[J-10A-2017 and J-10B-2017]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

ROBERT DUBOSE, ADMINISTRATOR 

OF THE ESTATE OF ELISE DUBOSE, 

DECEASED

v.

MARK QUINLAN, DONNA BROWN, 

RNC, BSN, ALBERT EINSTEIN MEDICAL 

CENTER D/B/A WILLOWCREST, 

WILLOWCREST AND JEFFERSON 

HEALTH SYSTEM

APPEAL OF: WILLOWCREST NURSING 

HOME, ALBERT EINSTEIN 

HEALTHCARE NETWORK, ALBERT 

EINSTEIN MEDICAL CENTER D/B/A 

WILLOWCREST AND WILLOWCREST

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No. 21 EAP 2016

Appeal from the judgment of Superior 

Court entered 10/23/2015 at No. 2752 

EDA 2013 (reargument denied 

12/23/2015) affirming the judgment 

entered August 21, 2013, in the Court of 

Common Pleas, Philadelphia County, 

Civil Division, at No. 0846, September 

Term 2009.

ARGUED: March 7, 2017

ROBERT DUBOSE, ADMINISTRATOR 

OF THE ESTATE OF ELISE DUBOSE, 

DECEASED,

Appellee

v.

WILLOWCREST NURSING HOME, AND 

ALBERT EINSTEIN HEALTHCARE 

NETWORK,

Appellants

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No. 22 EAP 2016

Appeal from the judgment of the 

Superior Court entered 10/23/2015 at 

No. 2753 EDA 2013 (reargument denied 

12/23/2015) affirming the judgment 

entered August 21, 2013, in the Court of 

Common Pleas, Philadelphia County, 

Civil Division, at No. 1603 August 

Term, 2009.

ARGUED: March 7, 2017

OPINION
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JUSTICE MUNDY DECIDED: November 22, 2017

In this appeal by allowance, we consider whether the Superior Court applied the 

correct statute of limitations for a survival action in a medical professional liability case. 

For the reasons set forth below, we conclude the statute of limitations for medical 

professional liability cases in the form of wrongful death or survival actions is two years 

from the time of the decedent’s death. Accordingly, we affirm the judgment of the 

Superior Court.

The facts and procedural history of this medical professional liability action, 

asserting negligent care at a nursing home, are as follows. On July 25, 2005, Elise 

Dubose was admitted to Albert Einstein Medical Center (Einstein) after she fell in her 

home and sustained severe head injuries, including anoxia and a brain injury. On 

August 9, 2005, Mrs. Dubose was transferred and admitted to Willowcrest Nursing 

Home (Willowcrest), a division of Einstein, where she was diagnosed with Type II 

diabetes, respiratory failure necessitating a ventilator, chronic obstructive pulmonary 

disease, and several pressure ulcers (bedsores). On September 6, 2005, to treat the 

ulcers, a physician ordered a flexor bed and frequent repositioning of Mrs. Dubose. 

Willowcrest’s staff negligently failed to follow the physician’s order, resulting in a 

deterioration of Mrs. Dubose’s existing pressure ulcers and proliferation of new ones to 

other parts of her body. During a hospitalization at Einstein from January 30 to 

February 14, 2007, Mrs. Dubose developed additional bedsores on her right heel and 

shin, on her right scapula (upper back), and on her lower back. In addition, while at 

Willowcrest from 2005 to 2007, Mrs. Dubose suffered malnourishment, dehydration, 

conscious pain from the bedsores, bone infection, and a sepsis systemic infection.

One of the ulcers, located at the sacral region of the spine, which Mrs. Dubose

developed during her initial July 25, 2005 hospitalization, gradually increased in size 
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from August 9, 2005 to July 2007. In July 2007, the sacral ulcer became infected with 

bacteria from contact with feces. This infection caused sepsis in Mrs. Dubose in 

September 2007, and she was admitted to Einstein with sepsis on September 12, 2007. 

On October 18, 2007, Mrs. Dubose died from sepsis and multiple pressure sores.

On August 13, 2009, Robert Dubose, as administrator for the Estate of Elise 

Dubose, filed a complaint against Willowcrest and Albert Einstein Healthcare Network

(collectively Appellants). This complaint contained counts for negligence on behalf of 

Mrs. Dubose (survival action1), and a wrongful death action2to compensate Mrs. 

Dubose’s survivors. Additionally, on September 14, 2009, Robert Dubose commenced 

a second case by filing a praecipe to issue a writ of summons. On October 7, 2009, Mr. 

Dubose filed a complaint in the second case, asserting similar survival and wrongful 

death actions based on negligence, requesting punitive damages, and naming as 

defendants Mark Quinlan, Willowcrest’s administrator; Donna Brown, Willowcrest’s 

director of nursing; Einstein; Willowcrest; and Jefferson Health System. On October 18, 

2010, the trial court issued an order consolidating the two cases pursuant to 

Pennsylvania Rule of Civil Procedure 213(a). 

In October 2012, the case proceeded to a jury trial, which resulted in a mistrial.

