                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2006

Vitale v. Buckingham
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3434




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Recommended Citation
"Vitale v. Buckingham" (2006). 2006 Decisions. Paper 924.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/924


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                                                                NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 05-3434
                                      __________

                   ANTHONY J. VITALE and THERESA VITALE,
                                             Appellants,

                                           vs.

               BUCKINGHAM MANUFACTURING COMPANY, INC.

                                      __________

                    On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                                  (No. 03-cv-06845)
                     District Judge: Honorable Norma L. Shapiro
                                     __________

                                  Argued May 16, 2006

                                      ___________

      Before: MCKEE and GARTH, Circuit Judges, and LIFLAND, District Judge*

                              (Opinion Filed: June 9, 2006)
                                     ___________

                                       OPINION
                                      __________




      *
          The Honorable John C. Lifland, Senior District Judge for the District of New
Jersey, sitting by designation.
Robert L. Sachs, Jr. (Argued)

Shrager, Spivey & Sachs
2001 Market Street, 32nd Floor
Philadelphia, PA 19103

       Counsel for Appellant

Richard W. Yost (Argued)
Phillip J. Meyer
Yost & Tretta
Two Penn Center Plaza
1500 John F. Kennedy Blvd.
Suite 610
Philadelphia, PA 19102

       Counsel for Appellee.


LIFLAND, District Judge:

       Anthony and Theresa Vitale (“Plaintiffs”) filed suit in the United States District

Court for the Eastern District of Pennsylvania against Buckingham Manufacturing

Company, Inc. (“Defendant”) for injuries suffered by Mr. Vitale allegedly from his use of

pole climbers manufactured by Defendant.      The District Court entered summary

judgment in favor of Defendant, holding that Pennsylvania’s statute of limitations barred

Plaintiffs’ claims. We will reverse.


                                             I.

       Because we write solely for the benefit of the parties, we will only briefly recount

the relevant facts herein. In October of 1999, Anthony Vitale enrolled in the “Line

School” of Pennsylvania Energy Company (“PECO”) to receive training in utility pole

                                             2
climbing. Upon enrollment, he received a new pair of Defendant’s pole climbers, leg

irons which are strapped to the lineman’s lower leg and calf to assist the lineman in

climbing up and standing on the utility pole. Vitale wore the same pair of Defendant’s

pole climbers during training and during his job as a lineman through late November and

early December of 2001.

       After the first day of his training, Vitale felt soreness in his legs and then began

experiencing a persistent, general pain in his knees and legs. In October of 1999, Vitale

visited Dr. Robert Braunfield, his family physician, several times, complaining of knee

discomfort. Dr. Braunfield diagnosed Vitale with bilateral medial1 knee discomfort and

concluded that the source of the pain was “probably occupational.” (Appendix (“A”)

185) Dr. Braunfield referred Vitale to Dr. E. James Kohl, who agreed with Dr.

Braunfield that the source of Vitale’s knee pain was occupational, noting that the problem

was “associated with pole climbing as part of his training.” (A190)

       On November 15, 2001, Vitale returned to Dr. Braunfield, who noted that Vitale

complained of a “1 year history of vague discomfort right lateral2 leg radiating down to

the ankle, pain has been quite severe.” (A193) He further noted that Vitale had suffered

“probable irritation and/or contusion to the peroneal nerve.”3 (A193) Sometime after this


       1
           On the inside of the knee.
       2
           On the outside of the knee.
       3
        A nerve which traverses the outside of the knee and affects the lower leg down to
and including the ankle.

                                              3
visit on November 15, 2001, Dr. Braunfield filled out his portion of the Notice of

Disability form for PECO which stated that the injury was “work related.” (A268) It is

clear that someone from PECO initiated and signed the form on December 3, 2001. (Id.)

It is not clear, however, when Dr. Braunfield filled out his portion of the form. (Id.)

       On November 26, 2001, Vitale stopped working because of discomfort in his

lower right leg. On November 27, 2001, Dr. Kiel, a neurologist recommended by Dr.

Braunfield, called Dr. Braunfield to report an abnormal EMG4 finding in Vitale’s right

peroneal nerve and informed him that Vitale had an “abnormality in his right peroneal

nerve with associated foot drop.” (A193) Dr. Braunfield noted that the “etiology is to be

determined, might be traumatic in origin.” (Id.) On November 30, 2001, Dr. Kiel wrote

to Dr. Braunfield that an EMG showed that Vitale had “acute denervation in the right

peroneal nerve” and that “the problem is around the fibular head and I think crossing his

legs is the most likely etiology.” (A213)

       Vitale’s pain was not attributed to the Defendant’s pole climbers until December

13, 2001, when Dr. James A. Kenning examined Vitale and wrote to Dr. Braunfield that

Vitale had “approximately two years’ duration bilateral knee pain related to his

participation in what he described as climbing school during the course of his

professional training...approximately 1 month ago, he began experiencing episodic

stabbing pain in the lateral aspect of his right calf....I believe the patient’s symptoms are



       4
           Electromyography

                                               4
most certainly related to use of a support apparatus, which straps around his lower leg and

extends to his foot, which is used to support his ankle in climbing...I think that in the

absence of any other etiology, this almost certainly is the cause for the patient’s

symptoms....I think it is clear that the patient has a mild right common peroneal nerve

palsy related to the apparatus used to support his foot with repetitive pole climbing.”

