Pastierik v. Duquesne Light Co.

LARSEN, Justice,

dissenting.

I dissent.

I strenuously object to the majority’s reliance upon Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981), to hold that the discovery rule does not apply in cases of wrongfully caused deaths. Only three members of this Court agreed in Anthony that the discovery rule does not prevent the running of the statute of limitations in a wrongful death action brought pursuant to the limitations statute in effect prior to the effective date of the Judiciary Act Repealer Act. To suggest that the two concurrences in the result of that case (mine and that of Justice Kauffman) amount to a concurrence in its holding and rationale, is to misrepresent the precedential value of Anthony on this issue.

Moreover, I fail to see how Anthony can bind this Court regarding the application of a limitations statute that differs in radical measure from the statutes under consideration in that case. Indeed, the plurality in Anthony recognized that:

Statutory references to the occurrence of an “injury” or the accrual of a “cause of action” are subject to judicial *526interpretation as to the degree of knowledge a plaintiff must possess before the statute will start to run.

496 Pa. at 124, 436 A.2d at 184 (emphasis added).

The statutes with which we are concerned herein provide, in relevant part:

The time within which a matter must be commenced under this chapter shall be computed ... from the time the cause of action accrued.

42 Pa.C.S.A. § 5502(a).

The following actions and proceedings must be commenced within two years:
(2) An 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.

42 Pa.C.S.A. § 5524.

The majority now states that the “accrual” analysis of Anthony:

would greatly expand, theoretically to infinity, the time period during which wrongful death actions could be brought, extending the discovery rule in its application far beyond that to which has heretofore been recognized. We do not believe that such was the intent of the legislature in enacting 42 Pa.C.S.A. § 5502(a).

Maj. op. at 521.

Yet, the same potential for infinite expansion of the time period for filing an action exists where the cause of action arises out of an injury, and the majority recognizes the application of the discovery rule to injury cases. I would remind the majority that the plaintiff would carry the same heavy burden of proving the exercise of due diligence in discovering the cause of death where wrongful death and survival actions are commenced more than two years after the date of death as the plaintiff does in a personal injury case. Although death is a “definitely established event,” the cause of death may be just as difficult to ascertain as is *527the cause of an injury. It is absurd to conclude that the legislature would have intended that different rules apply to different causes of action when it included in a single provision the limitation of time for wrongful death, survival and personal injury actions.

Accordingly, I would affirm the Order of Superior Court and adopt its opinion. However, on remand, I would permit appellee the right to amend her complaint to allege facts supporting her claim of delayed accrual, including the time and manner of discovery of the cause of her husband’s death and the circumstances excusing delayed discovery.

PAPADAKOS, J., joins in this dissenting opinion.