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Gaylon H. McGowan Administrator Ad Prosequendum of the Estate of McGowan Valerie Joyce, Deceased, General Administrator of the Estate of McGowan Valerie Joyce, Deceased, and Gaylon H. McGowan and Gloria McGowan Individually v. University of Scranton, a Corporation of the Commonwealth of Pennsylvania and Gloria Gavin, R.N., and Tampax, Inc., a Corporation of the State of Delaware
Citation: 759 F.2d 287Docket: 84-5091
Court: Court of Appeals for the Third Circuit; May 15, 1985; Federal Appellate Court
In the case McGowan v. University of Scranton, the court addressed whether the statute of limitations for wrongful death and survival actions in Pennsylvania could be tolled under the "discovery rule," which allows the statute's running to be suspended until a plaintiff is aware of their injury and its cause. The relevant statute, 42 Pa. Cons. Stat. Ann. Sec. 5524(2), mandates that such actions must be initiated within two years of the cause of action's accrual. The plaintiffs, Gaylon and Gloria McGowan, filed an amended complaint naming Tampax, Inc. as a defendant more than two years after their daughter’s death, arguing that they only discovered the connection between Tampax's conduct and their daughter's death shortly before filing. The district court granted summary judgment in favor of Tampax, referencing a prior Pennsylvania Supreme Court decision (Anthony v. Koppers Co. Inc.) which held that the discovery rule did not apply to earlier wrongful death statutes. The district court concluded that the same principle should apply to the current statute, 5524(2), as there was no indication in its language or legislative history to suggest otherwise. The case centers on the interpretation of Pennsylvania's statute of limitations, specifically Sec. 5524(2), contrasting it with the statute discussed in Anthony. The current statute measures the limitation period from the "accrual" of the "cause of action," differing from previous statutes that referenced "death" and "injury." The Anthony case is deemed non-binding due to its specificity to its own statutes. The analysis incorporates differences in statutory language, legislative history, relevant Pennsylvania case law, and policy implications, leading to the conclusion that the Pennsylvania Supreme Court would apply the discovery rule in this situation rather than extending the Anthony precedent. Valerie Joyce McGowan's sudden death on October 13, 1978, initially lacked a known cause, which was later identified as toxic shock syndrome (TSS). Her parents filed a negligence suit against the University of Scranton and its nurse on July 31, 1979, still unaware of the cause. A pathologist's letter in June 1980 suggested TSS as the potential cause. Following a consent order, the plaintiffs amended their complaint to include Tampax, alleging that its products caused TSS. The case was later transferred to the Middle District of Pennsylvania, where Tampax successfully moved for summary judgment, citing the statute of limitations, leading to the plaintiffs' appeal. A federal court must apply the state’s substantive law, including statutes of limitations, as established in precedent cases. This mandates adherence to the authoritative interpretations of Sec. 5524 by the Pennsylvania Supreme Court. In the absence of a definitive ruling from the Pennsylvania Supreme Court on a specific legal issue, it is necessary to predict how that court would likely resolve the matter. This involves analyzing relevant state precedents, analogous cases, dicta, scholarly writings, and other credible sources that could indicate the highest court's potential decision. Intermediate appellate court decisions serve as indicators of how the Supreme Court might approach the issue and may provide presumptive evidence of state law. The district court primarily relied on a Pennsylvania Supreme Court decision in Anthony, which addressed different legal provisions than those currently in question. However, it overlooked the more recent Pennsylvania Superior Court case, Pastierik v. Duquesne Light Co., which applied the discovery rule to Section 5524 in a "creeping disease" context. In Pastierik, the court reversed a summary judgment favoring the defendant in a wrongful death and survival action involving asbestos exposure, emphasizing that the discovery rule applies when a plaintiff, through due diligence, cannot know of an injury or its cause. The Pastierik court asserted that the equitable principles of the discovery rule are equally applicable to wrongful death and survival actions as they are to personal injury cases, cautioning against inconsistency. The decision distinguishes itself from Anthony by acknowledging different statutes of limitations but lacks comprehensive reasoning, particularly in addressing why the Supreme Court's ruling in Anthony should not apply to the current context governed by Section 5524(2). Pastierik, being the only direct appellate authority on