Reibenstein, L. v. Barax M.D. Apl of: Conaboy

[J-86-2022] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LINDA REIBENSTEIN, AS THE : No. 32 MAP 2021
ADMINISTRATRIX OF THE ESTATE OF :
MARY : Appeal from the Order of the
ANN WHITMAN, DECEASED : Superior Court at No. 1624 MDA
: 2019 dated July 30, 2020,
: reconsideration denied October 5,
v. : 2020, Vacating the Order of the
: Lackawanna County Court of
: Common Pleas, Civil Division, at
CHARLES BARAX, M.D.; AND MERCY : No. 2016-01716 dated August 29,
HOSPITAL, SCRANTON : 2019 and Remanding.
_____________________________________ :
: ARGUED: October 26, 2021
LINDA REIBENSTEIN, AS THE :
ADMINISTRATRIX OF THE ESTATE OF : RESUBMITTED: November 15,
MARY : 2022
ANN WHITMAN, DECEASED :
:
:
v. :
:
:
PATRICK D. CONABOY, M.D.; AND :
COGNETTI :
& CONABOY FAMILY PRACTICE, P.C. :
:
:
APPEAL OF: PATRICK D. CONABOY, M.D. :
AND COGNETTI & CONABOY FAMILY :
PRACTICE, P.C.
CONCURRING AND DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: December 12, 2022
I fully join Justice Mundy’s concurring and dissenting opinion. I write separately to
emphasize my disagreement with the majority’s treatment of the fraudulent concealment
doctrine in the context of wrongful death and survival actions. See Majority Opinion at
16-20. The majority goes far out of its way to argue its reading of MCARE section 513(d)1
comports with the pre-MCARE decision in Pastierik v. Duquesne Light Co., 526 A.2d 323(Pa. 1987). In doing so, the majority opinion erodes our well-established fraudulent
concealment doctrine, potentially impacting cases outside the MCARE context.
In Pastierik, we held the discovery rule does not apply in death actions. Id. at 326.
We explained the discovery rule typically applies to toll a statute of limitations in cases
where “injuries are of a nature that they may be inflicted without immediate symptoms or
immediately determinable causes,” but that “causes of action for death must be regarded
in a different light since they are not similarly shrouded by indefinite factors.” Id. Thus,
we held “[b]ecause death is a definitely ascertainable event, and survivors are put on
notice that, if an action is to be brought, the cause of action must be determined through
the extensive means available at the time of death, there is no basis to extend application
of the discovery rule to permit the filing of survival actions, or wrongful death actions, at
times beyond the specified statutory period.” Id. at 327.
Relevant here, the Pastierik Court did not even mention the fraudulent
concealment doctrine. Yet the majority employs circular logic to argue Pastierik’s
limitation on the discovery rule in death cases somehow supports its narrow reading of
the fraudulent concealment tolling provision in MCARE section 513(d). After explaining
the holding as to the discovery rule in Pastierik, the majority acknowledges “[e]ven before
MCARE’s enactment,” the principle that death serves as a signal event “was subject to
an equitable exception.” Majority Opinion at 17. The majority suggests that, “[t]hen
1Section 513(d) provides: “(d) Death or survival actions.--If the claim is brought under
42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating to survival action), the action
must be commenced within two years after the death in the absence of affirmative
misrepresentation or fraudulent concealment of the cause of death.” 40 P.S.
§1303.513(d).
[J-86-2022] [MO: Wecht, J.] - 2
(under the common law) as now (under MCARE), where ‘cause of death’ was obscure to
a potential plaintiff due to an act or omission, estoppel principles compelled tolling the
two-year statute of limitations.” Id. at 17-18. Relying only on Pastierik and 42 Pa.C.S.
§5502,2 neither of which discusses the fraudulent concealment doctrine and its limited
relevance in death cases, the majority claims “the tolling remedy for death claims was
more limited than the broader discovery rule for precisely the same reason—death invites
immediate investigation.” Id. at 18.
