HomeMy WebLinkAbout94-6706 Civil (2) DENNIS KENNEDY and : IN THE COURT OF COMMON PLEAS OF
HELEN M. COX, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. : CIVIL ACTION - LAW
:
CUMBERLAND-PERRY ASSOCIATION :
OF RETARDED CITIZENS, :
CAROL FIRENZ, CAPELLINE :
PIVORNIC, PEGGY (MARGARITE) :
WHITE, PAUL STENGEL, :
Defendants : NO. 94-6706 CIVIL TERM
IN RE: DEFENDANTS' MOTION FOR JUDGMENT
ON THE PLEADINGS
BEFORE HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~ day of August, 1995, after careful
consideration of Defendants' motion for judgment on the pleadings,
and for the reasons stated in the accompanying opinion, the motion
is GRANTED and Plaintiffs' second amended complaint is DISMISSED.
BY THE COURT,
WeSley 01er,~., J. ' -' '
Scott M. Staller, Esq.
P.O. Box 264
New Bloomfield, PA 17068
Attorney for Plaintiffs
William A. Addams, Esq.
28 South Pitt Street
P.O. Box 208
Carlisle, PA 17013
Attorney for Defendants
:re
DENNIS KENNEDY and : IN THE COURT OF COMMON PLEAS OF
HELEN M. COX, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. : CIVIL ACTION - LAW
:
CUMBERLAND-PERRY ASSOCIATION :
OF RETARDED CITIZENS, :
CAROL FIRENZ, CAPELLINE :
PIVORNIC, PEGGY (MARGARITE) :
WHITE, PAUL STENGEL, :
Defendants : NO. 94-6706 CIVIL TERM
IN RE: DEFENDANTS' MOTION FOR JUDGMENT
ON THE PLEADINGS
BEFORE HOFFER and OL~R, JJ.
OPINION and ORDER OF COURT
Oler, J.
This negligence action arises out of alleged harm suffered by
Dennis Kennedy while he resided in group homes operated by
Defendant Cumberland-Perry Association of Retarded Citizens (C-
PARC). Before the court for disposition is Defendants' motion for
judgment on the pleadings, based on Plaintiffs' failure to initiate
this action within the pertinent statute of limitations. For the
reasons stated in this Opinion, the motion will be granted and
Plaintiffs' second amended complaint will be dismissed.
STATEMENT OF FACTS
Plaintiff initiated this suit by filing a praecipe for a writ
of summons on November 23, 1994. The incidents giving rise to the
action allegedly took place from September 1980 through part of
1992.~ No incident for which Plaintiffs seek damages occurred
Plaintiffs' second amended complaint, paragraph 9.
NO. 94-6706 CIVIL TERM
after February of 1992.2
The facts averred in Plaintiffs' second amended complaint3 may
be summarized as follows:4 Plaintiff Dennis Kennedy (hereinafter
Plaintiff-Kennedy) is an adult individual with an address of
Selinsgrove Center, Box 500, Selinsgrove, Snyder County,
Pennsylvania.s Plaintiff Helen Cox (Plaintiff-Cox) is an adult
individual with an address of R.D. 4, Box 173, Newport, Perry
County, Pennsylvania, and is the mother of Dennis Kennedy.6
Defendant Cumberland-Perry Association of Retarded Citizens
is an Association with a business address of 117 North Hanover
Street, Carlisle, Pennsylvania.7 Defendant Carol Firenz is an
adult individual whose business address is 117 North Hanover
Street, Carlisle, Pennsylvania.8 Defendant Capelline Pivornic is
2 See Defendants' answer with new matter to Plaintiffs'
second amended complaint, paragraph 120. Plaintiffs have admitted
that no alleged act of negligence on the part of C-PARC or any of
its employees occurred after February of 1992. See Plaintiffs'
reply to Defendants' new matter, paragraph 14.
3 Plaintiff filed a second amended complaint on April 12,
1995, in response to preliminary objections filed by Defendants on
March 24, 1995.
4 The recitation of facts as alleged in Plaintiffs' pleading
is in no way intended to imply a view by the court as to their
accuracy.
Plaintiffs' second amended complaint, paragraph 1.
Plaintiffs' second amended complaint, paragraph 2.
