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filed: October 16, 1987.


Appeal from the Judgment entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1025 JANUARY 1982


Howard J. Levin, Philadelphia, for appellants.

Charles B. Burr, II, Philadelphia, for appellees.

McEwen, Tamilia and Hoffman, JJ.

Author: Tamilia

[ 367 Pa. Super. Page 68]

Following a writ of summons on January 8, 1982, plaintiffs/appellants filed a complaint in trespass on April 16,

[ 367 Pa. Super. Page 691982]

alleging that defendant/appellee, an obstetrician, was negligent in his handling of the birth and delivery of the minor appellant, Michael Larthey, on July 14, 1979. Appellee filed an answer and new matter denying appellants' factual averments and legal conclusions and specifically raising as a defense that appellants' action was barred by the applicable two-year statute of limitations, 42 Pa.C.S. § 5524. Discovery proceeded for approximately four years. Immediately prior to trial, appellee filed a motion for partial summary judgment alleging the action violated the statute of limitations. In addition to their answer in opposition to appellee's motion, appellants filed a cross-motion for summary judgment arguing that the tolling statute for minors, 42 Pa.C.S. § 5533(b), applies to appellants' case and tolled the statute of limitations.

By Order dated April 27, 1986, the trial court denied both parties' motions for summary judgment. However, on April 28, 1986, after selection of the jury had been completed, an in-chambers meeting occurred in which the Honorable Abraham J. Gafni reopened the issue of the statute of limitations operation and, after a discussion as to contradictions between appellants' deposition testimony versus their affidavits in opposition to appellee's motion for partial summary judgment, directed both sides to file supplemental briefs on the matter. Subsequently, on August 13, 1986, Judge Gafni amended his earlier Order and granted summary judgment in appellee's favor and denied appellants' cross-motion for summary judgment. Appellants timely appeal that judgment.*fn1

As we stated in Morgan v. Johns-Manville Corporation, 354 Pa. Super. 58, 61, 511 A.2d 184, 186 (1986):

Summary judgment 'shall be rendered 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

[ 367 Pa. Super. Page 70]

    the moving party is entitled to a judgment as a matter of law.' Pa.R.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party, Helinek v. Helinek, 337 Pa. Superior Ct. 497, 502, 487 A.2d 369, 372 (1985), and view all of the evidence in a light most favorable to the non-moving party, Rossi v. Pennsylvania State University, 340 Pa. Superior Ct. 39, 48, 489 A.2d 828, 833 (1985). Moreover, summary judgment may be rendered only in cases that are free from doubt. Id., 340 Pa. Superior Ct. at 44-45, 489 A.2d at 831; Huffman v. Aetna Life and Casualty Co., 337 Pa. Superior Ct. 274, 277, 486 A.2d 1330, 1331 (1984).

See Chandler v. Johns-Manville Corporation, 352 Pa. Super. 326, 507 A.2d 1253 (1986). With these rules in mind, we review appellants' claim.

On July 14, 1979, appellant, Katherine Larthey, gave birth to her second child, Michael, at Germantown Hospital and Dispensary in Philadelphia. Appellee, Dr. Brinley C. Bland, was the obstetrician who provided the prenatal care to Mrs. Larthey and who delivered the child. Complications arose during the course of the delivery when the minor appellant's shoulders became impacted in the birth canal. This resulted in a brachial plexus injury which was diagnosed as Erb's Palsy. At issue is the applicability of what is known as the "discovery rule" to the running of the two-year statute of limitations, 42 Pa.C.S. § 5524.

[ 367 Pa. Super. Page 71]

As a general rule, the statute of limitations begins to run in a tort case when the cause of action accrues, meaning the date the injury is sustained. "The injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Once the statutory period expires, a party may only bring suit if he can establish that an exception to the general rule applies which acts to toll the statute of limitations. As the Supreme Court explained in Pocono International Raceway, Page 71} Inc. v. Pocono Produce, Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983):

The 'discovery rule' is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause . . . . The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury. A court presented with an assertion of applicability of the 'discovery rule' must before applying the exception of the rule, address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.

We hold, therefore, that the 'discovery rule' exception arises from the inability, despite the exercise of diligence, to determine the injury or its cause, not upon a retrospective view of whether the facts were actually ascertained within the period . . . . (Emphasis in original).

See Pastierik v. Duquesne Light Company, 514 Pa. 517, 526 A.2d 323 (1987). "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." Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 135-136, 471 A.2d 493, 500 (1984) (citations omitted).

Initially in Anthony v. Koppers Company, Inc., 284 Pa. Super. 81, 425 A.2d 428 (1980), rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), a panel of this Court adopted a formulation of the "discovery rule" articulated by the Honorable Harry A. Takiff of the Court of Common Pleas of Philadelphia County in an asbestos case titled Volpe v. Johns-Manville Corporation, 4 P.C.R. 290 (1980), aff'd, 323 Pa. Super. 130, 470 A.2d 164 (1983). Quoting Judge Takiff's statement of the formula, the Anthony court stated:

[ 367 Pa. Super. Page 72]

Ayers ' [ supra ] progeny have struggled primarily with the question of the reasonableness of plaintiff's conduct in attaining the appropriate level of cognitive knowledge which ultimately prompts a timely lawsuit. With the question of "reasonableness" as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (1) knowledge of the injury, (2) knowledge of the operative cause ...

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