J-S57030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HARRY MARTIN                                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellant

                    v.

JOHN SEEDORF

                         Appellee                    No. 876 MDA 2019


                 Appeal from the Order Entered May 1, 2019
              In the Court of Common Pleas of Luzerne County
                      Civil Division at No: 2018-02265

BEFORE: BOWES, J., STABILE, J. AND MUSMANNO, J.

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 27, 2019

      Appellant, Harry Martin, appeals from an order granting summary

judgment against him in this personal injury action on the ground that his

action was time-barred under Pennsylvania’s two-year statute of limitations,

42 Pa.C.S.A. § 5524.     Appellant contends that the statute did not begin

running until twenty-three days after he was involved in a motor vehicle

accident, because only at that time did he realize he suffered a “substantial”

injury with “significant” damages. We affirm.

      On February 13, 2016, Appellant was involved in a motor vehicle

accident with Appellee, John Seedorf. A police report of the accident stated

that Appellant had a “suspected minor injury.” Second Amended Complaint

(“SAC”), ¶ 9. Two years and nine days later, on February 22, 2018, Appellant

filed a writ of summons.     Subsequently, Appellant filed a complaint, an

amended complaint and finally the SAC.
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      Appellant averred in the SAC that prior to the accident, his right wrist

was asymptomatic. Id. at ¶ 13. After the accident, he took one month off

from work in the hope that rest would aid his recovery. Id. at ¶ 11. On or

about March 7, 2016, however, he

      discovered that the pain in his right wrist became excruciating,
      contrary to his and his medical providers’ expectations that his
      injury would improve in a relatively short period of time; to the
      degree that [he] felt compelled to seek medical treatment as soon
      as possible, although the initial bruises and traumas he endured
      had initially seemed as though they would improve within a month
      or two.

Id. at ¶ 11. “Because of his unique physiology,” Appellant continued, “the

trauma caused by the impacts of the initial accident led to an unexpected and

unnatural accelerated version of Kienbock’s disease because of the short time

over which his lunate bone became completely deprived of blood and oxygen.”

Id. at ¶ 18. The “sudden onset” of late-stage Kienbock’s disease required

“months of treatment” culminating in surgery on February 7, 2017. Id. at ¶¶

20, 26. “But for [Appellee’s] negligent ... driving,” Appellant concluded, he

would not have endured pain and suffering and would have enjoyed a much

greater quality of life. Id. at ¶ 30.

      Appellee raised the statute of limitations as an affirmative defense in his

responsive pleading and then in a motion for summary judgment.                In

response, Appellant argued that the statute did not begin running until March

7, 2016, twenty-three days after the accident, when he learned that his injury

was more significant than he originally understood it to be.


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      On May 1, 2019, the trial court entered an opinion and order granting

summary judgment to Appellee. On May 31, 2019, Appellant filed a timely

notice of appeal to this Court.

      Appellant raises the following issues in this appeal:

      A. Whether the trial court erred as a matter of law and/or abused
      the discretion afforded to trial courts by granting a Motion for
      Summary Judgment through construing the pleadings in favor of
      the moving party and failed to recognize that [Appellant]’s cause
      of action did not accrue until he had a significant injury with
      substantial damages tied to the fault of [Appellee] on or about
      March 7, 2016.

      B. Whether the trial court erred as a matter of law and/or abused
      the discretion afforded to trial courts by declining to grant a
      hearing to [Appellant] on the jury issue of whether [Appellant]
      exercised reasonable diligence in not discovering [the seriousness
      of his injury] until he experienced excruciating pain in his wrist
      and a medical professional described an uncharacteristic lack of
      degenerative changes associated with what otherwise appeared
      to be late-stage Kienbock’s disease[,] which led to an
      excruciatingly painful necrosis of his right lunate bone [and
      showed] that he had a significant injury with substantial damages
      tied to the fault of [Appellee].