A second jury trial was held from February 13, 2013 to March 13, 2013. On March 13, 

2013, the jury returned a verdict in favor of Mr. Dubose and against Appellants in the 

amount of $125,000.00 on the wrongful death action and $1,000,000.00 on the survival 

action. The jury apportioned liability as 60% to Willowcrest, 25% to Einstein Healthcare 

Network, and 15% to Donna Brown. Further, on March 21, 2013, following a bifurcated 

punitive damages trial, the same jury awarded $875,000.00 in punitive damages against 

 

1 Act of June 30, 1972, P.L. 500, No. 164.

2 Act of 1855, P.L. 309; Pa.R.C.P. 2202(a).
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Appellants. The trial court granted the defendants’ post-trial motions in part in the form 

of judgment notwithstanding the verdict (JNOV), dismissing the action as against Donna 

Brown because she was an employee of Willowcrest, but the trial court did not reduce 

the amount of the verdict. The trial court denied the remaining post-trial motions for a 

new trial, for JNOV, and for remittitur, and entered judgment on the verdict. Regarding 

the subject of this appeal, the trial court explained that Mr. Dubose’s survival action was 

timely filed pursuant to Section 513(d) of the Medical Care Availability and Reduction of 

Error Act (MCARE), 40 P.S. §§ 1303.501-1303.516, which permits plaintiffs to bring 

survival actions within two years of death. Trial Ct. Op., 6/27/14, at 11. As alternative 

support, the trial court applied the “discovery rule” and concluded that Mrs. Dubose’s 

comatose condition prevented her from knowing or reasonably discovering her injuries 

before her death. Id. at 12. Appellants appealed to the Superior Court.

Relevant to this appeal, Appellants argued Mr. Dubose’s survival claims were 

barred by the two-year statute of limitations for personal injury actions, which began to 

run at the time of Mrs. Dubose’s injury in 2005.3 Appellants asserted that a survival 

action is distinct from a wrongful death action. A survival action is merely a continuation 

 

3

42 Pa.C.S. § 5524 provides a two-year statute of limitations for personal injury actions:

§ 5524. Two year limitation

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. § 5524(2).
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of a cause of action that accrued to the plaintiff’s decedent while the decedent was 

alive, and the statute of limitations begins to run when the decedent is injured. On the 

other hand, a wrongful death action accrues to the decedent’s heirs when the decedent 

dies of such an injury, and its statute of limitations begins to run at the decedent’s 

death. Appellants asserted that once the statute of limitations expires on the decedent’s 

cause of action, it cannot form the basis for a survival action following the decedent’s 

death. Appellants’ Super. Ct. Brief at 12-14 (citing Baumgart v. Kenne Bldg. Prods. 

Corp., 633 A.2d 1189 (Pa. Super. 1993) (en banc)).

Applying these principles, Appellants argued that the statute of limitations for 

Mrs. Dubose’s medical professional liability claim began when she sustained the 

pressure ulcer in 2005. The two-year statute of limitations on the survival actions

expired in 2007, and therefore the survival actions Mr. Dubose filed in 2009 were timebarred.

Further, Appellants disputed the trial court’s holding that the survival action was 

rendered timely by Section 513 of MCARE, which provides:

§ 1303.513. Statute of repose

(a) General rule.--Except as provided in subsection (b) or 

(c), no cause of action asserting a medical professional 

liability claim may be commenced after seven years from the 

date of the alleged tort or breach of contract.

(b) Injuries caused by foreign object.--If the injury is or 

was caused by a foreign object unintentionally left in the 

individual’s body, the limitation in subsection (a) shall not 

apply.

(c) Injuries of minors.--No cause of action asserting a 

medical professional liability claim may be commenced by or 

on behalf of a minor after seven years from the date of the 

alleged tort or breach of contract or after the minor attains 

the age of 20 years, whichever is later.
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(d) Death or survival actions.--If the claim is brought under 

42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating 

to survival action), the action must be commenced within two 

years after the death in the absence of affirmative 

misrepresentation or fraudulent concealment of the cause of 

death.

. . .

40 P.S. § 1303.513(a)-(d).

Appellants contended the trial court misapprehended MCARE to revive causes of 

action that the statute of limitations barred. The trial court relied on Matharu v. Muir, 86 

A.3d 250, 263 (Pa. Super. 2014) (en banc), in which then-Judge, now-Justice, Donohue 

authored a unanimous, en banc opinion holding “subsection 1303.513(d) does not set 

forth a statute of repose at all, but rather is a statute of limitation[,] . . . and survival 

claims under 42 Pa.C.S. § 8302 must be commenced within two years after the death, 

unless there is fraudulent misrepresentation or concealment as to the cause of death.” 

Matharu, 86 A.3d at 263. Appellants attempted to distinguish Matharu because that 

case involved a timely survival action, and this case is based on an untimely survival 

action. According to Appellants, the statute of limitations on Mrs. Dubose’s medical 

professional liability action expired before her death, so a survival claim was already 

barred before her death. MCARE does not permit an already-barred claim to become 

timely through the survival statute.

In the alternative, Appellants argued that even if the statute of limitations ran from 

the date of Mrs. Dubose’s October 17, 2007 death, certain claims added in amended 

complaints after October 17, 2009 were time-barred. Appellants narrowly construed the 

Estate’s survival action as solely based on Appellants’ negligent wound care, resulting 

in a pressure ulcer. Appellants contended that after the statute of limitations expired, 

the trial court permitted the Estate to amend its complaints to add new facts to support 
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additional malpractice claims. According to Appellants, these newly added facts 

“alleged conduct of dietitians, nutritionists, physical therapists, occupational therapists, 

rehabilitation therapists, recreational therapists and social workers, relating to nutrition 

and hydration, diabetes, urinary tract infections, urinary incontinence, acute renal failure 

and anemia . . . .” Appellants’ Super. Ct. Br. at 21-22. Appellants alleged these lateradded claims prejudiced them because they resulted in a verdict of $1,000,000 for pain 

and suffering.

In his Superior Court brief, Mr. Dubose emphasized that Mrs. Dubose was under 

constant care at Appellants’ facilities from August 2005 through October 2007, during 

which time she developed ten pressure ulcers and other conditions, such as 

dehydration. The cause of Mrs. Dubose’s death was sepsis combined with the ten 

pressure wounds. Thus, Mr. Dubose contended that there were new, additional injuries 

to Mrs. Dubose continuously until the date of her death.4

Mr. Dubose maintained Section 513(d) of MCARE permitted him to bring the 

survival action within two years of Mrs. Dubose’s death. In support, he stated that the 

Matharu Court held that the specific language of Section 513(d) controlled over the 

general statute of limitations in 42 Pa.C.S. § 5524(2). 

