J-S59029-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRENDA A. OWENS, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

LEHIGH VALLEY HOSPITAL,

Appellee No. 3780 EDA 2015

Appeal from the Order Entered November 24, 2015

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2013-C-2397

BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: Filed October 5, 2016

Appellant, Brenda A. Owens, appeals from the November 24, 2015 

order, which granted summary judgment in favor of Lehigh Valley Hospital 

(hereinafter “LVH”). We affirm.

The trial court summarized the relevant factual background and 

procedural history as follows:

[Appellant] commenced suit against LVH by [praecipe] for 

writ of summons filed July 8, 2013. In her one-count 

second amended complaint, [Appellant] asserted a claim of 

“wrongful discharge in violation of public policy” alleging 

that LVH terminated her employment in retaliation for 

having invoked workers’ compensation rights. . . . 

LVH filed a motion for summary judgment and asserted that 

[Appellant] was terminated on March 9, 2011, more than 

two years prior to the date [Appellant] commenced this 

action. Accordingly, LVH argued that [Appellant’s] claim 

was time-barred as a matter of law. [Appellant] responded 

that she had no actual knowledge of her termination date 

and that the discovery rule tolled the running of the statute 
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of limitations until July 13, 2011, the date she received 

notice that her application for long-term disability benefits 

was denied.

[Appellant] was employed by LVH as a Sterilizing Technician 

[and she] began a medical leave of absence on September 

10, 2010.

[Appellant] received and read the following letter dated 

January 21, 2011, from Kathleen Mudri, Disability 

Counselor:

You have been out of work on a medical leave of 

absence since October 4, 2010, and you are receiving 

short term disability benefits. Your short term disability 

benefits will end effective April 1, 2011. This may be a 

good time to begin the application process for long term 

disability (LTD) benefits if you continue to be disabled. . 

. .

At this time, you are encouraged to contact your 

supervisor to advise him/her of your current status and 

ability to return to work, if you have not done so 

already. According to [LVH] policy, your position may 

be posted after 12 weeks (if you qualify for family 

medical leave) or 60 days (if you do not qualify for 

family medical leave). Additionally, your employment 

status with [LVH] will be terminated if your leave of 

absence or combination of leaves, including family 

medical leave (FMLA), extends beyond 180 calendar 

days. . . .

After reading the above letter, [Appellant] noticed that the 

start date of her medical leave of absence was incorrect. 

She contacted Ms. Mudri by phone, and advised her that 

she began her medical leave of absence on September 10, 

2010, not October 4, 2010, as stated in the letter.

[Appellant] received a second letter dated February 23, 

2011, from Lynn Ryden, Benefits Counselor, which stated in 

part:
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We are concerned about your current employment 

status and wish to advise you of our policies regarding 

your leave of absence.

Our records indicate that you have been on a [leave of 

absence] since October 4, 2010. According to our 

policy, if any leave extends beyond 180 days, you will 

be removed from the payroll. As of April 2, 2011, you 

will be on a [leave of absence] for 181 days. Therefore, 

you will be removed from the payroll as of that date. 

Prior to the 180th day of your leave, you have the option 

of applying for other available Network positions for 

which you are qualified and are within any medical 

restrictions you have. Contact your Human Resources 

Consultant (HRC) for information on applying for open 

positions. . . . 

[Appellant] received two additional letters. A letter dated 

March 4, 2011, stated “REVISED” and was identical to the 

January 21, 2011 letter except the dates in the first 

paragraph were [corrected to reflect the actual start date of 

Appellant’s leave of absence (September 10, 2010) and the 

actual end date of Appellant’s short-term disability benefits 

(March 8, 2011)]. . . . [The March 4, 2011 letter] included 

the language, “your employment status with [LVH] will be 

terminated if your leave of absence or combination of 

leaves, including family medical leave (FMLA) extends 

beyond 180 calendar days.

Similarly, [Appellant] received a “CORRECTION” letter on 

March 4, 2011, which included the same language as the 

February 23, 2011 letter, but corrected the [leave of 

absence] date and the dates that followed from the [leave 

of absence] date. The letter stated:

Our records indicate that you have been on a leave-ofabsence since September 10, 2010. According to our 

policy, if any leave extends beyond 180 days, you will 

be removed from the payroll. As of March 9, 2011, you 

will be on a leave-of-absence for 181 days. Therefore, 

you will be removed from the payroll as of that date. 

Prior to the 180th day of your leave, you have the option 

of applying for other available Network positions for 
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which you are qualified and are within any medical 

restrictions you have. 

. . .

[Appellant’s employment was then terminated effective 

March 9, 2011].

