S.J., a Minor by J., B. & C. v. Gardner, C.

J-A11032-17
2017 PA Super 216S.J., A MINOR BY AND THROUGH B. : IN THE SUPERIOR COURT OF
& C. J., GUARDIANS : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1198 MDA 2016
CALVIN M. GARDNER :
Appeal from the Order Entered June 24, 2016
In the Court of Common Pleas of Franklin County
Civil Division at No(s): 2013-4372
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JULY 11, 2017
S.J., a minor, by and through her guardians, B.J. and C.J. (collectively
“Appellants”) appeals the order entered by the Honorable Angela R. Krom of
the Court of Common Pleas of Franklin County, granting Appellee Calvin M.
Gardner’s cross-motion for summary judgment and dismissing S.J.’s civil
action for damages caused by the sexual abuse perpetrated on her by
Appellee. Appellants specifically contend that the trial court erred in finding
S.J.’s action was time-barred and that the Minority Tolling Statute did not
toll the relevant statute of limitations. We reverse the order granting
summary judgment and remand for further proceedings.
In July 2010, S.J.’s parents reported to police S.J.’s revelation that
Appellee had coerced her to engage in sexual encounters multiple times over
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*
Former Justice specially assigned to the Superior Court.
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an extended time period from 2008 to July 2010, beginning when S.J. was
six years old. On October 5, 2010, Appellee was charged with Indecent
Assault (of a child less than 13 years old). On July 13, 2011, Appellee pled
guilty to this charge and was sentenced to five years’ probation.
On October 31, 2013, S.J., through her parents, filed a civil complaint
in the Court of Common Pleas of Franklin County against Appellee, bringing
claims of battery and intentional infliction of emotional distress in connection
with the damages S.J. suffered from Appellee’s sexual abuse. Thereafter,
Appellants filed a motion for partial summary judgment, claiming Appellee’s
guilty plea to indecent assault estopped him from denying the abusive acts
in this civil action. Appellee filed a cross-motion for summary judgment,
claiming that the instant action was untimely as it had not been commenced
within the two year statute of limitations period applicable to intentional
torts.1 In response, Appellants asserted that S.J.’s lawsuit was properly filed
pursuant to the Minority Tolling Statute (42 Pa.C.S.A. § 5533(b)).
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1
Section 5524 of the 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.
***
(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
(Footnote Continued Next Page)
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The trial court granted Appellee’s motion for summary judgment and
concluded the instant action was time-barred by the two-year statute of
limitations in 42 Pa.C.S.A. § 5524. Finding that this action accrued in July
2010 when S.J.’s parents discovered the abuse, the trial court determined
that this lawsuit was untimely filed on October 31, 2013. Although the trial
court recognized the existence of the Minority Tolling Statute, it found this
statute was inapplicable as this action was initiated by S.J.’s parents, who
were required to exercise “due diligence” to file suit within the prescribed
two-year statutory period. Trial Court Opinion (T.C.O.), 6/24/16, at 6-7.
This timely appeal followed.
As an initial matter, although not raised by the parties in their
respective briefs, we observe that the first time that Appellee raised his
claim based on the statute of limitations was in his cross-motion for
summary judgment. Our rules of civil procedure provide that the statute of
limitations is an affirmative defense that must be pled in a responsive
pleading as new matter. Pa.R.C.P. 1030(a). See Bartanus v. Lis, 480
A.2d 1178, 1186 (Pa.Super. 1984) (finding it was improper for defendants to
attempt to raise the statute of limitations in their preliminary objections).
_______________________
(Footnote Continued)
action or 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.A. § 5524(1),(7).
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Nevertheless, if a party fails to include this affirmative defense in a
responsive pleading and improperly raises the claim in preliminary objections
or even in a motion for summary judgment, the failure of the opposing party
to object to the procedural defect waives the error and allows for review of
this issue. See Richmond v. McHale, 35 A.3d 779, 782 (Pa.Super. 2012)
(citing Duquesne Slag Products v. Lench, 490 Pa. 102, 415 A.2d 53, 54
(1980)). In this case, while it was improper for Appellee to file his
affirmative defense based on the statute of limitations in his motion for
summary judgment, Appellants never objected to Appellee’s procedural
defect. As a result, we may review this claim on its merits.