the issue, carries significant weight despite concerns regarding its rationale. The authority of the Pastierik ruling, which relies on judicial discretion for equitable concerns, is questioned, as the discovery rule in Pennsylvania's statute of limitations derives from legislative interpretation rather than judicial leniency. The Pennsylvania courts adhere to the principle that clear statutory language should not be disregarded in favor of its spirit. Although Pastierik is the only state appellate authority on the matter, further analysis of relevant cases is warranted to predict the Pennsylvania Supreme Court's stance. The case of Anthony addressed whether the discovery rule applies to wrongful death and survival actions under specific statutes, concerning claims by spouses of employees who developed lung cancer due to exposure to emissions from coke ovens. The Supreme Court reversed a prior decision that applied the discovery rule, significantly impacting the ongoing legal debate, with Tampax asserting the case as a definitive rejection of the discovery rule for deceased victims, while the plaintiffs argue that its precedential value is limited due to being a plurality opinion. Under Pennsylvania law, such opinions do not create binding precedent, but intermediate appellate courts have recognized Anthony's authoritative stance against applying the discovery rule to the now-repealed statutes of limitations, indicating a settled interpretation of the relevant jurisprudence. Anthony is recognized as an authoritative interpretation of Sections 34 and 1603, yet there is considerable uncertainty regarding the Pennsylvania Supreme Court's potential to apply its reasoning to actions under Section 5524(2). The language in the statutes analyzed in Anthony is distinct from that of Section 5524(2), with the opinion making only minimal reference to it. Initially, it seems that Anthony's conclusions pertain solely to the previously repealed statutes. The Anthony case separately examined wrongful death and survival claims. The court highlighted that the former statute of limitations for wrongful death required actions to be initiated within one year of death, as outlined in the repealed Section 1603. In contrast, current provisions under Sections 5502 and 5524(2) stipulate a two-year limitation for actions related to personal injury or wrongful death due to another's actions, with the limitation period calculated from when the cause of action accrued, rather than specifically from the date of death. These differences in statutory language suggest that Section 5524(2) may allow for the application of a discovery rule, a point not addressed by the Anthony court but noted by subsequent courts. This raises the question of whether the changes in language and limitation periods might influence the interpretation and application of the law concerning wrongful death actions. A detailed analysis of the Anthony opinion indicates significant differences in statutory language regarding the interpretation of deadlines for legal actions. The Pennsylvania Supreme Court emphasized that the language of repealed Sec. 1603, which mandates a two-year limit for wrongful death actions from the date of death, is clear and unambiguous, leaving no room for judicial interpretation regarding the application of a discovery rule. This aligns with the broader principle that courts cannot impose a discovery rule on unambiguous statutes that specify time limits based on definite events like death, as supported by various court precedents. However, the court acknowledged that statutes framed in terms of "accrual" of a "cause of action," such as Sec. 5524, may contain ambiguities, allowing for judicial discretion in interpretation. The opinion suggests that if faced with an accrual-based wrongful death statute, the court might consider adopting a discovery rule to protect plaintiffs who are unaware of their injury. The tentative nature of the conclusions drawn from the Anthony opinion is noted, as only three Justices supported the analysis, implying that the outcome could differ under different circumstances. The legal discussion revolves around the interpretation of survival actions under the now-repealed Pa. Stat. Ann. tit. 12, Sec. 34, which mandated that actions for personal injury not resulting in death must be initiated within two years of the injury, while actions resulting in death adhered to existing laws for limitation. The court in Anthony held that survival statutes do not create new causes of action but allow a personal representative to enforce claims that accrued before the decedent’s death. The significance of this ruling lies in its implication that if a decedent's injury is not recognized until after their death, no valid cause of action exists to be preserved under survival statutes. This interpretation raises concerns, suggesting that a tortfeasor could evade liability if a victim dies without having discovered the injury. In Redeker v. Johns-Manville