                      [J-10A&B-2017][M.O. – Mundy, J.]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT


ROBERT DUBOSE, ADMINISTRATOR            :   No. 21 EAP 2016
OF THE ESTATE OF ELISE DUBOSE,          :
DECEASED                                :   Appeal from the judgment of Superior
                                        :   Court entered 10/23/15 at No. 2752
            v.                          :   EDA 2013 (reargument denied
                                        :   12/23/15) affirming the judgment
MARK QUINLAN, DONNA BROWN, RNC,         :   entered 8/21/13 in the Court of
BSN, ALBERT EINSTEIN MEDICAL            :   Common Pleas, Philadelphia County,
CENTER D/B/A WILLOWCREST,               :   Civil Division, at No. 0846, September
WILLOWCREST AND JEFFERSON               :   Term 2009
HEALTH SYSTEM                           :
                                        :
APPEAL OF: WILLOWCREST NURSING          :
HOME, ALBERT EINSTEIN                   :
HEALTHCARE NETWORK, ALBERT              :
EINSTEIN MEDICAL CENTER D/B/A           :
WILLOWCREST AND WILLOWCREST             :   ARGUED: March 7, 2017


ROBERT DUBOSE, ADMINISTRATOR            :   No. 22 EAP 2016
OF THE ESTATE OF ELISE DUBOSE,          :
DECEASED,                               :   Appeal from the judgment of Superior
                                        :   Court entered 10/23/15 at No. 2753
                  Appellee              :   EDA 2013 (reargument denied
                                        :   12/23/15) affirming the judgment
            v.                          :   entered 8/21/13 in the Court of
                                        :   Common Pleas, Philadelphia County,
WILLOWCREST NURSING HOME, AND           :   Civil Division, at No. 1603, August Term
ALBERT EINSTEIN HEALTHCARE              :   2009
NETWORK,                                :
                                        :
                  Appellants            :   ARGUED: March 7, 2017




                               DISSENTING OPINION
CHIEF JUSTICE SAYLOR                                     DECIDED: November 22, 2017

       I respectfully dissent. From my point of view, Section 513(d) of the MCARE Act

does not reflect an intention, on the part of the General Assembly, to fundamentally alter

the nature and accrual of the survival cause of action.         Rather, I believe that the

Legislature designed, far more modestly, to simply codify the existing judicial treatment

concerning the outside limits for filing a survival action. My reasoning follows.

       As the majority explains, prior to the enactment of Section 513(d), this Court had

determined that the discovery rule does not apply to extend the accrual of a survival

cause of action past the date of death. See Pastierik v. Duquesne Light Co., 514 Pa.

517, 524-25, 526 A.2d 323, 327 (1987). As l read Pastierik, the Court also reasoned

that a dynamic of the applicable statute of limitations served, essentially, as a statute of

repose keyed to a “definitely established event” -- namely, death -- as opposed to

consistently embodying the ordinary concept of accrual upon injury and inquiry notice.

Id. at 522, 526 A.2d at 326 (quoting Anthony v. Koppers Co., 496 Pa. 119, 124-25, 436

A.2d 181, 184-85 (1981) (plurality)).

       Significantly, the issue of fraudulent concealment was not before the Court in

Pastierik, and, therefore, despite some broad language, see, e.g., id. at 327, 436 A.2d

at 524 (“In no case . . . can [the date of accrual] be later than the date of death[.]”), the

issue of whether such concealment might operate to toll the limitations period remained

an open one. See generally Morrison Informatics, Inc. v. Members 1st FCU, 635 Pa.

636, 647, 139 A.3d 1241, 1247 (2016) (“[T]he holdings of judicial decisions are to be

read against their facts[.]” (citing Oliver v. City of Pittsburgh, 608 Pa. 386, 395, 11 A.3d

960, 966 (2011))). The Superior Court, however, has treated fraudulent concealment as

an available exception after Pastierik. See, e.g., Kaskie v. Wright, 403 Pa. Super. 334,




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337-38, 589 A.2d 213, 215 (1991); see also Krapf v. St. Luke’s Hosp., 4 A.3d 642, 650

(Pa. Super. 2010).

       Thus, and read according to its plain terms, Section 513(d) does nothing more

than codify aspects of the decisional law pertaining to the outside limits of accrual and

tolling relative to survival actions.     Along these lines, I find that Section 513(d)

hybridizes aspects of statutes of limitations and repose in exactly the same manner as

had the case law.1 To the degree that reasoning backwards from labels (as opposed to

forward from the explicit statutory direction) is appropriate, it is quite significant, to me at

least, that the Legislature explicitly attached the term of art “Statute of repose” to

Section 513(d). 40 P.S. §1303.513 (heading).

