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Home My WebLink About2008-3493 Civil JAMES L. FRALISH, : IN THE COURT OF COMMON PLEAS OF INDIVIDUALLY AND AS PERSONAL : CUMBERLAND COUNTY, PENNSYLVANIA REPRESENTATIVE OF THE ESTATE : OF JEAN FRALISH, : PLAINTIFF : : V. : : CARLISLE HMA, INC., D/B/A : CARLISLE REGIONAL MEDICAL : CENTER AND MANOR CARE OF : CARLISLE PA, LLC, : DEFENDANTS : 08-3493 CIVIL TERM BEFORE HESS, P.J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., April 26, 2010:-- In this medical malpractice suit, plaintiff James L. Fralish, individually, and as personal representative of the estate of Jean Fralish, decedent, sues defendant, Manor Care, alleging defendant's negligent medical care caused personal injury and ultimately the wrongful death of his wife, the decedent. For its part, defendant asserts plaintiff's claims are time-barred. Now before the court is defendant's motion for judgment on the pleadings asserting the statute of limitation. Following oral argument, we are now ready to render our decision. For the following reasons, defendant's motion for judgment on the pleadings is denied as to the survival action and granted as to the wrongful death claim. I. Background The decedent resided at defendant’s facility from August 2005 to March 13, 2006. She died some months later on June 13, 2006. On June 9, 2008, plaintiff initiated the instant matter by writ of summons. Plaintiff then filed its original complaint on July 24, 2008. The original complaint included a survival action but did not include a claim for wrongful death. Instead, plaintiff's wrongful death claim first appeared in the fourth amended complaint filed July 15, 2009. Defendant now moves for judgment on the pleadings asserting both the 08-3493 CIVIL TERM survival action and the wrongful death claim are barred by the applicable statutes of limitation. II. Discussion A. Standard of Review Defendant moves for judgment on the pleadings pursuant to Rule 1034(a). For the purposes of a motion for judgment on the pleadings, we limit our consideration to the pleadings and relevant documents attached thereto, accepting as true all well-pleaded facts. Wachovia v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007). We may only enter judgment on the pleadings when there are no disputed factual issues and the moving party is entitled to judgment as a matter of law. Id. With these principles in mind, we turn to the merits. B. Timeliness of Survival Action Defendant argues plaintiff's survival action is time-barred because it was initiated more than two years after the decedent left defendant's care. Plaintiff responds that even though the allegedly tortious medical care occurred more than two years before the initiation of the instant matter, the survival action was timely because the discovery rule tolled the limitation period until decedent's death. Thus, plaintiff's survival action, filed less than two years after the decedent's death, was timely. For the purposes of the instant motion, we agree. Generally, a cause of action for personal injury will accrue on the date of the injury and claims not initiated within two years of that date will be untimely. 42 Pa. C.S. §5524(2). The accrual date of decedent’s claim is not altered by the fact that plaintiff seeks to enforce it via the instant survival action. A survival action is not a new cause of action arising at the time of a decedent's death; rather, it permits the estate to enforce a cause of action already accrued to the decedent at the time of their death. Pastierik v. Duquesne Light Co., 514 Pa. 517, 523, 526 A.2d 323, 326 (1987). Decedent’s claim for personal injury arises from allegedly inadequate medical care she suffered during her residence at defendant’s facility. Thus, -2- 08-3493 CIVIL TERM decedent’s cause of action accrued, at the latest, on March 13, 2006, the date she left defendant’s care. The instant survival action was initiated by writ of summons on June 9, 2008, more than two years after the last day decedent’s cause of action could have accrued. Thus, absent some exception to toll the two-year limitation period, the survival action was untimely. Plaintiff asserts the discovery rule provides just such an exception. The discovery rule is an equitable principle that may toll the limitation period where an injured party could not know of their injury or its cause despite the exercise of due diligence. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245 (1995). The question as to whether a party exercising due diligence would be able to know of their injury and its cause involves a factual determination ordinarily to be decided by a jury. Fine v. Checcio, 582 Pa. 253, 268, 870 A.2d 850, 858 (2005). We note the discovery rule has limited application to a survival action. Specifically, the discovery rule cannot toll the limitation period beyond the time of a decedent’s death. Pastierik, 514 Pa. at 519, 526 A.2d at 324. Our Supreme Court reasoned, 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 … at times beyond the specified statutory period. Id. at 524-25, 526 A.2d at 327. Thus, the discovery rule may toll the limitation period for a survival action until the decedent’s death but not beyond. Id. Decedent left defendant’s care March 13, 2006 and died June 13, 2006. On June 9, 2008, plaintiff initiated the instant survival action. Thus, the question before us is whether plaintiff alleged sufficient facts to justify tolling the limitation period from the time decedent left defendant’s care until her death. If so, the survival action is timely filed, if not, then it is barred -3- 08-3493 CIVIL TERM by the statute of limitations. Here, plaintiff alleges decedent's injuries incapacitated her and rendered her