Plaintiffs' second amended complaint, paragraph 3.
Plaintiffs' second amended complaint, paragraph 4.
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NO. 94-6706 CIVIL TERM
an adult individual whose business address is The Center for
Industrial Training, 262 Silver Spring Road, Mechanicsburg,
Pennsylvania.9 Defendant Peggy White is an adult individual whose
last known address is 320 Fourth Street, Rear, New Cumberland,
Pennsylvania.~° Defendant Paul Stengel is an adult individual whose
business address is ARC, Montgomery County, Continental Plaza, 1010
West Ninth Avenue, King of Prussia, Pennsylvania.~
Plaintiff suffers from some sort of mental deficiency. As a
child of pre-school age, he was believed to be suffering from some
type of brain damage.~2 He has been diagnosed as being mildly to
moderately retarded.~3 Because of this mental deficiency,
Plaintiff-Cox has offered herself as Plaintiff-Kennedy's guardian
ad litem in this action.TM
During the period'from September of 1980 t° February of 1992,
Plaintiff-Kennedy resided in group homes operated by C-PARC. He
first entered a home when he was eighteen years old.~5 Sometime
9 Plaintiffs' second amended complaint, paragraph 6.
Plaintiffs' second amended complaint, paragraph 7.
Plaintiffs' second amended complaint, paragraph 8.
Plaintiff's second amended complaint, paragraph 14.
Plaintiffs' second amended complaint, paragraph 25.
See Plaintiffs' second amended complaint.
Plaintiff Kennedy was born July 10, 1962. See Defendants'
answer to Plaintiff's second amended complaint, paragraph 118;
Plaintiffs' reply, paragraph 16.
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NO. 94-6706 CIVIL TERM
during his first stay at a group home, to which he was admitted in
the fall of 1980, it is alleged that Plaintiff-Kennedy was molested
and possibly sexually assaulted by a female staff member.~6 A
second incident is alleged after Plaintiff-Kennedy was moved to
another group home, also operated by C-PARC, in December 1981.
Shortly after this move, Plaintiff-Kennedy alleges that he observed_
a male staff member molesting a female resident.~? In October 1989,
Plaintiff-Kennedy was moved to a third group home, also operated by
C-PARC, where he encountered a male staff member who allegedly came
to work cross-dressed.~8 Throughout this entire period, beginning
with the first incident, Plaintiff-Kennedy engaged in certain
inappropriate behavior that was sexual in nature and that C-PARC
staff members allegedly failed to properly address his problem.
With regard to the first two incidents, it is alleged that C-
PARC did not inform Plaintiff-Cox of them at the time they
occurred. She did not learn of the incident in which her son was
molested until Thanksgiving weekend, 1992, when she was told of the
occurrence by him.
Plaintiffs' second amended complaint consists of a count in
negligence against each of the aforementioned Defendants for
failure to take corrective action or for taking inappropriate
See Plaintiffs' second amended complaint, paragraphs 21-30.
See Plaintiffs' second amended complaint, paragraphs 35-36.
See Plaintiffs' second amended complaint, paragraph 44.
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NO. 94-6706 CIVIL TERM
action in regard to the incidents that took place under their
jurisdiction or management.~9 The negligence count against
Defendant White also seeks recovery for allegedly inappropriate
behavior toward Plaintiff-Kennedy.20
In response to Plaintiffs' second amended complaint,
Defendants filed an answer with new matter asserting that the
statute of limitations bars the Plaintiffs' claim.2~
STATEMENT OF THE LAW
Pennsylvania Rule of Civil Procedure 1034 provides:
(a) After the pleadings are closed, but
within such time as not to delay the trial,
any party may move for judgment on the
pleadings.
(b) The court shall enter such judgment
or order as shall be proper on the pleadings.
In Williams v. Lewis,22 the Pennsylvania Superior Court stated:
Judgment on the pleadings is only
appropriate where no material facts remain in
dispute. Pennsylvania Ass'n of State Mental
Hospital Physicians, Inc. v. State Emp.
Retirement Bd., 484 Pa. 313, 399 A.2d 93
(1979). Only where the moving party's right
to prevail is so clear that a trial would be a
fruitless exercise should a judgment on the
pleadings be entered. Nevling v. Natoli, 290
Pa. Super. 174, 434 A.2d 187 (1981).