(A235-36)

       On November 19, 2003, Plaintiffs filed their complaint in the Court of Common

Pleas of Philadelphia, alleging two counts of strict liability, one count of negligence, and

one count of loss of consortium. Defendant removed. The District Court entered

summary judgment in favor of Defendant, finding that the latest possible accrual date for

Plaintiffs’ cause of action was November 15, 2001, and therefore that Pennsylvania’s

two-year statute of limitations had expired by November 19, 2003, when Plaintiffs filed

their claim. This timely appeal followed.

                                             III.

       The District Court had subject matter jurisdiction over this diversity action

pursuant to 28 U.S.C. § 1332(a)(1), and we have jurisdiction pursuant to 28 U.S.C.

§ 1291. We exercise plenary review over the grant of a motion for summary judgment.

Nationwide Mut. Ins. Co. v. Riley, 352 F.3d 804, 806 n.3 (3d Cir. 2003) (citing

Omnipotent Communications Enters, L.P. v. Newton Township, 219 F.3d 240, 242 (3d

Cir. 2000)). Summary judgment is appropriate where “there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R.

                                              5
Civ. P. 56(c). “We review the facts in a light most favorable to the party against whom

summary judgment was entered.” Coolspring v. Stone Supply, Inc. v. American States

Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993).

                                             IV.

       Pennsylvania’s two-year statute of limitations for an injury caused by the wrongful

act or negligence of another generally begins to run as soon as the injury is inflicted. 42

Pa. Cons. Stat. §§ 5502(a), 5524(2); Haines v. Jones, 830 A.2d 579, 585 (Pa. Super

2003). The “discovery rule” is an exception to this general accrual date and provides that

the statute of limitations is tolled until the injured party knows or reasonably should know

“(1) that he has been injured, and (2) that his injury has been caused by another’s

conduct.” Haines, 830 A.2d at 585.

       The District Court found that even if the discovery rule applied, the accrual date

was no later than November 15, 2001, when Dr. Braunfield diagnosed Vitale as suffering

from a peroneal nerve injury and then reported on Vitale’s medical certification form for

PECO that the injury was “work related.” From this, the District Court concluded that no

reasonable juror could find that Vitale did not know or should not have known, as of

November 15, 2001, that he had been injured by Defendant’s pole climbing apparatus.

We disagree with the District Court’s analysis for several reasons.

       First, it is not clear when Dr. Braunfield filled out the medical certification form

for PECO. Therefore, the District Court was incorrect to conclude that Dr. Braunfield

filled it out on the same day that he examined Vitale, and that Vitale knew as of

                                              6
November 15, 2001 that his injury was “work related.” Second, even if Vitale had known

on November 15, 2001 that his injury was “work related,” a reasonable juror could still

find that he did not know and should not have known, on November 15, 2001, that his

injury was caused by the Defendant’s pole climbers. The District Court erroneously

regarded “work related” as necessarily related to Defendant’s pole-climbers. However,

an etiological diagnosis of “work related” is much broader than a diagnosis that one has

been injured by a specific product used at work.

       Under the discovery rule, the limitations period is tolled until the injured party

knows or reasonably should know “(1) that he has been injured, and (2) that his injury has

been caused by another’s conduct.” Id. at 585.     The inquiry under the discovery rule

focuses not on the plaintiff’s actual knowledge, but on “whether the knowledge was

known, or through the exercise of diligence, knowable to the plaintiff.” O’Brien v. Eli

Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981). Applying this standard, the Court finds

that the District Court erred in determining, as a matter of law, that November 15, 2001

was the latest possible accrual date. A reasonable juror could find that the accrual date

was November 27, 2001 (when Vitale’s injury was first diagnosed) or December 13, 2001

(when the cause of Vitale’s injury was first attributed to Defendant’s pole climbers).

That Vitale could not reasonably be expected to have known on November 15, 2001 that

his injury was caused by another’s conduct is underscored by Dr. Kiel’s diagnosis, on

November 30, 2001, that the cause of Vitale’s injury was crossing his legs. See Bohus v.

Beloff, 950 F.2d 919, 929 (3d Cir. 1991) (“[L]ay persons should not be charged with

                                              7
greater knowledge of their physical condition than that possessed by the physicians on

whose advice the must rely.”) (citing Trieschock v. Owens Corning Fiberglas Co., 354

Pa. Super. 263, 267, 511 A.3d 863, 865 (Pa. Super. 1986)). Accordingly, we find that the

District Court erred in holding that as a matter of law that November 15, 2001 was the

latest possible accrual date. It is for a jury on remand to resolve the dispute of the parties

concerning the accrual date of Vitale's action.

                                             IV.

       For the foregoing reasons, we will reverse the order of the District Court granting

Defendant’s motion for summary judgment, and remand to the District Court for further

proceedings.




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