Apicella v. Valley Forge Military Academy

• Decision Date: 27 August 1985
• Docket Number: Civ. A. No. 85-1065.
• Citation: 630 F. Supp. 20
• Parties: APICELLA, Jerry, Apicella, Valerie, Apicella, John, Plaintiffs, v. VALLEY FORGE MILITARY ACADEMY AND JUNIOR COLLEGE, McKinley, John D., Sicoli, Roger T., Derby, R.N., Yvonne, Imperato, Carolyn, and Ballard, M.D., Ian M., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

630 F. Supp. 20

APICELLA, Jerry, Apicella, Valerie, Apicella, John, Plaintiffs, v. VALLEY FORGE MILITARY ACADEMY AND JUNIOR COLLEGE, McKinley, John D., Sicoli, Roger T., Derby, R.N., Yvonne, Imperato, Carolyn, and Ballard, M.D., Ian M., Defendants.

Civ. A. No. 85-1065.

United States District Court, E.D. Pennsylvania.

August 27, 1985.

Michael Karasik, Parker, Bluestein, Rutstein & Mirarchi, P.C., Philadelphia, Pa., for plaintiffs.

Kevin H. Wright, LaBrum & Doak, Philadelphia, Pa., for Ballard.

Eric A. Weiss, Liebert, Short, Fitzpatrick & Hirshland, Philadelphia, Pa., for all other defendants.

MEMORANDUM AND ORDER

SHAPIRO, District Judge.

Plaintiffs Valerie and John Apicella as the parents of Jerry Apicella and Jerry Apicella on his own behalf, brought suit against defendants Valley Forge Military Academy and Junior College ("Valley Forge"), John D. McKinley, a physician's assistant in charge of the Health Center at Valley Forge, Roger T. Sicoli, an administrations officer at Valley Forge, Yvonne Derby, a registered nurse working in the Health Center at Valley Forge, Carolyn Imperato, a nursing assistant at the Health Center, and Ian M. Ballard, M.D., a private physician who served as school physician for Valley Forge at all times relevant to this action. All of the defendants have moved for a judgment on the pleadings and defendant Dr. Ballard has filed a motion for summary judgment. This court has jurisdiction of this matter under 28 U.S.C. § 1332.

Plaintiffs claim that Valley Forge and its employees were negligent in their care of Jerry Apicella. The parents seek to recover for the medical expenses they incurred due to the defendants' alleged negligence and for loss of consortium.

Defendants assert three grounds for granting their motions:

1) plaintiffs have failed to assert their claims within the two year statute of limitations in effect at the time the incident occurred;

2. plaintiffs are estopped by a release signed by John and Valerie Apicella;

3. the remaining diversity claim for a tuition refund does not satisfy the requisite jurisdictional amount.

In August 1982, Valerie and John Apicella enrolled their minor son, Jerry Apicella, as a student at Valley Forge. At that time, Valerie and John Apicella informed the officials of Valley Forge that Jerry Apicella suffered from hemophilia. To induce Valley Forge to permit their son to enter Valley Forge, Valerie and John Apicella released Valley Forge "from all claims and damages arising from or related to or in any way connected with their son Jerry's hemophilic condition." When Jerry Apicella entered Valley Forge on August 29, 1982, he brought with him medication needed for his hemophilic condition.

On August 30, 1982, Jerry Apicella received medication from defendant McKinley at the infirmary. On September 2, 6, 11, 12 and 13 of 1982, Jerry Apicella went to the infirmary. The parties agree that Jerry Apicella was at the infirmary on these days; however, the number of visits to the infirmary on these days, his condition, and the treatment received are in dispute. On September 15, 1982, Jerry Apicella left Valley Forge. Although the circumstances of his leaving are in dispute, the facts material to the issues before the court are undisputed.

Discussion

The incidents which gave rise to plaintiffs' claims took place from August 29, 1982 to September 15, 1982. At the time the cause of action arose and when the case was filed, the statute of limitations for personal injury claims was two years; 42 Pa.C.S.A. § 5524. In 1982, 42 Pa.C.S.A. § 5533 provided that:

"Except as otherwise provided by statute, infancy, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter."

