Bond v. Gallen

¶1dissenting:

¶2The majority seeks to overrule the decision of this Court in the case of Donnelly v. DeBourke, 280 Pa. Super.Ct. 486, 421 A.2d 826 (1980), appeal by allowance denied 667 E.D. Misc. Docket 1980 (Pa. February 27, 1981) and, thereby, to *216change existing law fixing the limitations period for instituting an action in tort due to injuries arising out of motor vehicle accidents. The majority would hold that the limitations period in minor accident claims does not start to run until a claimant knows, or in the exercise of reasonable diligence should have known, that the monetary threshold, as set forth in Section 301(a) of the Pennsylvania No-fault Motor Vehicle Insurance Act1 (presently $750) has been reached.

¶3Since I believe that Donnelly v. DeBourkewas correctly decided, and since a review of the relevant case law and statutes does not seem to support the views of the majority, I must respectfully dissent.

¶4The No-fault Act was passed by the General Assembly, to become effective on July 19, 1975, upon a finding by the legislature that:

“(8) throughout the Commonwealth there should be uniformity as to the essential elements of the system of motor vehicle accident and insurance law to avoid confusion, complexity, uncertainty, and chaos which would be engendered by a multiplicity of noncomplementary systems. . ,”2

¶5A key feature of the Act was the abolition of tort liability, as set forth in Section 301(a), except in certain very specific situations described thereunder. One area of tort liability retained after the passage of the Act was for damages for non-economic detriment if the accident resulted, inter alia, in (a) death or serious and permanent injury3; or (b) reasonable and necessary medical and dental services, with certain exclusions, in excess of $750.4

¶6In the instant case, Appellant was injured on February 3, 1977 as a result of a rear end collision in Delaware County. *217She sustained an internal disarrangement of the right knee, a whiplash injury to the right side of her neck, and an injury to her lower lumbar spine resulting in a slipped disc. As of July 10, 1978, Appellant’s medical expenses totalled $361. She was next treated on October 26, 1978 and presumably incurred additional expenses both on that date and again on December 2, 1978 when she underwent an EMG at the Mercy Catholic Medical Center in Darby, Pa. It is undisputed that her expenses exceeded the threshold sum of $750 soon after December 17, 1978, when she was admitted to Mercy Catholic for surgery, and certainly no later than December 29, 1978.

¶7In spite of this, Appellant did not file her complaint in trespass until April 12,1979, some two years and two months following the date of her injuries. In the complaint, she alleged she had both received “grievous and permanent injuries” and incurred medical expenses “in excess of $750.00.”

¶8The Defendant, after the pleadings were closed, filed a Motion for Judgment on the Pleadings, contending that the action was barred by the statute of limitations imposed upon personal injury actions by the Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5524, which provides:

Ҥ 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.

¶9This section must be read in conjunction with 42 Pa.C.S.A. § 5502, another section of the same Judiciary Act of 1976,5 which provides:

*218Ҥ 5502. Method of computing periods of limitation generally

(a) General rule.—The time within which a matter must be commenced under this chapter shall be computed, except as otherwise provided by subsection (b) or by any other provision of this chapter, from the time the cause of action accrued, the criminal offense was committed or the right of appeal arose.

¶10The lower court rejected Appellant’s contention that her cause of action “accrued” on the date she knew or should have known “legal” injury had been sustained, that is, on the date when she knew the “facts” upon which her cause of action was based, and granted the Defendant’s Motion for Judgment on the Pleadings, whereupon she brought this appeal.

¶11At the time the Appellant’s injury occurred in 1977, the applicable statute of limitations, enacted and in effect since 1895, required that suit to recover damages be brought “within two years from the time when the injury was done and not afterwards.”6 But for the passage of the Judiciary Act of 1976 and the Judiciary Act Repealer Act7 in 1978, which resulted in the repeal of the 1895 statute of limitations, there would be no question but that Appellant’s claim would be barred. As recognized by Judge PRICE in Donnelly v. DeBourke, supra,the two year period of the statute of limitations in automobile accident personal injury cases has traditionally begun on the date the injuries were sustained. See, e. g. Coyne v. Porter-Hayden Co., 286 Pa.Super.Ct. 1, 5, 428 A.2d 208, 209 (1981) (dictum); cf. Hruska v. Gibson, 316 Pa. 518, 175 A. 514 (1934).

