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08/25/97 LINDA PARISANO DALRYMPLE v. EUGENE BROWN

August 25, 1997

LINDA PARISANO DALRYMPLE, APPELLANT
v.
EUGENE BROWN, APPELLEE



Affirmed. Appeal from Order of Superior Court of Pennsylvania at No. 1628 Phl. '95 decided February 21, 1996 affirming the opinion and order dated April 3, 1995, at No. 92-10026 in the Court of Common Pleas of Delaware County. JUDGE(S) BELOW: C.C.P. - Hon. Joseph F. Battle / SUPERIOR - CAVANAUGH, MCEWEN, HOFFMAN, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Madame Justice Newman files a Concurring opinion. Mr. Justice Nigro concurs in the result.

The opinion of the court was delivered by: Cappy

OPINION OF THE COURT

JUSTICE CAPPY:

DECIDED: August 25, 1997

This case presents the court with an issue of contemporary significance: Whether the discovery rule should extend the statute of limitations in a case where the plaintiff claims that repressed memory of an injury is the cause of the failure to file the action timely? Answering this question in the negative, we affirm the decision of the Superior Court affirming the order of the trial court granting summary judgment.

Appellant is in her mid-thirties and alleges in her Complaint that she recovered memories on August 25, 1990 of a childhood sexual assault that the appellee perpetrated upon her in 1968 and 1969. She further claims that she had repressed the memory of the events for over twenty years and first recalled them on August 25, 1990. She filed a Praecipe for a Writ of Summons on July 10, 1992 and a Complaint on December 7, 1992. The Complaint sets forth counts for battery, assault, intentional infliction of emotional distress, and a claim for punitive damages.

In his responsive pleadings, appellee denied the factual allegations, raised the statute of limitations as an affirmative defense, and filed a counterclaim, alleging that appellant's claims were unfounded and made in bad faith.

Subsequent to the filing of the Answer, appellee filed a Motion for Summary Judgment, alleging that the matter was barred by the statute of limitations, 42 Pa.C.S. § 5524, which provides that the causes of action relied upon by appellant are subject to a two-year statute of limitation. *fn1 Although appellant was a minor when the sexual abuse is alleged to have occurred, the statute which excuses the period of minority for purposes of the statue of limitations is not available in this case as the cause of action accrued prior to the effective date of that particular tolling provision. *fn2 However, even if the minority tolling provision were available to appellant, she reached majority on January 3, 1979. Thirteen years from the date of majority passed before she filed suit.

The Court of Common Pleas granted the Motion for Summary Judgment, holding that the appellant had failed to comply with the statute of limitations by failing to file her claims within two (2) years of reaching her eighteenth birthday. *fn3 The court also declined to apply the discovery rule to extend the statute of limitations, relying upon the Superior Court decision in Seto v. Willits, 432 Pa. Super. 346, 638 A.2d 258 (1994) and the rationale of Baily v. Lewis, 763 F. Supp. 802 (E.D. Pa. 1991).

In a memorandum decision, the Superior Court affirmed the decision below, relying upon E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 622 A.2d 1388 (1993), A.McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128 (1993), and Seto v. Willits, (supra) . We granted allocatur to decide the important question presented by this case.

In our review of a case decided on summary judgment, we are required to determine whether the moving party has established that there was no genuine issue of material fact and that he is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). In making this determination, we must examine the record in the light most favorable to the nonmoving party, and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Hayward v. Medical Ctr., 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992).

In the instant case, we do not believe that there are any factual disputes that would preclude our ability to decide the questions of law presented in this case.

The engine which drives this appeal is appellant's assertion that she could not reasonably have known of her injury until that moment in time when she recovered her repressed memory. Accordingly, she argues that her injury was not discovered until the moment of recovery and therefore, the discovery rule should apply to toll the statute of limitations in the case sub judice.

"The statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations." Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963); Pocono Int'l Raceway v. Pocono Produce, 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). The statute of limitations requires aggrieved individuals to bring their claims within a certain time of the injury, so that the passage of time does not damage the defendant's ability to adequately defend against claims made. As we have noted elsewhere, the statute of limitations "supplies the place of evidence lost or impaired by lapse of time, by raising a presumption which renders proof unnecessary . . . ." Schmucker v. Naugle, 426 Pa. 203, 205, 231 A.2d 121, 123 (1967)(quoting United States v. Oregon Lumber Co., 260 U.S. 290, 67 L. Ed. 261, 43 S. Ct. 100 (1922)).

The "discovery rule," so-called, is an exception to the requirement that a complaining party must file suit within the statutory period. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Hayward, 530 Pa. at 325, 608 A.2d at 1043; Schaffer, 410 Pa. at 406, 189 A.2d at 270.

As we have stated before, the rule is an equitable one, which excludes the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury. Hayward, 530 Pa. at 325, 608 A.2d at 1043 (emphasis supplied). Although the purpose of this rule is "to mitigate, in worthy cases, the harshness of an absolute and rigid period of limitations," it is also true that the rule "cannot be applied so loosely as to nullify the purpose for which a statute of limitations exists." Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 135, 633 A.2d 1172, 1175 (1993).

The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence. Pocono Int'l. Raceway, at 84-85, 468 A.2d at 471. The standard of reasonable diligence is objective, not subjective. It is not a standard of reasonable diligence unique to a particular plaintiff, but instead, a standard of reasonable diligence as applied to a "reasonable person." Redenz by Redenz v. Rosenberg, 360 Pa. Super. 430, 435, 520 A.2d 883, 886, appeal denied, 516 Pa. 635, 533 A.2d 93 (1987).

Prior to the Pennsylvania courts having had an opportunity to address application of the discovery rule to claims of repressed memory as justification in applying the rule, the Federal District Court for the Eastern District of Pennsylvania twice addressed the issue. In the first case, Baily v. Lewis, 763 F. Supp. 802 (E.D.Pa. 1991), the court found the discovery rule unavailable, holding that the plaintiff's failure to ...


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