                       [J-10A-2017 and J-10B-2017]
               IN THE SUPREME COURT OF PENNSYLVANIA
                           EASTERN DISTRICT

  SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


ROBERT DUBOSE, ADMINISTRATOR        :   No. 21 EAP 2016
OF THE ESTATE OF ELISE DUBOSE,      :
DECEASED                            :   Appeal from the judgment of Superior
                                    :   Court entered 10/23/2015 at No. 2752
                                    :   EDA 2013 (reargument denied
          v.                        :   12/23/2015) affirming the judgment
                                    :   entered August 21, 2013, in the Court of
                                    :   Common Pleas, Philadelphia County,
MARK QUINLAN, DONNA BROWN,          :   Civil Division, at No. 0846, September
RNC, BSN, ALBERT EINSTEIN MEDICAL   :   Term 2009.
CENTER D/B/A WILLOWCREST,           :
WILLOWCREST AND JEFFERSON           :   ARGUED: March 7, 2017
HEALTH SYSTEM                       :
                                    :
                                    :
APPEAL OF: WILLOWCREST NURSING      :
HOME, ALBERT EINSTEIN               :
HEALTHCARE NETWORK, ALBERT          :
EINSTEIN MEDICAL CENTER D/B/A       :
WILLOWCREST AND WILLOWCREST         :

ROBERT DUBOSE, ADMINISTRATOR        :   No. 22 EAP 2016
OF THE ESTATE OF ELISE DUBOSE,      :
DECEASED,                           :   Appeal from the judgment of the
                                    :   Superior Court entered 10/23/2015 at
               Appellee             :   No. 2753 EDA 2013 (reargument denied
                                    :   12/23/2015) affirming the judgment
                                    :   entered August 21, 2013, in the Court of
          v.                        :   Common Pleas, Philadelphia County,
                                    :   Civil Division, at No. 1603 August
                                    :   Term, 2009.
WILLOWCREST NURSING HOME, AND       :
ALBERT EINSTEIN HEALTHCARE          :   ARGUED: March 7, 2017
NETWORK,                            :
                                    :
               Appellants           :


                              OPINION
JUSTICE MUNDY                                            DECIDED: November 22, 2017
       In this appeal by allowance, we consider whether the Superior Court applied the

correct statute of limitations for a survival action in a medical professional liability case.

For the reasons set forth below, we conclude the statute of limitations for medical

professional liability cases in the form of wrongful death or survival actions is two years

from the time of the decedent’s death. Accordingly, we affirm the judgment of the

Superior Court.

       The facts and procedural history of this medical professional liability action,

asserting negligent care at a nursing home, are as follows. On July 25, 2005, Elise

Dubose was admitted to Albert Einstein Medical Center (Einstein) after she fell in her

home and sustained severe head injuries, including anoxia and a brain injury.             On

August 9, 2005, Mrs. Dubose was transferred and admitted to Willowcrest Nursing

Home (Willowcrest), a division of Einstein, where she was diagnosed with Type II

diabetes, respiratory failure necessitating a ventilator, chronic obstructive pulmonary

disease, and several pressure ulcers (bedsores). On September 6, 2005, to treat the

ulcers, a physician ordered a flexor bed and frequent repositioning of Mrs. Dubose.

Willowcrest’s staff negligently failed to follow the physician’s order, resulting in a

deterioration of Mrs. Dubose’s existing pressure ulcers and proliferation of new ones to

other parts of her body.      During a hospitalization at Einstein from January 30 to

February 14, 2007, Mrs. Dubose developed additional bedsores on her right heel and

shin, on her right scapula (upper back), and on her lower back. In addition, while at

Willowcrest from 2005 to 2007, Mrs. Dubose suffered malnourishment, dehydration,

conscious pain from the bedsores, bone infection, and a sepsis systemic infection.

       One of the ulcers, located at the sacral region of the spine, which Mrs. Dubose

developed during her initial July 25, 2005 hospitalization, gradually increased in size


                             [J-10A-2017 and J-10B-2017] - 2
from August 9, 2005 to July 2007. In July 2007, the sacral ulcer became infected with

bacteria from contact with feces.      This infection caused sepsis in Mrs. Dubose in

September 2007, and she was admitted to Einstein with sepsis on September 12, 2007.

On October 18, 2007, Mrs. Dubose died from sepsis and multiple pressure sores.

         On August 13, 2009, Robert Dubose, as administrator for the Estate of Elise

Dubose, filed a complaint against Willowcrest and Albert Einstein Healthcare Network

(collectively Appellants). This complaint contained counts for negligence on behalf of

Mrs. Dubose (survival action1), and a wrongful death action2 to compensate Mrs.

Dubose’s survivors. Additionally, on September 14, 2009, Robert Dubose commenced

a second case by filing a praecipe to issue a writ of summons. On October 7, 2009, Mr.

Dubose filed a complaint in the second case, asserting similar survival and wrongful

death actions based on negligence, requesting punitive damages, and naming as

defendants Mark Quinlan, Willowcrest’s administrator; Donna Brown, Willowcrest’s

director of nursing; Einstein; Willowcrest; and Jefferson Health System. On October 18,

2010, the trial court issued an order consolidating the two cases pursuant to

Pennsylvania Rule of Civil Procedure 213(a).

         In October 2012, the case proceeded to a jury trial, which resulted in a mistrial.

