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
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
". . .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
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
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.
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 ...