Plaintiffs' second amended complaint, paragraphs 101-105.
Plaintiffs' second amended complaint, paragraph 101.
Defendant's answer with new matter to Plaintiffs' second
amended complaint, paragraph 120.
2~ 319 Pa. Super. 552, 555, 466 A.2d 682, 683 (1983).
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NO. 94-6706 CIVIL TERM
The statute of limitations is a proper subject for a motion
for judgment on the pleadings. In this regard, it is observed in
Goodrich-Amram 2d ~1034(a):18, at 258 (1991), as follows:
Where the defense of the statute of
limitations is properly raised as a new matter
in the answer, and it appears from the
allegations in the complaint that the statute
of limitations clearly bars the action, and
there is nothing in the plaintiff's pleadings
to avoid the bar of the statute, a motion for
judgment on the pleadings under Rule 1034 may
properly be brought on such ground.
Section 5524 of the Judicial Code states in pertinent part:
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.TM
As a general rule, the two-year statute of limitations begins
to run "'as soon as the right to institute and maintain a suit
arises; lack of knowledge, mistake, or misunderstanding do not toll
the running of the statute of limitations.,-24 A person asserting
a claim has the duty to use "all reasonable diligence to be
properly informed of the facts and circumstances upon which a
23 Act of July 9, 1976, P.L. 586, ~2, as amended, 42 Pa. C.S.
~5524 (1995 Supp.).
~ A. McD. v. Rosen, 423 Pa. Super. 304, 308, 621 A.2d 128,
130 (1993), quoting Pocono Int'l Raceway v. Pocono Produce, Inc.,
503 Pa. 80, 84, 468 A.2d 468, 471 (1983).
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NO. 94-6706 CIVIL TERM
potential right of recovery is based and to institute suit within
the prescribed statutory period.,,25
In circumstances where the plaintiff cannot reasonably be
expected to be aware of the injury and its cause at the time of
occurrence, the "discovery rule" may apply to toll the statute of
limitations.2~ The discovery rule has been expressed as~ follows:
The limitations period begins to run 'when the
plaintiff knows or reasonably should know: (1)
that he has been injured, and (2) that his
injury has been caused by another party's
conduct.,27
The statute begins to run when the injured party ','possesses
sufficient critical facts to put him on notice that a wrong has
been committed and that he need investigate to determine whether he
is entitled to redress.,-28
In A. McD v. Rosen, the Superior Court cited with approval the
following description of the applicable standard of reasonable
diligence in this context:
The standard of reasonable diligence is an
objective or external one that is the same for
all individuals. It is not a subjective
standard. The fact that [a plaintiff] may
have lacked knowledge of his or her injury is
Id.
Id.
~7 Id., quoting Redenz by Redenz v. Rosenberg, 360 Pa. Super.
430, 434, 520 A.2d 883, 885, allocatur denied, 516 Pa. 635, 533
A.2d 93 (1987).
~8 Id., quoting Brunea v. Gustin, 775 F. Supp. 844, 846 (W.D.
Pa. 1991).
NO. 94-6706 CIVIL TERM
"irrelevant, .... the statute is tolled only if a
reasonable person in the plaintiff's position
would have been unaware of the salient facts."
In defining reasonable diligence, the courts
have stated "[t]here are very few facts which
diligence cannot discover, but there must be
some reason to awaken inquiry and direct
diligence in the channel in which it would be
successful. This is what is meant by
reasonable diligence." Moreover, with respect
to knowledge of a claim, "plaintiffs need not
know that they kave a cause of action, or that
the injury was caused by another party's
wrongful conduct, for once a plaintiff
possesses the salient facts concerning the
occurrence of his injury and who or what
caused it, he has the ability to investigate
and pursue his claim.-29
Thus, only where the injury is not readily discernible through
reasonable diligence can the "discovery rule" apply.3°
As a general rule, Pennsylvania law does not appear to permit
the tolling of a statute of limitations on account of an incapacity
of the particular plaintiff which allegedly impaired his or her
ability to discover the injury or its cause.3~ Section 5533 of the
Judicial Code specifically provides as follows:
Except as otherwise provided by statute,
infancy, insanity or imprisonment does not
extend the time limited ... for the
commencement of a matter.32
~ A. McD. v. Rosen, 423 Pa. Super. 304, 309, 621 A.2d 128,
130 (1993), quoting Bailey v. Lewis, 763 F. Supp. 802, 806-07 (E.D
Pa. 1991). ·
3o Id.
