J-A17036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANCIS FINNEGAN                           IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellant

                  v.

ARCHDIOCESE OF PHILADELPHIA AND
MONSIGNOR WILLIAM LYNN

                       Appellees                No. 3002 EDA 2014


         Appeal from the Judgment Entered September 24, 2014
          In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): 01377 March Term, 2011

PHILIP GAUGHAN                             IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellant

                  v.

ARCHDIOCESE OF PHILADELPHIA AND
MSGR. WILLIAM LYNN

                       Appellees                No. 3173 EDA 2014


         Appeal from the Judgment Entered September 24, 2014
          In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): March Term, 2011 No. 000052


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                  FILED OCTOBER 6, 2015

     Appellant, Francis Finnegan, and Appellant, Philip Gaughan, filed

separate appeals from the summary judgments entered against them in the

Philadelphia County Court of Common Pleas, in favor of Appellees, the
J-A17036-15


Archdiocese of Philadelphia and Msgr. William Lynn. After careful review, we

affirm.

        The relevant facts and procedural history with respect to Appellant

Finnegan are as follows. Appellant Finnegan was born on May 26, 1961. As

a boy, he attended St. Francis Xavier parish in Philadelphia, Pennsylvania.

One of the priests assigned to St. Francis Xavier parish was Fr. John Kline,

who was a close family friend.     Appellant Finnegan alleged that between

1968 and 1970, Fr. Kline sexually abused Appellant Finnegan on numerous

occasions.     Following the abuse, Appellant Finnegan claims to have

repressed his memory of the incidents until 2007.    In the spring of 2007,

when Appellant Finnegan was forty-six years old, he recalled a single

memory of the sexual abuse while speaking with his brother.      Since that

time, Appellant Finnegan claims the memories of sexual abuse have come

back to him in waves; and he now remembers many incidents of abuse. In

2008, Appellant Finnegan reported the sexual abuse to the Victim Assistance

Program of the Archdiocese of Philadelphia. The Victim Assistance Program

offered to put Appellant Finnegan in contact with medical and psychological

assistance; however, Appellant Finnegan did not seek psychiatric help until

2011.     During treatment, Appellant Finnegan was diagnosed with chronic

post-traumatic stress disorder (“PTSD”) with delayed onset, stemming from

the alleged sexual abuse he endured as a child.

        On March 16, 2011, Appellant Finnegan filed a complaint against


                                    -2-
J-A17036-15


Appellees in the Philadelphia Court of Common Pleas.1 Appellant Finnegan

amended his complaint twice and filed his second amended complaint on

June 20, 2011, alleging one count each of vicarious liability under New

Jersey law for the sexual abuse he endured in New Jersey, vicarious liability

under Pennsylvania law for the sexual abuse he endured in Pennsylvania,

negligence under Pennsylvania law, negligent supervision under New Jersey

law, civil conspiracy to endanger the welfare of children, and fraudulent

concealment.

       The relevant facts and procedural history with respect to Appellant

Gaughan are as follows. Appellant Gaughan was born on January 10, 1980.

In 1994, he began working as a sacristan at Our Lady of Calvary parish in

Philadelphia where Msgr. John Gillespie was a parish priest.        Appellant

Gaughan alleged that beginning in 1994 and continuing through 1997, Msgr.

Gillespie sexually abused him on numerous occasions.       In 2010, Appellant

Gaughan reported the sexual abuse to the Victim Assistance Program of the

Archdiocese of Philadelphia.        That same year, Appellant Gaughan entered

counseling upon the recommendation of the Victim Assistance Program.

____________________________________________


1
  The original complaint in both Mr. Finnegan’s case and Mr. Gaughan’s case
included additional defendants who were dismissed prior to the filing of the
motions for summary judgment. Consequently, they are not parties in this
appeal. Additionally, Mr. Finnegan and Mr. Gaughan filed separate motions
to discontinue this appeal as to Msgr. Lynn, which this Court granted on
March 9, 2015, and April 13, 2015, respectively. The only remaining
Appellee is the Archdiocese of Philadelphia.



                                           -3-
J-A17036-15


During treatment, Appellant Gaughan was diagnosed with chronic PTSD

stemming from the alleged sexual abuse he endured as a child.

        On March 7, 2011, Appellant Gaughan filed a complaint against

Appellees in the Philadelphia Court of Common Pleas.     Appellant Gaughan

amended his complaint twice and filed his second amended complaint on

June 20, 2011, alleging one count each of fraud, negligent supervision,

conspiracy to endanger the welfare of children, and fraudulent concealment.

During his deposition on May 16, 2014, Appellant Gaughan admitted that he

always remembered the abuse, but claimed to have only recently realized

that the sexual abuse caused his psychological issues.

