Pennock v. Lenzi

• Decision Date: 15 September 2005
• Citation: 882 A.2d 1057
• Parties: Russell PENNOCK and Antoinette Pennock, in their individual capacities and on behalf of the Estate of Daniel Pennock, Appellants v. Richard V. LENZI and Carmine D. Lenzi, in their individual capacities and dba Ridge Crest Farms, Melvin C. Gelsinger, Gale Gelsinger, Esther Gelsinger, Clarence D. Gelsinger, Rettew Associates, Inc., Berks County Conservation District and the Commonwealth of Pennsylvania Department of Environmental Protection.
• Court: Pennsylvania Commonwealth Court

882 A.2d 1057

Russell PENNOCK and Antoinette Pennock, in their individual capacities and on behalf of the Estate of Daniel Pennock, Appellants v. Richard V. LENZI and Carmine D. Lenzi, in their individual capacities and dba Ridge Crest Farms, Melvin C. Gelsinger, Gale Gelsinger, Esther Gelsinger, Clarence D. Gelsinger, Rettew Associates, Inc., Berks County Conservation District and the Commonwealth of Pennsylvania Department of Environmental Protection.

Commonwealth Court of Pennsylvania.

Argued June 8, 2005.

Decided September 15, 2005.

Daniel E. Brannen, Jr., Santa Fe, NM, for appellants.

David E. Turner, Wyomissing, for appellees, Richard V. and Carmine D. Lenzi.

James K. Thomas, Harrisburg, for appellees, Melvin C., Gale, Esther and Clarence D. Gelsinger.

Anthony S. Potter, Harrisburg, for appellee, Rettew Associates, Inc.

Alan S. Miller, Reading, for appellee, Berks County Conservation District.

BEFORE: COLINS, President Judge, McGINLEY, Judge, SMITH-RIBNER, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, COHN JUBELIRER, Judge, and LEAVITT, Judge.

OPINION BY Judge LEADBETTER.

Russell and Antoinette Pennock, in their individual capacities and on behalf of the estate of Daniel Pennock, appeal the order of the Court of Common Pleas of Dauphin County (common pleas) dismissing their complaint with prejudice on the basis that plaintiffs' wrongful death and survival actions are barred by the two year statute of limitations imposed by 42 Pa.C.S. § 5524(2). We affirm.

Plaintiffs' teenage son, Daniel, died on April 1, 1995, after contracting both rotavirus and staphylococcus infections. Nearly eight years later, on February 21, 2003, plaintiffs filed a complaint alleging that Daniel's death was caused by prolonged exposure to sewage sludge from a neighboring farm. In their complaint, plaintiffs asserted that they could not reasonably know until February 25, 2001 (when they read a newspaper article discussing a connection between sewage sludge and infections) how Daniel had contracted the infections which caused his death. Accordingly, plaintiffs argued that, under the discovery rule, which tolls the statute of limitations until a time when a tort victim can discover his injury and its cause through the exercise of reasonable diligence, their wrongful death and survival actions were timely filed. Plaintiffs sued Richard and Carmine Lenzi, in their individual capacities and doing business as Ridge Crest Farms, who processed and applied the sewage sludge; the Gelsinger family, who were the owners of the farm to which the sludge was applied; Rettew Associates, Inc., an engineering firm hired by the Lenzis to supervise the processing and application of the sludge; and the Commonwealth of Pennsylvania Department of Environmental Protection and the Berks County Conservation District, which issued permits to the Lenzis to operate their sludge business. Defendants filed a preliminary objection to plaintiffs' complaint on the ground that it was barred by the two year statute of limitations.¹ The court of common pleas agreed, and dismissed plaintiffs' complaint with prejudice, relying upon Pastierik v. Duquesne Light Company, 514 Pa. 517, 526 A.2d 323 (1987). In Pastierik our Supreme Court confirmed an earlier plurality holding that the statute of limitations for wrongful death and survival claims begins to run, at the latest, at the time of death and cannot be extended further by the discovery rule. Plaintiffs now appeal.

Under 42 Pa.C.S. § 5524(2), "[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another" must be commenced within two years. This two year time period shall be computed "from the time the cause of action accrued." 42 Pa.C.S. § 5502(a). Normally, a cause of action accrues at the time the injury is inflicted. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). However, in some cases where the injury or the fact that it was caused by the conduct of another is not known or discoverable through the exercise of reasonable diligence, courts have invoked the discovery rule, which delays the accrual of a cause of action and tolls the statute of limitations until a time when the injury and its cause can reasonably be discovered. Ward v. Rice, 828 A.2d 1118 (Pa.Super.2003).