See Bailey v. Lewis, 763 F. Supp. 802, 808 (E.D. Pa. 1991).
Act of April 28, 1978, P.L. 202, §10(62), as amended, 42
Pa. C.S. ~5533(a) (1995 Supp.).
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NO. 94-6706 CIVIL TERM
Additionally, Pennsylvania courts have consistently stated that the
statute of limitations runs against a person who is under a
disability, including one who is mentally incompetent.TM Thus, as
a general rule, the "'inclusion of a plaintiff's mental incapacity
as a factor to be considered in determining the reasonableness of
a plaintiff's diligence runs counter to the [reasonable person
standard].'"34 The purpose behind such a rule is as follows:
"[P]ermitting the deferment of the institution
of a personal injury claim until the end of a
prospective plaintiff's period of disability
seriously prejudices the person against whom
the suit is brought. With the passage of
time, a defendant may be hard pressed to
assert his innocence of wrongdoing, for his
evidence may disappear or become unavailable,
his witnesses scatter and die and their
memories become dim.''~5
APPLICATION OF LAW TO FACTS.
The incidents for which Plaintiffs seek recovery occurred
between 1981 and February of 1992. Since Plaintiff did not
initiate the action until November of 1994, the two-year
limitations period would normally bar Plaintiffs' claim.
Plaintiffs, however, contend that the discovery rule requires the
~ See A. McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128, 131
(1993) (holding that appellant's continuing need of psychiatric
treatment did not toll the running of the statute of limitations).
34 E.J.M.v. Archdiocese of Philadelphia, 424 Pa. Super. 449,
459, 622 A.2d 1388, 1394 (1993), quoting A. McD. v. Rosen, 423 Pa.
Super. 304, 310, 621A.2d 128, 131 (1993).
~ Bailey v. Lewis, 763 F. Supp. 802, 808 (E.D. Pa. 1991),
quoting Walker v. Mummert, 394 Pa. 146, 151-52, 146 A.2d 289, 291
(1958).
NO. 94-6706 CIVIL TERM
statute of limitations to be tolled due to Plaintiff-Kennedy,s
mental disability.
Plaintiff-Kennedy,s assertion that he was unable to pursue his
legal rights due to his mental disability is not in itself directly
relevant to our decision. Rather, Pennsylvania law requires us to
examine the facts, utilizing an objective standard.
As previously stated, once a plaintiff possesses the salient
facts regarding the occurrence of his or her injury and the
identity of the alleged' wrongdoer, a plaintiff has the obligation
to pursue his or her claim. The plaintiff does not need to know
that he or she has a cause of action or that what was happening to
him or her was abusive or wrongful. We conclude that a reasonable
person in Plaintiff-Kennedy,s situation would have been aware of
these salient facts as they occurred. With respect to the three
incidents discussed previously, Plaintiff-Kennedy purportedly
witnessed the alleged wrongdoing and the employees involved. He
must be regarded as having been in possession of all the important
facts, and under the law he had an obligation to initiate his claim
within the applicable two-year limitations period.
With regard to the claim of Plaintiff-Cox, the record fails to
suggest a basis for an independent cause of action on her part, and
her claim as guardian ad litem would be derivative of Plaintiff-
Kennedy's claim. For the foregoing reasons, the following Order
will be entered:
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NO. 94-6706 CIVIL TERM
ORDER OF COURT
AND NOW, this 16th day of August, 1995, after careful
consideration of Defendants' motion for judgment on the pleadings,
and for the reasons stated in the accompanying opinion, the motion
is SUSTAINED and Plaintiffs' second amended complaint is DISMISSED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Scott M. Staller, Esq.
P.O. Box 264
New Bloomfield, PA 17068
Attorney for Plaintiffs
William A. Addams, Esq.
28 South Pitt Street
P.O. Box 208
Carlisle, PA 17013
Attorney for Defendants
11