A second jury trial was held from February 13, 2013 to March 13, 2013. On March 13,

2013, the jury returned a verdict in favor of Mr. Dubose and against Appellants in the

amount of $125,000.00 on the wrongful death action and $1,000,000.00 on the survival

action. The jury apportioned liability as 60% to Willowcrest, 25% to Einstein Healthcare

Network, and 15% to Donna Brown. Further, on March 21, 2013, following a bifurcated

punitive damages trial, the same jury awarded $875,000.00 in punitive damages against

1
    Act of June 30, 1972, P.L. 500, No. 164.
2
    Act of 1855, P.L. 309; Pa.R.C.P. 2202(a).



                             [J-10A-2017 and J-10B-2017] - 3
Appellants. The trial court granted the defendants’ post-trial motions in part in the form

of judgment notwithstanding the verdict (JNOV), dismissing the action as against Donna

Brown because she was an employee of Willowcrest, but the trial court did not reduce

the amount of the verdict. The trial court denied the remaining post-trial motions for a

new trial, for JNOV, and for remittitur, and entered judgment on the verdict. Regarding

the subject of this appeal, the trial court explained that Mr. Dubose’s survival action was

timely filed pursuant to Section 513(d) of the Medical Care Availability and Reduction of

Error Act (MCARE), 40 P.S. §§ 1303.501-1303.516, which permits plaintiffs to bring

survival actions within two years of death. Trial Ct. Op., 6/27/14, at 11. As alternative

support, the trial court applied the “discovery rule” and concluded that Mrs. Dubose’s

comatose condition prevented her from knowing or reasonably discovering her injuries

before her death. Id. at 12. Appellants appealed to the Superior Court.

         Relevant to this appeal, Appellants argued Mr. Dubose’s survival claims were

barred by the two-year statute of limitations for personal injury actions, which began to

run at the time of Mrs. Dubose’s injury in 2005.3 Appellants asserted that a survival

action is distinct from a wrongful death action. A survival action is merely a continuation


3
    42 Pa.C.S. § 5524 provides a two-year statute of limitations for personal injury actions:
                                 § 5524. Two year limitation
                The following actions and proceedings must be commenced
                within two years:
                                              ...
                       (2) An action to recover damages for injuries to the
                       person or for the death of an individual caused by the
                       wrongful act or neglect or unlawful violence or
                       negligence of another.

42 Pa.C.S. § 5524(2).



                              [J-10A-2017 and J-10B-2017] - 4
of a cause of action that accrued to the plaintiff’s decedent while the decedent was

alive, and the statute of limitations begins to run when the decedent is injured. On the

other hand, a wrongful death action accrues to the decedent’s heirs when the decedent

dies of such an injury, and its statute of limitations begins to run at the decedent’s

death. Appellants asserted that once the statute of limitations expires on the decedent’s

cause of action, it cannot form the basis for a survival action following the decedent’s

death. Appellants’ Super. Ct. Brief at 12-14 (citing Baumgart v. Kenne Bldg. Prods.

Corp., 633 A.2d 1189 (Pa. Super. 1993) (en banc)).

      Applying these principles, Appellants argued that the statute of limitations for

Mrs. Dubose’s medical professional liability claim began when she sustained the

pressure ulcer in 2005.    The two-year statute of limitations on the survival actions

expired in 2007, and therefore the survival actions Mr. Dubose filed in 2009 were time-

barred.

      Further, Appellants disputed the trial court’s holding that the survival action was

rendered timely by Section 513 of MCARE, which provides:

                            § 1303.513. Statute of repose

             (a) General rule.--Except as provided in subsection (b) or
             (c), no cause of action asserting a medical professional
             liability claim may be commenced after seven years from the
             date of the alleged tort or breach of contract.

             (b) Injuries caused by foreign object.--If the injury is or
             was caused by a foreign object unintentionally left in the
             individual’s body, the limitation in subsection (a) shall not
             apply.

             (c) Injuries of minors.--No cause of action asserting a
             medical professional liability claim may be commenced by or
             on behalf of a minor after seven years from the date of the
             alleged tort or breach of contract or after the minor attains
             the age of 20 years, whichever is later.


                           [J-10A-2017 and J-10B-2017] - 5
              (d) Death or survival actions.--If the claim is brought under
              42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating
              to survival action), the action must be commenced within two
              years after the death in the absence of affirmative
              misrepresentation or fraudulent concealment of the cause of
              death.

                                            ...
40 P.S. § 1303.513(a)-(d).

       Appellants contended the trial court misapprehended MCARE to revive causes of

action that the statute of limitations barred. The trial court relied on Matharu v. Muir, 86

A.3d 250, 263 (Pa. Super. 2014) (en banc), in which then-Judge, now-Justice, Donohue

authored a unanimous, en banc opinion holding “subsection 1303.513(d) does not set

forth a statute of repose at all, but rather is a statute of limitation[,] . . . and survival

claims under 42 Pa.C.S. § 8302 must be commenced within two years after the death,

unless there is fraudulent misrepresentation or concealment as to the cause of death.”

Matharu, 86 A.3d at 263. Appellants attempted to distinguish Matharu because that

case involved a timely survival action, and this case is based on an untimely survival

action. According to Appellants, the statute of limitations on Mrs. Dubose’s medical

professional liability action expired before her death, so a survival claim was already

barred before her death. MCARE does not permit an already-barred claim to become

timely through the survival statute.

       In the alternative, Appellants argued that even if the statute of limitations ran from

the date of Mrs. Dubose’s October 17, 2007 death, certain claims added in amended

complaints after October 17, 2009 were time-barred. Appellants narrowly construed the

Estate’s survival action as solely based on Appellants’ negligent wound care, resulting

in a pressure ulcer. Appellants contended that after the statute of limitations expired,

the trial court permitted the Estate to amend its complaints to add new facts to support



                             [J-10A-2017 and J-10B-2017] - 6
additional malpractice claims.     According to Appellants, these newly added facts

“alleged conduct of dietitians, nutritionists, physical therapists, occupational therapists,

rehabilitation therapists, recreational therapists and social workers, relating to nutrition

and hydration, diabetes, urinary tract infections, urinary incontinence, acute renal failure

and anemia . . . .” Appellants’ Super. Ct. Br. at 21-22. Appellants alleged these later-

added claims prejudiced them because they resulted in a verdict of $1,000,000 for pain

and suffering.