        On June 3, 2014, Appellees filed motions for summary judgment as to

both Appellant Finnegan’s and Appellant Gaughan’s second amended

complaints. After oral arguments on both motions, the trial court granted

summary judgment and dismissed Appellant Finnegan’s and Appellant

Gaughan’s second amended complaints with prejudice on September 24,

2014.     Appellant Finnegan and Appellant Gaughan separately filed timely

notices of appeal on October 16, 2014. The trial court ordered both parties

to file Rule 1925(b) concise statements of errors complained of on appeal,

and both parties separately and timely complied on November 7, 2014. On

March 13, 2015, Appellant Finnegan and Appellant Gaughan jointly filed an

unopposed motion for consolidation of the appeals, which this Court granted

on April 13, 2015.


                                    -4-
J-A17036-15


      At docket No. 3002 EDA 2014, Appellant Finnegan raises the following

issues for our review:

         DID THE [TRIAL] COURT ERR BY GRANTING [APPELLEE’S]
         MOTION FOR SUMMARY JUDGMENT ON THE GROUND
         THAT THE STATUTE OF LIMITATIONS FOR SEXUAL ABUSE
         BY A PRIEST HAD EXPIRED[?]

         DID THE [TRIAL] COURT ERR AS A MATTER OF LAW BY
         GRANTING    [APPELLEE’S] MOTION    FOR  SUMMARY
         JUDGMENT ON THE GROUND THAT THE STATUTE OF
         LIMITATIONS FOR CHILD SEX ABUSE IS NOT TOLLED BY
         MEDICO-PSYCHOLOGICAL DISABILITY[?]

         DID THE [TRIAL] COURT ERR AS A MATTER OF LAW BY
         GRANTING    [APPELLEE’S] MOTION    FOR  SUMMARY
         JUDGMENT BY TREATING THE FACTS OF CHILDHOOD SEX
         ABUSE AS IRRELEVANT TO THE FACT DETERMINATION OF
         WHEN A PLAINTIFF WHO WAS SEXUALLY ABUSED BY A
         PRIEST HAS DISCOVERED AN INJURY FOR PURPOSES OF
         CALCULATING THE STATUTE OF LIMITATIONS UNDER THE
         DISCOVERY RULE[?]

(Appellant Finnegan’s Brief at 4).

      At docket No. 3173 EDA 2014, Appellant Gaughan raises the following

issue for our review:

         DID THE TRIAL COURT ERR IN DETERMINING THE
         FACTUAL ISSUE OF WHEN APPELLANT LEARNED HE WAS
         INJURED PURSUANT TO PENNSYLVANIA’S TWO YEAR
         DISCOVERY RULE AS A MATTER OF LAW?

(Appellant Gaughan’s Brief at 2).

      Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

                                     -5-
J-A17036-15


         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.    Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).         In reviewing a trial

court’s grant of summary judgment,

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there
         exists a genuine issue of material fact. We view the record
         in the light most favorable to the non-moving party, and
         all doubts as to the existence of a genuine issue of
         material fact must be resolved against the moving party.
         Only where there is no genuine issue as to any material
         fact and it is clear that the moving party is entitled to a
         judgment as a matter of law will summary judgment be
         entered. All doubts as to the existence of a genuine issue
         of a material fact must be resolved against the moving
         party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause
         of action.   Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce
         evidence of facts essential to the cause of action or
         defense which in a jury trial would require the issues to be
         submitted to a jury. In other words, whenever there is no
         genuine issue of any material fact as to a necessary
         element of the cause of action or defense, which could be
         established by additional discovery or expert report and
         the moving party is entitled to judgment as a matter of


                                     -6-
J-A17036-15


         law, summary judgment is appropriate. Thus, a record
         that supports summary judgment either (1) shows the
         material facts are undisputed or (2) contains insufficient
         evidence of facts to make out a prima facie cause of action
         or defense.

         Upon appellate review, we are not bound by the trial
         court’s conclusions of law, but may reach our own
         conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

       For purposes of disposition, we combine Appellant Finnegan’s issues

and Appellant Gaughan’s issue. Appellant Finnegan and Appellant Gaughan

commonly argue that genuine issues of material fact exist regarding when

they discovered their injuries.    They claim their real injuries occurred not

when    the   abuse   occurred,    but   when   they   connected   the   negative

psychological effects of the abuse to the specific instances of abuse.        For

these reasons, Appellant Finnegan and Appellant Gaughan assert this Court

should apply the discovery rule to toll the statute of limitations in their

childhood sexual abuse cases until they discovered or reasonably should

have discovered the full extent of their injuries.      Appellant Finnegan and

Appellant Gaughan aver that questions of fact surround when they

discovered the connection between the alleged instances of abuse and the

later psychological harms.        Appellant Finnegan and Appellant Gaughan

conclude the trial court erred by granting Appellees’ motions for summary

judgment, and we should reverse and remand for trial. We disagree.