      C. Whether the trial court erred as a matter of law and/or abused
      the discretion afforded to trial courts by granting a Motion for
      Summary Judgment on the issue of whether [Appellant]’s leg
      injury, the significant exacerbation of which occurred as a direct
      and proximate result of his emergent need to attend to the
      excruciating pain in his right wrist on or about March 7, 2019, and
      was, therefore, directly attributable to the alleged negligence of
      [Appellee,] in spite of the requirement of viewing the pleadings in
      a light most favorable to the non-moving party and that the actual
      date of the accrual of that injury was when it became a significant
      injury with substantial damages.

      D. Whether the trial court erred as a matter of law and/or abused
      the discretion afforded to trial courts by assuming that
      [Appellant]’s initial choice to rest his leg was based, a choice
      afforded to him at any time he chooses, as an independent

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      trucker, in some significant way, upon what initially only appeared
      to be a minor insignificant injury to his wrist, without substantial
      damages, affording him no means of discovering the wrist injury
      until the pain became excruciating and a doctor explained to him
      that the minimal degenerative changes to his wrist did not
      comport with the late-stage Kienbock’s disease which his
      symptoms otherwise reflected[,] leading him to inescapably
      conclude that his new significant injury with substantial damages
      was directly tied to the fault of [Appellee].

      E. Whether the trial court erred as a matter of law and/or abused
      the discretion afforded to trial courts by failing to recognize that
      [Appellant]’s wrist injury was a latent injury, producing no
      significant pain, evidencing no substantial damages or need for
      treatment, and leading to no prior doctor’s visits, until on or about
      March 7, 2016, when for the first time, the pain in his wrist
      became excruciating, alerting him to seek medical treatment,
      causing him to mobilize when he could have otherwise rested, and
      leading him to the realization when a medical professional
      explained to him that the lack of degenerative changes in his wrist
      was uncharacteristic for the late-stage Kienbock’s disease
      symptoms he was otherwise experiencing, leading [Appellant] to
      discover for the first time that his new emergent significant injury
      (which may not have occurred in a million other patients who
      experienced the same initial minor and insignificant injury), which
      then, for the first time, produced a situation where Martin would
      incur substantial damages, was directly tied to the negligence of
      [Appellee].

      F. Whether the trial court erred as a matter of law and/or abused
      the discretion afforded to trial courts by failing to recognize that,
      absent [Appellant]’s sudden and urgent need to address the
      excruciating pain that struck without warning on or about March
      7, 2016, the extraordinary exacerbation of his leg injury resulting
      in severe Achilles tendon issues, would not have occurred,
      resulting for the first time in a significant injury, with substantial
      damages, requiring medical attention for the first time,
      attributable to the fault of [Appellee], and, therefore, resulting in
      the accrual of that cause of action as well.

Appellant’s Brief at 4-8.

      When this Court reviews an order granting summary judgment,


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      [o]ur scope of review . . . is plenary, and our standard of review
      is clear: the trial court’s order will be reversed only where it is
      established that the court committed an error of law or abused its
      discretion. Summary judgment is appropriate only when the
      record clearly shows that there is no genuine issue of material fact
      and that the moving party is entitled to judgment as a matter of
      law. The reviewing court must view the record in the light most
      favorable to the nonmoving party and resolve all doubts as to the
      existence of a genuine issue of material fact against the moving
      party. Only when the facts are so clear that reasonable minds
      could not differ can a trial court properly enter summary
      judgment.

Bayview Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1043-44 (Pa.

Super. 2017), aff’d, 206 A.3d 474 (Pa. 2019). Moreover, “[i]n response to a

summary judgment motion, the nonmoving party cannot rest upon the

pleadings, but rather must set forth specific facts demonstrating a genuine

issue of material fact.” Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464

(Pa. Super. 2014).

      The seven questions raised in Appellant’s brief reduce to one argument:

the statute of limitations does not bar Appellant’s action because the statute

only began to run on March 7, 2016, the date a “significant” injury with

“substantial” damages manifested in the form of excruciating wrist pain from

Kienbock’s disease. We disagree.