       In his Superior Court brief, Mr. Dubose emphasized that Mrs. Dubose was under

constant care at Appellants’ facilities from August 2005 through October 2007, during

which time she developed ten pressure ulcers and other conditions, such as

dehydration. The cause of Mrs. Dubose’s death was sepsis combined with the ten

pressure wounds. Thus, Mr. Dubose contended that there were new, additional injuries

to Mrs. Dubose continuously until the date of her death.4

       Mr. Dubose maintained Section 513(d) of MCARE permitted him to bring the

survival action within two years of Mrs. Dubose’s death. In support, he stated that the

Matharu Court held that the specific language of Section 513(d) controlled over the

general statute of limitations in 42 Pa.C.S. § 5524(2).

       Lastly, Mr. Dubose argued no new causes of action were added after the statute

of limitations expired.   Specifically, the language in paragraph 11 of the original

4
  In the alternative, Mr. Dubose then asserted that the “discovery rule” tolled the statute
of limitations. Under the “discovery rule,” a cause of action does not accrue until the
plaintiff discovers, or should have discovered, the injury. Mr. Dubose invoked the
discovery rule because Mrs. Dubose did not have the mental or physical capabilities to
exercise reasonable diligence and determine the facts of her injuries or whether she
had a claim for medical negligence. Mr. Dubose refuted Appellants’ argument that Mr.
Dubose had Mrs. Dubose’s power of attorney, so his knowledge of the injuries was
more relevant than her knowledge. Mr. Dubose pointed out that Appellants’ waived the
issue by failing to introduce the complete power of attorney document at trial.



                            [J-10A-2017 and J-10B-2017] - 7
complaint avers while a resident at Willowcrest, Mrs. Dubose sustained serious injuries

included but not limited to pressure ulcers, which contributed to her death.        Upon

consideration of Appellants’ preliminary objections, the trial court ordered Mr. Dubose to

file a more specific complaint. Mr. Dubose contended that he should not be penalized

for complying with that court order.

       A panel of the Superior Court unanimously affirmed the trial court’s order. It held

Mr. Dubose’s survival action was timely under Section 513(d) of MCARE because Mr.

Dubose commenced the action within two years of Mrs. Dubose’s death. The Superior

Court reasoning was contained in the following paragraph:

                     First, appellants claim that the survival action was
              filed beyond the statute of limitations. According to
              appellants, the statute began to run in 2005, when Mrs.
              Dubose developed a pressure wound. (Appellants’ brief at
              14.) Appellants are mistaken. The MCARE Act[] clearly
              provides that wrongful death and survival actions may be
              brought within two years of death.2 Mrs. Dubose died on
              October 18, 2007, and the plaintiff filed two complaints, one
              in August 2009, and one in September 2009, which were
              ultimately consolidated. Both were filed within two years of
              the decedent’s death. Therefore, the Survival Act claim was
              timely filed within the two-year statute of limitations.
              ________________________________________________

              2
                  § 1303.513. Statute of repose

                      (d) Death or survival actions.--If the claim is brought
                      under 42 Pa.C.S. § 8301 (relating to death action) or
                      8302 (relating to survival action), the action must be
                      commenced within two years after the death in the
                      absence of affirmative misrepresentation or fraudulent
                      concealment of the cause of death.

              40 [P.S.] § 1303.513(d).
Dubose v. Quinlan, 125 A.3d 1231, 1238 (Pa. Super. 2015) (footnote omitted).




                             [J-10A-2017 and J-10B-2017] - 8
       The Superior Court then addressed Appellants’ issue that Mr. Dubose added

causes of action in his amended complaints after the statute of limitations expired. Id.

The court found Appellants waived this issue in the following analysis:

              Appellants also complain that the plaintiff was allowed to add
              new causes of action in his amended complaints, outside the
              statute of limitations. (Appellants’ brief at 21.) This claim
              was not raised in appellants’ Rule 1925(b) statement, nor
              was it addressed by the trial court. Therefore, it is waived.
              Pa.R.A.P. 1925(b)(4)(vii); Lazarski v. Archdiocese of
              Philadelphia, 926 A.2d 459, 463–464 (Pa. Super. 2007),
              appeal denied, 594 Pa. 714, 937 A.2d 446 (2007) (citations
              omitted).
Id. The Superior Court affirmed the judgment entered in the court of common pleas.

       Appellants subsequently filed in this Court a petition for allowance of appeal,

which the Court granted to consider the following question.

              Do special and important reasons exist which mandate this
              Court’s intervention, since the Superior Court improperly
              lengthened, potentially significantly, the statute of limitations
              applicable to survival actions in medical professional liability
              claims contrary to 42 Pa.C.S. §§ 5542(2) and 5502(A), all
              legal authority emanating from this Court, and the intent of
              the legislature when enacting the MCARE Act’s statute of
              repose?
Dubose v. Quinlan, 138 A.3d 610, 610 (Pa. 2016) (per curiam).

       Based on this Court’s focus on this issue, the parties have presented the

following arguments.     Appellants argue that the Superior Court’s interpretation of

Section 513(d) as a statute of limitations conflicts with precedent from this Court

requiring survival actions to be commenced within two years of the date of the

decedent’s injury. Appellants’ Brief at 23. The Superior Court’s interpretation results in

two different statutes of limitations for survival actions: two years from the date of death

for medical professional liability claims and two years from the date of injury for all other

survival actions. Id. Instead, Appellants contend that Section 513(d), consistent with its



                             [J-10A-2017 and J-10B-2017] - 9
title, is a statute of repose that establishes the maximum allowable time period—two

years from the date of death—for filing survival actions. Id. at 24.

       As a statute of repose, Appellants contend Section 513(d) does not affect the

two-year statute of limitations in 42 Pa.C.S. § 5524(2) for personal injury claims, which

begins to run when the decedent knew, or should have known, of the decedent’s injury

and its cause. Id. Appellants argue that the cause of action accrues and the statute of

limitations begins to run if the decedent knew or should have known of the injury and its

cause, even if the injury occurs before the decedent’s death. Id.