In May, 1984, the Pennsylvania legislature amended 42 Pa.C.S.A. 5533(b) to read:

"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. As used in this subsection, the term "minor" shall mean any individual who has not yet attained the age of 18."

Jerry Apicella was born on November 2, 1965 and had already reached the age of 18 when the Pennsylvania legislature amended Section 5533 in May, 1984. Therefore, defendants argue that since Jerry Apicella was not a minor at the time Section 5533 was amended, the amendment cannot apply to him. Defendants argue that the law at the time the cause of action arose applies under which plaintiffs are statutorily barred from recovery because Jerry Apicella's last day at Valley Forge was September 15, 1982 and this action was filed in February, 1985, more than five months beyond the two year period.

Plaintiffs argue that Jerry Apicella's cause of action had not been statutorily barred when section 5533 was amended so that he received the benefit of the extension of time to file his action. Under section 5533, as amended, Jerry Apicella had two years after his eighteenth birthday to file a claim. Jerry Apicella became eighteen on November 2, 1983; if plaintiff had until November 2, 1985 to file an action, the February, 1985 filing was timely.

No Pennsylvania Supreme Court case has reached this issue; in the absence of such binding precedent, well-reasoned opinions of intermediate appellate courts are persuasive in predicting what the Pennsylvania Supreme Court would do. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3rd Cir.1980). "Where a claimant filed after the statutory deadline in effect at the date of injury, but the statute is amended effective before the expiration of the original deadline so as to extend the time for filing, and the filing is timely under the amended statute, the claim is governed by the amended statute and the claimant thus benefits from the extension of time." City of Hazleton v. Workmen's Compensation, Etc., 35 Pa. Comwlth. 477, 482, 386 A.2d 1067, 1070 (1978). See also Seneca v. Yale & Towne Mfg. Co., 142 Pa.Super. 470, 16 A.2d 754 (1940); In Re Condemn. of Real Estate by Carmichaels, 88 Pa.Commwlth. 541, 490 A.2d 30 (1985).

Jerry Apicella's claim was not time barred on June 29, 1984, the effective date of the amendment to 42 Pa.C.S.A. § 5533. Because Jerry Apicella had reached the age of 18 on November 2, 1983, prior to the effective date, defendants claim that the amendment's definition of minor as "any individual who has not yet attained the age of 18" excludes him from the statute's coverage. However, it is clear in context that the amendment's definition of "minor" refers to minority at the time the cause of action accrues. Therefore, Jerry Apicella has the benefit of the statute of limitations as amended because he had not reached the age of eighteen when the cause of action accrued. He had until November 2, 1985 to file this action and his suit is not barred by the statute of limitations.

The defendants allege that applying the 1984 amendment to plaintiffs' claim is a retroactive application of law in violation of 1 Pa.C.S.A. § 1926, "No statute shall construed sic to be retroactive unless clearly and manifestly so intended by the General Assembly." But applying 42 Pa.C.S.A. § 5533 in this case is not a retroactive application of law.

A retroactive law is one which gives a previous transaction a legal effect different from that which it had under the law in effect when the transaction occurred. Commonwealth v. Pennsylvania Engineering Corp. Applying 42 Pa.C.S.A. § 5533 (as amended) gives no new meaning or effect to the events which occurred in 1982. The events which the plaintiffs allege would give rise to the same cause of action whether 42 Pa.C.S.A. § 5533 had been amended or not. Jerry Apicella benefits from a procedural change, but reference to events in the past is not a retroactive application of law per se. "... a statute does not operate retrospectively merely because some of the facts or conditions upon which its application depends came into existence prior to its inactment." Gehris v. Commonwealth Dept. of Transportation, 471 Pa. 210, 369 A.2d 1271 (1977). See also Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957); Commonwealth v. Pennsylvania Engineering Corp., 54 Pa.Comwlth. 376, 421 A.2d 521 (1980).

John and Valerie Apicella contend that their tort claim is derivative of Jerry's claim. If he is entitled to sue, then they are.

"Under Pennsylvania law personal in jury to a minor gives rise to two separate and distinct causes of action, one the parents claim for medical expenses and loss of the minor's services

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