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RICHARD J. BELL AND RUTH BELL v. ERNEST P. SANTIAGO (03/10/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 10, 1986.

RICHARD J. BELL AND RUTH BELL, HIS WIFE, APPELLANTS,
v.
ERNEST P. SANTIAGO

Appeal from the Order of the Court of Common Pleas, Civil Division, of Cumberland County at No. 952 Civil Division.

COUNSEL

Raymond E. Ginn, Jr., Wellsboro, for appellants.

Thomas J. Williams, Carlisle, for appellee.

Wickersham, Cirillo and Johnson, JJ.

Author: Wickersham

[ 351 Pa. Super. Page 432]

This is an appeal from an order granting a motion for summary judgment entered September 28, 1984, in the Court of Common Pleas of Cumberland County.

In an opinion supporting the entry of summary judgment the court discussed the underlying facts and the issue as:

Defendant's vehicle struck the rear of plaintiffs' automobile at an intersection in Camp Hill, Pennsylvania, on March 21, 1980. Plaintiff Richard Bell sustained injuries to the cervical spine as a result of the accident. His symptoms continued to bother him; on April 11, 1980, he sought medical treatment in Corning, New York, where he resides. He was later advised that his injuries were serious and permanent. Plaintiff commenced this action in trespass on March 25, 1982. Defendant claims that the action is barred by Pennsylvania's two-year statute of limitations; his motion for summary judgment is now before the court.

Plaintiff and defendant agree that New York law will determine whether or not plaintiff may sue in tort. The

[ 351 Pa. Super. Page 433]

Pennsylvania No-Fault Motor Vehicle Insurance Act states: "The right of a victim or a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim." 40 Pa.C.S. § 1009.110(c)(2). Plaintiff contends that New York's three-year statute of limitations should be applied in this case; defendant contends that 110(c)(2) does not require the court to apply the statute of limitations of the victim's domicile state, and that the Pennsylvania Statute of limitations applies.

This appeal timely followed. We reverse.

Appellants raise*fn1 a novel issue in this appeal by asking this court to determine whether under the Pennsylvania No-fault Motor Vehicle Insurance Act,*fn2 a non-resident's suit in tort is governed by Pennsylvania's two-year statute of limitations set forth in 42 Pa.C.S. § 5524(2); or whether the statute of limitations period is governed by the law of the non-resident's domicile state.

Insofar as the right of a victim to sue in tort is concerned, section 110(c)(2) of the No-fault Act, states:

The right of a victim or of a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim. If a victim is not domiciled in a state, such right to sue shall be determined by the law of the state in which the accident resulting in injury or damage to property occurs.

[ 351 Pa. Super. Page 434]

    place where the action is brought and the remedy is sought to be enforced, and not those of the place where the contract was made, the right in tort arose, or the plaintiff resides, or of the domicil of one or the other of the persons affected by the litigation, control in the event of a conflict of laws. In short, under this rule, the lex fori determines the time within which a cause of action shall be enforced.

51 Am.Jur.2d, Limitation of Actions, § 66 (footnotes omitted).

Having established that Pennsylvania's statute of limitations applies, we next address appellants' allegation of error by the court below in holding that this action is barred by virtue of the two-year limitations statute. Specifically, appellants argue that a genuine issue of material fact still exists as to when the statute of limitations began to run, and that, therefore, the summary judgment should be overturned. We agree.

Under the No-fault Act in Pennsylvania as it existed in 1982, there was no right to bring suit in tort for non-economic detriment until certain threshold requirements were met. 40 P.S. § 1009.301. For example, Pennsylvania had a $750.00 medical expense threshold. (Section 301(a)(5)(B).)*fn4

[ 351 Pa. Super. Page 436]

New York's "no-fault" law is intended to limit recoverable damage to those damages beyond the "no-fault" benefits, i.e., for a non-covered "serious injury" for which a suit for pain and suffering is maintainable.*fn5

The New York three-year statute of limitations begins to run on the date of the accident, notwithstanding that a victim may not have yet reached the no-fault threshold. Taber v. Niagara Frontier Transit Authority, 101 Misc.2d 92, 420 N.Y.S.2d 692 (1979), aff'd, 78 A.D.2d 775, 435 N.Y.S.2d 551 (1980). Taber holds that a plaintiff is on immediate notice, as of the date of the accident, of the infliction of harm and subsequently need only judge its extent or seriousness . . . and that a diligent plaintiff should be able to determine whether a "serious injury" occurred. In Pennsylvania, 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 has been reached. Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983). Bond holds that a claimant has no cause of action until a statutory threshold has been met, since part or all of the statutory period could run before a right to sue existed.

We hold that the right of a victim of a motor vehicle accident to sue in tort shall be determined by the law of his domicile, (here, New York permitted such a suit), but when the tort action is brought in a Pennsylvania court, we will apply the Pennsylvania statute of limitations and the interpretation

[ 351 Pa. Super. Page 437]

    of our court as to when and under what circumstances our statute begins to run.

Instantly, appellants' cause of action must be examined by the trial court under a Bond analysis. This was not done.

In summary, we hold that under a Pennsylvania interpretation of our statute of limitations, the non-resident plaintiff (appellants herein) had two years to file suit in Pennsylvania from the date that plaintiff knew, or in the exercise of reasonable diligence should have known, that he had sustained a "serious injury" as the New York statute defines that phrase.

There being material issues of fact in dispute, the court could not properly grant appellee's motion for summary judgment. We therefore reverse and remand for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.


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