       In support of their interpretation of Section 513(d) as a statute of repose,

Appellants explain that this Court has recognized that survival actions are not new,

independent causes of action; instead, they permit the decedent’s personal

representative to pursue a cause of action that accrued to the decedent before death.

Id. at 25 (citing Pastierik v. Duquesne Light Co., 526 A.2d 323, 326 (Pa. 1987); Anthony

v. Koppers Co., 436 A.2d 181, 185 (Pa. 1981); Pezzulli v. D’Ambrosia, 26 A.2d 659, 661

(Pa. 1942)).   Because the cause of action will accrue when the decedent knew or

should have known of an injury, and a survival action is simply a continuation of such a

cause of action, the statute of limitations for a survival action begins to run at the time of

the underlying tort and does not “reset” upon the decedent’s death. Id. (citing Pastierik,

526 A.2d at 326-27; Anthony, 436 A.2d at 183-84). Appellants assert that once the

statute of limitations expires on the underlying tort, a survival action is likewise time-

barred. Id. at 26-27 (citing Baumgart v. Keene Bldg. Prods. Corp., 633 A.2d 1189 (Pa.

Super. 1993) (en banc)). This is consistent with reading Section 513(d) as a statute of

repose that sets the latest date that a survival action can be commenced. Id. at 36.

       Applying these principles to this case, Appellants maintain that Mrs. Dubose’s

medical negligence cause of action accrued when her sacral ulcer developed in 2005,




                            [J-10A-2017 and J-10B-2017] - 10
and Mrs. Dubose and Mr. Dubose were aware of the injury and attributed it to negligent

care. Id. at 27. Further, because Mr. Dubose held Mrs. Dubose’s power of attorney

with the right to bring a lawsuit on her behalf, Appellants argue that his knowledge of

Mrs. Dubose’s injury should be imputed to Mrs. Dubose. Id. at 38-51. As this is an

action for personal injury, it was subject to a two-year statute of limitations, which

Appellants assert expired in 2007. Id. at 28. Because Mr. Dubose did not commence

the survival action until 2009, Appellants conclude it was time-barred. Id.

       Additionally, Appellants argue that the Superior Court erred in this case and in its

previous decision of Matharu which also concluded that Section 513(d) is a statute of

limitations that runs from the date of death. Id. at 29 (citing Matharu, 86 A.3d at 263).

Appellants emphasize that this results in two different statutes of limitations for survival

actions.   Id. at 30.   To illustrate, Appellants contemplate a decedent injured by a

defective product in 2005, but who does not bring a lawsuit before her death in 2008.

Id. In such a case, a survival action brought by the decedent’s estate would be time-

barred.    Id.   However, under the interpretation of Section 513(d) adopted by the

Superior Court, if a decedent is injured by medical negligence in 2005, but does not file

a lawsuit before her death in 2008, the decedent’s estate has an additional two years to

file a survival action from the date of her 2008 death. Id. at 31. Appellants argue that

the General Assembly did not intend to create such a result. Id. at 31.

       Further, the Superior Court’s interpretation of Section 513(d) contravenes the

legislative purpose of MCARE, which Appellants assert was to curb “the medical

malpractice crisis gripping this Commonwealth.”5       Id. at 32.   The Superior Court’s

5
   The effective date of most MCARE provisions was March 20, 2002. Act 13 of 2002,
P.L. 154, No. 13 § 5108. The Administrative Office of Pennsylvania Courts compiled
statistics showing that the number of medical malpractice cases newly filed in
Pennsylvania has decreased from an average of 2,733 in 2000-02 to 1,530 new cases
filed in 2015, which is a 44.0% reduction. See Pennsylvania Medical Malpractice Case
(continued…)

                            [J-10A-2017 and J-10B-2017] - 11
decision in this case results in the revival of a survival claim that accrued four years

before decedent died, which Appellants argue is inconsistent with the General

Assembly’s intent in passing MCARE. Id. at 33-35. For these reasons, Appellants

request that we reverse the decisions of the trial court and Superior Court and grant

JNOV in favor of Appellants on the survival claim.6

       In response to Appellants’ arguments, Mr. Dubose initially contends that the

discovery rule applies in this case because Appellants admitted that Mrs. Dubose was

brain damaged while in their care.        Mr. Dubose’s Brief at 16.       Due to her mental

disability, Mrs. Dubose was unable to investigate the nature and cause of her injuries.

Id. Because Mrs. Dubose lacked the awareness of her injury and its cause, a medical

professional liability claim did not accrue to her. Id. at 17 (citing Miller v. Phila. Geriatric

Ctr., 463 F.3d 266 (3d Cir. 2006); Zeidler v. United States, 601 F.2d 527 (10th Cir.

1979)). Mr. Dubose argues Appellants’ reliance on Mrs. Dubose’s power of attorney

was waived because Appellants did not produce the entire power of attorney document

until the case was on appeal to the Superior Court. Id. at 30. Therefore, the power of

attorney was not part of the certified record, even though Appellants had possession of

a power of attorney document since 2006. Id. at 31.7

(…continued)
Filings  (Oct.  11,         2016),     http://www.pacourts.us/assets/files/setting-2929/file-
4474.pdf?cb=382360.
6
  In the alternative, Appellants argue they were entitled to partial JNOV because Mr.
Dubose’s amended complaints added new causes of action after the statute of
limitations expired. We decline to address this claim because it is outside the scope of
the grant of allowance of appeal, which was limited to whether “the Superior Court
improperly lengthened, potentially significantly, the statute of limitations applicable to
survival actions in medical professional liability claims . . . .” Dubose, 138 A.3d at 610.
7
  We do not address Mr. Dubose’s alternative argument for affirmance based on the
discovery rule because we conclude the survival action was timely filed under Section
513(d).



