IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James E. Rupert, :

:

Appellant :

:

 v. : No. 90 C.D. 2020

: Argued: September 23, 2021

Campus Crafts, Inc. and Bradco :

Supply Co., Inc. :

: 

 v. :

: 

Velvet Comly, William D. Comly, Jr., :

Pennsylvania Department of :

Transportation of the Commonwealth :

of Pennsylvania, Spring Township, :

West Penn Power Company, :

FirstEnergy Corp., FirstEnergy :

Solutions Corp. f/k/a FirstEnergy :

Services Corp., U.S. Municipal :

Supply, Inc. and Vision Metalizers, :

Inc. :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: October 27, 2021

James E. Rupert (Plaintiff) appeals the order of the Centre County 

Court of Common Pleas (trial court) sustaining the Motions for Judgment on the 

Pleadings filed by the Pennsylvania Department of Transportation (PennDOT) and 
2

Campus Crafts, Inc. (Campus), and in which Bradco Supply Co., Inc. (Bradco), 

Velvet Comly and William Comly, Jr. (collectively, Comly), Spring Township 

(Township), West Penn Power Company, FirstEnergy Corp., formerly known as 

FirstEnergy Services Corp. (collectively, FirstEnergy), U.S. Municipal Supply, Inc.

(U.S. Municipal), and Vision Metalizers (Vision) joined. We affirm.

The extensive and complex factual and procedural history of this case 

may be summarized, in relevant part, as follows. On July 3, 2014, Velvet Comly 

traveled in a motor vehicle in the northbound lane of Township Route 567 to its 

intersection with State Route 550 in Centre County. Reproduced Record (R.R.) at

323a. At the same time, Plaintiff traveled east on a motorcycle on State Route 550 

toward the intersection. Id. In turning left onto State Route 550, Velvet Comly 

relied on a convex mirror at the intersection. Id. at 19a, 82a, 326a. Seeing no traffic 

approaching the intersection in the mirror, Velvet Comly pulled out into the 

intersection to make the turn, where her vehicle collided with Plaintiff’s motorcycle. 

Id. at 324a. Plaintiff sustained serious injuries from the collision. Id. at 19a-22a. A 

passenger on a motorcycle following Plaintiff also sustained injuries from the 

accident, but his injuries were not as severe.

At the time of the collision, the sight distance approaching the 

intersection is limited because Township Route 567 slopes downward to the 

intersection while State Route 550 crests upward along a curve. R.R. at 603a, 604a, 

609a, 610a. PennDOT permitted the Township to place the mirror at the intersection 

at the Township’s request so that drivers on Township Route 567 would have 

increased sight distance of traffic traveling east on State Route 550. Id. at 604a. 

There was a yellow sign posted below the mirror, which stated “VEHICLES ARE 

CLOSER THAN THEY APPEAR.” Id. at 604a, 613a.
3

A month after the accident, two of Plaintiff’s engineering experts, 

Justin Schorr and Steven Schorr, inspected the accident scene and ultimately 

concluded that deficiencies in the curvature of the mirror, including the shortness of 

the mirror’s radius, did not provide Velvet Comly with additional sight distance of 

State Route 550. R.R. at 326a-328a. Specifically, the experts noted that PennDOT 

“specifies that traffic mirrors are required to have a minimum radius of curvature of 

80 inches,” and that “[m]easurements of the convex mirror at the intersection of 

[Township Route 567] and [State Roue 550] demonstrate that the radius of curvature 

(at the time of the collision) was 52.8 inches, indicating that the mirror failed to meet 

the required specifications.” Id. at 328a.1 As a result, the mirror provided Velvet 

1

In relevant part, PennDOT Publication 46, Chapter 11.10 states:

Flat mirrors are unacceptable for use at highway intersections 

because they provide a very small field of vision and require every 

observer’s eyes to be at the proper location to effectively use the 

mirror. On the other hand, convex mirrors overcome the alignment 

issue and have been used along highways with some success despite 

the following inherent problems:

1. The image is distorted and reversed.

2. Vehicles appear to be much farther away than they actually are. 

For example, the image of an approaching car when it is 100 feet 

away from the mirror will be only about 2 to 2.5 inches wide on a 

standard convex mirror.