¶12It is important to recognize that the 1895 statute of limitations was in effect throughout the period when the no-fault legislation was under consideration by the General *219Assembly and remained in effect for a period of nearly four years following passage of the No-fault Act8 and nearly three years after its effective date.9 Thus, in the absence of any legislative history to the contrary, it may reasonably be assumed that the legislature was aware of the effect of the 1895 statute upon minor injury claims and the necessity to file any such claims within the long-established two-year period.

¶13Since the injury occurred prior to the effective date of the new statute of limitations, but the complaint was filed after that effective date, it must preliminarily be determined which statute controls. While substantive rights are settled as of the time the cause of action arises, rights in procedural matters are determined by the law in force at the time of the institution of the action. Bell v. Koppers Co., Inc., 481 Pa. 454, 458-59, 392 A.2d 1380, 1382-83 (1978); Sussman v. Yaffee, 443 Pa. 12, 15, 275 A.2d 364, 366 (1971). The statute of limitations is an affirmative defense, to be raised ordinarily as New Matter, and merely operates as a bar to the plaintiff proceeding with a claim and, therefore, must be deemed to be procedural in nature.

¶14Having determined that 42 Pa.C.S.A. §§ 5502 and 5524 are the applicable statutes for disposition of Appellant’s claim, we now must consider whether the legislature intended to effectuate a radical change in the long-established law concerning the “fact” which triggers the statute of limitations in automobile accident personal injury cases by the adoption of the Judicial Code of 1976.

¶15We are guided in our review of 42 Pa.C.S.A. § 5502 by the Statutory Construction Act of 1972, 1 Pa.C.S.A. § 1921, which provides:

Ҥ 1921. Legislative intent controls

(a) ...

(b) . ..

¶16*220(c) When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be obtained.

(5) The former law, if any, including other statutes upon the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such statute.”

¶17The Judicial Code bills had been drafted by the Pennsylvania Bar Association Special Committee on the Judicial Code in cooperation with a similar committee of the Pennsylvania Conference of State Trial Judges. It was only after submission of the proposed bills to the General Assembly that it determined to utilize the bills “as a vehicle to rationalize and simplify the statutes of limitation.”10 This was done by bringing together, in one place 11, most of the various statutes of limitation which had theretofore been located throughout the statutes. In so doing, 42 Pa.C.S.A. § 5502 became the general statute for computing periods of time, not only in both civil and criminal matters but also in appeals. A portion of the language contained in the new § 5502 may have been derived from an 1897 statute dealing with fraudulent debtors’ attachments12, but one must suppose that the legislature was seeking to achieve an omnibus statute which would replace all of the older statutes relating to computations of time without working a change in their effect. There is nothing in the Judicial Code, or its amendments, to suggest otherwise.

¶18*221The object of the legislature was to simplify the law, and not to change it, so far as limitations of actions in personal injury cases were concerned. So far as my review of the legislative history has revealed, there was no mischief which the General Assembly sought to remedy in this area. Had the legislature intended to change the result which had obtained under the 1895 statute of limitations, they would, and could, have said so in unmistakable terms.

¶19Were we to give to § 5502 the interpretation which the majority suggests, it would result in the effective reinstatement of a whole class of minor injury cases which the legislature, in its wisdom, has only so recently abolished! I am not disposed to engage in this type of judicial legislation.

¶20Both the majority and Appellant, in her brief, contend that the holding in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) requires that § 5502 be interpreted to create a “moving” statute of limitations under § 301(a) of the No-fault Act. I cannot agree. In Singer, the opinion was authored by Chief Justice Jones (since deceased), but it does not appear that any other justice joined in that opinion. Justice Roberts, in a concurring opinion, concurred “in the judgment sustaining the constitutionally of section 301(a).” Id.,464 Pa. at 415-17, 346 A.2d at 911-12. Justice Pomeroy (since retired) joined Justice Roberts except as to certain matters not relevant here. Id.,464 Pa. at 417, 346 A.2d at 912. Justice Nix merely agreed “with the result reached by the majority.” Id.,464 Pa. at 417-20, 346 A.2d at 912-914. Justices Eagen (since retired), O’Brien and Manderino (since deceased) all filed separate dissents. Id.,464 Pa. at 408-15, 420-21, 346 A.2d at 907-911, 914.