                             [J-10A-2017 and J-10B-2017] - 12
      Additionally, Mr. Dubose contends that while the sacral wound appeared in 2005,

the complaint alleged a course of negligence against Mrs. Dubose that resulted in

multiple injuries from 2005 to 2007, including additional pressure wounds, sepsis,

hypertension, and acute renal failure. Id. at 19-20. Accordingly, Mr. Dubose contends

this case involves more negligence than Appellants’ simplification of “one pressure sore

that developed in 2005.” Id. at 20. Instead, Mr. Dubose notes that Mrs. Dubose died

from septic shock, caused by multiple pressure wounds, and dehydration. Id.

      Further, Mr. Dubose contends the plain language of Section 513(d) states that

medical professional liability claims in the form of wrongful death and survival actions

may be brought within two years of decedent’s death. Id. at 21. Mr. Dubose argues

that because the text of Section 513 is not ambiguous, we merely need to give effect to

that language and not consult any principles of statutory construction. Id. Mr. Dubose

notes that the legislature had a dual purpose in enacting MCARE: to fairly compensate

the victims of medical negligence and to promote affordable medical professional

liability insurance for medical providers. Id. at 22 (citing Osborne v. Lewis, 59 A.3d

1109 (Pa. Super. 2012)). Mr. Dubose asserts this dual purpose is not at odds with

permitting wrongful death and survival actions to accrue at the time of the decedent’s

death. Id. Mr. Dubose posits that this favorable provision for medical professional

liability plaintiffs may have been in exchange for requiring certificates of merit upon

commencing an action and the seven-year statute of repose for all medical professional

liability actions. Id. at 23. In support, Mr. Dubose directs us to 42 Pa.C.S. § 5524(8),

which alters the accrual date for injuries or deaths related to asbestos from when the

plaintiff was injured to when the plaintiff was formally diagnosed with an asbestos-

related disease. Id. at 23-24 (citing Wygant v. Gen. Elec. Co., 113 A.3d 310 (Pa. Super.

2015)).   Similarly, Mr. Dubose argues that the legislature similarly extended the




                          [J-10A-2017 and J-10B-2017] - 13
deadline for filing a survival action in medical professional liability cases resulting in

death to two years from the date of death. Id. at 24.

       In additional support of his plain language argument, Mr. Dubose points out that

the most important distinction between a statute of repose and a statute of limitations is

the act triggering the period of time in which a plaintiff must file a lawsuit. Id. at 25.

Statutes of limitations begin to run when the cause of action accrues, which is usually

the time a plaintiff is injured. Id. at 25 (citing 42 Pa.C.S. § 5502(a); Graver v. Foster

Wheeler Corp. Appeal, 96 A.3d 383 (Pa. Super. 2014); Adamski v. Allstate Ins. Co., 738

A.2d 1033 (Pa. Super. 1999)). In contrast, statutes of repose focus on the defendant’s

conduct and begin to run when the defendant completes a specified act, and statutes of

repose may operate to bar a lawsuit before the cause of action even accrues to the

plaintiff. Id. at 26 (citing McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331,

1332 n.1 (Pa. 1994)).

       Applying this distinction to the plain language Section 513, Mr. Dubose argues

Section 513(d) is a statute of limitations because it permits the plaintiff to bring a cause

of action within two years of the victim’s death, and Section 513(a) is a statute of repose

because it limits the time in which to file a survival action to seven years from the date

of the tort. Id. at 27. Mr. Dubose contends there is no conflict between these two

subsections.8

8
  Similarly, the Pennsylvania Association for Justice (PAJ) filed an amicus curiae brief in
support of Mr. Dubose. Therein, it argues that Section 513(d) establishes that a cause
of action for a wrongful death or survival brought under the MCARE act accrues at the
time of the decedent’s death. PAJ Brief at 10. According to PAJ, the general, seven-
year statute of repose in Section 513(a) curtails the potential application of the
discovery rule in these cases. Id. PAJ notes that in Matharu, the Superior Court held
that MCARE controlled over the general personal injury statute of limitations in 42
Pa.C.S. § 5524. Id. at 11. For MCARE wrongful death and survival actions, the two-
year period begins to run at the patient’s death. Id. (citing Matharu, 86 A.3d at 263).
PAJ does not dispute Appellants’ claim that this creates a different statute of limitations
(continued…)

                            [J-10A-2017 and J-10B-2017] - 14
      We begin our analysis by noting that this case requires us to review the Superior

Court’s affirmance of the trial court’s decision to deny Appellants’ motion for JNOV

regarding Mr. Dubose’s survival action. We review a trial court’s grant or denial of

JNOV for an abuse of discretion or an error of law. Reott v. Asia Trend, Inc, 55 A.3d

1088, 1093 (Pa. 2012) (citation omitted).       The question upon which we granted

allowance of appeal—whether the Superior Court correctly interpreted the statute of

limitations for survival actions under MCARE—is a matter of statutory interpretation.

See Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 17 (Pa. 2015) (citations omitted). As

statutory interpretation is a question of law, our standard of review is de novo and our

scope of review is plenary. Reott, 55 A.3d at 1093 (citation omitted).

      In interpreting a statute, this Court must “ascertain and effectuate the intention of

the General Assembly. Every statute shall be construed, if possible, to give effect to all

its provisions.” 1 Pa.C.S. § 1921(a). To do so, we begin by considering the plain

meaning of the statute’s language.      Scungio Borst & Assocs. v. 410 Shurs Lane

Developers, LLC, 146 A.3d 232, 238 (Pa. 2016). If the statute’s plain language is

unambiguous, we must apply it without employing familiar canons of construction and

without considering legislative intent.9 Id.; 1 Pa.C.S. § 1921(b) (“When the words of a

statute are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit”). Further, the Statutory Construction Act states

that the headings of a statute do not control the meaning of its plain language, but may


(…continued)
for medical malpractice actions; however, PAJ notes it is the within the legislature’s
power to do so. Id. This is consistent with the legislatively stated purpose of MCARE.
Id. at 12.
9
 Even though Appellants and Mr. Dubose advocate different interpretations of Section
513(d) of MCARE, neither party argues the statute’s language is ambiguous.



