Gemignani v. PHILADELPHIA PHILLIES NATIONAL LEAGUE BASE. CL.

• Citation: 287 F. Supp. 465
• Decision Date: 14 December 1967
• Docket Number: Civ. A. No. 32001.
• Parties: Frank J. GEMIGNANI, Individually and as Administrator of the Estate of Gerald Robert Gemignani, Deceased v. PHILADELPHIA PHILLIES NATIONAL LEAGUE BASEBALL CLUB, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

287 F. Supp. 465

Frank J. GEMIGNANI, Individually and as Administrator of the Estate of Gerald Robert Gemignani, Deceased v. PHILADELPHIA PHILLIES NATIONAL LEAGUE BASEBALL CLUB, INC.

Civ. A. No. 32001.

United States District Court E. D. Pennsylvania.

December 14, 1967.

Arthur G. Raymes, John J. McCarty, Richter, Lord, Toll Cavanaugh & McCarty, Philadelphia, Pa., for plaintiff.

John B. Hannum, Pepper, Hamilton & Sheetz, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

HIGGINBOTHAM, District Judge.

In this action brought under the Pennsylvania Survival Act, P.L. 512, April 18, 1949, 20 Pa.Stat.Ann. § 320.601, defendant has moved for summary judgment pursuant to Rule 56, F.R.Civ.P., on the ground that the two year statute of limitations had run prior to the filing of the complaint. 12 Pa.Stat.Ann. § 34 (1895). The relevant facts, considered for the purposes of this motion in the light most favorable to the plaintiff, are as follows:

During September, 1958, the deceased signed a contract to play baseball for defendant's minor league team at Bakersfield.

In March, 1959, the deceased attended Spring training with the defendant and was there examined by the defendant's doctor. At the examination, there was revealed a symptomatic blood condition. Following this discovery, it is alleged, neither the defendant nor its doctor treated the deceased for this condition, nor did they advise either the deceased or his family of its existence so that treatment could have been obtained for him. It is this failure, which allegedly precluded early treatment thereby allowing the condition to develop into one of terminal nature, which is the basis for this action.

On July 15, 1960, defendant gave plaintiff an unconditional release from the contract. Deceased then returned home and, on August 3, 1960, was hospitalized because of a serious kidney problem.

Sometime in August, 1960, plaintiff learned that the deceased's doctor, Dr. Kitchen, had contacted defendant and had learned of the 1959 examination and of the symptomatic blood condition revealed thereby. There is no evidence presently before me that, prior to August 31, 1960, plaintiff reasonably suspected or should have reasonably suspected that the examination, the facts which it revealed and the failure of defendant to either treat it or inform deceased's family about it, were causally connected to the then condition of the deceased.

On September 3, 1960, deceased died as a result of uremic kidneys.

On August 31, 1962, the complaint was filed.

The question which is dispositive of defendant's motion is whether the statute of limitations begins to run from the date on which the plaintiff knows facts from which, through the exercise of reasonable diligence he could learn the cause of the injury; or whether the statute begins to run from the time the plaintiff, through the exercise of reasonable diligence should have learned both the facts in question and that those facts bore some causative relationship to the injury.

As for the statute of limitations, there seems to be no dispute here that the statute runs, on causes arising from subsurface injury, from the time of discovery of the cause of the harm or the time when the cause of the harm reasonably should have been

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