Products Corp., defendants argued that Anthony supported dismissing survival actions initiated within two years of death due to lack of discovery. Judge Diamond opposed this view, asserting it would lead to unjust outcomes and alter established Pennsylvania law regarding the accrual of causes of action, which traditionally required duty, breach, proximate injury, and damages. The Pennsylvania Superior Court, in Gravinese, reinforced the notion that survival statutes do not create new causes of action but merely allow for enforcement of pre-existing claims, indicating that a cause of action can accrue even if the injury's cause is discovered posthumously. The summary leans towards this narrower interpretation of the Anthony decision. The Anthony court's treatment of the Sec. 34 survival claim suggests it focused not on when a cause of action accrues but rather on when the statute of limitations began to run. This interpretation implies that the limitations period for a survival action in tort begins at the time of death, regardless of the decedent's knowledge of the injury, and cannot be extended beyond two years post-death. The appellants contend that the statute began to run on the decedents' deaths, a view with which the court agrees. While this rationale aligns with precedent, it raises concerns because Anthony differentiates between statutes defined by a specific event like "death" and those concerning the knowledge required for a statute to commence. Although Sec. 34 refers to the time of injury, the Anthony plurality acknowledges the discovery rule's applicability in certain personal injury contexts but denies its protection to the representatives of unaware decedents. The absence of policy justifications for this differentiation is notable, as the overarching goals of the tort system—compensating victims and deterring misconduct—would seem better served by applying the discovery rule uniformly. The Pennsylvania Supreme Court has previously emphasized the remedial nature of the survival statute. While allowing the discovery rule in survival actions and wrongful death cases could lead to stale claims, this concern has not prevented its application in other areas of Pennsylvania law. The analysis of the case Anthony reveals that the discovery rule is not applicable to wrongful death or survival actions under Sections 34 and 1603. However, the rationale behind these conclusions is ambiguous, particularly regarding the application of the discovery rule in injury cases governed by Section 34. The Anthony plurality based its decision on the specific language of Section 1603, which is distinct from Sections 5502(a) and 5524(2), and while it affirmed the same outcome for survival actions, it did not provide a clear rationale consistent with established Pennsylvania law on the accrual of actions. This lack of clarity leads to the conclusion that Anthony does not definitively control the current case. Tampax argues that Anthony should take precedence because the General Assembly intended no significant legal change when replacing Sections 34 and 1603 with Section 5524. The district court accepted this view, noting the absence of a meaningful difference between the previous and current statutes, except for an extended limitations period for wrongful death actions. Tampax asserts that if the legislature intended to apply the discovery rule to wrongful death and survival actions, it would have explicitly stated so. Contrarily, the court rejects these arguments, asserting that the General Assembly indeed made substantial changes with the enactment of Sections 5502 and 5524. The court predicts that the Pennsylvania Supreme Court will apply the discovery rule to wrongful death and survival actions under these new provisions. Section 5524 was part of the Pennsylvania Judicial Code, which underwent extensive drafting by committees from the Pennsylvania Bar Association and the Pennsylvania Conference of State Trial Judges, thus indicating more than just a technical codification of existing law, contrary to Tampax's claims. At the beginning of the codification project, the drafting committees established criteria for their work, which are included in the Appendix of the opinion, along with examples of approximately seventy changes to the law enacted by the Judicial Code. The legislative history indicates that the drafters did not view their mandate as solely limited to codification and clarification, as certain untouched areas, such as rules of evidence, were specified. In contrast, significant revisions were made to statutes of limitations and other legal areas, demonstrating the Code's role in implementing extensive legal changes rather than being a mere codification. The Explanation accompanying the Judicial Code clarifies that it was intended to rationalize and simplify statutes of limitations, countering Tampax's argument that the changes were merely compilation and codification. The district court's narrow interpretation of Section 