Hudson, L. v. Sundararajan, V. ( 2022 )

J-A09034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORENE HUDSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DR. VENKATESH SUNDARARAJAN : No. 2106 EDA 2021
AND CENTER OF INTERVENTIONAL :
PAIN AND SPINE :
Appeal from the Order Entered September 9, 2021
In the Court of Common Pleas of Chester County Civil Division at No(s):
2021-06144-TT
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MAY 13, 2022
Lorene Hudson (Plaintiff) appeals pro se from the order of the Court of
Common Pleas of Chester County (trial court) dismissing with prejudice her
action against Dr. Venkatesh Sundararajan and the Center of Interventional
Pain and Spine (Medical Providers). We affirm.
Plaintiff first sued Medical Providers on October 15, 2019, when she filed
a pro se complaint sounding in medical malpractice. As alleged in the
complaint, on July 28, 2015, Plaintiff went to Dr. Sundararajan for a steroid
injection for injuries that she suffered in a car accident. According to her,
during the procedure, Dr. Sundararajan implanted a microchip that Plaintiff
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* Retired Senior Judge assigned to the Superior Court.
J-A09034-22
did not discover until some unspecific time in 2017 when “it was maliciously
activated electronically.” Because Plaintiff failed to file a certificate of merit,
Medical Providers served her with notice of intention to enter judgment of non
pros under Pa.R.C.P. 1042.3. When she failed to file a certificate of merit in
response, Medical Providers filed a praecipe to enter judgment of non pros
under Pa.R.C.P. 237.4. On January 3, 2020, the trial court entered judgment
of non pros in favor of Medical Providers.
Plaintiff filed this, her second, pro se action against Medical Providers on
August 3, 2021. This time, while largely copying and pasting the factual
allegations from her first complaint, Plaintiff recast her claims as intentional
torts rather than medical malpractice. Medical Providers responded by filing
a motion to dismiss the complaint based on (1) Plaintiff merely re-filing her
unsuccessful first complaint, and (2) her claims being time-barred by the
statute of limitations.1 Plaintiff responded to the motion but did not address
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1 A statute of limitations defense is properly raised in new matter. See
Pa.R.C.P. 1030(a). However, “[w]here a party erroneously asserts
substantive defenses in preliminary objections rather than to raise these
defenses by answer or in new matter, the failure of the opposing party to file
preliminary objections to the defective preliminary objections, raising the
erroneous defenses, waives the procedural defect and allows the trial court to
rule on the preliminary objections.” Richmond v. Hale, 35 A.3d 779, 782
(Pa. Super. 2012) (citation omitted). Because Plaintiff raised no objection to
the statute of limitations defense being raised in a motion to dismiss, any
procedural defect has been waived. See Cooper v. Dowington School
Dist., 357 A.2d 619, 621 (Pa. Super. 1976) (addressing merits of a statute of
limitations defense raised by preliminary objections in the interest of judicial
economy, where no objection to such procedure was made); see also Sayers
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either argument for dismissal. Instead, she focused on her prior failure to
include a certificate of merit and argued none was required because she was
raising an intentional tort claim. On September 9, 2021, the trial court
granted the Medical Provider’s motion and dismissed Plaintiff’s action with
prejudice. After Plaintiff filed this appeal, the trial court clarified in its
Pa.R.A.P. 1925(a) opinion that it dismissed her action because it was time-
barred by the statute of limitations:
[Plaintiff] has done nothing more than attempt to recast her
unsuccessful First Action as an intentional tort. Whether cast as
a medical malpractice claim or as an intentional tort, the statute
of limitations expired two years after the cause of action accrued.
42 Pa.C.S.A. § 5524. [Plaintiff] pleads that she discovered her
injury in December 2017 when the microchip was activated. (Both
complaints, ¶ 9)[.] The Second Action was filed in August 2021,
more than two years following [Plaintiff’s] discovery of her injury.
Regardless of whether an injury is ongoing, the statute of
limitations is triggered when a plaintiff learns that she has been
injured. Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc.,
503 Pa. 80, 86, 468 A.2d 468, 471-72 (1983).
Trial Court Opinion, 11/30/21, at 2-3.2
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v. Heritage Valley Medical Group, Inc., 247 A.3d 1155, 1160 (Pa. Super.
