judgment can properly be entered in favor of a defendant where plaintiff's cause of action is barred by the statute of limitations. Ingenito v. AC & S, Inc., 633 A.2d 1172, 1174 (Pa. Super. 1993), citing Wible v. Apanowicz, 306 Pa. Super. 262, 452 A.2d 545 (Pa. Super. 1982).
In Pennsylvania, personal injury claims based on either negligence or strict liability must be commenced within two years after the claim accrues. See 42 Pa.C.S.A. § 5524(2) (Purdon's 1981 & Supp. 1993).
As a rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Ingenito, 633 A.2d at 1174. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Id. Lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations. Id., quoting Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (Pa. 1983).
In general, the statutory period will begin to run when the cause of action accrues, i.e., the date on which the injury is sustained. Ingenito, 633 A.2d at 1174.
An injury is done "when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Id., quoting Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 792 (Pa. 1959).
The discovery rule exception to the statute of limitations was judicially created to prevent harsh results. It arises from the inability of an injured person, despite the exercise of due diligence, to know of an injury or its cause. Ingenito, 633 A.2d at 1174, citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040, 1043 (Pa. 1992). When the discovery rule is applicable, the limitations period begins to run 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." See A. McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128, 130 (Pa. Super. 1993) (citations omitted).
Before applying the discovery rule exception, a court must address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action. Ingenito, 633 A.2d at 1174, quoting Pocono, 468 A.2d at 471. In order to determine what is reasonable diligence in a particular case, the court must evaluate the plaintiff's actions to discover whether she exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." Petri v. Smith, 307 Pa. Super. 261, 453 A.2d 342, 347 (Pa. Super. 1982), quoting Restatement (Second) of Torts § 283, comments b & c.
The standard of reasonable diligence is an objective or external one that is the same for all individuals. Petri, 453 A.2d at 347. If a party has the means of discovery within her power but neglects to use them, her claim will be barred. Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 505 A.2d 973, 988 (Pa. Super. 1985), citing De Martino v. Albert Einstein Medical Center N.D. 313 Pa. Super. 492, 460 A.2d 295, 303 (1983). A plaintiff does not need to know that she has a cause of action, or that she has suffered an injury due to another party's wrongful conduct. See Ingenito, 633 A.2d at 1174, quoting Burnside, 505 A.2d at 987-88. Once a plaintiff possesses the salient facts concerning the occurrence of her injury and who or what caused it, she has the ability to investigate and pursue her claim. Id.
In most situations, the question of the application of a statute of limitations defense, especially where a question of due diligence in discovery is raised, is a factual determination for the jury. See Citsay v. Reich, 380 Pa. Super. 366, 551 A.2d 1096, 1099 (Pa. Super. 1988). "Only where the facts are undisputed and lead unerringly to the conclusion that the length of time it took the plaintiff to discover the injury or its cause was unreasonable may the question be decided as a matter of law on summary judgment." Burnside, 505 A.2d at 988, citing Anthony v. Koppers Co., 284 Pa. Super. 81, 425 A.2d 428, 443 (Pa. Super. 1980), rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (Pa. 1981). See also Citsay, 551 A.2d at 1099 ("in an appropriate case the litigation of a limitation issue, independent of the merits of the plaintiff's claim, can be accomplished by invoking the summary judgment procedure").
The statute of limitations is an affirmative defense, and the burden of establishing its applicability to a particular claim usually rests with the defendant. See Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir. 1985). However, under Pennsylvania law, the burden shifts to the plaintiff where she seeks to establish that the statute should be tolled by the discovery rule:
The plaintiff has the burden of justifying any delay beyond the date on which the limitation would have expired if computed from the date on which the acts giving rise to the cause of action allegedly occurred. He must allege and prove facts which show that he made reasonable efforts to protect his interests and which explain why he was unable to discover the operative facts for his cause of action sooner than he did. Patton v. Commonwealth Trust Co., 276 Pa. 95, 99, 119 A. 834 (1923).
Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir. 1985), quoting Bickell v. Stein, 291 Pa. Super. 145, 435 A.2d 610, 612 (Pa. Super. 1981).