Lastly, Mr. Dubose argued no new causes of action were added after the statute

of limitations expired. Specifically, the language in paragraph 11 of the original 

 

4

In the alternative, Mr. Dubose then asserted that the “discovery rule” tolled the statute 

of limitations. Under the “discovery rule,” a cause of action does not accrue until the 

plaintiff discovers, or should have discovered, the injury. Mr. Dubose invoked the 

discovery rule because Mrs. Dubose did not have the mental or physical capabilities to 

exercise reasonable diligence and determine the facts of her injuries or whether she 

had a claim for medical negligence. Mr. Dubose refuted Appellants’ argument that Mr. 

Dubose had Mrs. Dubose’s power of attorney, so his knowledge of the injuries was 

more relevant than her knowledge. Mr. Dubose pointed out that Appellants’ waived the 

issue by failing to introduce the complete power of attorney document at trial.
[J-10A-2017 and J-10B-2017] - 8

complaint avers while a resident at Willowcrest, Mrs. Dubose sustained serious injuries 

included but not limited to pressure ulcers, which contributed to her death. Upon 

consideration of Appellants’ preliminary objections, the trial court ordered Mr. Dubose to 

file a more specific complaint. Mr. Dubose contended that he should not be penalized 

for complying with that court order.

A panel of the Superior Court unanimously affirmed the trial court’s order. It held 

Mr. Dubose’s survival action was timely under Section 513(d) of MCARE because Mr. 

Dubose commenced the action within two years of Mrs. Dubose’s death. The Superior 

Court reasoning was contained in the following paragraph:

First, appellants claim that the survival action was 

filed beyond the statute of limitations. According to 

appellants, the statute began to run in 2005, when Mrs. 

Dubose developed a pressure wound. (Appellants’ brief at 

14.) Appellants are mistaken. The MCARE Act[] clearly 

provides that wrongful death and survival actions may be 

brought within two years of death.2 Mrs. Dubose died on 

October 18, 2007, and the plaintiff filed two complaints, one 

in August 2009, and one in September 2009, which were 

ultimately consolidated. Both were filed within two years of 

the decedent’s death. Therefore, the Survival Act claim was 

timely filed within the two-year statute of limitations.

________________________________________________

2

§ 1303.513. Statute of repose

(d) Death or survival actions.--If the claim is brought 

under 42 Pa.C.S. § 8301 (relating to death action) or 

8302 (relating to survival action), the action must be 

commenced within two years after the death in the 

absence of affirmative misrepresentation or fraudulent 

concealment of the cause of death.

40 [P.S.] § 1303.513(d).

Dubose v. Quinlan, 125 A.3d 1231, 1238 (Pa. Super. 2015) (footnote omitted).
[J-10A-2017 and J-10B-2017] - 9

The Superior Court then addressed Appellants’ issue that Mr. Dubose added 

causes of action in his amended complaints after the statute of limitations expired. Id. 

The court found Appellants waived this issue in the following analysis:

Appellants also complain that the plaintiff was allowed to add 

new causes of action in his amended complaints, outside the 

statute of limitations. (Appellants’ brief at 21.) This claim 

was not raised in appellants’ Rule 1925(b) statement, nor 

was it addressed by the trial court. Therefore, it is waived.

Pa.R.A.P. 1925(b)(4)(vii); Lazarski v. Archdiocese of 

Philadelphia, 926 A.2d 459, 463–464 (Pa. Super. 2007), 

appeal denied, 594 Pa. 714, 937 A.2d 446 (2007) (citations 

omitted).

Id. The Superior Court affirmed the judgment entered in the court of common pleas.

Appellants subsequently filed in this Court a petition for allowance of appeal, 

which the Court granted to consider the following question.

Do special and important reasons exist which mandate this 

Court’s intervention, since the Superior Court improperly 

lengthened, potentially significantly, the statute of limitations 

applicable to survival actions in medical professional liability 

claims contrary to 42 Pa.C.S. §§ 5542(2) and 5502(A), all 

legal authority emanating from this Court, and the intent of 

the legislature when enacting the MCARE Act’s statute of 

repose?

Dubose v. Quinlan, 138 A.3d 610, 610 (Pa. 2016) (per curiam).

Based on this Court’s focus on this issue, the parties have presented the 

following arguments. Appellants argue that the Superior Court’s interpretation of 

Section 513(d) as a statute of limitations conflicts with precedent from this Court 

requiring survival actions to be commenced within two years of the date of the 

decedent’s injury. Appellants’ Brief at 23. The Superior Court’s interpretation results in 

two different statutes of limitations for survival actions: two years from the date of death 

for medical professional liability claims and two years from the date of injury for all other 

survival actions. Id. Instead, Appellants contend that Section 513(d), consistent with its 
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title, is a statute of repose that establishes the maximum allowable time period—two 

years from the date of death—for filing survival actions. Id. at 24. 

As a statute of repose, Appellants contend Section 513(d) does not affect the 

two-year statute of limitations in 42 Pa.C.S. § 5524(2) for personal injury claims, which 

begins to run when the decedent knew, or should have known, of the decedent’s injury 

and its cause. Id. Appellants argue that the cause of action accrues and the statute of 

limitations begins to run if the decedent knew or should have known of the injury and its 

cause, even if the injury occurs before the decedent’s death. Id.

In support of their interpretation of Section 513(d) as a statute of repose, 

Appellants explain that this Court has recognized that survival actions are not new, 

independent causes of action; instead, they permit the decedent’s personal 

representative to pursue a cause of action that accrued to the decedent before death. 