      Pennsylvania law requires individuals to commence an action to recover

damages for injuries to the person caused by another’s negligence within two

years. 42 Pa.C.S.A. § 5524. Generally, the statute of limitations begins to

run “as soon as the right to institute a suit arises.” Pocono International

Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). In

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most cases, the statute of limitations begins to run on the date the plaintiff

sustains an injury. Haines v. Jones, 830 A.2d 579, 585 (Pa. Super. 2003).

“Lack of knowledge, mistake, or misunderstanding does not toll the running

of the statute of limitations.” Pocono International Raceway, 468 A.2d at

471. Once the plaintiff becomes aware of an injury, and who occasioned it,

he has a duty to investigate the matter and commence a cause of action.

Wilson v. El-Daief, 964 A.2d 354, 356 (Pa. 2009).

      There is no dispute in this case that the motor vehicle accident occurred

on February 13, 2016. Appellant failed to commence this action until February

22, 2018, the date he filed a praecipe for a writ of summons.        Appellant

admitted in the SAC that he knew on the date of the accident that he had

sustained some injuries (bruising and trauma), and that he took off from work

to recuperate. Thus, the statute of limitations began running on February 13,

2016, and his action is time-barred because he filed his writ of summons nine

days after the statute expired.

      Nonetheless, Appellant argues at length that his cause of action did not

accrue until he realized he had a “significant” injury with “substantial”

damages as a result of Appellee’s negligence. Again, we disagree.

      “A cause of action accrues upon actual or constructive knowledge of at

least some form of significant harm and of a factual cause linked to another’s

conduct, without the necessity of notice of the full extent of the injury,

the fact of actual negligence, or precise cause.” Carlino v. Ethicon, Inc.,


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208 A.3d 92, 103 (Pa. Super. 2019) (emphasis added). The SAC makes clear

that Appellant immediately knew at the time of the accident that that he

suffered some injury.        Indeed, the SAC avers that immediately after the

accident, he took a month off from work in the hope that bruising and swelling

from the accident would subside.        Thus, the statute of limitations began

running on the date of the accident, even if he did not know the full extent of

his injuries at that time.

       Three decisions cited by Appellant in support of tolling the statute of

limitations, Bond v. Gallen, 469 A.2d 556 (Pa. 1983), Walls v. Scheckler,

700 A.2d 532 (Pa. Super. 1997), and Nicolau v. Martin, 195 A.3d 880, 892

(Pa. 2018), are distinguishable.

       In Bond, the plaintiff was involved in a motor vehicle accident in

February 1977 but did file suit until April 1979, more than two years later.

The plaintiff contended that under the No-Fault Act, 40 Pa.C.S.A. §§

1009.101-1009.701 (repealed in 1984), she did not have a right of action,

and the statute of limitations did not begin running, until she knew that her

medical expenses exceeded $750.00. The Supreme Court agreed with the

plaintiff:

       The clear language of the Act states that a party does not have a
       cause of action unless and until medical expenses exceed
       $750[.00] . . . [Therefore,] the two-year statute of limitations on
       tort actions allowed by the No-Fault Act does not begin to run until
       the claimant knows or, exercising reasonable diligence, should
       know that the claimant’s medical and/or dental losses exceed [the
       $750.00] threshold.


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Id., 469 A.2d at 558. On its face, Bond does not apply to the present case.

The legislature repealed the No-Fault Act and its medical expense threshold

provision over thirty years ago, and Appellant does not point to any similar

legislative threshold under current law that he must meet in order to trigger

the statute of limitations.

