IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTHONY J. VITALE, AND THERESA : CIVIL ACTION

VITALE, h/w :

:

v. :

:

BUCKINGHAM MANUFACTURING : NO. 03-CV-06845

COMPANY, INC. :

ORDER

AND NOW, this 7th day of July, 2005, upon consideration of defendant’s Motion for

Summary Judgment (Paper #35), plaintiffs’ response thereto (Paper #37), and oral argument

thereon, and for the reasons set forth in the foregoing MEMORANDUM, it is ORDERED that:

1. Defendant’s Motion for Summary Judgment is GRANTED because plaintiff’s claim is barred

by the statute of limitations.

2. Plaintiffs’ Motion in Limine to Preclude Any Expert Witness on Behalf of Defendant is

DENIED AS MOOT.

 /s/ Norma L. Shapiro 

Norma L. Shapiro, S.J.

Case 2:03-cv-06845-NS Document 46 Filed 07/07/05 Page 1 of 7
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTHONY J. VITALE, AND THERESA : CIVIL ACTION

VITALE, h/w :

:

v. :

:

BUCKINGHAM MANUFACTURING : NO. 03-CV-06845

COMPANY, INC. :

Norma L. Shapiro, S.J. July 7, 2005

MEMORANDUM AND ORDER

Plaintiffs, Anthony J. Vitale (“Vitale”) and his wife Theresa Vitale, filed a complaint in

the Philadelphia Court of Common Pleas. Defendant, Buckingham Manufacturing Company

(“Buckingham”), removed this case to federal court. Plaintiffs are citizens of Pennsylvania.

Defendant is a foreign corporation with its principal place of business in Buckingham, N.Y. The

amount in controversy exceeds $75,000. Plaintiffs have asserted claims of negligence, strict

liability in tort, and strict liability in tort for failure to warn. Both parties agree Pennsylvania law

is controlling. Defendant has filed a motion for summary judgment asserting plaintiffs’

complaint is barred by the statute of limitations.

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Facts

Vitale began using defendant’s pole climbing apparatus in October 1999, while training

to be a line man for the Pennsylvania Energy Company (“PECO”). Plaintiff first reported

bilateral knee pain to his family physician, Dr. Braunfeld, on October 10, 1999 (Def.’s Ex. D);

Dr. Braunfeld characterized Vitale’s injury as “[p]robably occupational.” (Def.’s Ex. C).

Dr. Braunfeld referred Vitale to Dr. Kohl, who treated Vitale with cortisone shots and

prescribed pain killers. (Def.’s Ex. D). On October 26, 1999, Dr. Kohl noted that “[t]his 40-yearold lineman trainee with PECO presents today with pain in his knees associated with pole

climbing as part of his training.” (Def.’s Ex. E).

On November 15, 2001, Vitale told Dr. Braunfeld that he had been having knee pain for

approximately one year. Dr. Braunfeld noted that Vitale had probably suffered peroneal nerve

damage. (Pls.’ Ex. C). Dr. Braunfeld also checked the “work related” box on Vitale’s PECO

medical certification form. (Def.’s Ex. G). On December 13, 2001, Dr. Kenning, a neurological

surgeon confirmed that Vitale had suffered peroneal nerve damage. (Def.’s Ex. E).

In November 2002, a ganglion cyst was discovered and removed from the same area as

Vitale’s peroneal nerve damage. Multiple medical experts concur that the cyst was also

attributable to the pole climbing apparatus. (Pls.’ Ex’s G and H). Plaintiffs filed this complaint

on November 19, 2003.

Discussion

Summary judgment is appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Only a factual

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dispute that might affect the outcome under governing law precludes the entry of summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a motion

for summary judgment, a court must evaluate the facts in a light most favorable to the

nonmoving party and drawing all reasonable inferences in that party’s favor. Id. at 255. The

judge must decide “not whether there is literally no evidence, but whether there is any upon

which a jury could properly proceed to find a verdict for a party producing it, upon whom the

onus of proof is imposed . . . The mere existence of a scintilla of evidence in support of

plaintiffs’ position will be insufficient.” Id. at 251.

In Pennsylvania, the statute of limitations for a personal injury claim is two years. 42

Pa.C.S. § 5524(2). If the injury and its cause are immediately ascertainable, the statute begins to

run when the injury is suffered. See Ayers v. Morgan, 154 A.2d 788, 791 (Pa. 1959). If the

injury or its cause is not immediately ascertainable, the discovery rule applies and the statute is

tolled until the injured party knows, or a reasonably diligent person would know, of both the

injury and its cause. Pocono Int’l Raceway, Inc. v. Pocono Produce, 468 A.2d 468, 472 (Pa.

1983). 

When a factual dispute arises concerning when a reasonably diligent person would have

known of the injury and its cause, summary judgment is not appropriate. Fine v. Checcio, 870

A.2d 850, 859 (Pa. 2005). When the facts are undisputed and “reasonable minds cannot 

differ . . . the commencement of the limitations period may be determined as a matter of law.”

