§ 5532(b) precludes tolling of the statute of limitations where a plaintiff knows the defendant's out-of-state address and can serve him there by certified mail under 42 Pa.C.S. § 5532(a)(3).
Whether plaintiff actually knew her father's whereabouts, or could have discovered his whereabouts through reasonable diligence, is a jury question; hence, the submission of interrogatories 6 and 7 to the jury. The only problem is -- and it just now rises to my attention as I consider the posttrial motions before me -- the interrogatories failed to go far enough because they did not ask the jury when plaintiff learned of the defendant's new address. If, for example, Julia did not discover defendant's whereabouts until a year after he left the house, the statute of limitations would be tolled for one year; though a mere one year's tolling would not prevent the limitations periods from expiring on her assault, battery and invasion of privacy claims, at least she would not be out of court on her breach of fiduciary duty claim, which carries a longer, six year limitations period.
Resolution of defendant's motion therefore turns on two questions: what plaintiff knew, and when she knew it. Unfortunately, the record before me does not provide a firm answer to the latter question.
Defendant, for example, points to an affidavit form which Julia signed on May 4, 1981 in connection with her application for an accelerated rehabilitation disposition (ARD)
of a criminal case that had been brought against her in Northampton County. On the back of this document, which was introduced into evidence, her father's address was listed, correctly, as Morris Street, Phillipsburg, New Jersey. Defendant Lloyd argues that this document conclusively establishes that Julia knew, or should have known, her father's whereabouts as of May 4, 1981. Plaintiff Julia, however, when confronted with the document on cross-examination, testified that she didn't know what the document was when she signed it and that, of particular significance here, she never saw the reverse side of the document where her father's address appeared, but only signed the front of the document.
Record of Proceedings, Day Two, at pages 71-73. She also testified that she did not know where her father was living until 1986. Id. at 68.
Thus, plaintiff does not deny that she knew her father's address in New Jersey -- as the jury found in its answer to Interrogatory 6 -- but she contends that the jury's answers to the interrogatories leave unresolved the critical question of when she learned of that address. I agree. I also agree with her contention that the record is devoid of any introvertible facts which would show with certainty that Julia knew or should have known her father's address in May of 1981, for although the ARD document suggests she knew the address, her professed ignorance of the the contents of the other side of the document raised a credibility question which only the jury could decide. Thus, there has been a failure of proof on the statute of limitations issue.
Although the appropriate remedy in this situation would normally be to order a new trial limited solely to resolving the statute of limitations issue, there is no motion for a new trial pending before the court. Nor, under Rule 59, may I order a new trial on my own initiative, because more than ten (10) days have passed since the entry of final judgment. See Fed.R.Civ.P. 59(d). Because I am thus limited to deciding the merits of defendant's motion for judgment n.o.v., I must determine whether the failure of proof on the statute of limitations issue is fatal to plaintiff's case, or fatal to the defendant's, and this question, in turn, would appear to turn on which party bears the burden of proof.
Plaintiff contends that the burden is on defendant to demonstrate that he has a valid statute of limitations defense. Because the jury's answers to interrogatories do not conclusively establish that there was no tolling, plaintiff argues that the defendant has failed to meet his burden, and that the jury's verdict must therefore stand. Defendant, however, contends that the burden is on plaintiff affirmatively to establish all facts which permit tolling under § 5532; because plaintiff has failed to establish such facts, defendant contends that the court must enter judgment for defendant.
The specific burden of proof question at bar appears to be another issue of first impression. For example, in Van Buskirk v. Carey Canadian Mines Ltd., 760 F.2d 481 (3d Cir. 1985), the Third Circuit held that the statute of limitations is an affirmative defense, and the burden of establishing its applicability to a particular claim rests with the defendant. But where a plaintiff tries to establish that the statute should be tolled by fraud or equitable estoppel, the burden shifts to plaintiff. 760 F.2d at 487. See also Mihalcik v. Celotex Corp., 354 Pa. Super. 163, 511 A.2d 239 (1986) (allegations of fraud do not toll statute of limitations absent proof by clear and convincing evidence that defendants affirmatively and fraudulently induced plaintiff to delay bringing action). Van Buskirk and Mihalcik, however, are distinguishable from the instant case, because tolling on grounds of fraud or equitable estoppel is governed not by § 5532, but by an entirely different section of the Pennsylvania statute, 42 Pa.Cons.Stat. § 5504.
The cases which discuss the applicability of tolling on grounds of a defendant's absence from the jurisdiction are not conclusive. Construing the statutory predecessor of § 5532, 12 P.S. § 40,
the Pennsylvania Supreme Court observed that
[The] legislative purpose [behind the tolling statute] was to provide that, when a resident of Pennsylvania incurs legal obligations within the Commonwealth, if he subsequently leaves this jurisdiction and becomes nonresident to such an extent that he cannot be reached by the ordinary process of a Pennsylvania court, while so nonresident, he is not entitled to the benefit of our statutes of limitation.
Hunter v. Bremer, 256 Pa. 257, 264, 100 A. 809, 812 (1917). The Bremer court did not, however, discuss the burden of proof issue.
Upon consideration of the existing caselaw, I conclude as a matter of law that, for tolling to apply, plaintiff must establish, by a preponderance of the evidence, that defendant has become a non-resident of the Commonwealth within the meaning of § 5532(a). Cf. In Re Seitz, 31 D. & C. 74 (1937) (where defendant left Commonwealth without taking any of her personal property, plaintiff has burden of proving that defendant was no longer a Pennsylvania resident). However, once plaintiff has shown that the defendant is no longer a Pennsylvania resident, the burden shifts to the defendant to show that plaintiff could have located the defendant's whereabouts through reasonable diligence and served him there by certified mail. In other words, plaintiff bears the burden of establishing that she is entitled to tolling under the general rule of § 5532(a), and once that burden is met defendant bears the burden of showing that he falls within the exception to the general tolling rule found in § 5532(b).
At bar, plaintiff has met her burden of proving defendant's nonresidence because defendant concedes that he moved to New Jersey in September of 1980. Thus, the burden has shifted to defendant, and he bears the burden of proving by a preponderance of the evidence that Julia had, or should have had, knowledge of his whereabouts for a length of time equal to or greater than the length of the applicable limitations period.
Because the jury's answers to interrogatories do not establish when Julia discovered the defendant's new address, and because defendant had the burden of proof on this issue, I cannot grant defendant's motion to mold the verdict or alternative motion for judgment n.o.v. Having failed to establish that he qualifies for the special tolling exception provided for in § 5532(b), he has failed to establish a valid statute of limitations defense, and the jury's verdict shall stand.
An order follows.
ORDER - September 28, 1989, Filed
AND NOW, this 27th day of September, 1989, in consideration of defendant's Motion to Mold the Verdict and/or Judgment Notwithstanding the Verdict, and the responses and supplementary briefs thereto, it is hereby ORDERED that the motion is DENIED, and the jury's verdict in favor of plaintiff, and its award of $ 25,000 in compensatory damages and $ 75,000 in punitive damages, shall stand.