Vitale v. Buckingham Manufacturing Co.

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-9-2006
Vitale v. Buckingham
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3434
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-3434
__________
ANTHONY J. VITALE and THERESA VITALE,
Appellants,
vs.
BUCKINGHAM MANUFACTURING COMPANY, INC.
__________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(No. 03-cv-06845)
District Judge: Honorable Norma L. Shapiro
__________
Argued May 16, 2006
___________
Before: MCKEE and GARTH, Circuit Judges, and LIFLAND, District Judge*
(Opinion Filed: June 9, 2006)
___________
OPINION
__________
*
The Honorable John C. Lifland, Senior District Judge for the District of New
Jersey, sitting by designation.
Robert L. Sachs, Jr. (Argued)
Shrager, Spivey & Sachs
2001 Market Street, 32nd Floor
Philadelphia, PA 19103
Counsel for Appellant
Richard W. Yost (Argued)
Phillip J. Meyer
Yost & Tretta
Two Penn Center Plaza
1500 John F. Kennedy Blvd.
Suite 610
Philadelphia, PA 19102
Counsel for Appellee.
LIFLAND, District Judge:
Anthony and Theresa Vitale (“Plaintiffs”) filed suit in the United States District
Court for the Eastern District of Pennsylvania against Buckingham Manufacturing
Company, Inc. (“Defendant”) for injuries suffered by Mr. Vitale allegedly from his use of
pole climbers manufactured by Defendant. The District Court entered summary
judgment in favor of Defendant, holding that Pennsylvania’s statute of limitations barred
Plaintiffs’ claims. We will reverse.
I.
Because we write solely for the benefit of the parties, we will only briefly recount
the relevant facts herein. In October of 1999, Anthony Vitale enrolled in the “Line
School” of Pennsylvania Energy Company (“PECO”) to receive training in utility pole
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climbing. Upon enrollment, he received a new pair of Defendant’s pole climbers, leg
irons which are strapped to the lineman’s lower leg and calf to assist the lineman in
climbing up and standing on the utility pole. Vitale wore the same pair of Defendant’s
pole climbers during training and during his job as a lineman through late November and
early December of 2001.
After the first day of his training, Vitale felt soreness in his legs and then began
experiencing a persistent, general pain in his knees and legs. In October of 1999, Vitale
visited Dr. Robert Braunfield, his family physician, several times, complaining of knee
discomfort. Dr. Braunfield diagnosed Vitale with bilateral medial1 knee discomfort and
concluded that the source of the pain was “probably occupational.” (Appendix (“A”)
185) Dr. Braunfield referred Vitale to Dr. E. James Kohl, who agreed with Dr.
Braunfield that the source of Vitale’s knee pain was occupational, noting that the problem
was “associated with pole climbing as part of his training.” (A190)
On November 15, 2001, Vitale returned to Dr. Braunfield, who noted that Vitale
complained of a “1 year history of vague discomfort right lateral2 leg radiating down to
the ankle, pain has been quite severe.” (A193) He further noted that Vitale had suffered
“probable irritation and/or contusion to the peroneal nerve.”3 (A193) Sometime after this
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On the inside of the knee.
2
On the outside of the knee.
3
A nerve which traverses the outside of the knee and affects the lower leg down to
and including the ankle.
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visit on November 15, 2001, Dr. Braunfield filled out his portion of the Notice of
Disability form for PECO which stated that the injury was “work related.” (A268) It is
clear that someone from PECO initiated and signed the form on December 3, 2001. (Id.)
It is not clear, however, when Dr. Braunfield filled out his portion of the form. (Id.)
On November 26, 2001, Vitale stopped working because of discomfort in his
lower right leg. On November 27, 2001, Dr. Kiel, a neurologist recommended by Dr.
Braunfield, called Dr. Braunfield to report an abnormal EMG4 finding in Vitale’s right
peroneal nerve and informed him that Vitale had an “abnormality in his right peroneal
nerve with associated foot drop.” (A193) Dr. Braunfield noted that the “etiology is to be
determined, might be traumatic in origin.” (Id.) On November 30, 2001, Dr. Kiel wrote
to Dr. Braunfield that an EMG showed that Vitale had “acute denervation in the right
peroneal nerve” and that “the problem is around the fibular head and I think crossing his
legs is the most likely etiology.” (A213)
Vitale’s pain was not attributed to the Defendant’s pole climbers until December
13, 2001, when Dr. James A. Kenning examined Vitale and wrote to Dr. Braunfield that
Vitale had “approximately two years’ duration bilateral knee pain related to his
participation in what he described as climbing school during the course of his
professional training...approximately 1 month ago, he began experiencing episodic
stabbing pain in the lateral aspect of his right calf....I believe the patient’s symptoms are
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Electromyography
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most certainly related to use of a support apparatus, which straps around his lower leg and
extends to his foot, which is used to support his ankle in climbing...I think that in the
absence of any other etiology, this almost certainly is the cause for the patient’s
symptoms....I think it is clear that the patient has a mild right common peroneal nerve
palsy related to the apparatus used to support his foot with repetitive pole climbing.”