                                         -7-
J-A17036-15


      In Appellant Finnegan’s case, Section 5524 of the Pennsylvania code

provides the applicable statute of limitation:

         Section § 5524. Two year limitation

         The following actions and proceedings must be commenced
         within two years:

                                  *    *    *

            (7) Any other action or proceeding to recover
            damages for injury to person or property which is
            founded on negligent, intentional, or otherwise
            tortious conduct or any other action or proceeding
            sounding in trespass, including deceit or fraud,
            except an action or proceeding subject to another
            limitation specified in this subchapter.

                                  *    *    *

42 Pa.C.S.A. § 5524(7).

      In Appellant Gaughan’s case, Section 5533 of the Pennsylvania Code

provides the applicable statute of limitation:

         § 5533. Infancy, insanity or imprisonment

         (a) General rule.—Except as otherwise provided by
         statute, insanity or imprisonment does not extend the time
         limited by this subchapter for the commencement of a
         matter.

         (b) Infancy.—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 persons shall have the same time
         for commencing an action after attaining majority as is
         allowed to others by the provisions of this subchapter. As
         used in this subsection, the term minor shall mean an
         individual who has not yet attained the age of 18.


                                      -8-
J-A17036-15


42. Pa.C.S.A. § 5533(a)-(b). In 2002, the Pennsylvania legislature amended

Section 5533(b) to include a new statute of limitations for childhood sexual

abuse cases, which states in relevant part:

         Section § 5533. Infancy, insanity or imprisonment

                                  *    *    *

         (b)   Infancy.—

                                  *    *    *

            (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
            individual files a criminal complaint regarding the
            childhood sexual abuse.

                                  *    *    *

42 Pa.C.S.A. § 5533(b)(2)(i).

      As a general rule, “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.”

Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84,

468 A.2d 468, 471 (1983).       The right to institute a suit generally “arises

when the injury is inflicted.” Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d

850, 857 (2005) (internal citation omitted). “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

                                      -9-
J-A17036-15


based and to institute suit within the prescribed statutory period.” Pocono

Int’l Raceway, Inc., supra at 84, 468 A.2d at 471.          “The statute of

limitations requires aggrieved individuals to bring their claims within a

certain time of the injury, so that the passage of time does not damage the

defendant’s ability to adequately defend against claims made….” Meehan v.

Archdiocese of Philadelphia, 870 A.2d 912, 919 (Pa.Super. 2005), appeal

denied, 584 Pa. 717, 885 A.2d 985 (2005) (internal citation omitted).

“Statutes of limitations are designed to effectuate three purposes: (1)

preservation of evidence; (2) the right of potential defendants to repose;

and (3) administrative efficiency and convenience.”         Kingston Coal

Company v. Felton Min. Co., Inc., 690 A.2d 284, 288 (Pa.Super. 1997),

appeal denied, 549 Pa. 702, 700 A.2d 441 (1997).

     “The discovery rule is an exception to the requirement that a

complaining party must file suit within the statutory period.”     Meehan,

supra at 919. The discovery rule provides:

        [W]here 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. The “discovery rule”
        arises from the inability of the injured party, despite the
        exercise of reasonable diligence, to know of the injury or
        its cause. Its purpose is to exclude the period of time
        during which the injured party is reasonably unaware that
        an injury has been sustained so that people in that class
        have essentially the same rights as those who suffer an
        immediately ascertainable injury.

Kingston Coal Co., supra at 288-89 (emphasis in original) (internal

                                   - 10 -
J-A17036-15


citation omitted). “The party seeking to invoke the discovery rule bears the

burden of establishing the inability to know of the injury despite the exercise

of reasonable diligence.” Dalrymple v. Brown, 549 Pa. 217, 224, 701 A.2d

164, 167 (1997). The reasonable diligence standard “is not a standard of

reasonable diligence unique to a particular plaintiff, but instead a standard of

reasonable diligence as applied to a ‘reasonable person.’” Id. “[T]he point

at which the complaining party should reasonably be aware that he has

suffered an injury is generally an issue of fact to be determined by the jury;

only where the facts are so clear that reasonable minds cannot differ may

the commencement of the limitations period be determined as a matter of

law.”     E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388, 1391

(Pa.Super. 1993) (internal citation omitted).

        “Pennsylvania law does not permit the tolling of a statute of limitations

on account of an incapacity of the particular plaintiff which allegedly

impaired his…ability to discover the injury or its cause.”         Id. at 1393.

“[W]here a plaintiff is aware of the fact of the injury, failure to know that

[the plaintiff has] a cause of action resulting therefrom will not toll the

statute of limitations.” Dalrymple, supra at 227, 701 A.2d at 169. “The

very essence of the discovery rule in Pennsylvania is that it applies only to

those situations where the nature of the injury itself is such that no amount

of vigilance will enable the plaintiff to detect an injury.” Id. at 228-29, 701

A.2d at 170.