The sole issue before this Court is whether the trial court erred in
finding that this action was barred by the statute of limitations as the
Minority Tolling Statute was inapplicable. As statutory interpretation is a
question of law, our standard of review is de novo and our scope of review is
plenary. Commonwealth v. Vega-Reyes, 131 A.3d 61, 63 (Pa.Super.
2016). The relevant provisions of the Minority Tolling Statute are as follows:
(b) Infancy.—(1) (i) If an individual entitled to bring a civil
action is an unemancipated minor at the time the cause of action
accrues, the period of minority shall not be deemed a portion of
the time period within which the action must be commenced.
Such person shall have the same time for commencing an action
after attaining majority as is allowed to others by the provisions
of this subchapter.
(ii) As used in this paragraph, the term “minor” shall mean any
individual who has not yet attained 18 years of age.
(2) (i) If an individual entitled to bring a civil action arising from
childhood sexual abuse is under 18 years of age at the time the
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cause of action accrues, the individual shall have a period of 12
years after attaining 18 years of age in which to commence an
action for damages regardless of whether the individual files a
criminal complaint regarding the childhood sexual abuse.
***
42 Pa.C.S.A. § 5533(b)(1)-(2).
Appellants argue that the trial court incorrectly found that S.J.’s
parents, who filed this lawsuit on S.J.’s behalf, could not invoke the
protection of the Minority Tolling Statute and were still required to comply
with the two-year statute of limitations applicable to intentional torts. The
trial court suggested that the statute must only be applied to allow minors to
wait until they reach the age of majority (eighteen years old) to file such an
action in their individual capacity as adults, when their parents failed to do
so on their behalf within the applicable statute of limitations. The trial court
set forth its rationale as follows:
Here, [S.J.’s parents] filed an action on behalf of their minor
child, S.J., on October 31, 2013. [S.J.’s parents] cannot now
use the Minority Tolling Statute to extend the time within which
they must file their Complaint. The Minority Tolling Statute
would have theoretically applied to this matter only if S.J.’s
parents did not initiate suit on her behalf before her eighteenth
birthday. The Minority Tolling Statute is intended to preserve
minor’s claims until they reach the age of majority and are able
to pursue those claims on their own, if their parent or guardian
has not already done so. After her eighteenth birthday, S.J.
could have initiated a suit on her own against [Appellee], using
the Minority Tolling Statute to extend the time to bring her
claim. However, S.J.’s parents elected to commence an action
prior to S.J.’s eighteenth birthday on her behalf. In essence,
[S.J.’s parents] took matters into their own hands and went
forward with their claim. As our Superior Court stated in Holt
[v. Lenko, 791 A.2d 1212, 1214 (Pa.Super. 2002)], the Minority
Tolling Statute was enacted to protect the minor plaintiff whose
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parent fails to bring a suit on the minor’s behalf prior to the
minor’s eighteenth birthday. [S.J.’s parents] did not fail to bring
a suit on S.J.’s behalf; they affirmatively acted. however, [S.J.’s
parents] waited until over three years after the discovery of the
sexual abuse to file their Complaint. The applicable two-year
statute of limitations must be applied.
T.C.O. at 6-7.
The trial court’s interpretation of the Minority Tolling Statute is
incorrect and conflicts with existing decisional law in which our courts have
previously interpreted the same provision. In Fancsali ex rel. Fancsali v.
Univ. Health Ctr. of Pittsburgh, 563 Pa. 439, 761 A.2d 1159 (2000), our
Supreme Court clarified how the Minority Tolling Statute should be applied:
[Pursuant to the Minority Tolling Statute,] the period within
which a minor's action must be commenced is measured not
from the time the cause of action accrues, but from the time he
or she turns eighteen. This is true regardless of the fact that a
guardian may sue on behalf of a minor at any time after a cause
of action accrues. If a guardian does sue on behalf of a minor,
the action has been commenced before the limitation period has
started to run. Nevertheless, the limitation period remains
suspended. As in any other situation, the commencement of an
action has no bearing on the limitation period.
