J-A11032-17

                                  2017 PA Super 216

    S.J., A MINOR BY AND THROUGH B.            :   IN THE SUPERIOR COURT OF
    & C. J., GUARDIANS                         :        PENNSYLVANIA
                                               :
                      Appellants               :
                                               :
                                               :
               v.                              :
                                               :
                                               :   No. 1198 MDA 2016
    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 BY STEVENS, P.J.E.:                                FILED JULY 11, 2017

        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
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11032-17



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)).
____________________________________________


1
    Section 5524 of the Judicial Code provides in relevant part:

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

           (1) An action for assault, battery, false imprisonment, false
           arrest, malicious prosecution or malicious abuse of
           process.
                                        ***
           (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
(Footnote Continued Next Page)


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J-A11032-17



      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).


                       _______________________
(Footnote Continued)

          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(1),(7).



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J-A11032-17



      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


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J-A11032-17


      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)(1)-(2).

      Appellants argue that the trial court incorrectly found that S.J.’s

parents, who filed this lawsuit on S.J.’s behalf, could not invoke the

protection of the Minority Tolling Statute and were still required to comply

with the two-year statute of limitations applicable to intentional torts. The

trial court suggested that the statute must only be applied to allow minors to

wait until they reach the age of majority (eighteen years old) to file such an

action in their individual capacity as adults, when their parents failed to do

so on their behalf within the applicable statute of limitations. The trial court

set forth its rationale as follows:

      Here, [S.J.’s parents] filed an action on behalf of their minor
      child, S.J., on October 31, 2013. [S.J.’s parents] cannot now
      use the Minority Tolling Statute to extend the time within which
      they must file their Complaint. The Minority Tolling Statute
      would have theoretically applied to this matter only if S.J.’s
      parents did not initiate suit on her behalf before her eighteenth
      birthday. The Minority Tolling Statute is intended to preserve
      minor’s claims until they reach the age of majority and are able
      to pursue those claims on their own, if their parent or guardian
      has not already done so. After her eighteenth birthday, S.J.
      could have initiated a suit on her own against [Appellee], using
      the Minority Tolling Statute to extend the time to bring her
      claim. However, S.J.’s parents elected to commence an action
      prior to S.J.’s eighteenth birthday on her behalf. In essence,
      [S.J.’s parents] took matters into their own hands and went
      forward with their claim. As our Superior Court stated in Holt
      [v. Lenko, 791 A.2d 1212, 1214 (Pa.Super. 2002)], the Minority
      Tolling Statute was enacted to protect the minor plaintiff whose

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J-A11032-17


      parent fails to bring a suit on the minor’s behalf prior to the
      minor’s eighteenth birthday. [S.J.’s parents] did not fail to bring
      a suit on S.J.’s behalf; they affirmatively acted. however, [S.J.’s
      parents] waited until over three years after the discovery of the
      sexual abuse to file their Complaint. The applicable two-year
      statute of limitations must be applied.

T.C.O. at 6-7.

      The trial court’s interpretation of the Minority Tolling Statute is

incorrect and conflicts with existing decisional law in which our courts have

previously interpreted the same provision. In Fancsali ex rel. Fancsali v.

Univ. Health Ctr. of Pittsburgh, 563 Pa. 439, 761 A.2d 1159 (2000), our

Supreme Court clarified how the Minority Tolling Statute should be applied:

      [Pursuant to the Minority Tolling Statute,] the period within
      which a minor's action must be commenced is measured not
      from the time the cause of action accrues, but from the time he
      or she turns eighteen. This is true regardless of the fact that a
      guardian may sue on behalf of a minor at any time after a cause
      of action accrues. If a guardian does sue on behalf of a minor,
      the action has been commenced before the limitation period has
      started to run.    Nevertheless, the limitation period remains
      suspended. As in any other situation, the commencement of an
      action has no bearing on the limitation period.