The majority then purports to recognize “the discovery rule and equitable tolling[3]
are conceptually distinct.” Id. But the majority simply asserts “[t]hat distinction . . . lacks
a difference when it comes to the concerns implicated by the question that this case
presents.” Id. And, even more perplexing, the majority focuses on the discovery rule
alone to explain the supposed lack of a difference between the discovery rule and other
concepts of equitable tolling (i.e., the fraudulent concealment exception in section 513(d)).
2 Section 5502 simply provides:
(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.
(b) Implementing court rules.--Subsection (a) may be made more
specifically applicable to particular classes of matters by general rules
defining the acts, omissions or events from which the limitation shall be
computed. Rules adopted pursuant to this section shall take effect only in
the manner provided by section 503(b) (relating to procedures).
42 Pa.C.S. §5502.
3 Confusingly, the majority seems to use the phrase “equitable tolling” to describe the
fraudulent concealment tolling exception in section 513(d). Majority Opinion at 18. As
explained in Rice v. Diocese of Altoona-Johnstown, “[e]quitable tolling” is an “umbrella”
concept, and both the discovery rule and fraudulent concealment “fall under that
umbrella.” 255 A.3d 237, 248 n.3 (Pa. 2021) (internal quotation and citation omitted).
[J-86-2022] [MO: Wecht, J.] - 3
See id. (“The discovery rule begins to run upon the discovery of the injury and the
prospect that it was caused by malpractice . . . . But once the claim accrues, the clock
ticks inexorably . . . .”) (emphasis added); id. at 19 (“In death actions, death itself is the
watershed event, analogous to satisfying the discovery-of-injury and tortious-causation
requirements relative to the discovery rule.”) (emphasis added); id. (“The fact remains,
though, that the triggering event for the discovery rule is the discovery of injury and the
prospect that it was caused by malpractice itself, not the certain discovery of all
responsible parties.”) (emphasis added).
The majority describes these discovery rule principles correctly, but the discovery
rule is not at issue in this case. Section 513(d) does not allow for tolling pursuant to the
discovery rule (likely due to the fact the discovery rule does not apply in death cases).4
But section 513(d) does provide for tolling where there has been an “affirmative
misrepresentation or fraudulent concealment of the cause of death.” 40 P.S.
§1303.513(d). Our precedent is crystal clear that the discovery rule and the fraudulent
concealment doctrine are related but distinct theories that operate differently.
We recently articulated this distinction in Rice v. Diocese of Altoona-Johnstown,
where we explained the discovery rule “tolls the statute of limitations when an injury or its
cause is not reasonably knowable.” 255 A.3d 237, 247 (Pa. 2021) (internal quotation
omitted). We elaborated how “[t]he purpose of this rule is clear: to ensure that persons
who are reasonably unaware of an injury that is not immediately ascertainable have
4 Indeed, in Matharu v. Muir, then-Judge, now-Justice Donohue noted section 513(d)
“does not provide that the discovery rule may toll its two-year time limitation.” 86 A.3d
250, 264 (Pa. Super. 2014) (en banc). Matharu cogently explains the difference between
the fraudulent concealment doctrine and the discovery rule in the context of death cases:
“while a fraudulent misrepresentation or concealment will toll the two-year statute of
limitations, the discovery rule (applicable to other negligence actions) has no application
in death claims since death is a ‘definitely established event’ and puts survivors on
immediate notice to determine if any negligence occurred.” Id. at 263-64 (citing Pastierik,
526 A.2d at 326).
[J-86-2022] [MO: Wecht, J.] - 4
essentially the same rights as those who suffer an immediately ascertainable injury.” Id.
