848 (W.D.Pa. 1996) (which is the only case cited by Giusto for
invoking the discovery rule), the discovery rule's recitation is
not a factor in the decision. There, "the alleged unlawful acts
giving rise to all of the foregoing causes of action were known
to [p]laintiff at least by 1984," well over a year before the
defamation action was first brought by that plaintiff.
DiNicola, 945 F. Supp. at 861. Thus, the discovery rule was moot
under those circumstances.
Additionally, in DiNicola, the recitation of the rule was in
the context of a case involving a myriad of state law claims.
See id. It is doubtful that the court would have performed the
same analysis regarding the applicability of the discovery rule
to a defamation claim, had these additional state law claims not
Lending support to this possibility is another case cited by
Mr. Barrett, Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190
(E.D.Pa. 1994). Although the Plaintiff has referred us to Doe
in order to support the proposition that the discovery rule
should control in a defamation action, the case falls far short
of such a holding. The Doe plaintiff brought suit against his
former employer alleging several different varieties of
malfeasance, including, inter alia, defamation and invasion of
privacy. The defamation claim was dismissed on grounds wholly
unrelated to the application of the discovery rule, which is not
even discussed in the context of the defamation claim. Rather,
the court in Doe only addressed the discovery rule on the
plaintiff's invasion of privacy claim. In that regard, plaintiff
alleged that his former employer was, while plaintiff was an
employee, secretly opening and reading his personal mail, without
In the case at bar, on the other hand, we are being asked to
apply the discovery rule in a defamation suit, not an invasion
of privacy suit. Further, unlike the Doe plaintiff, our
Plaintiff was not deprived of an opportunity to learn of the
alleged injury being perpetrated against him. Rather, Mr. Barrett
could have discovered the publication. Interestingly, DiNicola
cited Doe, notwithstanding its limited holding, while Giusto
cited DiNicola, although its holding does not turn on the
discovery rule. We cannot be expected to follow a rule that has
not actually been applied previously in the defamation context,
absent clear statutory authority. As the parties are well aware,
no such clear authority exists. Indeed, as we have indicated,
supra, certain policy arguments lead us to the opposite
conclusion — that we should not apply such a rule of discovery
in the defamation context.
These policy arguments inform the reasoning in another case
cited by both sides: Dalrymple v. Brown, 549 Pa. 217,
701 A.2d 164 (1997). As the Plaintiff is quick to point out, this is not a
defamation action, but rather, a suppressed-memory case. However,
its relevance is not diminished here, as Mr. Barrett contends. In
Plaintiff's Memorandum in Opposition to Defendant's Motion for
Summary Judgment, Mr. Barrett focuses on the distinction between
the subjective test and objective test delineated by the court in
Dalrymple. Plaintiff's focus misses the mark, as the true
relevance of Dalrymple to the case at bar is its identification
of the limited uses for which the discovery rule may be applied.
The court stated, "[t]he very essence of the discovery rule in
Pennsylvania is that it applies only to those situations where
the nature of the injury itself is such that no amount of
vigilance will enable the plaintiff to detect an injury."
(citing Pocono Int'l Raceway v. Pocono Produce, 503 Pa. 80,
468 A.2d 468 (1983)) (emphasis supplied). Dalrymple, 549 Pa. at
228-229, 701 A.2d 164.
The courts have not developed the equitable concept of the
discovery rule in order to aid a plaintiff in a defamation action
where the allegedly defamatory material was published, advertised
and distributed freely to any willing purchaser. Under such
circumstances, we conclude, the question of the applicability of
Pennsylvania's objective, reasonable person, standard, is
It cannot be stressed enough that at the heart of
Pennsylvania's statutes of limitations lies an important public
policy, foundational in the purposes for which such statutes have
The defense of the statute of limitations is not a
technical defense but substantial and meritorious. .
. . Such statutes are not only statutes of repose,
but they supply the place of evidence lost or
impaired by lapse of time, by raising a presumption,
which renders proof unnecessary. . . . Statutes of
limitation are vital to the welfare of society and
are favored in the law. . . . They promote repose by
giving security and stability to human affairs.
Bradford, 882 F. Supp. at 1519 (quoting Schmucker v. Naugle,
426 Pa. 203, 205-206, 231 A.2d 121 (1967) (quoting U.S. v.
Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 67 L.Ed.
261 (1922))). We believe that we must exercise caution where a
party has urged us to apply an exception to avoid the effect of
such a statute, lest we do away with the statute's salutary
purpose in the process.
The Discovery Rule in Media-Public Defamation Claims
Implicit in the above analysis is that we are not dealing with
clandestine operations on Defendants' part, as we have
distinguished the case at bar from certain other cases that
involved secret communications where the plaintiffs could not
have been expected to discover the defamatory writings. In short,
we have already concluded that the discovery rule should not be
applied where, as here, a defendant's alleged defamation was not
done in a manner meant to conceal the subject matter of the
To clarify our holding, we would like to emphasize that in the
case of a media-public defamation action, where the defamatory
writing has actually been published, there is an even stronger
rationale for eschewing the discovery rule.
"Publication" occurs "when media [is] released or distributed
for mass sale to [the] public." Bradford, 882 F. Supp. at 1519
(quoting Agriss v. Roadway Express, Inc., 334 Pa. Super. 295,
483 A.2d 456 (1984)). The court in Bradford continued:
Such "publication" is the objective triggering event
for the statute of limitations in libel cases, and
thus the happenstance of when one particular
plaintiff happens to see the offending publication
can be of no legal moment.
Bradford, 882 F. Supp. at 1519. The question is whether we can
find that a publication occurred that would fortify our rationale
in finding that the statute of limitations has run. We believe
this question can be answered in the affirmative.