5524, which increased the limitations period for wrongful death actions from one to two years, was challenged. While the district court emphasized the specificity of the previous statute, the current provision is broader, allowing for different accrual points for the statute of limitations. Furthermore, Section 5524 consolidates wrongful death, survival, and personal injury actions under a unified rule, reflecting the General Assembly's intent to harmonize these statutes. Therefore, it is likely that the discovery rule, which applies to personal injury actions, should also extend to wrongful death cases. The case of Frederick v. Calbio Pharmaceuticals is cited as a relevant example of interpreting similar accrual-type statutes of limitations. The statute addresses personal injury, wrongful death, and other actions, with the discovery rule previously applied to various actions under this statute. The court ruled that the discovery rule is applicable to wrongful death actions as well, interpreting the legislature's intent in enacting a unified statute of limitations to provide equal treatment for all actions listed. The court referenced a case where it was determined that the discovery rule did not apply to a trespass action because the plaintiff could have discovered the damage through due diligence. The court emphasized that the failure to discover damage due to the plaintiff sealing the tunnel did not constitute "blameless ignorance" warranting the discovery rule. It acknowledged that the discovery rule was already established in Pennsylvania law at the time of the Judicial Code's enactment and indicated that the legislature did not intend to change this established principle. The court concluded that by enacting the accrual statute of limitations in Sec. 5524, the General Assembly implicitly approved the application of the discovery rule to wrongful death and survival actions. It noted that the legislature's choice of language did not suggest an intention to protect wrongdoers, and the differences between the current and prior statutes were significant. The court found that the district court erred in relying solely on precedent without considering these differences. Finally, it addressed potential conflicts with limitations under the Pennsylvania No-fault Motor Vehicle Insurance Act, indicating further legal complexities. The discovery rule is not applicable to actions for survivor's benefits related to deaths from motor vehicle use, but it is applicable for actions involving injured victims. The No-Fault Act establishes policies that differ from general tort actions, significantly altering the ability to sue for tort in automobile accidents, including the partial abolition of tort liability. The distinction in the No-Fault Act, particularly in section 1009.106, indicates a separate treatment of claims by survivors of deceased victims versus those involving injured parties. This distinction reflects the General Assembly's intent to treat injured victims and survivors differently. The court concludes that the decision in Anthony does not govern wrongful death and survival actions under section 5524, ruling that the statute of limitations is tolled until beneficiaries discover or should have discovered the cause of death. This aligns with the precedent set by the Superior Court in Pastierik. Although this ruling may burden defendants, prior Pennsylvania case law on similar issues suggests that such concerns have been previously dismissed. The survival action remains a closer issue for determination. Differences in statutory language between Sections 34 and 5524 are less pronounced compared to those between Sections 1603 and 5524. Historical distinctions between wrongful death and survival actions may account for some of these variances. The reasoning in the case of Anthony lacks clarity, but there is a legislative intent to simplify statutes of limitations, suggesting that survival actions should also adhere to the discovery rule. Both wrongful death and survival actions aim to remedy damages from tortious conduct resulting in death, making it inconsistent to apply the discovery rule to one while excluding the other. In the McGowans' case against Tampax, filed on July 13, 1981, the first article on Toxic Shock Syndrome (TSS) appeared in November 1978. However, there is no evidence indicating the plaintiffs should have connected TSS to Ms. McGowan's death prior to June 2, 1980, when the Centers for Disease Control established this link. Thus, the date of "discovery" remains disputed. The court defers to the district court on remand to resolve whether the McGowans could have reasonably discovered this connection before July 13, 1979. The award of summary judgment will be vacated, and further proceedings consistent with this opinion are ordered. The Judicial Code Drafting Committee sets forth several criteria for the Judicial Code. It should comprehensively address the organization and operation of the Judicial Branch and repeal prior