(A235-36)
On November 19, 2003, Plaintiffs filed their complaint in the Court of Common
Pleas of Philadelphia, alleging two counts of strict liability, one count of negligence, and
one count of loss of consortium. Defendant removed. The District Court entered
summary judgment in favor of Defendant, finding that the latest possible accrual date for
Plaintiffs’ cause of action was November 15, 2001, and therefore that Pennsylvania’s
two-year statute of limitations had expired by November 19, 2003, when Plaintiffs filed
their claim. This timely appeal followed.
III.
The District Court had subject matter jurisdiction over this diversity action
pursuant to 28 U.S.C. § 1332(a)(1), and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. We exercise plenary review over the grant of a motion for summary judgment.
Nationwide Mut. Ins. Co. v. Riley, 352 F.3d 804, 806 n.3 (3d Cir. 2003) (citing
Omnipotent Communications Enters, L.P. v. Newton Township, 219 F.3d 240, 242 (3d
Cir. 2000)). Summary judgment is appropriate where “there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.” Fed. R.
5
Civ. P. 56(c). “We review the facts in a light most favorable to the party against whom
summary judgment was entered.” Coolspring v. Stone Supply, Inc. v. American States
Life Ins. Co., 10 F.3d 144, 146 (3d Cir. 1993).
IV.
Pennsylvania’s two-year statute of limitations for an injury caused by the wrongful
act or negligence of another generally begins to run as soon as the injury is inflicted. 42
Pa. Cons. Stat. §§ 5502(a), 5524(2); Haines v. Jones, 830 A.2d 579, 585 (Pa. Super
2003). The “discovery rule” is an exception to this general accrual date and provides that
the statute of limitations is tolled until the injured party knows or reasonably should know
“(1) that he has been injured, and (2) that his injury has been caused by another’s
conduct.” Haines, 830 A.2d at 585.
The District Court found that even if the discovery rule applied, the accrual date
was no later than November 15, 2001, when Dr. Braunfield diagnosed Vitale as suffering
from a peroneal nerve injury and then reported on Vitale’s medical certification form for
PECO that the injury was “work related.” From this, the District Court concluded that no
reasonable juror could find that Vitale did not know or should not have known, as of
November 15, 2001, that he had been injured by Defendant’s pole climbing apparatus.
We disagree with the District Court’s analysis for several reasons.
First, it is not clear when Dr. Braunfield filled out the medical certification form
for PECO. Therefore, the District Court was incorrect to conclude that Dr. Braunfield
filled it out on the same day that he examined Vitale, and that Vitale knew as of
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November 15, 2001 that his injury was “work related.” Second, even if Vitale had known
on November 15, 2001 that his injury was “work related,” a reasonable juror could still
find that he did not know and should not have known, on November 15, 2001, that his
injury was caused by the Defendant’s pole climbers. The District Court erroneously
regarded “work related” as necessarily related to Defendant’s pole-climbers. However,
an etiological diagnosis of “work related” is much broader than a diagnosis that one has
been injured by a specific product used at work.
Under the discovery rule, the limitations period is tolled until the injured party
knows or reasonably should know “(1) that he has been injured, and (2) that his injury has
been caused by another’s conduct.” Id. at 585. The inquiry under the discovery rule
focuses not on the plaintiff’s actual knowledge, but on “whether the knowledge was
known, or through the exercise of diligence, knowable to the plaintiff.” O’Brien v. Eli
Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981). Applying this standard, the Court finds
that the District Court erred in determining, as a matter of law, that November 15, 2001
was the latest possible accrual date. A reasonable juror could find that the accrual date
was November 27, 2001 (when Vitale’s injury was first diagnosed) or December 13, 2001
(when the cause of Vitale’s injury was first attributed to Defendant’s pole climbers).
That Vitale could not reasonably be expected to have known on November 15, 2001 that
his injury was caused by another’s conduct is underscored by Dr. Kiel’s diagnosis, on
November 30, 2001, that the cause of Vitale’s injury was crossing his legs. See Bohus v.
Beloff, 950 F.2d 919, 929 (3d Cir. 1991) (“[L]ay persons should not be charged with
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greater knowledge of their physical condition than that possessed by the physicians on
whose advice the must rely.”) (citing Trieschock v. Owens Corning Fiberglas Co., 354
Pa. Super. 263, 267, 511 A.3d 863, 865 (Pa. Super. 1986)). Accordingly, we find that the
District Court erred in holding that as a matter of law that November 15, 2001 was the
latest possible accrual date. It is for a jury on remand to resolve the dispute of the parties
concerning the accrual date of Vitale's action.
IV.
For the foregoing reasons, we will reverse the order of the District Court granting
Defendant’s motion for summary judgment, and remand to the District Court for further
proceedings.
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