(internal quotation omitted) (emphasis added). We further explained that in Wilson v. El-
Daief, 964 A.2d 354 (Pa. 2009), we adopted a strict inquiry-notice approach to the
discovery rule that “‘t[ies] commencement of the limitations period to 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.’” Rice, 255 A.3d at 247, quoting Wilson,
964 A.2d at 364 (alteration in original).
On the other hand, the purpose of the fraudulent concealment doctrine “is rooted
in the recognition that fraud can prevent a plaintiff from even knowing that he or she has
been defrauded. Effectively, the distinction is that where fraud has prevented the plaintiff
from knowing of his or her cause of action, that cause of action simply does not even exist
until the plaintiff becomes aware of, i.e., ‘discovers,’ the fraud.” Id. at 248. We again
described the operation of the fraudulent concealment doctrine as articulated by the Court
in Molineux v. Reed, 532 A.2d 792 (Pa. 1987): “[w]here, through fraud or concealment,
the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry,
the defendant is estopped from invoking the bar of the statute of limitations.” Rice, 255
A.3d at 248, quoting Molineux, 532 A.2d at 794 (internal quotation omitted).
A full appreciation of the differences between the two doctrines reveals why the
inquiry notice arising from death for purposes of the discovery rule cannot simply be
grafted onto the fraudulent concealment doctrine. As the majority recognizes, Pastierik
held the discovery rule does not apply in wrongful death and survival actions because
death is a “definitely established event” that puts plaintiffs on inquiry notice of the injury,
and a reasonably diligent plaintiff would be prompted to investigate potential claims.
Pastierik, 526 A.2d at 325-26; see also Majority Opinion at 16-17. But as explained in
[J-86-2022] [MO: Wecht, J.] - 5
Rice and Molineux, unlike the discovery rule, the fraudulent concealment doctrine is not
necessarily concerned with situations where plaintiffs do not know they are injured in the
first place. Instead, the fraudulent concealment doctrine comes into play where “through
fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate
from his right of inquiry [into the facts].” Molineux, 532 A.2d at 794; Rice, 255 A.3d at
248; see also, e.g., Fine v. Checcio, 870 A.2d 850, 860, 863 (Pa. 2005).
The fraudulent concealment doctrine allows for tolling in situations where a plaintiff
may already be on notice of the injury, e.g., a death, and poised to investigate potential
claims, but is led astray by the defendant’s fraud or concealment. In fact, plaintiffs are
required to exercise reasonable diligence in the investigation of their claims to avail
themselves of the doctrine’s tolling. See Fine, 870 A.2d at 861 (requiring plaintiffs’
exercise of reasonable diligence to investigate causes of injury in order to benefit from
tolling due to fraudulent concealment; thus, “a statute of limitations that is tolled by virtue
of fraudulent concealment begins to run when the injured party knows or reasonably
should know of his injury and its cause”) (emphasis added). Obviously, in a death case,
while the death itself puts the plaintiff on notice of the injury and triggers the duty to
investigate with reasonable diligence, a misrepresentation or fraudulent concealment
can, during such investigation, cause the plaintiff to “relax his vigilance or deviate from
his right of inquiry.” Molineux, 532 A.2d at 794 (internal quotation omitted).
Thus, Pastierik’s logic that death puts survivors on notice of the decedent’s injury
does not preclude application of the fraudulent concealment doctrine where the plaintiff
was reasonably diligent in investigating her potential claims after the death. And as
applied to section 513(d), if a defendant medical provider were to fraudulently conceal
conduct that caused the decedent’s death, such concealment could induce the plaintiff to
“relax h[er] vigilance” even after she has begun her investigation in earnest. Id. As
[J-86-2022] [MO: Wecht, J.] - 6
Justice Mundy explains wisely, “[l]imiting the equitable tolling of the statute of limitations
based on a defendant’s fraudulent concealment or affirmative misrepresentation to only
those cases in which a defendant conceals the medical cause of death would leave
unprotected medical malpractice victims who exercise reasonable diligence in
investigating the cause of death but cannot discover the malpractice resulting in death
because the medical professional’s conduct interferes with the survivor’s investigation.”
Concurring and Dissenting Opinion at 7 (Mundy, J.).
[J-86-2022] [MO: Wecht, J.] - 7