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November 7, 2002


The opinion of the court was delivered by: J. Curtis Joyner, United States District Judge


By way of the motion now pending before this Court, Defendants seek the entry of summary judgment in their favor on all of the counts in Plaintiff's Complaint. For the reasons set forth below, the motion shall be granted.

Factual Background

In her complaint, Plaintiff Leah Wilder alleges that on or about November 10, 1990, she consulted Defendant Dr. Trinka Luzinski at Covenant House Health Services for a gynecologic exam and was referred for an HIV virus test. On November 19, 1990, Plaintiff was advised by "Dr. Luzinski and/or staff, agents of Defendants Covenant House" (sic) that she had tested positive for the HIV virus, "which is the virus causing AIDS, an incurable, fatal disease." (Complaint, ¶s 13-14). Plaintiff alleges that in reliance upon this diagnosis, she subsequently terminated four pregnancies in April, 1992, May, 1996, December, 1997 and December, 1997 to avoid giving birth to an HIV-infected child. In March, 1998, the plaintiff who was again pregnant, underwent a second test for the HIV virus at Pennsylvania Hospital and discovered that contrary to the defendants' earlier notification, she did not have the HIV virus and did not have AIDS. Plaintiff thereafter commenced this action in state court on December 10, 1999 contending that she has suffered "considerable anguish, humiliation, limitation and restriction of [her] usual activities, pursuits, lost earnings and earning capacity" and "a chronic neurological and physical impairment to her body," as a result of the defendants' actions in misdiagnosing her and seeking to recover damages for the defendants' alleged negligence and negligent and intentional infliction of emotional distress. Defendants now move for the entry of judgment in their favor as a matter of law on two bases: (1) that Ms. Wilder's claims are time-barred by Pennsylvania's two-year statute of limitations; and (2) that given that Pennsylvania does not recognize a cause of action for "fear of AIDS," Plaintiff has failed to state a claim upon which relief may be granted.

Standards Governing Motions for Summary Judgment

The underlying purpose of a motion for summary judgment is to avoid a pointless trial in cases where it is unnecessary and would only cause delay and expense. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). According to Fed.R.Civ.P. 56(c), summary judgment is properly rendered:

". . .if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Stated more succinctly, summary judgment is appropriate only when it is demonstrated that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In deciding a motion for summary judgment, all facts must be viewed and all reasonable inferences must be drawn in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538, 106 S.Ct. 1348 (1986); Oritani Savings & Loan Association v. Fidelity & Deposit Company of Maryland, 989 F.2d 635, 638 (3rd Cir. 1993); Troy Chemical Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 125-126 (3rd Cir. 1994); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 700 F. Supp. 838, 840 (W.D.Pa. 1988). An issue of material fact is said to be genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).

In Celotex Corp. v. Catrett, supra, the Supreme Court held that the movant had the initial burden of showing the court the absence of a genuine issue of material fact, but that this did not require the movant to support the motion with affidavits or other materials that negated the opponent's claim. Celotex, 477 U.S. at 323. The Court also held that Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). This does not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose its own witnesses. Rather, Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the required showing that a genuine issue of material fact exists. Id. See Also, Morgan v. Havir Manufacturing Co., 887 F. Supp. 759 (E.D.Pa. 1994); McGrath v. City of Philadelphia, 864 F. Supp. 466, 472-473 (E.D.Pa. 1994).


A. Statute of Limitations

Under Pa.C.S.A. § 5524(2), (7), an action to recover damages for injuries under a theory of negligence must be commenced within two years from the date of the purportedly negligent act. Judge Ludwig, in In re Latex Gloves Products Liability Litigation, 152 F. Supp.2d 667 (E.D.Pa. 2001) succinctly summarized the "discovery rule" under Pennsylvania law:

Ordinarily, the limitations period "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." Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). However, an exception known as the discovery rule "arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause." Id. at 85, 468 A.2d at 471. "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 v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992) (citation omitted). "Conversely, if the existence of the ...

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