2021) (finding trial court did not err in addressing merits of defendants’
preliminary objections despite improperly raising their statute of limitations
defense through preliminary objections and not new matter, where (1) the
parties briefed and argued the merits of the defense, and (2) defendants’ right
to judgment on the pleadings is clear).
2 When similarly faced with a non-specific “motion to dismiss” asserting a
statute of limitations defense, we reviewed the decision on the motion under
our well-established standard for reviewing preliminary objections. See
Rellick-Smith v. Rellick, 147 A.3d 897, 901 (Pa. Super. 2016). That
standard is as follows:
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“Under Pennsylvania law, tort claims for intentional conduct, negligence,
and conduct based in fraud are subject to a two-year statute of limitations.”
Baselice v. Franciscan Friars Assumption BMV Province, Inc., 879 A.2d
270, 275 (Pa. Super. 2005). Section 5524 of Judicial Code provides in relevant
part:
The following actions and proceedings must be commenced within
two years:
(1) An action for assault, battery, false imprisonment, false
arrest, malicious prosecution or malicious abuse of process.
(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.
***
(7) Any other action or proceeding to recover damages for
injury to person or property which is founded on negligent,
intentional, or otherwise tortious conduct or any other action or
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Preliminary objections in the nature of a demurrer should be
granted where the contested pleading is legally insufficient.
Preliminary objections in the nature of a demurrer require the
court to resolve the issues solely on the basis of the pleadings; no
testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by the
demurrer. All material facts set forth in the pleading and all
inferences reasonably deducible therefrom must be admitted as
true. In reviewing a trial court’s grant of preliminary objections,
the standard of review is de novo and the scope of review is
plenary. Moreover, we review the trial court’s decision for an
abuse of discretion or an error of law.
Caltagirone v. Cephalon, Inc., 190 A.3d 596, 599 (Pa. Super. 2018)
(citations omitted).
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proceeding sounding in trespass, including deceit or fraud, except
an action or proceeding subject to another limitation specified in
this subchapter.
42 Pa.C.S. § 5524(a)(1), (2), (7).
As this Court has explained:
The Judicial Code provides that limitations periods run from
the time the cause of action accrued. 42 Pa.C.S. § 5502(a).
Generally, “a cause of action accrues, and thus the applicable
limitations period begins to run, when an injury is inflicted.”
Wilson [v. El-Daief, 964 A.2d 354, 361 (Pa. 2009)]. “Once a
cause of action has accrued and the prescribed statutory period
has run, an injured party is barred from bringing his cause of
action.” Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 857
(2005). The discovery rule is an exception to this rule that tolls
the statute of limitations when the plaintiff is reasonably unaware
that she has been injured and that her injury has been caused by
another party’s conduct. Fine, 870 A.2d at 859. A cause of action
accrues upon “actual or constructive knowledge of at least some
form of significant harm and of a factual cause linked to another’s
conduct, without the necessity of notice of the full extent of the
injury, the fact of actual negligence, or precise cause.” Wilson,
964 A.2d at 364; see also id. at n.10.
Carlino v. Ethicon, Inc., 208 A.3d 92, 103 (Pa. Super. 2019).
As noted, Plaintiff alleged in her complaint that Dr. Sundararajan made
the injection on July 18, 2015. See Complaint, 8/3/21, at ¶ 7. Plaintiff,
however, eventually discovered the microchip in 2017 “when it was
maliciously activated electronically.” Id. at ¶ 9. Even giving Plaintiff’s
allegation about the timing of the discovery the most charitable reading, her
own pleading shows that she had actual or constructive knowledge of the harm
no later than December 31, 2017. Applying the two-year statute of
limitations, Plaintiff’s complaint is time-barred because it was not filed until
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August 3, 2021—over a year-and-a-half after the statute of limitations would
have run. In her very own words, Plaintiff “discovered” the alleged tort in
2017 but failed to give any further explanation for why she did not possess
sufficient critical facts at that junction to put her on notice of the alleged tort.
As a result, the trial court properly found that this action was filed after the
two-year statute of limitations had expired.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2022
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3 Because we find that the trial court properly dismissed based on the statute
of limitations, we need not address Medical Providers’ additional argument
that we may affirm the dismissal of Plaintiff’s action as a serial frivolous lawsuit
under Pa.R.Crim.P. 233.1. See Medical Providers’ Brief at 18-22.
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