statutes on covered subjects without affecting the roles of county officers. A flexible framework should be established for the Judicial Branch to operate without frequent legislative changes. The Judicial Branch should determine taxable costs and the responsibility for those costs, with attorney fees included only when statutory authorization exists. Additionally, the Judicial Branch should have the authority to set official fees related to judicial processes. Matters concerning court procedures and administration should be excluded from the Judicial Code and existing statutes on these topics should be repealed after four years or upon suspension by general rule. The Judicial Code should incorporate a clear rule of statutory construction stating that if a statute is repealed and no corresponding provision is included in the Code, the substantive rights of litigants shall not revert to the common law prior to that statute's enactment; instead, the existing substantive law from the statute will be integrated into the common law of the Commonwealth. All judicial powers should be centralized in the Supreme Court, with the ability to delegate authority to various judicial entities as necessary. Consideration must be given to the roles of the Judicial Conference of Pennsylvania, the Pennsylvania Conference of State Trial Judges, and the Pennsylvania Bar Association in the Code's structure. Budget and administrative responsibilities should be assigned to the Court Administrator of Pennsylvania, with oversight from the Judicial Council, and judicial appropriations should be consolidated into a single line item. The Department of the Auditor General should be responsible for post-audit of Unified Judicial System financial transactions. The Code should eliminate provisions that divide the jurisdiction of a single court of common pleas among its divisions. The filing office in the court of common pleas should be designated as the "Office of the Clerk of the Court of Common Pleas," with functions carried out by existing court clerks. Matters related to the register of wills and the orphans' court should be assigned to proposed Title 20 of the Consolidated Pennsylvania Statutes. Any existing law based on a uniform statute that has been replaced by an updated version should have the new substance incorporated into the Code. There should be no attempt to revise evidence rules, except for incidental codification pertaining to documentary evidence, with the Supreme Court authorized to adopt evidence rules comparable to those in federal courts. Terms of court are abolished unless retained by the court (Sec. 324). The powers of a president judge are clarified (Sec. 325). Legislative veto procedures for court rules are revised, extending the review period to 120 calendar days plus ten-day adjournments (Sec. 503(b)). A new provision allows litigants to address governmental action objections without procedural traps, clarifying the relief process against officers rejecting filings (Sec. 708). The Commonwealth Court's appellate jurisdiction now includes appeals from violations of agency organic statutes and election matters, while the Supreme Court's jurisdiction remains unchanged (Sec. 762). Initial appellate jurisdiction over birth record matters has reverted to the courts of common pleas (Sec. 763). Lien of judgment provisions for district justices mimic prior community court laws (Sec. 1516). Chapter 35 introduces new financial provisions for the Unified Judicial System, designed to avoid mandating specific funding levels (Secs. 3501-3574). The Uniform Interstate and International Procedure Act updates the reach of Pennsylvania courts over nonresidents and repeals prior statutory agent requirements, eliminating exemptions for foreign banks from service of process (Secs. 5321-5329). The six-month notice of claim requirement now applies to all personal injury claims against government units (Sec. 5522(a)), while the residual statute for actions against public officers is set at six months (Sec. 5522(b)). The residual statute for replevin and related actions is established at one year (Sec. 5523). The limitation period for non-UCC sales of personal property and fixtures has been shortened from six years to four years, aligning it with the UCC's four-year period. Additionally, unwritten contracts are now also subject to a four-year limitation, down from six years. Contracts implied in law, such as warranty claims, will adhere to this four-year limit. The laws regarding absent defendants have been updated following a recent New York revision. Furthermore, a provision regarding the effects of war has been incorporated from the New York revision. The statutory framework includes two main components: one defining the start of the limitations period and the other specifying its duration, which is set at two years from when the cause of action accrues. The case of Bond v. Gallen provides relevant judicial interpretation of these provisions. The excerpt