            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Neil Price, Individually and on behalf
                                   :
of Freedom Ring Land Management    :
Trust,                             :
                    Appellant      :
                                   :
             v.                    : No. 221 C.D. 2017
                                   : ARGUED: November 14, 2017
Menallen Township, John R. Yantko, :
RTK Officer, Menallen Township     :
Supervisors, and Individually and  :
Lees' Plumbing & Excavating, Inc. :



BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE J. WESLEY OLER, JR., Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE OLER, JR.                         FILED: December 8, 2017

               Neil Price (Price)1 appeals from the decisions of the Court of Common
Pleas of Fayette County (trial court) dismissing claims brought by Price against
Menallen Township (the Township), Menallen Township Supervisor and Right-to-
Know Law Officer John R. Yantko (Yantko), and Lee’s Plumbing & Excavating,
Inc. (Lee’s Plumbing), relating to the demolition of improvements to real property
belonging to the Freedom Ring Land Management Trust and located at 1198 New
Salem Road, Uniontown (Property). The trial court’s dismissal of Price’s claims

      1
          Price proceeds individually and as trustee for Freedom Ring Land Management Trust.
was based on a finding that the claims were barred by the statute of limitations. We
reverse.


               Price commenced this action by filing a praecipe for writ of summons
against the Township on June 23, 2015. An original complaint was filed against the
Township, Yantko and Lee’s Plumbing on February 17, 2016, followed by an
amended complaint on April 6, 2016. In the six-count amended complaint, Price
alleges that a residence on the Property was demolished in January 2013 by Lee’s
Plumbing at the direction of the Township. The amended complaint indicates that
Price became aware of the demolition on or before July 3, 2014, when he filed a
request under the Right-to-Know Law2 for information about the demolition.


               In Counts 1 and 3, Price alleges that the actions of the Township and
Yantko with respect to the demolition of the Property’s improvements violated his
constitutional rights under the 4th and 14th Amendments to the federal constitution,
giving rise to a claim pursuant to 42 U.S.C. § 1983. In Counts 2 and 4, Price alleges
that the Township and Yantko were negligent in the demolition. In Count 5, Price
claims that Lee’s Plumbing was negligent in demolishing the Property’s
improvements. In Count 6, Price alleges that the defendants unlawfully converted
Price’s property.


               On April 26, 2016, the Township and Yantko filed preliminary
objections to the amended complaint. The preliminary objections contended that


      2
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.


                                                2
Price’s action was time-barred under the applicable statutes of limitations.3 The trial
court agreed and dismissed all counts against the Township and Yantko on
September 8, 2016.


               On September 28, 2016, Lee’s Plumbing filed an answer and new
matter, raising the statute of limitations defense to Counts 5 and 6. Thereafter on
October 13, 2016, Lee’s Plumbing filed a motion for judgment on the pleadings. On
January 25, 2017, the trial court granted the motion and dismissed the remaining
counts of the amended complaint.


               On appeal,4 Price argues that the trial court erred on procedural grounds
in dismissing the counts against the Township and Yantko because the statute of
limitations defense was raised via preliminary objections rather than in new matter
as required by Pa.R.C.P. No. 1030(a).5 This Court has previously held that “where
an affirmative defense is clear on the face of the pleadings, it may be addressed by


       3
          In addition to raising a statute of limitations defense, the Township and Yantko also raised
additional objections relating to immunity, capacity to bring suit, and legal sufficiency of the
amended complaint. The trial court did not rule on these additional objections.
        4
          When this Court considers whether preliminary objections in the nature of a demurrer
were properly sustained, our standard of review is de novo and the scope of review is plenary.
Mazur v. Trinity Area School District, 961 A.2d 96, 101 (Pa. 2008). “Our standard of review of
an order granting or denying a motion for judgment on the pleadings is plenary.” Tobias v. Halifax
Township, 28 A.3d 223, 225 n. 4 (Pa. Cmwlth. 2011).
        5
          Noting that Price’s filed opposition to the statute of limitations defense was procedurally
irregular as well, the trial court nevertheless considered the merits of the parties’ positions.
Pursuant to Pa.R.C.P. No. 1028(b), a party should file preliminary objections to raise the “failure
of a pleading to conform to law or rule. . . .” Price did not file a pleading titled “preliminary
objections” in response to the preliminary objections filed by the Township and Yantko. Rather,
Price filed a document titled “Plaintiff’s Opposition to Menallen Township and John R. Yantko’s
Preliminary Objections.” Regardless of the label, the pleading filed by Price appears to be the
functional equivalent of preliminary objections.
                                                  3
the court at the preliminary objection stage.” Scavo v. Old Forge Borough, 978 A.2d
1076, 1078 (Pa. Cmwlth. 2009) (citation omitted). However, as will be discussed
below, the affirmative defense at issue is not sufficiently clear on the face of the
pleading in this case to implicate the exception to the general rule.


