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filed: October 9, 1986.


Appeal From Judgment Entered October 8, 1985 Court of Common Pleas, Civil Division Delaware County No. 83-9660.


Joseph McFadden, Media, for appellants.

Malcolm L. Lazin, Philadelphia, for appellees.

Cavanaugh, Wickersham and Roberts, JJ.

Author: Cavanaugh

[ 357 Pa. Super. Page 422]

Mary Ann Groover and her husband, August T. Groover, appeal from an order of the Court of Common Pleas of Delaware County entered on September 20, 1985 which granted the defendants' motion for summary judgment. We affirm.

Sometime between March 25 and April 3, 1979 while appellant Mary Ann Groover was a patient at the Riddle Memorial Hospital, she received a very painful injection. From the time of the injection, appellant began to suffer pain and loss of control in her right leg.*fn1 Appellant saw various doctors over the next several years in an attempt to ascertain the problem with her leg. In June of 1983, Dr. Pierre LeRoy determined that the pain in her right leg was a sciatic nerve injury and linked it to the injection she received while in the hospital. Appellants filed suit against appellee on September 3, 1983. Appellees contend that the lower court did not abuse its discretion in granting the motion for summary judgment because suit was filed beyond the two year statute of limitations period. Appellants argue that because of the "discovery rule", the statute did not begin to run until June of 1983 when Dr. LeRoy informed appellant of the type of injury she suffered and its cause, and therefore the suit was timely filed. We agree with the appellee and affirm the lower court's order granting the motion for summary judgment.

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b).

In addition, we are mindful that in considering a motion for summary judgment the court must examine the

[ 357 Pa. Super. Page 423]

    record in the light most favorable to the non-moving party; that the court's function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party . . . . We also note that 'ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury' . . . . Specifically, the question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question . . . . 'Whether the statute has run on a claim is usually a question of law for the judge . . . .' This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, . . . or admits facts sufficient to admit the limitations defense . . . . or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial, Pa.R.C.P. No. 1035(d), or where the evidence relied upon by the plaintiff is inherently incredible . . . .

Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981) (citation omitted).

Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 135-37, 471 A.2d 493, 500 (1984) discussed the "discovery rule", which serves to ameliorate the harsh effects of the statute of limitations.

Pennsylvania's statute of limitations for personal injury cases is two years. Evidently in an effort to ameliorate the sometimes-harsh effects of the statute, Pennsylvania courts have adopted what has come to be known as the "discovery rule." Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury . . . . The discovery rule was recently applied by a panel of our

[ 357 Pa. Super. Page 424]

Court in Staiano v. Johns-Manville Corp., 304 Pa. Super. 280, 450 A.2d 681 (1982). In Staiano, the panel approved a variation of the discovery rule which was articulated in Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290. Under this "Volpe test," three independent phases of knowledge must be known or knowable to a plaintiff before the statute of limitations begins to run: (1) knowledge of the injury, (2) knowledge of the operative cause of the injury, and (3) knowledge of the causative relationship between the injury and the operative conduct. Although the Volpe test has a nice "ring" to it, it unnecessarily complicates the question of when the statute begins to run. For instance, what does "operative" in "operative cause" mean, and can it be possible for a plaintiff to know the "operative cause" of his injury yet not know the relationship between the "operative conduct" and the injury? The discovery rule has been stated in an understandable manner by our Supreme Court, and we see no reason to complicate the law by adopting a modified version of the rule for cases involving diseases contracted from exposure to hazardous substances. We find that the statute of limitations begins to run in "creeping disease" cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct. Stating the test in this manner will result in conformity with various other jurisdictions which have addressed this same problem.

(Footnotes omitted.)

We agree with Cathcart's analysis and believe that its rational simplification of the Volpe test commends its adoption in all "discovery rule" cases, not just "creeping disease" cases. Under the facts of this case, the end result achieved by both tests would be the same, but the use of the Cathcart test would allow for more understandable analysis. However, because the Cathcart test has not as yet been applied to medical malpractice cases, we will not

[ 357 Pa. Super. Page 425]

    go so far as to hold that the two are interchangeable in all cases.

In the instant case, we find as a matter of law that in the spring of 1979 appellant knew or reasonably should have known 1) that she was injured, and 2) the operative cause of her injury, and 3) the causative ...

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