Id. at 25 (citing Pastierik v. Duquesne Light Co., 526 A.2d 323, 326 (Pa. 1987); Anthony 

v. Koppers Co., 436 A.2d 181, 185 (Pa. 1981); Pezzulli v. D’Ambrosia, 26 A.2d 659, 661 

(Pa. 1942)). Because the cause of action will accrue when the decedent knew or 

should have known of an injury, and a survival action is simply a continuation of such a 

cause of action, the statute of limitations for a survival action begins to run at the time of 

the underlying tort and does not “reset” upon the decedent’s death. Id. (citing Pastierik, 

526 A.2d at 326-27; Anthony, 436 A.2d at 183-84). Appellants assert that once the 

statute of limitations expires on the underlying tort, a survival action is likewise timebarred. Id. at 26-27 (citing Baumgart v. Keene Bldg. Prods. Corp., 633 A.2d 1189 (Pa. 

Super. 1993) (en banc)). This is consistent with reading Section 513(d) as a statute of 

repose that sets the latest date that a survival action can be commenced. Id. at 36.

Applying these principles to this case, Appellants maintain that Mrs. Dubose’s 

medical negligence cause of action accrued when her sacral ulcer developed in 2005, 
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and Mrs. Dubose and Mr. Dubose were aware of the injury and attributed it to negligent 

care. Id. at 27. Further, because Mr. Dubose held Mrs. Dubose’s power of attorney 

with the right to bring a lawsuit on her behalf, Appellants argue that his knowledge of 

Mrs. Dubose’s injury should be imputed to Mrs. Dubose. Id. at 38-51. As this is an 

action for personal injury, it was subject to a two-year statute of limitations, which 

Appellants assert expired in 2007. Id. at 28. Because Mr. Dubose did not commence 

the survival action until 2009, Appellants conclude it was time-barred. Id.

Additionally, Appellants argue that the Superior Court erred in this case and in its 

previous decision of Matharu which also concluded that Section 513(d) is a statute of 

limitations that runs from the date of death. Id. at 29 (citing Matharu, 86 A.3d at 263). 

Appellants emphasize that this results in two different statutes of limitations for survival 

actions. Id. at 30. To illustrate, Appellants contemplate a decedent injured by a 

defective product in 2005, but who does not bring a lawsuit before her death in 2008. 

Id. In such a case, a survival action brought by the decedent’s estate would be timebarred. Id. However, under the interpretation of Section 513(d) adopted by the 

Superior Court, if a decedent is injured by medical negligence in 2005, but does not file

a lawsuit before her death in 2008, the decedent’s estate has an additional two years to 

file a survival action from the date of her 2008 death. Id. at 31. Appellants argue that 

the General Assembly did not intend to create such a result. Id. at 31.

Further, the Superior Court’s interpretation of Section 513(d) contravenes the 

legislative purpose of MCARE, which Appellants assert was to curb “the medical 

malpractice crisis gripping this Commonwealth.”

5

 Id. at 32. The Superior Court’s 

 

5

The effective date of most MCARE provisions was March 20, 2002. Act 13 of 2002, 

P.L. 154, No. 13 § 5108. The Administrative Office of Pennsylvania Courts compiled 

statistics showing that the number of medical malpractice cases newly filed in 

Pennsylvania has decreased from an average of 2,733 in 2000-02 to 1,530 new cases 

filed in 2015, which is a 44.0% reduction. See Pennsylvania Medical Malpractice Case

(continued...)
[J-10A-2017 and J-10B-2017] - 12

decision in this case results in the revival of a survival claim that accrued four years 

before decedent died, which Appellants argue is inconsistent with the General 

Assembly’s intent in passing MCARE. Id. at 33-35. For these reasons, Appellants 

request that we reverse the decisions of the trial court and Superior Court and grant 

JNOV in favor of Appellants on the survival claim.6

In response to Appellants’ arguments, Mr. Dubose initially contends that the 

discovery rule applies in this case because Appellants admitted that Mrs. Dubose was 

brain damaged while in their care. Mr. Dubose’s Brief at 16. Due to her mental 

disability, Mrs. Dubose was unable to investigate the nature and cause of her injuries. 

Id. Because Mrs. Dubose lacked the awareness of her injury and its cause, a medical 

professional liability claim did not accrue to her. Id. at 17 (citing Miller v. Phila. Geriatric 

Ctr., 463 F.3d 266 (3d Cir. 2006); Zeidler v. United States, 601 F.2d 527 (10th Cir. 

1979)). Mr. Dubose argues Appellants’ reliance on Mrs. Dubose’s power of attorney 

was waived because Appellants did not produce the entire power of attorney document 

until the case was on appeal to the Superior Court. Id. at 30. Therefore, the power of 

attorney was not part of the certified record, even though Appellants had possession of 

a power of attorney document since 2006. Id. at 31.7 

 

(...continued)

Filings (Oct. 11, 2016), http://www.pacourts.us/assets/files/setting-2929/file4474.pdf?cb=382360.

6

In the alternative, Appellants argue they were entitled to partial JNOV because Mr. 

Dubose’s amended complaints added new causes of action after the statute of 

limitations expired. We decline to address this claim because it is outside the scope of 

the grant of allowance of appeal, which was limited to whether “the Superior Court 

improperly lengthened, potentially significantly, the statute of limitations applicable to 

survival actions in medical professional liability claims . . . .” Dubose, 138 A.3d at 610.