3. Mirrors require routine cleaning and are subject to vandalism.

4. Mirrors are fairly expensive (approximately $250).

5. Unfamiliar drivers require time to become oriented when 

attempting to use a mirror.

* * *

(Footnote continued on next page...)
4

Comly with less than 100 feet of sight distance while her unaided vision would have 

had 125 feet of sight distance. Id. at 327a. The experts made the following relevant

conclusions:

8. The 52.8-inch radius convex mirror present at the time 

of the collision did not add any additional sight distance 

compared to what is visible to the naked eye when simply 

looking to the left at the edge of the roadway. By using a 

deficient mirror at this intersection, a more hazardous 

situation was created than if the correct mirror had been 

installed or if no mirror had been installed at all.

9. There were other applicable counter measures available 

to correct the problems created by the insufficient sight 

distance at the intersection. One such countermeasure 

includes restricting multi-direction travel on [Township 

Route 567] by making it one-way (southbound) from 

[State Route 550] to Green Street. The available data is 

consistent with the impacts of this change being minimal 

in terms of additional delays for local operators.

Convex mirrors are normally available at local glass dealers. As a 

minimum, they shall:

1. be designed for exterior use;

2. be made of “Plexiglas” or shatterproof glass;

3. have a minimum diameter of 36 inches; and

4. have a minimum radius of curvature of 80 inches.

If possible, position convex mirrors directly ahead of the intended 

user on the far side of the roadway, but it is best to experiment at 

other locations prior to permanently installing it. The angle formed 

between the observer, the mirror and the approaching vehicles 

should be 90 degrees or less. Typically, mount convex mirrors 10 

to 15 feet above the roadway surface and brace it to reduce the 

chances of it becoming misaligned.

R.R. at 645a-646a.
5

10. The intersection of [Township Route 567] and [State 

Route 550] is hazardous in that the sight distance does not 

meet PennDOT’s minimum requirements. This hazard 

was not alleviated by placing the traffic mirror in question 

which (like the intersection sight distance) failed to meet 

PennDOT’s minimum requirements.

Id. at 329a (emphasis in original).

On May 28, 2015, Plaintiff filed a Complaint in the trial court against 

PennDOT, the Township, Comly, and Nationwide Insurance. R.R. at 266a-292a. In 

the Complaint, Plaintiff alleged, inter alia, that PennDOT was negligent for “failing 

to provide adequate . . . mirrors, . . . which would warn and/or permit motorists, and 

in particular motorcyclists, to safely traverse the . . . intersection between [State 

Route 550] and [Township Route 567], or to safely detour around same or in the 

alternative, improperly placing said . . . mirrors[,]” and for “failing to install an 

appropriate mirror at the . . . intersection of [State Route 550] and [Township Route 

567], . . . so that traffic entering the intersection from [Township Route 567 has] 

adequate sight distance.” R.R. at 273a, 274a-275a. Appended to the Complaint is a 

Verification executed by Plaintiff in which he states, in relevant part, that the 

Complaint “is based upon information, which [he has] furnished to my counsel and 

information, which has been gathered by [his] counsel in preparation for the 

prosecution of this lawsuit,” “and to the extent [that] it is based upon information 

which [he has] given to [his] counsel, it is true and correct to the best of [his]

knowledge, information, and belief.” Id. at 291a.