                           [J-10A-2017 and J-10B-2017] - 15
be considered to aid in construction. 1 Pa.C.S. § 1924; see also Commonwealth v.

Magwood, 469 A.2d 115, 119 (Pa. 1983) (“It is also a ‘well-established rule’ that the title

‘cannot control the plain words of the statute’ and that even in the case of ambiguity it

may be considered only to ‘resolve the uncertainty’”) (quoting Sutherland Statutory

Construction § 47.03 (Sands 4th ed. 1973)).

       To resolve this case, we must determine whether Section 513(d) is a statute of

repose for survival and wrongful death actions or a statute of limitations that modifies

the accrual date for survival actions. The United States Supreme Court has explained

the distinctions between a statute of repose and a statute of limitations:

              Statutes of limitations and statutes of repose both are
              mechanisms used to limit the temporal extent or duration of
              liability for tortious acts. Both types of statute can operate to
              bar a plaintiff’s suit, and in each instance time is the
              controlling factor. There is considerable common ground in
              the policies underlying the two types of statute. But the time
              periods specified are measured from different points, and the
              statutes seek to attain different purposes and objectives. . . .

                      In the ordinary course, a statute of limitations creates
              “a time limit for suing in a civil case, based on the date when
              the claim accrued.” Black’s Law Dictionary 1546 (9th ed.
              2009) (Black’s); see also Heimeshoff v. Hartford Life &
              Accident Ins. Co., 571 U.S. ––––, ––––, 134 S.Ct. 604, 610
              (“As a general matter, a statute of limitations begins to run
              when the cause of action “‘accrues’” —that is, when ‘the
              plaintiff can file suit and obtain relief’” (quoting Bay Area
              Laundry and Dry Cleaning Pension Trust Fund v. Ferbar
              Corp. of Cal., Inc., 522 U.S. 192, 201 (1997)). Measured by
              this standard, a claim accrues in a personal-injury or
              property-damage action “when the injury occurred or was
              discovered.” Black’s 1546. . . .

                     A statute of repose, on the other hand, puts an outer
              limit on the right to bring a civil action. That limit is
              measured not from the date on which the claim accrues but
              instead from the date of the last culpable act or omission of
              the defendant. A statute of repose “bar[s] any suit that is
              brought after a specified time since the defendant acted


                            [J-10A-2017 and J-10B-2017] - 16
(such as by designing or manufacturing a product), even if
this period ends before the plaintiff has suffered a resulting
injury.” Black’s 1546. The statute of repose limit is “not
related to the accrual of any cause of action; the injury need
not have occurred, much less have been discovered.” 54
C.J.S., Limitations of Actions § 7, p. 24 (2010) (hereinafter
C.J.S.). The repose provision is therefore equivalent to “a
cutoff,” Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 501 U.S. 350, 363 (1991), in essence an
“absolute . . . bar” on a defendant’s temporal liability, C.J.S.
§ 7, at 24.

         Although there is substantial overlap between the
policies of the two types of statute, each has a distinct
purpose and each is targeted at a different actor. Statutes of
limitations require plaintiffs to pursue “diligent prosecution of
known claims.”       Black’s 1546.      Statutes of limitations
“promote justice by preventing surprises through [plaintiffs’]
revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and
witnesses have disappeared.” Railroad Telegraphers v.
Railway Express Agency, Inc., 321 U.S. 342, 348–349
(1944). Statutes of repose also encourage plaintiffs to bring
actions in a timely manner, and for many of the same
reasons.      But the rationale has a different emphasis.
Statutes of repose effect a legislative judgment that a
defendant should “be free from liability after the legislatively
determined period of time.” C.J.S. § 7, at 24; see also
School Board of Norfolk v. United States Gypsum Co., 360
S.E.2d 325, 328 (1987) (“[S]tatutes of repose reflect
legislative decisions that as a matter of policy there should
be a specific time beyond which a defendant should no
longer be subjected to protracted liability” (internal quotation
marks omitted)). Like a discharge in bankruptcy, a statute of
repose can be said to provide a fresh start or freedom from
liability. Indeed, the Double Jeopardy Clause has been
described as “a statute of repose” because it in part
embodies the idea that at some point a defendant should be
able to put past events behind him. Jones v. Thomas, 491
U.S. 376, 392 (1989) (Scalia, J., dissenting).

         One central distinction between statutes of limitations
and statutes of repose underscores their differing purposes.
Statutes of limitations, but not statutes of repose, are subject
to equitable tolling, a doctrine that “pauses the running of, or
‘tolls,’ a statute of limitations when a litigant has pursued his



              [J-10A-2017 and J-10B-2017] - 17
              rights diligently but some extraordinary circumstance
              prevents him from bringing a timely action.” Lozano v.
              Montoya Alvarez, 572 U.S. ––––, 134 S.Ct. 1224, 1231–
              1232 (2014). Statutes of repose, on the other hand,
              generally may not be tolled, even in cases of extraordinary
              circumstances beyond a plaintiff’s control. See, e.g., Lampf,
              supra, at 363 (“[A] period of repose [is] inconsistent with
              tolling”); 4 C. Wright & A. Miller, Federal Practice and
              Procedure §1056, p. 240 (3d ed. 2002) (“[A] critical
              distinction is that a repose period is fixed and its expiration
              will not be delayed by estoppel or tolling”); Restatement
              (Second) of Torts § 899, Comment g (1977).