             Price also argues that the trial court erred on substantive grounds by
dismissing the counts against the Township and Yantko as time-barred because Price
did not learn of the demolition of the residence on the property until July 2014. Price
contends that, under the discovery rule, the statute of limitations clock did not begin
to run until that time.


             As a matter of general rule, a party asserting a cause of
             action is under a duty to use all reasonable diligence to be
             properly informed of the facts and circumstances upon
             which a potential right of recovery is based and to institute
             suit within the prescribed statutory period. . . Thus, the
             statute of limitations 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. . . [E]ven though a person may not
             discover his injury until it is too late to take advantage of
             the appropriate remedy, this is incident to a law arbitrarily
             making legal remedies contingent on mere lapse of time.
             Once the prescribed statutory period has expired, the party
             is barred from bringing suit unless it is established that an
             exception to the general rule applies which acts to toll the
             running of the statute.

             The “discovery rule” is such an exception, and arises from
             the inability of the injured, despite the exercise of due
             diligence, to know of the injury or its cause. Thus, in a
             case of subsurface injury in which, unknown to the
             plaintiff, the defendant removes coal from his land via
             access originating on the defendant's land, the inability of
                                          4
             the plaintiff, despite the exercise of diligence, to know of
             the trespass, tolls the running of the statute, for “no amount
             of vigilance will enable him to detect the approach of a
             trespasser who may be working his way through the coal
             seams underlying adjoining lands,” and until such time as
             the plaintiff discovers, or reasonably should have
             discovered, the trespass, the running of the statute
             tolled. . . Likewise, in a case of medical malpractice
             involving the failure of a surgeon to remove an implement
             of surgery, it is the inability of the plaintiff to ascertain the
             presence of the offending implement which prevents the
             commencement of the running of the statute, for
             “[c]ertainly he could not open his abdomen like a door and
             look in; certainly he would need to have medical advice
             and counsel.” . . . The salient point giving rise to the
             equitable application of the exception of the discovery rule
             is the inability, despite the exercise of diligence by the
             plaintiff, to know of the injury. A court presented with an
             assertion of applicability of the “discovery rule” must,
             before applying the exception of the rule, address the
             ability of the damaged party, exercising reasonable
             diligence, to ascertain the fact of a cause of action.
Pocono International Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471
(Pa. 1983) (citations omitted) (emphasis in original).


             Thus, Price’s discovery rule argument requires consideration of his
ability with reasonable diligence to learn of the alleged injury, the demolition of the
residence on the Property. Upon a review of the opinion in support of the order of
September 8, 2016, there is no indication that the trial court considered whether Price
was able with diligence to discover the demolition. Rather, the trial court determined
that all of Price’s claims were subject to two-year limitation periods, and that Price
failed to commence his action until more than two years from the time of demolition.



                                            5
             We note that Price’s amended complaint avers that he “is a disabled
person” who resides in Johnstown. (Amended Complaint, 4/6/16, ¶ 1). Price also
alleges that he was not provided with notice of the demolition.              (Amended
Complaint, 4/6/16, ¶¶ 10, 18 and 19).

             [W]hen a court is presented with the assertion of the
             discovery rules application, it must address the ability of
             the damaged party, exercising reasonable diligence, to
             ascertain that he has been injured and by what cause. . . .
             Since this question involves a factual determination as to
             whether a party was able, in the exercise of reasonable
             diligence, to know of his injury and its cause, ordinarily, a
             jury is to decide it. . . Where, however, reasonable minds
             would not differ in finding that a party knew or should
             have known on the exercise of reasonable diligence of his
             injury and its cause, the court determines that the
             discovery rule does not apply as a matter of law. . .
Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations omitted).