Id. at 448–49, 761 A.2d at 1164 (emphasis added). In other words, the
limitations period for a minor's claim is measured from the time the minor
turns eighteen, irrespective of the date the cause of action accrues and
regardless of whether the action is filed by the minor’s guardians or by the
minor in his or her individual capacity once he or she turns eighteen. See
Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1060–61 (Pa.Super.
2015), reargument denied (Oct. 26, 2015).
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Thus, in the instant case, the applicable time period for S.J. to file this
civil suit against Appellee did not begin to run when S.J. revealed to her
parents that she had been subjected to Appellee’s sexual abuse. Although
this discovery marked the accrual of S.J.’s cause of action, the limitations
period for S.J.’s claim was suspended until S.J.’s eighteenth birthday
pursuant to the Minority Tolling Statute. Thus, S.J.’s parents commenced
this lawsuit on S.J.’s behalf before the period of limitations began to run.
The trial court’s suggestion that the Minority Tolling Statute only
functions to preserve a minor’s right to file a lawsuit on his or her own behalf
when he or she turns eighteen years old is contrary to the purpose of any
statute of limitations, which is “to expedite litigation and thus discourage
delay and the presentation of stale claims which may greatly prejudice the
defense of such claims.” McCreesh v. City of Philadelphia, 585 Pa. 211,
222, 888 A.2d 664, 671 (2005) (citation omitted). S.J.’s parents filed this
lawsuit three years after discovering Appellee had molested S.J.; we reject
the trial court’s suggestion that the Minority Tolling Statute should be
interpreted to require S.J. to wait until she turns eighteen to pursue her
legal action against Appellee for childhood sexual abuse.
Moreover, the trial court misconstrued our decision in Foti v. Askinas,
639 A.2d 807, 809 (Pa.Super. 1994)), in claiming that the Minority Tolling
Statute “was not intended to give infants more rights than others.” In Foti,
the minor’s parents initially filed a medical malpractice lawsuit on the
minor’s behalf but subsequently filed a motion to dismiss the case without
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prejudice as they failed to retain the expert testimony necessary to proceed
with this case. This Court held that the trial court’s decision to dismiss the
case without prejudice unfairly provided the minor with an unfair advantage
as she would have several years to pursue and prepare a successive action
as an adult while the defendants would be compelled to defend themselves a
second time during the subsequent twelve years. As a result, this Court
concluded that the Minority Tolling Statute was “not enacted to give minors
such an advantage.” Id. at 809.
Similarly, in Robinson v. Pennsylvania Hosp., 737 A.2d 291(Pa.Super. 1999), this Court found that the Tolling Statute, which specifically
extends the time only “for commencing an action,” was not intended to and
did not provide a minor and her parents with an unfair advantage to be
permitted fifteen additional years to make out a prima facie case in a
successive lawsuit when they failed to do so in their initial lawsuit that was
dismissed. Id. (emphasis added). In contrast, in this case, Appellants are
simply asking to commence this lawsuit on S.J.’s behalf to seek redress for
the injuries she suffered at the hands of Appellee, who pled guilty to the
indecent assault of S.J.
Accordingly, this civil action, which S.J.’s parents filed on minor S.J.’s
behalf, was not time-barred as the Minority Tolling Statute had suspended
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the applicable statute of limitations.2 For the foregoing reasons, we
conclude the trial court erred in granting Appellee’s motion for summary
judgment.
Order reversed. Remand for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2017
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2
Though not at issue in this case, it is worth noting that S.J.’s action is not
governed by the two-year statute of limitations in Section 5524 relating to
intentional torts. Rather, once S.J. turned eighteen, the period of limitations
for her civil action for childhood sexual abuse would commence and the
Minority Tolling Statute would allow S.J. to file her action for damages within
the subsequent twelve years. See 42 Pa.C.S.A. § 5533(b)(2).
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