S.J., A MINOR BY AND THROUGH B. & C. J., GUARDIANS Appellants
CALVIN M. GARDNER
from the Order Entered June 24, 2016 In the Court of Common
Pleas of Franklin County Civil Division at No(s): 2013-4372
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.
minor, by and through her guardians, B.J. and C.J.
(collectively "Appellants") appeals the order
entered by the Honorable Angela R. Krom of the Court of
Common Pleas of Franklin County, granting Appellee Calvin M.
Gardner's cross-motion for summary judgment and
dismissing S.J.'s civil action for damages caused by the
sexual abuse perpetrated on her by Appellee. Appellants
specifically contend that the trial court erred in finding
S.J.'s action was time-barred and that the Minority
Tolling Statute did not toll the relevant statute of
limitations. We reverse the order granting summary judgment
and remand for further proceedings.
2010, S.J.'s parents reported to police S.J.'s
revelation that Appellee had coerced her to engage in sexual
encounters multiple times over an extended time period from
2008 to July 2010, beginning when S.J. was six years old. On
October 5, 2010, Appellee was charged with Indecent Assault
(of a child less than 13 years old). On July 13, 2011,
Appellee pled guilty to this charge and was sentenced to five
October 31, 2013, S.J., through her parents, filed a civil
complaint in the Court of Common Pleas of Franklin County
against Appellee, bringing claims of battery and intentional
infliction of emotional distress in connection with the
damages S.J. suffered from Appellee's sexual abuse.
Thereafter, Appellants filed a motion for partial summary
judgment, claiming Appellee's guilty plea to indecent
assault estopped him from denying the abusive acts in this
civil action. Appellee filed a cross-motion for summary
judgment, claiming that the instant action was untimely as it
had not been commenced within the two year statute of
limitations period applicable to intentional
torts. In response, Appellants asserted that
S.J.'s lawsuit was properly filed pursuant to the
Minority Tolling Statute (42 Pa.C.S.A. § 5533(b)).
trial court granted Appellee's motion for summary
judgment and concluded the instant action was time-barred by
the two-year statute of limitations in 42 Pa.C.S.A. §
5524. Finding that this action accrued in July 2010 when
S.J.'s parents discovered the abuse, the trial court
determined that this lawsuit was untimely filed on October
31, 2013. Although the trial court recognized the existence
of the Minority Tolling Statute, it found this statute was
inapplicable as this action was initiated by S.J.'s
parents, who were required to exercise "due
diligence" to file suit within the prescribed two-year
statutory period. Trial Court Opinion (T.C.O.), 6/24/16, at
6-7. This timely appeal followed.
initial matter, although not raised by the parties in their
respective briefs, we observe that the first time that
Appellee raised his claim based on the statute of limitations
was in his cross-motion for summary judgment. Our rules of
civil procedure provide that the statute of limitations is an
affirmative defense that must be pled in a responsive
pleading as new matter. Pa.R.C.P. 1030(a). See Bartanus
v. Lis, 480 A.2d 1178, 1186 (Pa.Super. 1984) (finding it
was improper for defendants to attempt to raise the statute
of limitations in their preliminary objections).
if a party fails to include this affirmative defense in a
responsive pleading and improperly raises the claim in
preliminary objections or even in a motion for summary
judgment, the failure of the opposing party to object to the
procedural defect waives the error and allows for review of
this issue. See Richmond v. McHale, 35 A.3d 779, 782
(Pa.Super. 2012) (citing Duquesne Slag Products v.
Lench, 490 Pa. 102, 415 A.2d 53, 54 (1980)). In this
case, while it was improper for Appellee to file his
affirmative defense based on the statute of limitations in
his motion for summary judgment, Appellants never objected to
Appellee's procedural defect. As a result, we may review
this claim on its merits.
sole issue before this Court is whether the trial court erred
in finding that this action was barred by the statute of
limitations as the Minority Tolling Statute was inapplicable.
As statutory interpretation is a question of law, our
standard of review is de novo and our scope of
review is plenary. Commonwealth v. Vega-Reyes, 131
A.3d 61, 63 (Pa.Super. 2016). The relevant provisions of the
Minority Tolling Statute are as follows:
(b) Infancy.-(1) (i) If an individual entitled to bring a
civil action is an unemancipated minor at the time the cause
of action accrues, the period of minority shall not be deemed
a portion of the time period within which the action must be
commenced. Such person shall have the same time for
commencing an action after attaining majority as is allowed
to others by the provisions of this subchapter.
(ii) As used in this paragraph, the term "minor"
shall mean any individual who has not yet attained 18 years
(2) (i) If an individual entitled to bring a civil action
arising from childhood sexual abuse is under 18 years of age
at the time the cause of action accrues, the individual shall
have a period of 12 years after attaining 18 years of age in
which to commence an action for damages regardless of whether