                       Equitable tolling is applicable to statutes of limitations
              because their main thrust is to encourage the plaintiff to
              “pursu[e] his rights diligently,” and when an “extraordinary
              circumstance prevents him from bringing a timely action,” the
              restriction imposed by the statute of limitations does not
              further the statute’s purpose. Lozano, supra, at ––––, 134
              S.Ct., at 1231–1232. But a statute of repose is a judgment
              that defendants should “be free from liability after the
              legislatively determined period of time, beyond which the
              liability will no longer exist and will not be tolled for any
              reason.” C.J.S. § 7, at 24. . . .
CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2182-83 (2014) (parallel citations omitted);

accord Vargo v. Koppers Co., Inc., Eng’g Constr. Div., 715 A.2d 423, 425 (Pa. 1998).

       With these distinctions in mind, we discuss the nature of a survival action. “At

common law, an action for personal injury did not survive death[.]” Pennock v. Lenzi,

882 A.2d 1057, 1064 n.8 (Pa. Cmwlth. 2005) (citing Moyer v. Phillips, 341 A.2d 441,

442-43 (Pa. 1975)). The General Assembly, in 42 Pa.C.S. § 8302, altered this common

law rule and provided that causes of action survive a plaintiff’s death:

                           42 Pa.C.S. § 8302. Survival action

              All causes of action or proceedings, real or personal, shall
              survive the death of the plaintiff or of the defendant, or the
              death of one or more joint plaintiffs or defendants.


42 Pa.C.S. § 8302.



                            [J-10A-2017 and J-10B-2017] - 18
       This Court has explained that a survival action is not an independent cause of

action, but a continuation of a cause of action that accrued to the decedent, and the

latest time when the statute of limitations runs is at the decedent’s death.

              The statute [of limitations] will, of course, begin to run prior to
              death with respect to injuries that the afflicted individual
              should reasonably have “discovered” while alive, and, for
              this reason, it was held in Anthony that the survival statute
              begins to run, “at the latest,” at death. 436 A.2d at 183–184.
              The explanation for this lies in the nature of the survival
              cause of action, for, as stated in Anthony, “the survival
              statutes do not create a new cause of action; they simply
              permit a personal representative to enforce a cause of action
              which has already accrued to the deceased before his
              death.” 436 A.2d at 185 (emphasis added) (footnote
              omitted). See also Pezzulli v. D’Ambrosia, 344 Pa. 643, 647,
              26 A.2d 659, 661 (1942). . . . [T]he “accrual” concept was
              expressly recognized in Anthony; hence, the statute of
              limitations was regarded as running, at the latest, from the
              time of death, unless it had earlier “accrued” through the fact
              that the victim knew, or should reasonably have known, of
              his injury.

                                             ...

              In the context of survival actions, which, as heretofore
              discussed, merely permit a personal representative to
              pursue a cause of action that had already accrued to a victim
              prior to death, the Pocono[ International Raceway v. Pocono
              Produce, Inc., 468 A.2d 468 (Pa. 1983),] rule causes the
              statute of limitations to commence to run on the date when
              the victim ascertained, or in the exercise of due diligence
              should have ascertained, the fact of a cause of action. In no
              case, however, can that date be later than the date of death;
              hence, the statute runs, at the latest, from death. Because
              death is a definitely ascertainable event, and survivors are
              put on notice that, if an action is to be brought, the cause of
              action must be determined through the extensive means
              available at the time of death, there is no basis to extend
              application of the discovery rule to permit the filing of survival
              actions, or wrongful death actions, at times beyond the
              specified statutory period.
Pastierik v. Duquesne Light Co., 526 A.2d 323, 326-27 (Pa. 1987).


                            [J-10A-2017 and J-10B-2017] - 19
       Having set forth the general difference between statutes of repose and statutes

of limitations, and the nature of survival actions, we turn to the statute involved in this

case. Specifically, we must interpret Section 513 of MCARE, which we set forth in its

entirety:

                             § 1303.513. Statute of repose

             (a) General rule.--Except as provided in subsection (b) or
             (c), no cause of action asserting a medical professional
             liability claim[10] may be commenced after seven years from
             the date of the alleged tort or breach of contract.

             (b) Injuries caused by foreign object.--If the injury is or
             was caused by a foreign object unintentionally left in the
             individual’s body, the limitation in subsection (a) shall not
             apply.

             (c) Injuries of minors.--No cause of action asserting a
             medical professional liability claim may be commenced by or
             on behalf of a minor after seven years from the date of the
             alleged tort or breach of contract or after the minor attains
             the age of 20 years, whichever is later.

             (d) Death or survival actions.--If the claim is brought under
             42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating
             to survival action), the action must be commenced within two
             years after the death in the absence of affirmative
             misrepresentation or fraudulent concealment of the cause of
             death.

             (e) Applicability.--No cause of action barred prior to the
             effective date of this section shall be revived by reason of
             the enactment of this section.

             (f) Definition.--For purposes of this section, a “minor” is an
             individual who has not yet attained the age of 18 years.

10
   MCARE defines a “medical professional liability claim” as “[a]ny claim seeking the
recovery of damages or loss from a health care provider arising out of any tort or breach
of contract causing injury or death resulting from the furnishing of health care services
which were or should have been provided.” 40 P.S. § 1303.103.



                           [J-10A-2017 and J-10B-2017] - 20
40 P.S. § 1303.513.

