J-S59029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRENDA A. OWENS,                               IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

LEHIGH VALLEY HOSPITAL,

                         Appellee                   No. 3780 EDA 2015


            Appeal from the Order Entered November 24, 2015
             In the Court of Common Pleas of Lehigh County
                   Civil Division at No(s): 2013-C-2397


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                             Filed October 5, 2016

      Appellant, Brenda A. Owens, appeals from the November 24, 2015

order, which granted summary judgment in favor of Lehigh Valley Hospital

(hereinafter “LVH”). We affirm.

      The trial court summarized the relevant factual background and

procedural history as follows:

        [Appellant] commenced suit against LVH by [praecipe] for
        writ of summons filed July 8, 2013. In her one-count
        second amended complaint, [Appellant] asserted a claim of
        “wrongful discharge in violation of public policy” alleging
        that LVH terminated her employment in retaliation for
        having invoked workers’ compensation rights. . . .

        LVH filed a motion for summary judgment and asserted that
        [Appellant] was terminated on March 9, 2011, more than
        two years prior to the date [Appellant] commenced this
        action. Accordingly, LVH argued that [Appellant’s] claim
        was time-barred as a matter of law. [Appellant] responded
        that she had no actual knowledge of her termination date
        and that the discovery rule tolled the running of the statute

*Former Justice specially assigned to the Superior Court.
J-S59029-16


       of limitations until July 13, 2011, the date she received
       notice that her application for long-term disability benefits
       was denied.

       [Appellant] was employed by LVH as a Sterilizing Technician
       [and she] began a medical leave of absence on September
       10, 2010.

       [Appellant] received and read the following letter dated
       January 21, 2011, from Kathleen Mudri, Disability
       Counselor:

          You have been out of work on a medical leave of
          absence since October 4, 2010, and you are receiving
          short term disability benefits. Your short term disability
          benefits will end effective April 1, 2011. This may be a
          good time to begin the application process for long term
          disability (LTD) benefits if you continue to be disabled. .
          ..

          At this time, you are encouraged to contact your
          supervisor to advise him/her of your current status and
          ability to return to work, if you have not done so
          already. According to [LVH] policy, your position may
          be posted after 12 weeks (if you qualify for family
          medical leave) or 60 days (if you do not qualify for
          family medical leave). Additionally, your employment
          status with [LVH] will be terminated if your leave of
          absence or combination of leaves, including family
          medical leave (FMLA), extends beyond 180 calendar
          days. . . .

       After reading the above letter, [Appellant] noticed that the
       start date of her medical leave of absence was incorrect.
       She contacted Ms. Mudri by phone, and advised her that
       she began her medical leave of absence on September 10,
       2010, not October 4, 2010, as stated in the letter.

       [Appellant] received a second letter dated February 23,
       2011, from Lynn Ryden, Benefits Counselor, which stated in
       part:




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          We are concerned about your current employment
          status and wish to advise you of our policies regarding
          your leave of absence.

          Our records indicate that you have been on a [leave of
          absence] since October 4, 2010.         According to our
          policy, if any leave extends beyond 180 days, you will
          be removed from the payroll. As of April 2, 2011, you
          will be on a [leave of absence] for 181 days. Therefore,
          you will be removed from the payroll as of that date.
          Prior to the 180th day of your leave, you have the option
          of applying for other available Network positions for
          which you are qualified and are within any medical
          restrictions you have. Contact your Human Resources
          Consultant (HRC) for information on applying for open
          positions. . . .

       [Appellant] received two additional letters. A letter dated
       March 4, 2011, stated “REVISED” and was identical to the
       January 21, 2011 letter except the dates in the first
       paragraph were [corrected to reflect the actual start date of
       Appellant’s leave of absence (September 10, 2010) and the
       actual end date of Appellant’s short-term disability benefits
       (March 8, 2011)]. . . . [The March 4, 2011 letter] included
       the language, “your employment status with [LVH] will be
       terminated if your leave of absence or combination of
       leaves, including family medical leave (FMLA) extends
       beyond 180 calendar days.

       Similarly, [Appellant] received a “CORRECTION” letter on
       March 4, 2011, which included the same language as the
       February 23, 2011 letter, but corrected the [leave of
       absence] date and the dates that followed from the [leave
       of absence] date. The letter stated:

          Our records indicate that you have been on a leave-of-
          absence since September 10, 2010. According to our
          policy, if any leave extends beyond 180 days, you will
          be removed from the payroll. As of March 9, 2011, you
          will be on a leave-of-absence for 181 days. Therefore,
          you will be removed from the payroll as of that date.
          Prior to the 180th day of your leave, you have the option
          of applying for other available Network positions for


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           which you are qualified and are within any medical
           restrictions you have.

                                     ...