7 We do not address Mr. Dubose’s alternative argument for affirmance based on the 

discovery rule because we conclude the survival action was timely filed under Section 

513(d).
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Additionally, Mr. Dubose contends that while the sacral wound appeared in 2005, 

the complaint alleged a course of negligence against Mrs. Dubose that resulted in 

multiple injuries from 2005 to 2007, including additional pressure wounds, sepsis, 

hypertension, and acute renal failure. Id. at 19-20. Accordingly, Mr. Dubose contends 

this case involves more negligence than Appellants’ simplification of “one pressure sore 

that developed in 2005.” Id. at 20. Instead, Mr. Dubose notes that Mrs. Dubose died 

from septic shock, caused by multiple pressure wounds, and dehydration. Id.

Further, Mr. Dubose contends the plain language of Section 513(d) states that 

medical professional liability claims in the form of wrongful death and survival actions 

may be brought within two years of decedent’s death. Id. at 21. Mr. Dubose argues 

that because the text of Section 513 is not ambiguous, we merely need to give effect to 

that language and not consult any principles of statutory construction. Id. Mr. Dubose

notes that the legislature had a dual purpose in enacting MCARE: to fairly compensate 

the victims of medical negligence and to promote affordable medical professional 

liability insurance for medical providers. Id. at 22 (citing Osborne v. Lewis, 59 A.3d 

1109 (Pa. Super. 2012)). Mr. Dubose asserts this dual purpose is not at odds with 

permitting wrongful death and survival actions to accrue at the time of the decedent’s 

death. Id. Mr. Dubose posits that this favorable provision for medical professional 

liability plaintiffs may have been in exchange for requiring certificates of merit upon 

commencing an action and the seven-year statute of repose for all medical professional 

liability actions. Id. at 23. In support, Mr. Dubose directs us to 42 Pa.C.S. § 5524(8), 

which alters the accrual date for injuries or deaths related to asbestos from when the 

plaintiff was injured to when the plaintiff was formally diagnosed with an asbestosrelated disease. Id. at 23-24 (citing Wygant v. Gen. Elec. Co., 113 A.3d 310 (Pa. Super. 

2015)). Similarly, Mr. Dubose argues that the legislature similarly extended the 
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deadline for filing a survival action in medical professional liability cases resulting in

death to two years from the date of death. Id. at 24. 

In additional support of his plain language argument, Mr. Dubose points out that 

the most important distinction between a statute of repose and a statute of limitations is 

the act triggering the period of time in which a plaintiff must file a lawsuit. Id. at 25. 

Statutes of limitations begin to run when the cause of action accrues, which is usually 

the time a plaintiff is injured. Id. at 25 (citing 42 Pa.C.S. § 5502(a); Graver v. Foster 

Wheeler Corp. Appeal, 96 A.3d 383 (Pa. Super. 2014); Adamski v. Allstate Ins. Co., 738 

A.2d 1033 (Pa. Super. 1999)). In contrast, statutes of repose focus on the defendant’s 

conduct and begin to run when the defendant completes a specified act, and statutes of 

repose may operate to bar a lawsuit before the cause of action even accrues to the 

plaintiff. Id. at 26 (citing McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331, 

1332 n.1 (Pa. 1994)). 

Applying this distinction to the plain language Section 513, Mr. Dubose argues 

Section 513(d) is a statute of limitations because it permits the plaintiff to bring a cause 

of action within two years of the victim’s death, and Section 513(a) is a statute of repose

because it limits the time in which to file a survival action to seven years from the date 

of the tort. Id. at 27. Mr. Dubose contends there is no conflict between these two 

subsections.8

 

8 Similarly, the Pennsylvania Association for Justice (PAJ) filed an amicus curiae brief in 

support of Mr. Dubose. Therein, it argues that Section 513(d) establishes that a cause 

of action for a wrongful death or survival brought under the MCARE act accrues at the 

time of the decedent’s death. PAJ Brief at 10. According to PAJ, the general, sevenyear statute of repose in Section 513(a) curtails the potential application of the 

discovery rule in these cases. Id. PAJ notes that in Matharu, the Superior Court held 

that MCARE controlled over the general personal injury statute of limitations in 42 

Pa.C.S. § 5524. Id. at 11. For MCARE wrongful death and survival actions, the twoyear period begins to run at the patient’s death. Id. (citing Matharu, 86 A.3d at 263). 

PAJ does not dispute Appellants’ claim that this creates a different statute of limitations 

(continued...)
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We begin our analysis by noting that this case requires us to review the Superior 

Court’s affirmance of the trial court’s decision to deny Appellants’ motion for JNOV 

regarding Mr. Dubose’s survival action. We review a trial court’s grant or denial of 

JNOV for an abuse of discretion or an error of law. Reott v. Asia Trend, Inc, 55 A.3d 

1088, 1093 (Pa. 2012) (citation omitted). The question upon which we granted 

allowance of appeal—whether the Superior Court correctly interpreted the statute of 

limitations for survival actions under MCARE—is a matter of statutory interpretation. 

See Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 17 (Pa. 2015) (citations omitted). As 

statutory interpretation is a question of law, our standard of review is de novo and our 

scope of review is plenary. Reott, 55 A.3d at 1093 (citation omitted).

In interpreting a statute, this Court must “ascertain and effectuate the intention of 

the General Assembly. Every statute shall be construed, if possible, to give effect to all 

its provisions.” 1 Pa.C.S. § 1921(a). To do so, we begin by considering the plain 

meaning of the statute’s language. Scungio Borst & Assocs. v. 410 Shurs Lane 

Developers, LLC, 146 A.3d 232, 238 (Pa. 2016). If the statute’s plain language is 

unambiguous, we must apply it without employing familiar canons of construction and 

without considering legislative intent.9 Id.; 1 Pa.C.S. § 1921(b) (“When the words of a 

statute are clear and free from all ambiguity, the letter of it is not to be disregarded 

under the pretext of pursuing its spirit”). Further, the Statutory Construction Act states 

that the headings of a statute do not control the meaning of its plain language, but may 

 

(...continued)

for medical malpractice actions; however, PAJ notes it is the within the legislature’s 

power to do so. Id. This is consistent with the legislatively stated purpose of MCARE. 