During [Appellant’s] deposition, she was asked about her 

understanding of the sentence in the January 21, 2011 

letter that stated she would be terminated if her leave of 

absence extended beyond 180 calendar days; she 

responded, “[t]hat is what it says, but I didn’t understand it 

to be that.” [Appellant’s] testimony makes it clear that she 

believed she was not terminated because she was applying 

for long-term disability. [Appellant] agreed that her 

interpretation of the letter was mistaken because she 

thought the letter was for her short-term disability. When 

asked about her understanding of the February 23, 2011 

letter, [Appellant] testified that she believed the letter only 

addressed her disability benefits. 

[Appellant] was aware in March of 2011 that LVH policy 

provided for a maximum leave period of 180 days and that 

employees on a [leave of absence] for more than 180 days 

would be removed from payroll. Prior to July of 2011, 

[Appellant] concedes she was informed that she would be 

removed from payroll if her leave of absence extended more 

than 180 days. [Appellant] placed one phone call to 

Kathleen Mudri subsequent to receiving the January 21, 

2011 letter in order to alert her that the leave of absence 

date was incorrect and to discuss benefits. In addition, 

[Appellant] attempted to contact LVH’s CEO by telephone 

twice in late June/early July “in an attempt to get a review. 

[Appellant] was rebuffed in these attempts.”

Trial Court Opinion, 2/22/16, at 1-4 (internal citations and emphasis 

omitted) (some internal capitalization omitted). The trial court granted 

summary judgment in favor of LVH on November 24, 2015. This timely 

appeal followed.
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Appellant presents one issue for our review:

Whether or not the trial court erred by failing to properly 

apply the discovery rule when it held that [] Appellant had 

failed to file her lawsuit on a timely basis?

Appellant’s Brief at 4. 

The scope of review of an order granting summary judgment is 

plenary. Barnish v. KWI Bldg. Co., 980 A.2d 535, 546 (Pa. 2009). 

Moreover, we will reverse the trial court’s order only if it “committed an 

error of law or clearly abused its discretion.” Id. Summary judgment 

should only be granted when the record clearly demonstrates that there is 

no genuine issue of material fact and the moving party is thus entitled to 

judgment as a matter of law. Id. We “must view the record in the light 

most favorable to the nonmoving party [and resolve] all doubts as to the 

existence of a genuine issue of material fact against the moving party.” Id. 

Entry of summary judgment is proper “where the plaintiff fails to plead facts 

sufficient to toll the statute [of limitations], . . . or admits facts sufficient to 

admit the limitations defense,” or does not present facts sufficient to show 

there is a genuine issue for trial. Taylor v. Tukanowicz, 435 A.2d 181, 

183-184 (Pa. Super. 1981).

Appellant claims that she did not have actual knowledge of her 

termination until July 13, 2011. Appellant’s Brief at 11. However, we 

conclude that the trial court properly held that Appellant was not entitled to 

application of the discovery rule.
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The statute of limitations period for a cause of action is computed from 

the time the cause of action accrues. 42 Pa.C.S.A. § 5502(a). A cause of 

action accrues when “the plaintiff could have first maintained the action to a 

successful conclusion” and accordingly, the statute of limitations period 

begins to run after the plaintiff acquires the right to maintain a suit. Fine v. 

Checcio, 870 A.2d 850, 857 (Pa. 2005) (citations omitted). Generally, the 

right to bring a tortious cause of action arises when the injury is inflicted. 

Id. Once a cause of action has accrued and the statute of limitations has 

run, the injured party can no longer bring the cause of action. Nesbitt v. 

Erie Coach Co., 204 A.2d 473, 475 (Pa. 1964). The running of the statute 

will not be tolled because of mistake, misunderstanding, or lack of 

knowledge alone. Id. However, the discovery rule and the doctrine of 

fraudulent concealment can act as exceptions to toll the running of a statute 

of limitations period. Fine, 870 A.2d at 858.

In Pennsylvania, the statute of limitations for a wrongful discharge 

claim is two years. 42 Pa.C.S.A. § 5524(2). Appellant’s claim is facially 

time barred, as her employment with LVH was terminated on March 9, 2011 

and she did not file suit until July 8, 2013, approximately four months after 

the expiration of the two-year statute of limitations. Appellant argues that 

the discovery rule should apply here. Our Supreme Court has noted:

The “discovery rule” is [] an exception [to the statute of 

limitations which] arises from the inability of the injured, despite 

the exercise of due diligence, to know of the injury or its cause. . 

. . The salient point giving rise to the equitable application of 
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the exception of the discovery rule is the inability, despite the 

exercise of diligence by the plaintiff to know of the injury. A 

court presented with an assertion of applicability of the 

“discovery rule” must, before applying the exception of the rule, 

address the ability of the damaged party, exercising reasonable 

diligence, to ascertain the fact of a cause of action.

Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 

(Pa. 1983). Where the discovery rule applies, the two-year statute of 

limitations period begins to run when the plaintiff knew or should have 

known of the injury and its cause. Crouse v. Cyclops Indus., 745 A.2d 

606, 611 (Pa. 2000). “A party asserting an action is under a duty to use all 

reasonable diligence to be properly informed of the facts and circumstances 

upon which a potential right of recovery is based and to institute suit within 

the prescribed statutory period.” Pocono Int’l Raceway, Inc., 468 A.3d at 

471 (internal citations omitted). 

Here, the record does not support Appellant’s contention that she was 

unable to know of her injury (her alleged wrongful termination) despite the 

exercise of reasonable diligence. Appellant admits to having received and 

read four letters from LVH. Each letter clearly states LVH’s policy of 

termination after 180 days of leave and informed Appellant of the exact date 

her employment would terminate and she would be taken off payroll if she 

continued her leave of absence. Even if Appellant thought these letters only 

pertained to her short-term disability and not her employment, as she 

claims, she is not entitled to relief. A misunderstanding or lack of knowledge 

will not toll the running of the statute of limitations. Nesbitt, 204 A.2d at 
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475. Further, Appellant could have easily discovered the status of her 

employment. She could have raised the subject of her employment status 

during her phone call with Ms. Mudri. “If a party has the means of discovery 

within [her] power but neglects to use them, [her] claim will still be barred.” 

Burnside v. Abbott Labs., 505 A.2d 973, 988 (Pa. Super. 1985), citing De 

Martino v. Albert Einstein Med. Ctr. N.D., 460 A.2d 295, 303 (Pa. Super. 

1983). Even if Appellant were correct in her assertion that she did not know 

she was terminated, she clearly had the means of discovering her 

employment status and chose not to do so. 

Appellant further contends that a general statement of policy is 

different than an actual, specific termination letter. Appellant’s Brief at 7. 

However, the letters she received were not just general statements of policy, 

as they clearly stated that she would be removed from payroll if she did not 

return to work. Moreover, she did not have to guess as to whether she were 

fired, as she claims, because she was given the exact date of termination in 

the March 4, 2011 letter. 

Appellant also relies on Ward v. Rice, 828 A.2d 1118, 1120 (Pa. 

Super. 2003) to show the discovery rule should be applied. However, this 

reliance is misplaced. In Ward, the physician repeatedly told a patient that 

the numbness in her mouth was only a temporary side effect of her surgery 

to “lull” her into thinking her condition was not permanent. Id. Here, LVH 
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did nothing to make Appellant think she was still employed after the 180 

days had passed. Accordingly, Ward is not applicable to the case at bar. 

“Where [] reasonable minds would not differ in finding that a party 

knew or should have known on the exercise of reasonable diligence of his 

injury and its cause, [a] court [can determine] that the discovery rule does 

not apply as a matter of law.” Fine, 870 A.2d at 858-859 (citation omitted). 

It is clear that Appellant knew of her date of termination or should have 

known with the exercise of reasonable diligence. Accordingly, the trial court 

did not err in holding the discovery rule does not apply.1

Appellant also argues in her brief that she should be entitled to relief 

based on the doctrine of fraudulent concealment because she never received 

a final termination letter from LVH. Appellant’s Brief at 13. However, this 

argument is waived. “Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See Metal 

Bank of America, Inc. v. Ins. Co. of North America, 520 A.2d 493, 501 

(Pa. Super. 1987), appeal denied, 536 A.2d 1332 (Pa. 1987). Appellant 

____________________________________________

1 Appellant also cites to a Third Circuit Court of Appeals decision for the 

proposition that the statute of limitations begins to run “only when the 

employee receives unequivocal notice of the adverse employment decision.” 

Bailey v. United Airlines, 279 F.3d 194, 199 (3d Cir. 2002), citing 

Grayson v. Kmart Corp., 79 F.3d 1086, 1100 n.19 (11th Cir. 1996). 

However, this decision is not binding on this Court. Further, the four letters 

Appellant received, one of which gave the exact date she would be removed 

from payroll and terminated, constituted unequivocal notice of her 

termination.
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never brought this issue to the trial court’s attention and failed to mention it 

in her memorandum in opposition of LVH’s motion for summary judgment. 

Accordingly, this issue is waived.2

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2016

____________________________________________

2 Even if this argument were not waived, it is without merit. All four letters 

Appellant received clearly stated Appellant would be terminated if she 

continued her leave. LVH did nothing to deceive her into believing she was 

still employed or conceal her termination. Even if Appellant misunderstood 

the meaning of these letters, this is not a basis for tolling the statute of 

limitations or invoking the doctrine of fraudulent concealment.