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S.J. v. Gardner

Superior Court of Pennsylvania

July 11, 2017

S.J., A MINOR BY AND THROUGH B. & C. J., GUARDIANS Appellants
v.
CALVIN M. GARDNER

         Appeal 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. [*]

          OPINION

          STEVENS, P.J.E.

         S.J., a 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.

         In July 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 years' probation.

         On 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.[1] 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)).

         The 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.

         As an 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).

         Nevertheless, 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.

         The 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 of age.
(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 the ...

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