Id. at 12. 

9 Even though Appellants and Mr. Dubose advocate different interpretations of Section 

513(d) of MCARE, neither party argues the statute’s language is ambiguous.
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be considered to aid in construction. 1 Pa.C.S. § 1924; see also Commonwealth v. 

Magwood, 469 A.2d 115, 119 (Pa. 1983) (“It is also a ‘well-established rule’ that the title 

‘cannot control the plain words of the statute’ and that even in the case of ambiguity it 

may be considered only to ‘resolve the uncertainty’”) (quoting Sutherland Statutory 

Construction § 47.03 (Sands 4th ed. 1973)).

To resolve this case, we must determine whether Section 513(d) is a statute of 

repose for survival and wrongful death actions or a statute of limitations that modifies 

the accrual date for survival actions. The United States Supreme Court has explained 

the distinctions between a statute of repose and a statute of limitations:

Statutes of limitations and statutes of repose both are 

mechanisms used to limit the temporal extent or duration of 

liability for tortious acts. Both types of statute can operate to 

bar a plaintiff’s suit, and in each instance time is the 

controlling factor. There is considerable common ground in 

the policies underlying the two types of statute. But the time 

periods specified are measured from different points, and the 

statutes seek to attain different purposes and objectives. . . .

In the ordinary course, a statute of limitations creates 

“a time limit for suing in a civil case, based on the date when 

the claim accrued.” Black’s Law Dictionary 1546 (9th ed. 

2009) (Black’s); see also Heimeshoff v. Hartford Life & 

Accident Ins. Co., 571 U.S. ––––, ––––, 134 S.Ct. 604, 610 

(“As a general matter, a statute of limitations begins to run 

when the cause of action “‘accrues’” —that is, when ‘the 

plaintiff can file suit and obtain relief’” (quoting Bay Area 

Laundry and Dry Cleaning Pension Trust Fund v. Ferbar 

Corp. of Cal., Inc., 522 U.S. 192, 201 (1997)). Measured by 

this standard, a claim accrues in a personal-injury or 

property-damage action “when the injury occurred or was 

discovered.” Black’s 1546. . . .

A statute of repose, on the other hand, puts an outer 

limit on the right to bring a civil action. That limit is 

measured not from the date on which the claim accrues but 

instead from the date of the last culpable act or omission of 

the defendant. A statute of repose “bar[s] any suit that is 

brought after a specified time since the defendant acted 
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(such as by designing or manufacturing a product), even if 

this period ends before the plaintiff has suffered a resulting 

injury.” Black’s 1546. The statute of repose limit is “not 

related to the accrual of any cause of action; the injury need 

not have occurred, much less have been discovered.” 54 

C.J.S., Limitations of Actions § 7, p. 24 (2010) (hereinafter 

C.J.S.). The repose provision is therefore equivalent to “a 

cutoff,” Lampf, Pleva, Lipkind, Prupis & Petigrow v. 

Gilbertson, 501 U.S. 350, 363 (1991), in essence an 

“absolute . . . bar” on a defendant’s temporal liability, C.J.S. 

§ 7, at 24.

 

Although there is substantial overlap between the 

policies of the two types of statute, each has a distinct 

purpose and each is targeted at a different actor. Statutes of 

limitations require plaintiffs to pursue “diligent prosecution of 

known claims.” Black’s 1546. Statutes of limitations 

“promote justice by preventing surprises through [plaintiffs’] 

revival of claims that have been allowed to slumber until 

evidence has been lost, memories have faded, and 

witnesses have disappeared.” Railroad Telegraphers v. 

Railway Express Agency, Inc., 321 U.S. 342, 348–349 

(1944). Statutes of repose also encourage plaintiffs to bring 

actions in a timely manner, and for many of the same 

reasons. But the rationale has a different emphasis.

Statutes of repose effect a legislative judgment that a 

defendant should “be free from liability after the legislatively 

determined period of time.” C.J.S. § 7, at 24; see also 

School Board of Norfolk v. United States Gypsum Co., 360 

S.E.2d 325, 328 (1987) (“[S]tatutes of repose reflect 

legislative decisions that as a matter of policy there should 

be a specific time beyond which a defendant should no 

longer be subjected to protracted liability” (internal quotation 

marks omitted)). Like a discharge in bankruptcy, a statute of 

repose can be said to provide a fresh start or freedom from 

liability. Indeed, the Double Jeopardy Clause has been 

described as “a statute of repose” because it in part 

embodies the idea that at some point a defendant should be 

able to put past events behind him. Jones v. Thomas, 491 

U.S. 376, 392 (1989) (Scalia, J., dissenting).

One central distinction between statutes of limitations 

and statutes of repose underscores their differing purposes. 

Statutes of limitations, but not statutes of repose, are subject 

to equitable tolling, a doctrine that “pauses the running of, or 

‘tolls,’ a statute of limitations when a litigant has pursued his 
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rights diligently but some extraordinary circumstance 

prevents him from bringing a timely action.” Lozano v. 

Montoya Alvarez, 572 U.S. ––––, 134 S.Ct. 1224, 1231–

1232 (2014). Statutes of repose, on the other hand, 

generally may not be tolled, even in cases of extraordinary 

circumstances beyond a plaintiff’s control. See, e.g., Lampf, 

supra, at 363 (“[A] period of repose [is] inconsistent with 

tolling”); 4 C. Wright & A. Miller, Federal Practice and 

Procedure §1056, p. 240 (3d ed. 2002) (“[A] critical 

distinction is that a repose period is fixed and its expiration

will not be delayed by estoppel or tolling”); Restatement 

(Second) of Torts § 899, Comment g (1977).