       As observed by other courts, “the terms ‘statute of repose’ and ‘statute of

limitations’ have long been two of the most confusing and interchangeably used terms in

the law.” Landis v. Physicians Ins. Co. of Wisconsin, 628 N.W.2d 893, 907 n.16 (Wis.

2001) (citing Francis E. McGovern, The Variety, Policy and Constitutionality of Product

Liability Statutes of Repose, 30 AM. U.L. REV. 579, 582–87, 621 (1981)). Particularly in

such a context, I believe the Court should attribute material significance to a specific

legislative designation, especially one employing a clarifying term of art. Additionally, I

find no evidence to support the majority’s assertion that Section 513(d) “stands


1
   The majority relies on the statute’s provision for tolling in the event of fraudulent
concealment in support of its conclusion that Section 513(d) should be deemed a
statute of limitations. However, there are other statutes of repose affording latitude in
the face of wrongful conduct. See, e.g., General Aviation Revitalization Act of 1994, 49
U.S.C.A. §40101, Note, as discussed in Pridgen v. Parker Hannifin Corp., 974 A.2d
1166, 1168 n.3 (Pa. Super. 2009). In the medical malpractice context, for example,
North Dakota has a statute of repose that has similar tolling considerations for fraud and
concealment. See N.D. CENT. CODE ANN. §28-01-18(3). Again, in the context of two
limitations-based vehicles with overlapping purposes and mechanics, it is not surprising
to me that there are instances in which they may be hybridized.


                          [J-10A &B-2017][M.O. – Mundy, J.] - 3
separately” from the rest of the statute of which it is a component. Majority Opinion, slip

op. at 22.

       Notably, as well, the majority’s recharacterization of Section 513(d) results in

substantial disharmony, including displacement of the applicable common law principles

of accrual, as well as discord with the otherwise applicable statute of limitations. See

Majority Opinion, slip op. at 21-23.    In terms of accrual, under the common law a

survival action is not a new cause of action at all but is a continuation of one which

already accrued to the decedent prior to his death. See Pastierik, 514 Pa. at 523, 526

A.2d at 326 (quoting Anthony, 496 Pa. at 125, 436 A.2d at 185). Per the majority

opinion, however, peculiar to the medical professional liability context, the action now

only arises upon death and, therefore, can no longer be said to have previously

belonged to the decedent.       As to the displacement of the governing statute of

limitations, I find the majority’s approach to be inconsistent with the principles of

statutory construction counseling that statutes pertaining to the same subject matter are

to be construed together if possible. See 1 Pa.C.S. §1932.

       The majority also draws support from the Superior Court’s previous

determination in Matharu v. Muir, 86 A.3d 250 (Pa. Super. 2014) (en banc), that Section

513(d) is a statute of limitations, and the fact that the Legislature has not acted to

prescribe differently after Matharu.    See Majority Opinion, slip op. at 23-24.      The

applicable principle of statutory construction, however, pertains to construction by a

court of last resort in circumstances where the Legislature has enacted subsequent

statutes concerning the same subject. See 1 Pa.C.S. §1922(4). Accordingly, it would

seem to have no application here.2

2
  Moreover, as Appellants explain, Matharu’s reasoning rests, in part, on the incorrect
premise that the statute of limitations in Section 5524(2) of the Judicial Code and the
prescription of Section 513(d) of the MCARE Act are entirely coterminous. Compare
(continued…)
                         [J-10A &B-2017][M.O. – Mundy, J.] - 4
          In summary, the pivotal question in this case is whether, in enacting a section of

reform legislation pertaining to “repose,” the Legislature resolved to fundamentally alter

the concept of accrual, thus overriding the otherwise applicable statute of limitations and

effectively extending various actions. In my view, Section 513(d) manifests no such

intent.




(…continued)
Matharu, 86 A.3d at 263 (“[T]he statute of limitations set forth in subsection [513(d)] is
the exact same statute of limitations that was already applicable[.]”), with Pastierik, 514
Pa. at 523, 526 A.2d at 326 (explaining that the statute of limitations pertaining to
survival actions encompassed a concept of accrual upon injury and inquiry notice, which
is not reflected on the face of Section 513(d)); see also Brief for Appellants at 30
(observing that Matharu “overlooked the fact that, under 42 Pa.C.S. §5524(2) and
§5502(a), survival actions actually accrue on the date of the decedent’s injury, which
may occur before death”).


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