¶21At no point were four justices of the court in sufficient agreement to support the analysis of Singerthat is set forth in the majority opinion. In considering whether or not Donnellyis consistent with Singer, the most that can be said about Singeris that, on the vote of four justices of the court, § 301(a) of the No-fault Act was found not to violate either the state or federal Constitution.

¶22*222An opinion of the supreme court, disposing of an appeal but not representing the view of a majority of the court, is not decisional and, therefore, not binding. Commonwealth v. Davenport, 462 Pa. 543, 559 n.3„ 342 A.2d 67, 75 n.3 (1975); Commonwealth v. Silverman, 442 Pa. 211, 218, 275 A.2d 308 n.8, 312 n.8 (1971); U.S. cert. denied, Pennsylvania v. Silverman, 405 U.S. 1064, 92 S.Ct. 1490, 31 L.Ed.2d 794 (1972). I would submit that the holding in Singeris limited to the finding that the No-fault Act is constitutional. I therefore cannot subscribe to the majority’s contention that Donnellyis not consistent with Singer.

¶23Some guidance on this computation issue may be achieved by recognizing the results reached in our sister states. My conclusion that the statute of limitations begins to run on the date the injury-causing event occurs has been reached in the only other jurisdictions which have faced this question.13See Taber v. Niagara Frontier Transit Authority, 101 Misc.2d 92, 420 N.Y.S.2d 692 (Sup.Ct. 1979), aff’d, 78 App. Div.2d 775, 435 N.Y.S.2d 551 (1980); Carter v. Cross, 373 So.2d 81 (Fla.Dist.Ct.App. 1979), cert. denied 385 So.2d 755 (Fla.1980); Dinesen v. Towle, 3 Kan.App.2d 505, 597 P.2d 264 (1979), rev. denied, 226 Kan. 792 (1979); Cappadona v. Eckelmann, 159 N.J.Super. 352, 388 A.2d 239 (Super.Ct.App. Div. 1978).

¶24Each of these cases has determined that the applicable statute of limitations, in a tort action arising out of a no-fault statute, begins to run, and the cause of action accrues, as of the date of the accident.

¶25I foresee a problem with the majority’s analysis concerning damages. If the cause of action does not accrue until the threshold has been met, what happens to the non-economic detriment which would have been incurred prior to that date? If, as the majority would argue, there is no cause *223of action prior to reaching the monetary threshold, then no legal detriment could have been incurred. Is the claimant then limited to recovering for pain and suffering as calculated only from the threshold date? This would be the type of absurd and unreasonable result which the General Assembly could not have intended.14

¶26It is true that in certain exceptional circumstances as, for example, medical malpractice cases, a “moving” statute of limitations has been approved. See e. g., Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Anthony v. Koppers Co., Inc., 284 Pa.Super.Ct. 11, 425 A.2d 428 (1980). However, there appears to be no legal justification for the application of this so-called “discovery rule” in the instant situation. A plaintiff invoking the discovery rule to delay the commencement of the statute of limitations must allege facts which show why the action could not have been brought earlier. Coyne v. Porter-Hayden Co., Id.,286 Pa.Super. at 7, 428 A.2d at 210. Here, Appellant admits that the injuries were manifested on the date of the injury, alleges serious and permanent injuries, and was fully aware of having passed the threshold sum almost two months before the statute had run.

¶27We are not here concerned with a hidden or latent injury. The injuries which Appellant sustained first manifested themselves on February 3, 1977, and she had a right to maintain an action from that date, subject only to her being able to prove minimal medical expenses at the appropriate time. We are not concerned, either, with Appellant’s ability to recover her net losses which are protected by other pertinent sections of the No-fault Act.

¶28I am convinced that the legislature enacted no-fault as a means of providing compensation for injured persons in lieu of their filing lawsuits for damages in cases involving small sums of money or minor injuries. The majority would destroy this legislative intent on the pretext that consistency with our prior case law cannot otherwise be maintained. Moreover, they would overrule the decision of this court in *224Donnelly v. DeBourke which first considered this issue and which has withstood a Petition for Allowance of Appeal. I am not prepared either to usurp the power of the legislature or to treat lightly the well-reasoned opinion of my colleague, Judge PRICE.

¶29Therefore, I must dissent.