       In Walls, the plaintiff selected the “limited tort” option when she

purchased automobile insurance.                As a result, under the Motor Vehicle

Financial Responsibility Law (“MVFRL”),1 75 Pa.C.S.A. §§ 1701-1799.7, she

could recover non-economic damages only if she suffered “serious injury,”

that is, “personal injury resulting in death, serious impairment of bodily

function or permanent serious disfigurement.”             75 Pa.C.S.A. § 1702.   The

plaintiff was involved in a motor vehicle accident on September 27, 1991 but

did not file suit until September 30, 1993. Her injuries initially appeared to

be minor bruises and contusions, but she alleged that she ultimately lost the

use of her tempro-mandibular joint in her jaw. The trial court held that the

plaintiff’s action was time-barred and entered summary judgment in favor of

the defendant. This Court reversed and remanded for further proceedings,

reasoning that “if [the plaintiff’s] allegations are true, and [she] only

discovered that her facial injury was a ‘serious injury’ when she eventually



____________________________________________


1The MVFRL is the successor to the No-Fault Act, the act under review in
Bond.


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lost the use of her TM joint, then the statute of limitations should not have

started to run until said discovery.” Id., 700 A.2d at 534. In the present

case, Appellant does not allege that he is a limited tort plaintiff. Therefore,

Appellant cannot take advantage of Walls’ decision that a limited tort

plaintiff’s right of action does not accrue until he knew or should have known

that he incurred a “serious injury.”2

       In Nicolau, the plaintiff suffered a tick bite in 2001 and underwent four

Lyme disease tests over the next several years. The test results for Lyme

disease were negative, and her physicians diagnosed with multiple sclerosis

instead. In 2009, another health practitioner, Nurse Rhoads, suggested that

the plaintiff’s Lyme disease tests yielded false negatives and recommended

that the plaintiff undergo a different test.        At first, the plaintiff declined

because she lacked health insurance and could not pay for it out of pocket,

but she later agreed to take the test. On February 13, 2010, the test came

back positive for Lyme disease. On February 10, 2012, the plaintiff filed a

complaint against various medical providers alleging that they were negligent

for failing to diagnose Lyme disease.            The trial court entered summary

judgment for the physicians under the statute of limitations. The Supreme



____________________________________________


2 Notably, a panel of this Court recently criticized Walls as “just plain wrong,”
because “the general rule in Pennsylvania regarding car accident cases is that
the statute of limitations begins to run for an injured plaintiff on the day of
the accident.” Varner-Mort v. Kapfhammer, 109 A.3d 244, 248 (Pa. Super.
2015).

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Court reversed, reasoning that a jury should decide whether the plaintiff knew

or should have known more than two years before she filed suit whether her

physicians had misdiagnosed her medical condition:

      [W]e conclude that it is within the province of a jury to determine
      whether an untrained lay person who had been repeatedly and
      definitively diagnosed with MS by several previous physicians, had
      four prior negative Lyme disease tests, and lacked health
      insurance to cover the costs of further diagnostic testing
      reasonably should have known that she suffered from Lyme
      disease after Nurse Rhoads informed her of a “probable” diagnosis
      of that disease based on her clinical symptoms, and when some
      of her symptoms improved after taking antibiotics prescribed for
      that condition.... Moreover, it is for the jury, and not a court, to
      determine whether a person in [the plaintiff’s] circumstances
      acted reasonably in delaying the administration of a fifth Lyme
      disease test to confirm Nurse Rhoads’ probable diagnosis. We
      reach this conclusion keeping in mind that the appropriate
      formulation of discovery rule jurisprudence applies a reasonable-
      diligence requirement, as opposed to an all-vigilance one.

Id. at 895 (quotations and citations omitted).

      The facts in the present motor vehicle accident case, however, are

materially different from the intricate circumstances in Nicolau. In motor

vehicle accident cases, the statute of limitations begins to run on the date of

the accident, Varner-Mort, 109 A.3d at 248, due to the obvious connection

between the accident and any post-accident symptoms of injury. We see no

reason to eschew that principle here. While Appellant’s injuries might not

have fully revealed themselves until one month after the accident, their nexus

with the accident was still clear.   Consequently, the statute of limitations

began running on the date of Appellant’s accident, and the present lawsuit,




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filed more than two years after the accident, is time-barred under the statute

of limitations.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/27/2019




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