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BYWATERS v. BYWATERS

September 28, 1989

JULIA M. BYWATERS
v.
LLOYD K. BYWATERS



The opinion of the court was delivered by: GAWTHROP, III

 A jury has expressly found that the defendant, Lloyd Bywaters, sexually molested his daughter, plaintiff Julia Bywaters, and has awarded her damages in the amount of $ 25,000 compensatory and $ 75,000 punitive. Defendant, by posttrial motion, moves that the verdict be molded to naught, contending that the statutes of limitations bar plaintiff's suit. Alternatively, defendant seeks judgment notwithstanding the verdict. Upon the following reasoning, the motions must be denied, and the jury's verdict and award of damages shall stand.

 Background

 Plaintiff Julia presented evidence at trial showing that her father, Lloyd Bywaters, had sexually abused and continually assaulted her from the time that Julia was an infant until she attained adulthood. Julia's ordeal did not come to an end until her father left the family's home in Pennsylvania and moved to New Jersey, leaving behind his wife and daughters. Mr. Bywaters moved out of the family house no later than September 11, 1980, and that therefore this day was the last possible date on which defendant had the requisite physical access to commit sexual acts upon his daughter.

 Plaintiff Julia, however, did not file suit against her father until November 28, 1986 -- six years and forty-eight days after he left the house. Because the statute of limitations on all the causes of action in her complaint is six years or less, *fn1" defendant argues that plaintiff's claims are time barred. However, the Honorable Anthony J. Scirica, my predecessor on this case before his ascent to the Third Circuit, ruled pre-trial that the statute of limitations had been tolled, the defendant having been in and out of Pennsylvania during much of the limitations period.

 When the case came to me for trial, the defendant sought to relitigate the statute of limitations issue, arguing that Judge Scirica had erred in holding the statute tolled. In order to preserve the issue for post-trial consideration, thus permitting more careful deliberation than would have been possible during the rush of trial, I submitted a number of interrogatories to the jury, the following two of which are pertinent:

 
7. Do you find by a preponderance of the evidence that the plaintiff, upon exercise of reasonably diligent inquiry, should have known her father's address in New Jersey?

 To those questions defendant's counsel had no exceptions, when invited. *fn2" The jury answered both questions "Yes".

 Discussion

 Because plaintiff Julia knew the defendant's whereabouts in New Jersey, defendant contends that the tolling provision of 42 Pa.Cons.Stat. § 5532(a), relied upon by Judge Scirica in his earlier decision, does not apply. That statute provides, in pertinent part, as follows:

 
§ 5532 Absence or Concealment
 
(a) General Rule. If . . . after a cause of action accrues against a person, he departs from this Commonwealth, and remains continuously absent therefrom for four months or more . . . the time of his absence . . . is not a part of the time within which the action or proceeding must be commenced.

 Defendant, however, points to the next provision of the same statutory section, § 5532(b), ...


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