             The facts alleged in the amended complaint regarding the
circumstances of Price and his discovery of the demolition are very sparse. At this
stage it would be premature to hold that reasonable minds would unanimously agree
on the question of “what might [Price] have known, by the use of the means of
information within his reach, with the vigilance the law requires of him.” Scranton
Gas & Water Company v. Lackawanna Iron & Coal Company, 31 A. 484, 485 (Pa.
1895). “While reasonable diligence is an objective test, ‘[i]t is sufficiently flexible
. . . to take into account the difference[s] between persons and their capacity to meet
certain situations and the circumstances confronting them at the time in question.’”
Fine, 870 A.2d at 858 (quoting Crouse v. Cyclops Industries, 745 A.2d 606, 611 (Pa.
2000)).

                                          6
             “Our review of a trial court order sustaining preliminary objections on
the basis that the law will not permit recovery (demurrer) is whether on the facts
alleged the law states with certainty that no recovery is possible.” Scavo, 978 A.2d
at 1078 n. 2 (emphasis added) (citing Hawks by Hawks v. Livermore¸629 A.2d 270
(Pa. Cmwlth. 1993)). This Court “must accept as true all well pled allegations and
material facts averred in the complaint as well as inferences reasonably deductible
therefrom and any doubt should be resolved in favor of overruling the demurrer.”
Id.   Applying this standard of review, we cannot agree with the trial court’s
conclusion that the amended complaint shows with certainty that the statute of
limitations bars recovery from the Township and Yantko because it remains unclear
from the amended complaint whether the discovery rule could have tolled the statute
of limitations. In this case, the factual question of whether Price was able with the
exercise of reasonable diligence to know of his injury and its cause must be
addressed before the legal question of the applicability of the statute of limitations
may be reached.


             Price likewise argues that the trial court erred in its order of January 25,
2017, granting the motion of Lee’s Plumbing for judgment on the pleadings based
on the applicability of the statute of limitations to Price’s claims. “Our scope of
review of an order granting a motion for judgment on the pleadings is limited to
determining whether the trial court committed an error of law or whether questions
of material fact remain outstanding, such that the case should have gone to the jury.”
Tobias v. Halifax Township, 28 A.3d 223, 225 n. 4 (Pa. Cmwlth. 2011).




                                           7
             Lee’s Plumbing argues that the discovery rule was inapplicable in this
case because Price “was capable of identifying the injury through the exercise of the
slightest diligence, to wit, looking at the property.” (Lee’s Plumbing brief, 6/13/17,
at 11.) However, as discussed above, questions of fact remain outstanding in this
case: whether and when Price was capable of discovering the demolition with the
exercise of reasonable diligence. The amended complaint alleges (1) that Price did
not learn of the demolition until July 2014; (2) that Price has a disability; and (3)
that Price resides in a county different from that of the Property site. “The salient
point giving rise to the equitable application of the discovery rule is the inability,
despite the exercise of diligence by the plaintiff, to know of the injury.” Pocono,
468 A.2d at 471 (emphasis added).


             The ability of Price to ascertain his alleged injury remains in question
at this point in this case. “Whether the statute of limitations has run on a claim is a
question of law for the trial court to determine; but the question as to when a party’s
injury and its cause were discovered or discoverable is for the jury.” Fine, 870 A.2d
at 859. Because a question of material fact remains outstanding with respect to the
applicability of the discovery rule, it was error for the trial court to grant the motion
of Lee’s Plumbing for judgment on the pleadings based on the statute of limitations.


             For these reasons, we reverse.


                                         __________________________________
                                         J. WESLEY OLER, JR., Senior Judge




                                           8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Neil Price, Individually and on behalf
                                   :
of Freedom Ring Land Management    :
Trust,                             :
                    Appellant      :
                                   :
             v.                    : No. 221 C.D. 2017
                                   :
Menallen Township, John R. Yantko, :
RTK Officer, Menallen Township     :
Supervisors, and Individually and  :
Lees' Plumbing & Excavating, Inc. :


                                    ORDER


            AND NOW, this 8th day of December, 2017, the orders of September
8, 2016, and January 25, 2017, are REVERSED. This case is remanded for further
proceedings consistent with this opinion.


            Jurisdiction relinquished.




                                         __________________________________
                                         J. WESLEY OLER, JR., Senior Judge