Equitable tolling is applicable to statutes of limitations 

because their main thrust is to encourage the plaintiff to 

“pursu[e] his rights diligently,” and when an “extraordinary 

circumstance prevents him from bringing a timely action,” the 

restriction imposed by the statute of limitations does not 

further the statute’s purpose. Lozano, supra, at ––––, 134 

S.Ct., at 1231–1232. But a statute of repose is a judgment 

that defendants should “be free from liability after the 

legislatively determined period of time, beyond which the 

liability will no longer exist and will not be tolled for any 

reason.” C.J.S. § 7, at 24. . . .

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2182-83 (2014) (parallel citations omitted); 

accord Vargo v. Koppers Co., Inc., Eng’g Constr. Div., 715 A.2d 423, 425 (Pa. 1998).

With these distinctions in mind, we discuss the nature of a survival action. “At 

common law, an action for personal injury did not survive death[.]” Pennock v. Lenzi, 

882 A.2d 1057, 1064 n.8 (Pa. Cmwlth. 2005) (citing Moyer v. Phillips, 341 A.2d 441, 

442-43 (Pa. 1975)). The General Assembly, in 42 Pa.C.S. § 8302, altered this common 

law rule and provided that causes of action survive a plaintiff’s death:

42 Pa.C.S. § 8302. Survival action

All causes of action or proceedings, real or personal, shall 

survive the death of the plaintiff or of the defendant, or the 

death of one or more joint plaintiffs or defendants.

42 Pa.C.S. § 8302.
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This Court has explained that a survival action is not an independent cause of 

action, but a continuation of a cause of action that accrued to the decedent, and the 

latest time when the statute of limitations runs is at the decedent’s death.

The statute [of limitations] will, of course, begin to run prior to 

death with respect to injuries that the afflicted individual 

should reasonably have “discovered” while alive, and, for 

this reason, it was held in Anthony that the survival statute 

begins to run, “at the latest,” at death. 436 A.2d at 183–184. 

The explanation for this lies in the nature of the survival 

cause of action, for, as stated in Anthony, “the survival 

statutes do not create a new cause of action; they simply 

permit a personal representative to enforce a cause of action 

which has already accrued to the deceased before his 

death.” 436 A.2d at 185 (emphasis added) (footnote 

omitted). See also Pezzulli v. D’Ambrosia, 344 Pa. 643, 647, 

26 A.2d 659, 661 (1942). . . . [T]he “accrual” concept was 

expressly recognized in Anthony; hence, the statute of 

limitations was regarded as running, at the latest, from the 

time of death, unless it had earlier “accrued” through the fact 

that the victim knew, or should reasonably have known, of 

his injury.

. . .

In the context of survival actions, which, as heretofore 

discussed, merely permit a personal representative to 

pursue a cause of action that had already accrued to a victim 

prior to death, the Pocono[ International Raceway v. Pocono 

Produce, Inc., 468 A.2d 468 (Pa. 1983),] rule causes the 

statute of limitations to commence to run on the date when 

the victim ascertained, or in the exercise of due diligence 

should have ascertained, the fact of a cause of action. In no 

case, however, can that date be later than the date of death; 

hence, the statute runs, at the latest, from death. Because 

death is a definitely ascertainable event, and survivors are 

put on notice that, if an action is to be brought, the cause of 

action must be determined through the extensive means 

available at the time of death, there is no basis to extend 

application of the discovery rule to permit the filing of survival 

actions, or wrongful death actions, at times beyond the 

specified statutory period.

Pastierik v. Duquesne Light Co., 526 A.2d 323, 326-27 (Pa. 1987).
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Having set forth the general difference between statutes of repose and statutes 

of limitations, and the nature of survival actions, we turn to the statute involved in this 

case. Specifically, we must interpret Section 513 of MCARE, which we set forth in its 

entirety:

§ 1303.513. Statute of repose

(a) General rule.--Except as provided in subsection (b) or 

(c), no cause of action asserting a medical professional 

liability claim[10] may be commenced after seven years from 

the date of the alleged tort or breach of contract.

(b) Injuries caused by foreign object.--If the injury is or 

was caused by a foreign object unintentionally left in the 

individual’s body, the limitation in subsection (a) shall not 

apply.

(c) Injuries of minors.--No cause of action asserting a 

medical professional liability claim may be commenced by or 

on behalf of a minor after seven years from the date of the 

alleged tort or breach of contract or after the minor attains 

the age of 20 years, whichever is later.

(d) Death or survival actions.--If the claim is brought under 

42 Pa.C.S. § 8301 (relating to death action) or 8302 (relating 

to survival action), the action must be commenced within two 

years after the death in the absence of affirmative 

misrepresentation or fraudulent concealment of the cause of 

death.

(e) Applicability.--No cause of action barred prior to the 

effective date of this section shall be revived by reason of 

the enactment of this section.

(f) Definition.--For purposes of this section, a “minor” is an 

individual who has not yet attained the age of 18 years.

 

10 MCARE defines a “medical professional liability claim” as “[a]ny claim seeking the 

recovery of damages or loss from a health care provider arising out of any tort or breach 

of contract causing injury or death resulting from the furnishing of health care services 

which were or should have been provided.” 40 P.S. § 1303.103.
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40 P.S. § 1303.513.

