELLANT,
v.
RALPH MEZROW, D.D.S., APPELLEE



Appeal No. 7 E.D. Appeal Dkt. 1985 from Order of Superior Court, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala And Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Per Curiam

[ 508 Pa. Page 616]

ORDER

Appeal dismissed as having been improvidently granted.

Disposition

Appeal dismissed as having been improvidently granted.

LARSEN, Justice, dissenting.

I dissent; I would reverse the order of the Superior Court and in support thereof quote the dissenting opinion of Judge Vincent Cirillo:

I respectfully dissent from the affirmance of summary judgment in this case. We are asked to apply the enlightened "discovery rule" exception to the two-year statute of limitations governing this action, Act of June 24, 1985,

[ 508 Pa. Page 617]

P.L. 236 § 2 (current version at 42 Pa.C.S. § 5524(2)). See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). Under the discovery rule, the statute commences to run from the time the plaintiff discovers or reasonably should discover his injury and its cause. Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978). In applying the discovery rule to personal injury actions, this Court has held that the applicable limitations period does not commence to run until the plaintiff can reasonably be held to knowledge of 1) the injury caused him; 2) the operative cause of the injury; and 3) the causative relationship between the injury and the operative conduct of the defendant. Anthony v. Koppers Co., 284 Pa. Super. 81, 425 A.2d 428 (1980), rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). Accord, Hunsicker v. Connor, 318 Pa. Super. 418, 465 A.2d 24 (1983). My quarrel is with the majority's conclusion that, more than two years prior to the commencement of this action on December 23, 1977, appellant knew or in the exercise of reasonable diligence should have known of the causative relationship between her injury and Dr. Mezrow's conduct.

The majority totally discounts appellant's argument that Dr. Casullo, her treating dentist in October of 1975, misled her as to the cause of her dental problems. The majority holds that this argument "is of no aid since this implies a subjective standard and, in any event, this misadvice, if that it be, cannot be imputed in any way to appellee, Mezrow." Slip op. at 6. I believe this holding fundamentally and erroneously misperceives the thrust of appellant's argument. Her argument implies the opposite of a subjective standard; she is claiming that when she sought the help of an objective specialist, Dr. Casullo, for her dental problems, he failed to inform her that her disease might have stemmed from Dr. Mezrow's conduct, and instead told her the disease was the result of a natural disease process. At that point, after a second doctor had told her, in effect, that her problems had not been caused or worsened by a first doctor's treatment, what further steps could she reasonably be expected to

[ 508 Pa. Page 618]

    take to ascertain the true cause of her injury? See and compare DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa. Super. 492, 460 A.2d 295 (1983) (suit commenced twenty-eight months after conversation with a dentist who told plaintiff specifically that the dentist who worked on him before had a hand in causing the problem); Petri v. Smith, 307 Pa. Super. 261, 453 A.2d ...


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