In Anthony v. Koppers Company, 496 Pa. 119, 436 A.2d 181 (1981), our Supreme Court held, in a plurality opinion, that the statute of limitations for a wrongful death action could not be tolled by the discovery rule.² The Anthony court reasoned:

Statutory references to the occurrence of an "injury" or the accrual of a "cause of action" are subject to judicial interpretation as to the degree of knowledge a plaintiff must possess before the statute will start to run. In contrast, the requirement that a wrongful death action be brought within [a certain period of time] after a definitely established event,—"death"—leaves no room for construction.

496 Pa. at 124, 436 A.2d at 184. The Anthony court further held that the discovery rule did not apply to survival actions because "survival statutes do not create a new cause of action; they simply permit a personal representative to enforce a cause of action which had already accrued to the deceased before his death." Anthony, 496 Pa. at 125, 436 A.2d at 185. Therefore, by definition, the statute of limitations to bring a survival action must begin to run, at the latest, at death. Id.

In Pastierik, our Supreme Court reaffirmed its holdings in Anthony, again refusing to apply the discovery rule to wrongful death or survival actions. Pastierik, 514 Pa. at 525,526 A.2d at 327. Because Section 5524(2) and Section 5502(a) govern the statute of limitations for wrongful death, survival, and personal injury actions, the plaintiff in Pastierik argued, as plaintiffs do in the present case, that the discovery rule should apply equally to all of those actions. Pastierik, 514 Pa. at 521,526 A.2d at 325. The Pastierik court rejected this argument, noting that extending the application of the discovery rule to wrongful death actions would "greatly expand, theoretically to infinity, the time period during which wrongful death actions could be brought." Pastierik, 514 Pa. at 521,526 A.2d at 325-326. This, the court stated, was not the intent of the legislature in enacting the statute of limitations because death, which is a "definitely established event," puts survivors on clear notice to exercise reasonable diligence to discover the cause, and, therefore, is significantly different from personal injury, which "may be inflicted without immediate symptoms or immediately determinable causes." Pastierik, 514 Pa. at 522,526 A.2d at 326. The court also recognized that extensive scientific examinations, including autopsy, which are not restrained in scope as would be examinations of living persons, can be (and often are) performed on a deceased tort victim to discover the cause of death and whether wrongful conduct was involved. Id. Thus, the discovery rule is not needed in a wrongful death case to prevent the statute of limitations from working an injustice on a reasonably diligent plaintiff. Accordingly, the court rejected the application of the discovery rule to wrongful death actions. Id.

As for survival actions, the Pastierik court agreed with the principle set forth in Anthony that a survival action is merely a cause of action which had already accrued to a decedent before his death and is now being prosecuted by his representatives. Pastierik, 514 Pa. at 523, 526 A.2d at 326. Therefore, the statute of limitations begins to run when the decedent, and not his representatives, could have discovered his injury and its cause through the exercise of reasonable diligence. Id. Moreover, even if the injury or its cause was not reasonably discoverable to the decedent, the clear notice afforded to his survivors and the extensive scientific examinations available to them make extending the statute of limitations, beyond the two years after death prescribed by the legislature, unnecessary. Pastierik, 514 Pa. at 523, 526 A.2d at 327. Thus, the court held that, for survival actions, the cause of action accrues and the two year statute of limitations begins to run, at the latest, at death. Id.

Plaintiffs argue on appeal that the Pastierik decision violates the remedies, due process, and equal protection clauses of the Pennsylvania Constitution, as well as the privileges and immunities, due process, and equal protection clauses of the United States Constitution. Alternatively, plaintiffs contend that even if Pastierik is constitutional, it is wrong as a matter of Pennsylvania law.³

We begin our analysis by rejecting plaintiffs' last argument out of hand. Pastierik is clearly the law of Pennsylvania, announced in an unequivocal holding of our Supreme Court. Even if we believed it were wrongly decided—which we do not— we would be bound to follow it, as was common pleas. See Lovrinoff v. Pa. Turnpike Comm'n, 3 Pa.Cmwlth. 161, 281 A.2d 176 (1971). Next, with respect to plaintiffs' constitutional arguments, we flatly reject the notion that in deciding Anthony and Pastierik our Supreme Court was unmindful of its obligation to interpret statutory law in accordance with constitutional mandates. Simply because the court did not address these constitutional issues directly should not, in any way, suggest that it set such concerns aside, to be considered on some other occasion. On the contrary, we not only assume that our Supreme Court always takes constitutional principles into account when deciding issues of common law, we find its analysis in Pastierik specifically addresses the concerns underlying plaintiffs' constitutional claims, even though not discussing them in the context of constitutional arguments.

Moreover, these arguments have been directly addressed by two other courts, the United States Court of...