       We begin by addressing the parties’ dispute over when the medical professional

liability claim accrued to Mrs. Dubose. Appellants contend the action accrued in 2005,

and under the general rule, 42 Pa.C.S. § 5524, the statute of limitations began to run

when Mrs. Dubose developed the pressure wound. Mr. Dubose asserts the cause of

action accrued on October 18, 2007, when Mrs. Dubose died from sepsis and other

injuries. If Appellants are correct that the cause of action accrued in 2005, and the two-

year statute of limitations in 42 Pa.C.S. § 5524 applies, both of the survival claims

asserted by Mr. Dubose in 2009 would be time-barred. If the cause of action accrued in

July 2007, when Mrs. Dubose’s pressure ulcer became infected and septic before her

admission to Einstein on September 12, 2007, and the two-year statute of limitations in

42 Pa.C.S. § 5524 applies, Mr. Dubose’s second case, filed on September 14, 2009,

would be barred if the limitations period began to run at the time Mrs. Dubose’s wound

became infected. However, Mr. Dubose argues Section 513(d) of MCARE modifies the

traditional statute of limitations, such that the statute of limitations for survival actions

begins to run on the date of the decedent’s death.         Accordingly, we must address

whether Section 513(d) of MCARE modifies the traditional time of accrual of survival

actions, as explained in Pastierik, supra.

       We hold that Section 513(d) declares that a survival action in a medical

professional liability case resulting in death accrues at the time of death, not at the time

of decedent’s injury. This conclusion is based on the plain language of Section 513.

First, Section 513(a) sets forth a seven-year statute of repose for medical professional

liability claims. It provides that “no cause of action . . . may be commenced after seven

years from the date of the alleged tort or breach of contract.” 40 P.S. § 1303.513(a).

Section 513(a) focuses on the defendant’s conduct by barring any action that is brought




                            [J-10A-2017 and J-10B-2017] - 21
more than seven years after the defendant acted, which is typical of statutes of repose.

See CTS Corp., 134 S. Ct. at 2182-83. Further, Section 513(a) bars the plaintiff’s ability

to sue regardless of whether the cause of action accrued, whether the injury occurred,

or whether it was discovered.      See id. at 2182.     Section 513(a), while providing

exceptions for lawsuits involving injuries caused by foreign objects and injuries to

minors, does not provide for any equitable considerations that would toll the seven-year

period to sue. See id. at 2183. The statute of repose in Section 513(a) begins running

on the date of the tort or breach of contract, no matter when the cause of action accrues

(and may even bar a cause of action before it accrues). However, Section 513(a) does

not provide how it relates to Section 513(d). Instead, Section 513(d) stands separately.

      In contrast to the language of Section 513(a), Section 513(d) states that in a

medical professional liability claim for wrongful death or survival, “the action must be

commenced within two years after the death in the absence of affirmative

misrepresentation or fraudulent concealment of the cause of death.”              40 P.S.

§ 1303.513(d). This language mirrors traditional statute of limitation language, such as

the two-year limitation contained in 42 Pa.C.S. § 5524: “The following actions and

proceedings must be commenced within two years: . . . (2) an action to recover

damages for injuries to the person or for the death of an individual caused by the

wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S.

§ 5524(2). Section 513(d) focuses not on the defendant’s conduct, but on the time

within which the plaintiff must sue. Unlike Section 513(a), it also contains equitable

considerations that may toll the two-year period to commence a suit following death:

“affirmative misrepresentation or fraudulent concealment of the cause of death.” 40

P.S. § 1303.513(d). The focus on when the plaintiff must commence the action and the

enumeration of specific equitable considerations that may toll that time period leads us




                           [J-10A-2017 and J-10B-2017] - 22
to conclude that Section 513(d) is a statute of limitations for medical professional liability

death cases that sets the date of accrual at the date of decedent’s death. See CTS

Corp., 134 S. Ct. at 2182-83.

       Section 513(d) establishes a specific statute of limitations for survival and

wrongful death actions in medical professional liability cases that prevails over the

general statute of limitations for personal injuries actions contained in 42 Pa.C.S.

§ 5524(2). See 1 Pa.C.S. § 1933.11 It is within the legislature’s power to enact a more

specific statute of limitations for medical professional liability negligence that results in

death, and where the plain language of the statute indicates that it did so, we must give

effect to that language.      Similarly, Appellants’ reliance on Pastierik, Anthony, and

Pezzulli to illustrate the general principles of when a survival action accrues and when

the statute of limitations begins to run does not compel a different result. Pastierik,

Anthony, and Pezzulli predate the legislature’s enactment of MCARE and the more

specific statute of limitations set forth in Section 513(d).

       If the General Assembly wanted to set a statute of repose of two years from the

date of decedent’s death, it could have provided, similar to Section 513(a), “no cause of

action for wrongful death or survival may be commenced after two years from the

death.” It did not; instead, it created a statute of limitations for medical professional

liability cases resulting in death, which accrues at the time of decedent’s death. Our

interpretation is consistent with the Superior Court’s conclusion in Matharu in 2014 that

Section 513(d) sets forth a different statute of limitations for death cases, and the

General Assembly has not amended Section 513 in response to Matharu.                     See

11
   See also Commonwealth v. Corban Corp., 957 A.2d 274, 277 (Pa. 2008) (holding the
more specific five-year statute of limitations for commencing a criminal prosecution for
violations of Workers Compensation Act at 77 P.S. § 1039.12 controls over the general
two-year statute of limitations in 42 Pa.C.S. § 5552 of the Judicial Code).



                             [J-10A-2017 and J-10B-2017] - 23
Matharu, 86 A.3d at 263. Therefore, Mr. Dubose’s survival actions were timely filed

within two years of Mrs. Dubose’s death.12

       In conclusion, we hold that Section 513(d) of MCARE establishes a two-year

statute of limitations for medical professional liability cases in the form of wrongful death

or survival actions, which accrues at the time of the decedent’s death. Thus, for all the

above reasons, we affirm the judgment of the Superior Court.


Justices Todd and Dougherty join the opinion.

Justice Baer files a concurring and dissenting opinion.

Chief Justice Saylor files a dissenting opinion

Justices Donohue and Wecht did not participate in the consideration or decision of this
case.




12
  Based on this conclusion, we do not need to address the effect of Mr. Dubose holding
Mrs. Dubose’s power of attorney prior to her death.



                            [J-10A-2017 and J-10B-2017] - 24