Hayward v. Medical Center, 608 A.2d 1040, 1043 (Pa. 1992).

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“[A] lack of knowledge, mistake, or misunderstanding do[es] not toll the running of the

statute.” Pocono, 468 A.2d at 471. The discovery rule does not apply if the injured party knows

he is injured, but does not realize the full extent of his injury. Cardone v. Pathmark, 658 F. Supp.

38, 40 (E.D. Pa. 1987) (discovery rule did not apply to plaintiff who slipped and fell on

defendant’s property because she knew she was injured, although she did not recognize the

severity of the injury); See Ayers, 154 A.2d at 792 (the discovery rule applied because it was

“not a case where the act of negligence was known to the plaintiff but the extent of the damages

which ensued therefrom was not ascertained until after expiration.”).

In Fine, two patients brought claims against their respective dentists for malpractice more

than two years after the date of surgery. Fine, 870 A.2d at 853. The Pennsylvania Supreme Court

held that summary judgment was not appropriate because the parties disputed whether the

dentists had given their patients assurances that concealed the injuries and prevented discovery

of and their causes by reasonably diligent persons. Id. at 854-63. Plaintiffs in this action do not

assert the defendant or any doctor attempted to conceal the extent or the nature of Vitale’s injury.

Plaintiffs argue that Vitale did not know the extent of his injury until he was diagnosed

with peroneal nerve damage on December 13, 2001. A reasonably diligent person who

experienced knee pain caused by a pole climbing apparatus may not have immediately

ascertained his injury and its cause. Plaintiff first reported knee pain caused by the pole climbing

apparatus in 1999. Even if the discovery rule applied on these facts, it would not toll the statute

beyond November 15, 2001, because on that day, Vitale’s injury was diagnosed and attributed to

his line of work. No reasonable juror could find that Vitale did not know, or should not have

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1 On November 30, 2001, Dr. Kiel, a neurologist, reported that Vitale’s injury “appears to be a right peroneal

neuropathy.” (Pls.’ Ex. D). Dr. Kiel also believed that Vitale “does appear to cross his legs very frequently . . . [and]

I think crossing his legs is the most likely etiology.” (Pls.’ Ex. D). Even if he followed Dr. Kiel’s incorrect diagnosis

of the cause, “[a] lack of knowledge, mistake, or misunderstanding do[es] not toll the running of the statute.”

Pocono, 468 A.2d at 471.

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known of, his injury and its cause by November 15, 2001. The statute of limitations began

running no later than November 15, 2001.

During that visit, Dr. Braunfeld diagnosed Vitale as possibly suffering from peroneal

nerve damage. Dr. Braunfeld also reported on Vitale’s medical certification form for PECO

disability benefits that the injury was “work related.”1 No reasonable juror could find that Vitale

should not have known that he had been injured by the pole climbing apparatus any later than

November 15, 2001.

Plaintiffs attempt to distinguish between “mild” and “severe” injury, but the exact scope

of the injury is immaterial to the running of the statute of limitations. Cardone, 658 F. Supp. at

40. Plaintiffs explicitly acknowledge that it was a common peroneal nerve injury that

progressively worsened over time, “developing” from a mild to severe right common peroneal

neuropathy. (Pls.’ Resp. to Summ. J. at 10). The use of the word “developing” confirms that it

was the same injury.

Plaintiffs contend Vitale’s ganglion cyst was a second, additional injury that did not

manifest itself before August 2002; nothing in the record supports this contention. Even if the

cyst appeared in August, 2002, Vitale’s doctors believed the cyst formed as a result of his using

the pole climbing apparatus. The cyst is an exacerbation of the original injury. The doctors did

not refer to the nerve damage and the cyst development as separate events; the doctors placed the

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cyst on a continuing spectrum of injury. (Pls.’ Ex’s G and H). As Vitale continued to use the

pole climbing apparatus, his injury progressed from mild to severe nerve damage until a

ganglion cyst eventually formed.

Even if the nerve damage and cyst were separate injuries, plaintiffs’ claims would be

barred by the statute of limitations. If the first injury is barred by the statute of limitations,

allowing plaintiffs to recover for a second related injury would circumvent the statute’s

underlying policy. U.S. v Kubrick, 444 U.S. 111, 117 (1979) (statutes of limitation represent a

legislative judgment that defendants must be put on notice to defend in a limited period of time;

after that limited time, the right to be free of old claims overrides the right to bring a claim). If

the statute of limitations began anew every time a different type of injury resulted from the same

causal action, the statute of limitations could be extended ad infinitum if the plaintiff repeatedly

suffered injury.

Conclusion

Defendant’s motion for summary judgment will be granted because plaintiffs’ claim filed

on November 19, 2003, is barred by the two-year statute of limitations. Even if the discovery

rule applies, the statute is not tolled beyond November 15, 2001, when Vitale should have

known of his injury and its cause.

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