        [Appellant’s employment was then terminated effective
        March 9, 2011].

        During [Appellant’s] deposition, she was asked about her
        understanding of the sentence in the January 21, 2011
        letter that stated she would be terminated if her leave of
        absence extended beyond 180 calendar days; she
        responded, “[t]hat is what it says, but I didn’t understand it
        to be that.” [Appellant’s] testimony makes it clear that she
        believed she was not terminated because she was applying
        for long-term disability.       [Appellant] agreed that her
        interpretation of the letter was mistaken because she
        thought the letter was for her short-term disability. When
        asked about her understanding of the February 23, 2011
        letter, [Appellant] testified that she believed the letter only
        addressed her disability benefits.

        [Appellant] was aware in March of 2011 that LVH policy
        provided for a maximum leave period of 180 days and that
        employees on a [leave of absence] for more than 180 days
        would be removed from payroll. Prior to July of 2011,
        [Appellant] concedes she was informed that she would be
        removed from payroll if her leave of absence extended more
        than 180 days.      [Appellant] placed one phone call to
        Kathleen Mudri subsequent to receiving the January 21,
        2011 letter in order to alert her that the leave of absence
        date was incorrect and to discuss benefits. In addition,
        [Appellant] attempted to contact LVH’s CEO by telephone
        twice in late June/early July “in an attempt to get a review.
        [Appellant] was rebuffed in these attempts.”

Trial Court Opinion, 2/22/16, at 1-4 (internal citations and emphasis

omitted) (some internal capitalization omitted).      The trial court granted

summary judgment in favor of LVH on November 24, 2015.             This timely

appeal followed.


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      Appellant presents one issue for our review:

           Whether or not the trial court erred by failing to properly
           apply the discovery rule when it held that [] Appellant had
           failed to file her lawsuit on a timely basis?

Appellant’s Brief at 4.

      The scope of review of an order granting summary judgment is

plenary.     Barnish v. KWI Bldg. Co., 980 A.2d 535, 546 (Pa. 2009).

Moreover, we will reverse the trial court’s order only if it “committed an

error of law or clearly abused its discretion.”          Id.   Summary judgment

should only be granted when the record clearly demonstrates that there is

no genuine issue of material fact and the moving party is thus entitled to

judgment as a matter of law.         Id.    We “must view the record in the light

most favorable to the nonmoving party [and resolve] all doubts as to the

existence of a genuine issue of material fact against the moving party.” Id.

Entry of summary judgment is proper “where the plaintiff fails to plead facts

sufficient to toll the statute [of limitations], . . . or admits facts sufficient to

admit the limitations defense,” or does not present facts sufficient to show

there is a genuine issue for trial.        Taylor v. Tukanowicz, 435 A.2d 181,

183-184 (Pa. Super. 1981).

      Appellant claims that she did not have actual knowledge of her

termination until July 13, 2011.           Appellant’s Brief at 11.   However, we

conclude that the trial court properly held that Appellant was not entitled to

application of the discovery rule.


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      The statute of limitations period for a cause of action is computed from

the time the cause of action accrues. 42 Pa.C.S.A. § 5502(a). A cause of

action accrues when “the plaintiff could have first maintained the action to a

successful conclusion” and accordingly, the statute of limitations period

begins to run after the plaintiff acquires the right to maintain a suit. Fine v.

Checcio, 870 A.2d 850, 857 (Pa. 2005) (citations omitted). Generally, the

right to bring a tortious cause of action arises when the injury is inflicted.

Id. Once a cause of action has accrued and the statute of limitations has

run, the injured party can no longer bring the cause of action. Nesbitt v.

Erie Coach Co., 204 A.2d 473, 475 (Pa. 1964). The running of the statute

will not be tolled because of mistake, misunderstanding, or lack of

knowledge alone.      Id.   However, the discovery rule and the doctrine of

fraudulent concealment can act as exceptions to toll the running of a statute

of limitations period. Fine, 870 A.2d at 858.

      In Pennsylvania, the statute of limitations for a wrongful discharge

claim is two years.    42 Pa.C.S.A. § 5524(2).     Appellant’s claim is facially

time barred, as her employment with LVH was terminated on March 9, 2011

and she did not file suit until July 8, 2013, approximately four months after

the expiration of the two-year statute of limitations. Appellant argues that

the discovery rule should apply here. Our Supreme Court has noted:

      The “discovery rule” is [] an exception [to the statute of
      limitations which] arises from the inability of the injured, despite
      the exercise of due diligence, to know of the injury or its cause. .
      . . The salient point giving rise to the equitable application of

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J-S59029-16


      the exception of the discovery rule is the inability, despite the
      exercise of diligence by the plaintiff to know of the injury. A
      court presented with an assertion of applicability of the
      “discovery rule” must, before applying the exception of the rule,
      address the ability of the damaged party, exercising reasonable
      diligence, to ascertain the fact of a cause of action.

Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471

(Pa. 1983).    Where the discovery rule applies, the two-year statute of

limitations period begins to run when the plaintiff knew or should have

known of the injury and its cause.      Crouse v. Cyclops Indus., 745 A.2d

606, 611 (Pa. 2000). “A party asserting an action is under a duty to use all

reasonable diligence to be properly informed of the facts and circumstances

upon which a potential right of recovery is based and to institute suit within

the prescribed statutory period.” Pocono Int’l Raceway, Inc., 468 A.3d at

471 (internal citations omitted).

      Here, the record does not support Appellant’s contention that she was

unable to know of her injury (her alleged wrongful termination) despite the

exercise of reasonable diligence.     Appellant admits to having received and

read four letters from LVH.         Each letter clearly states LVH’s policy of

termination after 180 days of leave and informed Appellant of the exact date

her employment would terminate and she would be taken off payroll if she

continued her leave of absence. Even if Appellant thought these letters only

pertained to her short-term disability and not her employment, as she

claims, she is not entitled to relief. A misunderstanding or lack of knowledge

will not toll the running of the statute of limitations. Nesbitt, 204 A.2d at

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J-S59029-16


475.    Further, Appellant could have easily discovered the status of her

employment. She could have raised the subject of her employment status

during her phone call with Ms. Mudri. “If a party has the means of discovery

within [her] power but neglects to use them, [her] claim will still be barred.”

Burnside v. Abbott Labs., 505 A.2d 973, 988 (Pa. Super. 1985), citing De

Martino v. Albert Einstein Med. Ctr. N.D., 460 A.2d 295, 303 (Pa. Super.

1983). Even if Appellant were correct in her assertion that she did not know

she was terminated, she clearly had the means of discovering her

employment status and chose not to do so.

       Appellant further contends that a general statement of policy is

different than an actual, specific termination letter.   Appellant’s Brief at 7.

However, the letters she received were not just general statements of policy,

as they clearly stated that she would be removed from payroll if she did not

return to work. Moreover, she did not have to guess as to whether she were

fired, as she claims, because she was given the exact date of termination in

the March 4, 2011 letter.

       Appellant also relies on Ward v. Rice, 828 A.2d 1118, 1120 (Pa.

Super. 2003) to show the discovery rule should be applied. However, this

reliance is misplaced. In Ward, the physician repeatedly told a patient that

the numbness in her mouth was only a temporary side effect of her surgery

to “lull” her into thinking her condition was not permanent. Id. Here, LVH




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J-S59029-16


did nothing to make Appellant think she was still employed after the 180

days had passed. Accordingly, Ward is not applicable to the case at bar.

       “Where [] reasonable minds would not differ in finding that a party

knew or should have known on the exercise of reasonable diligence of his

injury and its cause, [a] court [can determine] that the discovery rule does

not apply as a matter of law.” Fine, 870 A.2d at 858-859 (citation omitted).

It is clear that Appellant knew of her date of termination or should have

known with the exercise of reasonable diligence. Accordingly, the trial court

did not err in holding the discovery rule does not apply.1

       Appellant also argues in her brief that she should be entitled to relief

based on the doctrine of fraudulent concealment because she never received

a final termination letter from LVH. Appellant’s Brief at 13. However, this

argument is waived. “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See Metal

Bank of America, Inc. v. Ins. Co. of North America, 520 A.2d 493, 501

(Pa. Super. 1987), appeal denied, 536 A.2d 1332 (Pa. 1987).          Appellant

____________________________________________


1
  Appellant also cites to a Third Circuit Court of Appeals decision for the
proposition that the statute of limitations begins to run “only when the
employee receives unequivocal notice of the adverse employment decision.”
Bailey v. United Airlines, 279 F.3d 194, 199 (3d Cir. 2002), citing
Grayson v. Kmart Corp., 79 F.3d 1086, 1100 n.19 (11th Cir. 1996).
However, this decision is not binding on this Court. Further, the four letters
Appellant received, one of which gave the exact date she would be removed
from payroll and terminated, constituted unequivocal notice of her
termination.



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never brought this issue to the trial court’s attention and failed to mention it

in her memorandum in opposition of LVH’s motion for summary judgment.

Accordingly, this issue is waived.2

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2016




____________________________________________



2
  Even if this argument were not waived, it is without merit. All four letters
Appellant received clearly stated Appellant would be terminated if she
continued her leave. LVH did nothing to deceive her into believing she was
still employed or conceal her termination. Even if Appellant misunderstood
the meaning of these letters, this is not a basis for tolling the statute of
limitations or invoking the doctrine of fraudulent concealment.



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