also references a case involving Toxic Shock Syndrome (TSS) related to Ms. McGowan's death, where the plaintiffs have conceded that they have no claim against certain defendants, leaving only the claims against Tampax for this appeal. The text discusses "creeping" diseases, which show symptoms long after initial exposure, citing asbestosis and silicosis as examples, and highlights the application of the discovery rule in these contexts as seen in prior cases. It notes significant contributions and opinions from various justices regarding the rulings on these matters, particularly in relation to the case of Anthony and its implications for the statute of limitations. Only Justices Larsen and Flaherty remain from those who participated in the Anthony case on the Pennsylvania Supreme Court. The terms "injury" and "accrual of a cause of action" may not be equally ambiguous, as established in Ciabattoni v. Birdsboro Steel Foundry, where a distinction is made between the "occurrence of the injury" and "the beginning of the disability." The discovery rule is not applicable to the former under the Workmen's Compensation Act but does apply under the Occupational Disease Act. Additionally, the distinction between personal injury and survival actions stems from their different legal origins, with survival actions being a statutory right. Before 1937, a cause of action for a totally injured plaintiff who did not file suit during their lifetime would die with the individual. The new statute applies to Ms. McGowan’s case, as she died four months after its enactment, and this is not contested by the parties. Legislative comments from the Pennsylvania Bar Association Special Committee may be referenced when applying Pennsylvania statutes, provided they were available prior to General Assembly consideration. Tampax argues against this application by citing remarks from Representatives Spencer and Berson, who emphasized the technical nature of the bill and the avoidance of substantive amendments. However, the court finds these remarks insufficient to support Tampax's position, viewing them as attempts to prevent delays in passing extensive legislation. Tampax also contends that the Explanation clarifies legislative intent regarding the inapplicability of the discovery rule to wrongful death and survival actions. Tampax references examples related to Section 5524 to argue against the application of the discovery rule in wrongful death cases. Example 2 illustrates that if death occurs on June 1, 1978, and a trespass action is filed on June 15, 1980, the action is barred due to the transition rules, which account for the 26 days before the statute's effective date. Tampax contends that the absence of a discovery rule reference in these examples implies it does not apply to death cases. However, it is argued that Tampax overemphasizes these examples, as they are intended to explain the statutes of limitations during the transition period, not to exclude the discovery rule. Precedents such as Pocono International Raceway and Lewey affirm that the discovery rule is applicable to trespass actions. The discussion notes that under both Pennsylvania and California law, courts are required to adhere to unambiguous statutory language and not impose interpretations that deviate from it. Other jurisdictions may allow broader interpretations of statutory provisions. Although the Anthony case clarified issues surrounding the discovery rule, it was not decided until after the enactment of the code, leaving the applicability of the discovery rule in wrongful death cases somewhat ambiguous. The statute indicates that the legislature may have intended for the discovery rule to apply to death actions under Section 5524, especially in light of prior judicial interpretations. No-fault benefits for losses not resulting in death must be claimed within two years of the victim becoming aware of the loss or within four years of the accident, whichever is sooner. If benefits have been paid, claims for additional benefits (excluding survivor's benefits) must be filed within two years of the last payment. For claims related to survivor's benefits, if no benefits were paid to the deceased or their survivors, the action must be initiated within one year of death or four years post-accident, whichever comes first. If benefits have been previously paid, the timeframe extends to two years after the last payment. In cases where benefits were paid for losses before death, actions for survivor's benefits can be filed within one year of death or six years after the last payment, whichever is earlier. The statute emphasizes a four-year maximum period for suits related to no-fault benefits, reflecting legislative intent to expedite litigation for automobile accidents to help minimize insurance costs, despite potential hardships. There is no similar limitation for civil actions under Sec. 5524. The information is sourced from the Pennsylvania Bar Association's Judicial Code Explanation.