unable to discover the operative conduct that caused her injuries. Thus, the limitation period must be tolled during the final months of her life, from the time of the incapacitating injuries until her death. Accepting these facts as true, we are unable to conclude that plaintiff's survival action is barred by the statute of limitations. The question of the decedent’s reasonably diligent efforts to discover the nature and cause of her injuries raises a triable issue we cannot resolve at the pleadings stage. Fine, 582 Pa. at 268, 870 A.2d at 858. Accordingly, we deny defendant’s motion for judgment on the pleadings as it relates to the survival action. C. Timeliness of Wrongful Death Claim Next, defendant argues plaintiff's wrongful death claim is time-barred as it was added to the fourth amended complaint more than two years after the decedent's death. Plaintiff responds by arguing the wrongful death claim is derivative of the underlying tort claims that are the basis for the survival action. Thus, the wrongful death claim is not time-barred so long as the survival action was timely filed. We disagree. Generally, a cause of action for wrongful death accrues at the time of death and claims not initiated within two years of the date of death are barred by the statute of limitations. 42 Pa. C.S. §5524(2); Baumgart v. Keene Building Products Corp., 633 A.2d 1189, 1194 (Pa. Super. 1993). Further, our Supreme Court has “unequivocally rejected” the application of the discovery rule to wrongful death claims. Pastierik, 514 Pa. at 521, 525 A.2d at 325. Thus, the question before us is not the application of the discovery rule to wrongful death claims, but whether plaintiff may amend its complaint to include a wrongful death claim at a time when that claim is otherwise time-barred. In general, pleadings may be liberally amended. Stalsitz v. Allentown Hospital, 814 -4- 08-3493 CIVIL TERM A.2d 766, 776 (Pa. Super. 2002). But, [A]n amendment introducing a new cause of action will not be permitted after the [s]tatute of [l]imitations has run in favor of a defendant …. However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the [s]tatute of [l]imitations has already run. Id. (citations and quotations omitted). Here, the limitation period for wrongful death had clearly run in favor of defendant when plaintiff first introduced its wrongful death claim in the fourth amended complaint filed July 15, 2009. Thus, we must determine whether plaintiff’s wrongful death claim merely amplifies the underlying survival action or whether it presents a new cause of action. Upon review, we conclude plaintiff’s wrongful death claim presents a distinct cause of action from the survival action and therefore may not be introduced by amended complaint beyond the applicable two-year limitation period. “An action to recover damages for the wrongful death of a person is separate and distinct from the action which is known as a survival action.” Baumgart, 633 A.2d at 1191. This is appropriate because unlike a survival action, an action for wrongful death is not for damages suffered by the decedent, “but for damages sustained by the plaintiff by reason of the decedent’s death.” Dennick v. Scheiwer, 381 Pa. 200, 201, 113 A.2d 318 (1955). In contrast, a survival action merely permits a decedent’s personal representative to continue a cause of action already accrued to the decedent at the time of her death. Pastierik, 514 Pa. at 523, 526 A.2d at 326. Thus, even though a wrongful death claim may arise from the same underlying facts as a survival action, the two causes of action accrue to different parties and provide recovery for different injuries. As such, a wrongful death claim is not a mere amplification of a survival action and cannot be introduced by amendment to the complaint more than two years after a decedent’s death. Stalsitz; Baumgart. -5- 08-3493 CIVIL TERM Here, plaintiff timely initiated its survival action to recover for damages suffered by the decedent during her lifetime. However, by failing to plead a cause of action for wrongful death until the fourth amended complaint, more than three years after decedent’s death, plaintiff has allowed the two-year limitation period for wrongful death claims to expire. Accordingly, we grant defendant’s motion for judgment on the pleadings as to the wrongful death claim. III. Conclusion For the foregoing reasons, we deny defendant’s motion for judgment on the pleadings as to the survival action and grant the motion as to the wrongful death claim and enter the following order. ORDER OF COURT AND NOW, this day of April, 2010, after considering the briefs and arguments of counsel, defendant’s motion for judgment on the pleadings as to the survival action is DENIED . Defendant’s motion for judgment on the pleadings as to the wrongful death claim is GRANTED. By the Court, Albert H. Masland, J. Eric J. Wiener, Esquire For Plaintiff John M. Skrocki, Esquire For Manor Care of Carlisle PA, LLC :sal -6- JAMES L. FRALISH, : IN THE COURT OF COMMON PLEAS OF INDIVIDUALLY AND AS PERSONAL : CUMBERLAND COUNTY, PENNSYLVANIA REPRESENTATIVE OF THE ESTATE : OF JEAN FRALISH, : PLAINTIFF : : V. : : CARLISLE HMA, INC., D/B/A : CARLISLE REGIONAL MEDICAL : CENTER AND MANOR CARE OF : CARLISLE PA, LLC, : DEFENDANTS : 08-3493 CIVIL TERM BEFORE HESS, P.J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of April, 2010, after considering the briefs and arguments of counsel, defendant’s motion for judgment on the pleadings as to the survival action is DENIED . Defendant’s motion for judgment on the pleadings as to the wrongful death claim is GRANTED. By the Court, Albert H. Masland, J. Eric J. Wiener, Esquire For Plaintiff John M. Skrocki, Esquire For Manor Care of Carlisle PA, LLC :sal