Id. at 448–49, 761 A.2d at 1164 (emphasis added).         In other words, the

limitations period for a minor's claim is measured from the time the minor

turns eighteen, irrespective of the date the cause of action accrues and

regardless of whether the action is filed by the minor’s guardians or by the

minor in his or her individual capacity once he or she turns eighteen. See

Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1060–61 (Pa.Super.

2015), reargument denied (Oct. 26, 2015).




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J-A11032-17



      Thus, in the instant case, the applicable time period for S.J. to file this

civil suit against Appellee did not begin to run when S.J. revealed to her

parents that she had been subjected to Appellee’s sexual abuse. Although

this discovery marked the accrual of S.J.’s cause of action, the limitations

period for S.J.’s claim was suspended until S.J.’s eighteenth birthday

pursuant to the Minority Tolling Statute.    Thus, S.J.’s parents commenced

this lawsuit on S.J.’s behalf before the period of limitations began to run.

      The trial court’s suggestion that the Minority Tolling Statute only

functions to preserve a minor’s right to file a lawsuit on his or her own behalf

when he or she turns eighteen years old is contrary to the purpose of any

statute of limitations, which is “to expedite litigation and thus discourage

delay and the presentation of stale claims which may greatly prejudice the

defense of such claims.” McCreesh v. City of Philadelphia, 585 Pa. 211,

222, 888 A.2d 664, 671 (2005) (citation omitted). S.J.’s parents filed this

lawsuit three years after discovering Appellee had molested S.J.; we reject

the trial court’s suggestion that the Minority Tolling Statute should be

interpreted to require S.J. to wait until she turns eighteen to pursue her

legal action against Appellee for childhood sexual abuse.

      Moreover, the trial court misconstrued our decision in Foti v. Askinas,

639 A.2d 807, 809 (Pa.Super. 1994)), in claiming that the Minority Tolling

Statute “was not intended to give infants more rights than others.” In Foti,

the minor’s parents initially filed a medical malpractice lawsuit on the

minor’s behalf but subsequently filed a motion to dismiss the case without

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J-A11032-17



prejudice as they failed to retain the expert testimony necessary to proceed

with this case. This Court held that the trial court’s decision to dismiss the

case without prejudice unfairly provided the minor with an unfair advantage

as she would have several years to pursue and prepare a successive action

as an adult while the defendants would be compelled to defend themselves a

second time during the subsequent twelve years.        As a result, this Court

concluded that the Minority Tolling Statute was “not enacted to give minors

such an advantage.” Id. at 809.

      Similarly, in Robinson v. Pennsylvania Hosp., 737 A.2d 291

(Pa.Super. 1999), this Court found that the Tolling Statute, which specifically

extends the time only “for commencing an action,” was not intended to and

did not provide a minor and her parents with an unfair advantage to be

permitted fifteen additional years to make out a prima facie case in a

successive lawsuit when they failed to do so in their initial lawsuit that was

dismissed. Id. (emphasis added). In contrast, in this case, Appellants are

simply asking to commence this lawsuit on S.J.’s behalf to seek redress for

the injuries she suffered at the hands of Appellee, who pled guilty to the

indecent assault of S.J.

      Accordingly, this civil action, which S.J.’s parents filed on minor S.J.’s

behalf, was not time-barred as the Minority Tolling Statute had suspended




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J-A11032-17



the applicable statute of limitations.2          For the foregoing reasons, we

conclude the trial court erred in granting Appellee’s motion for summary

judgment.

       Order reversed.         Remand for further proceedings.      Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




____________________________________________


2
  Though not at issue in this case, it is worth noting that S.J.’s action is not
governed by the two-year statute of limitations in Section 5524 relating to
intentional torts. Rather, once S.J. turned eighteen, the period of limitations
for her civil action for childhood sexual abuse would commence and the
Minority Tolling Statute would allow S.J. to file her action for damages within
the subsequent twelve years. See 42 Pa.C.S.A. § 5533(b)(2).



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