Plaintiffs' Complaint and Brief reveal that they knew or should have known of a possible causal relationship between their injuries and the IUD at some date more than two years prior to the initiation of this action. We are guided to this conclusion by a number of recent decisions by the Superior Court of Pennsylvania discussing the due diligence requirement of the discovery rule. See Ingenito, supra; Cochran v. GAF Corp., 633 A.2d 1195 (Pa. Super. 1993); Bradley v. Ragheb, 633 A.2d 192 (Pa. Super. 1993); Murray v. Hamot Medical Center, 633 A.2d 196 (Pa. Super. 1993); Love v. Raymark Indus., Inc., 633 A.2d 1185 (Pa. Super. 1993). In these cases, the Superior Court affirmed orders of summary judgment denying applications of this exception to the statute of limitations.
In Cochran, supra, the court specifically addressed a plaintiff's duty of investigation as it pertains to questioning a treating physician regarding the cause of an ailment. Writing for the en banc majority, Judge Wieand held that "the failure to make inquiry when information was available was the failure to exercise due diligence as a matter of law." Cochran, 633 A.2d at 1198, citing Ingenito, 633 A.2d at 1174. The facts of Cochran are sufficiently similar to those in the instant case to warrant the same legal conclusion.
Mr. Cochran alleged that he was exposed to asbestos during the course of his employment prior to 1982. In 1981, he was diagnosed with a type of lung cancer, and histologic tissue slides disclosed asbestos bodies. In 1982, he was diagnosed with pulmonary emphysema and other pulmonary problems.
In March 1985, Mr. Cochran was diagnosed with adenocarcinoma of the left lower lobe. Following surgery, Mr. Cochran consulted a lawyer, who arranged for an examination of the tissue slides dating from both the 1981 and 1985 surgeries. It was determined that both carcinomas "were, to a significant degree, related to his exposure to and inhaling of asbestos fibers [which] are well recognized as being a significant contributing factor in the high incidence of lung cancer in workers exposed to asbestos." 633 A.2d at 1196.
Mr. Cochran and his wife commenced an action for damages on September 27, 1985. They argued that the statute of limitations should not begin to run until 1985. The trial court entered an order granting defendant's motion for summary judgment and dismissed the action as untimely. The superior Court affirmed, concurring that the Cochrans had failed "to use all reasonable diligence to be properly informed of the facts and circumstances upon which a . . . right of recovery [was] based and to institute suit within the prescribed statutory period." 633 A.2d at 1197.
Judge Wieand noted that "the polestar of the Pennsylvania discovery rule is not a plaintiff's actual acquisition of knowledge but whether the information, through the exercise of due diligence, was knowable to the plaintiff." Cochran, 633 A.2d at 1198, quoting Owens v. Lac D'Amiante Du Quebec, Ltee., 656 F. Supp. 981, 983 (E.D. Pa. 1987), aff'd, 833 F.2d 306 (3d Cir. 1987). Furthermore, the failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law. Id. Affirming summary judgment against the Cochrans, Judge Wieand wrote:
That [Mr. Cochran's] cancer was causally related to his prior exposure to asbestos could have been ascertained by the exercise of reasonable diligence. The cause was to be found in the tissue removed during surgery and thereafter preserved in slides. If Cochran had consulted a physician and/or a lawyer in 1981, as he did in 1985, the presence of asbestos bodies in the tissue could have been ascertained. Indeed, even such consultation was unnecessary. By making inquiry of the surgeon who performed the surgery or the hospital where the surgery was conducted, the presence of asbestos bodies could have been ascertained. The exercise of due diligence required that inquiry be made.
Cochran, 633 A.2d at 1198, citing Ingenito, supra.
Similarly, in Ingenito, the Superior Court affirmed that the discovery rule did not apply to toll the statute where an asbestos plaintiff failed "to discover promptly the possibility of a causal connection between his diagnosed condition and his industrial exposure to asbestos." Ingenito, 633 A.2d at 1175. The court ruled this failure unreasonable as a matter of law, stating:
[Mr. Ingenito's] history of industrial exposure to asbestos was known to him and to the physician who made the diagnosis. The exercise of reasonable diligence would have suggested that Ingenito inquire of his physician concerning the cause of his illness. This information was immediately knowable and available to him. It was not a diagnosis or a cause which was obscure, unascertainable or unavailable in the exercise of due diligence.