We begin by addressing the parties’ dispute over when the medical professional 

liability claim accrued to Mrs. Dubose. Appellants contend the action accrued in 2005,

and under the general rule, 42 Pa.C.S. § 5524, the statute of limitations began to run

when Mrs. Dubose developed the pressure wound. Mr. Dubose asserts the cause of 

action accrued on October 18, 2007, when Mrs. Dubose died from sepsis and other 

injuries. If Appellants are correct that the cause of action accrued in 2005, and the twoyear statute of limitations in 42 Pa.C.S. § 5524 applies, both of the survival claims

asserted by Mr. Dubose in 2009 would be time-barred. If the cause of action accrued in

July 2007, when Mrs. Dubose’s pressure ulcer became infected and septic before her 

admission to Einstein on September 12, 2007, and the two-year statute of limitations in 

42 Pa.C.S. § 5524 applies, Mr. Dubose’s second case, filed on September 14, 2009, 

would be barred if the limitations period began to run at the time Mrs. Dubose’s wound 

became infected. However, Mr. Dubose argues Section 513(d) of MCARE modifies the 

traditional statute of limitations, such that the statute of limitations for survival actions 

begins to run on the date of the decedent’s death. Accordingly, we must address 

whether Section 513(d) of MCARE modifies the traditional time of accrual of survival 

actions, as explained in Pastierik, supra.

We hold that Section 513(d) declares that a survival action in a medical 

professional liability case resulting in death accrues at the time of death, not at the time 

of decedent’s injury. This conclusion is based on the plain language of Section 513. 

First, Section 513(a) sets forth a seven-year statute of repose for medical professional 

liability claims. It provides that “no cause of action . . . may be commenced after seven 

years from the date of the alleged tort or breach of contract.” 40 P.S. § 1303.513(a). 

Section 513(a) focuses on the defendant’s conduct by barring any action that is brought 
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more than seven years after the defendant acted, which is typical of statutes of repose. 

See CTS Corp., 134 S. Ct. at 2182-83. Further, Section 513(a) bars the plaintiff’s ability 

to sue regardless of whether the cause of action accrued, whether the injury occurred, 

or whether it was discovered. See id. at 2182. Section 513(a), while providing 

exceptions for lawsuits involving injuries caused by foreign objects and injuries to 

minors, does not provide for any equitable considerations that would toll the seven-year 

period to sue. See id. at 2183. The statute of repose in Section 513(a) begins running 

on the date of the tort or breach of contract, no matter when the cause of action accrues 

(and may even bar a cause of action before it accrues). However, Section 513(a) does 

not provide how it relates to Section 513(d). Instead, Section 513(d) stands separately.

In contrast to the language of Section 513(a), Section 513(d) states that in a

medical professional liability claim for wrongful death or survival, “the action must be 

commenced within two years after the death in the absence of affirmative 

misrepresentation or fraudulent concealment of the cause of death.” 40 P.S. 

§ 1303.513(d). This language mirrors traditional statute of limitation language, such as 

the two-year limitation contained in 42 Pa.C.S. § 5524: “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. 

§ 5524(2). Section 513(d) focuses not on the defendant’s conduct, but on the time 

within which the plaintiff must sue. Unlike Section 513(a), it also contains equitable 

considerations that may toll the two-year period to commence a suit following death: 

“affirmative misrepresentation or fraudulent concealment of the cause of death.” 40 

P.S. § 1303.513(d). The focus on when the plaintiff must commence the action and the 

enumeration of specific equitable considerations that may toll that time period leads us 
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to conclude that Section 513(d) is a statute of limitations for medical professional liability

death cases that sets the date of accrual at the date of decedent’s death. See CTS 

Corp., 134 S. Ct. at 2182-83. 

Section 513(d) establishes a specific statute of limitations for survival and 

wrongful death actions in medical professional liability cases that prevails over the 

general statute of limitations for personal injuries actions contained in 42 Pa.C.S. 

§ 5524(2). See 1 Pa.C.S. § 1933.11 It is within the legislature’s power to enact a more 

specific statute of limitations for medical professional liability negligence that results in 

death, and where the plain language of the statute indicates that it did so, we must give 

effect to that language. Similarly, Appellants’ reliance on Pastierik, Anthony, and 

Pezzulli to illustrate the general principles of when a survival action accrues and when 

the statute of limitations begins to run does not compel a different result. Pastierik, 

Anthony, and Pezzulli predate the legislature’s enactment of MCARE and the more 

specific statute of limitations set forth in Section 513(d).

If the General Assembly wanted to set a statute of repose of two years from the 

date of decedent’s death, it could have provided, similar to Section 513(a), “no cause of 

action for wrongful death or survival may be commenced after two years from the 

death.” It did not; instead, it created a statute of limitations for medical professional 

liability cases resulting in death, which accrues at the time of decedent’s death. Our 

interpretation is consistent with the Superior Court’s conclusion in Matharu in 2014 that 

Section 513(d) sets forth a different statute of limitations for death cases, and the 

General Assembly has not amended Section 513 in response to Matharu. See 

 

11 See also Commonwealth v. Corban Corp., 957 A.2d 274, 277 (Pa. 2008) (holding the 

more specific five-year statute of limitations for commencing a criminal prosecution for 

violations of Workers Compensation Act at 77 P.S. § 1039.12 controls over the general 

two-year statute of limitations in 42 Pa.C.S. § 5552 of the Judicial Code).
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Matharu, 86 A.3d at 263. Therefore, Mr. Dubose’s survival actions were timely filed 

within two years of Mrs. Dubose’s death.12

In conclusion, we hold that Section 513(d) of MCARE establishes a two-year 

statute of limitations for medical professional liability cases in the form of wrongful death 

or survival actions, which accrues at the time of the decedent’s death. Thus, for all the 

above reasons, we affirm the judgment of the Superior Court.

Justices Todd and Dougherty join the opinion.

Justice Baer files a concurring and dissenting opinion.

Chief Justice Saylor files a dissenting opinion

Justices Donohue and Wecht did not participate in the consideration or decision of this 

case.

 

12 Based on this conclusion, we do not need to address the effect of Mr. Dubose holding 

Mrs. Dubose’s power of attorney prior to her death.