                                      - 11 -
J-A17036-15


      In a childhood sexual abuse case “the underlying cause of action is

fundamentally one for battery, which basically is defined as an intentional

[non]consensual harmful contact, [and] a plaintiff will ordinarily know all

he…needs to know concerning the injury and its cause at the moment the

battery occurs.”   E.J.M., supra at 1393 (emphasis added).         Importantly,

“the discovery rule [does] not toll the statute of limitations period for an

action based upon sexual abuse of a minor, even [if] the plaintiff allege[s]

that [he] has repressed the memory of the sexual abuse.”            Pearce v.

Salvation Army, 674 A.2d 1123, 1125 (Pa.Super. 1996). Additionally, the

discovery rule fails to toll the limitations period where the plaintiff is aware

of the sexual assault, but is unaware that the sexual abuse harmed him or

was wrongful. E.J.M., supra at 1394. In E.J.M., this Court stated:

         [An] appellant need not…know that what was happening to
         him was “abuse,” i.e. was wrongful, or precisely what type
         of psychological or emotional harm he would suffer as a
         result. Once he knew what was happening and who was
         doing it, he had a duty to investigate these questions and
         institute suit within the limitations period.

Id.

      Instantly, Appellant Finnegan’s case asserts numerous occasions of

sexual abuse between 1968 and 1970.           Under the two-year statute of

limitations applicable to his claim, Appellant Finnegan had until 1972 to file

suit. See 42 Pa.C.S.A. § 5524. Nevertheless, Appellant Finnegan did not

file suit until March 16, 2011, almost forty (40) years after the applicable

statute of limitations had expired.       Additionally, Appellant Finnegan’s

                                     - 12 -
J-A17036-15


assertion that his memories of the abuse were repressed until 2007, does

not toll the statute of limitations for his childhood sexual abuse claims,

because Pennsylvania law does not allow “repressed memory” claims to toll

the limitations period.   See Pearce, supra.       Even if repressed memory

could toll the limitations period, Appellant Finnegan would have had until

2009 to meet the two-year statute of limitations applicable to his claim. See

42 Pa.C.S.A. § 5524. Nonetheless, Appellant Finnegan waited almost four

(4) years from the time he first “recalled” the childhood sexual abuse to

institute this action. Therefore, in any event, his claims are barred by the

statute of limitations. See 42 Pa.C.S.A. § 5524.

     Appellant Gaughan’s case alleges numerous occasions of sexual abuse

beginning in 1994 and continuing through 1997, when Appellant Gaughan

served as a sacristan at Our Lady of Calvary parish. Under the statute of

limitations applicable to his claims, Appellant Gaughan had until January 10,

2000, two (2) years after he reached the age of majority, to file suit. See

42 Pa.C.S.A. § 5533(b).     Appellant Gaughan admitted in his deposition

testimony that he remembered the abuse from the time it occurred and

knew it was wrong. Nevertheless, Appellant Gaughan did not file suit until

March 7, 2011, over eleven (11) years after the limitations period expired.

Therefore, his claims are barred by the statute of limitations. See 42

Pa.C.S.A § 5533.

     Further, Appellant Finnegan’s and Appellant Gaughan’s reliance on the


                                   - 13 -
J-A17036-15


discovery rule as it applies to asbestos cases is misplaced.     This Court

recognizes the “separate disease” application of the discovery rule in

asbestos cases due to the unique nature of asbestos exposure.           See

Abrams v. Pneumo Abex Corp., 602 Pa. 627, 637, 981 A.2d 198, 204-05

(2009) (explaining when person is exposed to asbestos, there may not

always be immediately cognizable injury, so courts will toll statute of

limitations until plaintiff is aware of definitive injury caused by asbestos

exposure).     Unlike the asbestos scenario, where the exposure to asbestos

does not necessarily constitute an immediate injury, the childhood sexual

abuse endured by Appellant Finnegan and Appellant Gaughan constituted

actionable batteries at the time of the occurrences.   See E.J.M., supra.

Consequently, Appellant Finnegan and Appellant Gaughan knew or should

have known of the facts of their injuries and were immediately capable of

filing suit.   See Fine, supra.     That Appellant Finnegan and Appellant

Gaughan might not have known the full extent of the psychological harm

done, until 2011 when they were diagnosed with chronic PTSD, is

immaterial. See E.J.M, supra. The fact remains that they knew what was

happening and who was doing it when the abuse occurred and should have

instituted their actions within their prescribed statutes of limitations.

Therefore, their claims remain time barred. See id. Accordingly, we affirm

the summary judgments entered in their respective cases.

      Judgments affirmed.


                                    - 14 -
J-A17036-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




                          - 15 -
