Owens, B. v. Lehigh Valley Hospital ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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