On August 31, 2015, Plaintiff filed a filed a First Amended Complaint 

(2015 Complaint) in the trial court against PennDOT, the Township, Comly, and 

Nationwide Insurance. R.R. at 294a-321a. In the First Amended Complaint, 

Plaintiff alleged, inter alia, that PennDOT was negligent in the following respects:
6

a. allowing a dangerous, defective, hazardous, 

inadequate mirror to exist at the intersection of [State 

Route 550] and [Township Route 567] . . . for motorists’ 

use in aiding visibility of other traffic approaching the 

aforesaid intersection that created a reasonabl[y] 

foreseeable risk of the kind of injury suffered by Plaintiff[] 

at the intersection of [State Route 550] and [Township 

Route 567];

* * *

c. failing to correct the inadequate mirror existing at 

the intersection of [State Route 550] and [Township Route 

576], . . . for motorists’ use in aiding visibility of other 

traffic approaching the aforesaid intersection that created 

a reasonabl[y] foreseeable risk of the kind of injury 

suffered by Plaintiff[];

d. the creation and maintenance of a defective, 

hazardous, inadequate, and dangerous mirror for 

motorists’ use in aiding visibility of other traffic at the 

intersection of [State Route 550] and [Township Route 

567], . . . as it applies to motorists’ and motorcyclists’ 

safety, that created a reasonabl[y] foreseeable risk of the 

kind of injury suffered by Plaintiff[] at the intersection of 

[State Route 550] and [Township Route 567];

* * *

g. failing to provide adequate . . . mirrors, . . . which 

would warn and/or permit motorists, and in particular 

motorcyclists, to safely traverse the . . . intersection 

between [State Route 550] and [Township Route 567], or 

to safely detour around same or in the alternative, 

improperly placing said . . . mirrors[;]

h. failing to correct the inadequate mirror existing at 

the intersection of [State Route 550] and [Township Route 

567] . . . for motorists’ use in aiding visibility of other 

traffic approaching the aforesaid intersection that created 

a reasonabl[y] foreseeable risk of the kind of injury 

suffered by Plaintiff[] at the intersection of [State Route 

550] and [Township Route 567];
7

* * *

j. negligence in the creation and/or maintenance of [a] 

defective, hazardous and/or dangerous[ly] inadequate 

mirror existing at the intersection of [State Route 550] and 

[Township Route 567] . . . for motorists’ use in aiding 

visibility of other traffic approaching the aforesaid 

intersection that created a reasonabl[y] foreseeable risk of 

the kind of injury suffered by Plaintiff[] at the intersection 

of [State Route 550] and [Township Route 567];

k. failing to properly and adequately hire and/or 

instruct the agents, . . . workmen, . . . and/or 

representatives of [PennDOT] and/or [the] Township as to 

the safe and proper procedures for inspecting, . . . 

correcting and repairing an inadequate mirror . . . at the 

aforesaid intersection of [State Route 550] and [Township 

Route 567];

* * *

o. failing to install an appropriate mirror at the 

aforesaid intersection of [State Route 550] and [Township 

Route 567], . . . so that traffic entering the intersection 

from [Township Route 567] have adequate sight distance.

R.R. at 306a-310a. Appended to the 2015 Complaint is a Verification executed by 

Plaintiff in which he states, in relevant part, that the Complaint “is based upon 

information , which [he has] furnished to [his] counsel and information, which has 

been gathered by [his] counsel in preparation for the prosecution of this lawsuit,” 

“and to the extent [that] it is based upon information which [he has] given to [his]

counsel, it is true and correct to the best of [his] knowledge, information, and belief.” 

Id. at 317a.

On September 8, 2015, Plaintiff served the Township with a request to 

produce the following documents:

52. Any and all documents prior to the accident

described in Plaintiff[’s] Complaint and up until the 
8

present date pertaining [to or] regarding [the Township’s] 

decision to install a mirror at the intersection in question, 

[State Route 550] and/or [Township Route 567] . . . at the 

area of the accident described in Plaintiff[’s] Complaint.

R.R. at 569a. In response to the request, “[f]ollowing the exchange of written 

discovery, it was not until January 17, 2017, that the deposition of Gary Royer from 

the [Township] was taken,” and “[d]uring that deposition, it was learned for the first 

time where the mirror was obtained by [the] Township and then it was on January 

25, 2017, that [the] Township provided ‘supplemental discovery responses’ with 

information concerning the mirror itself.” Id. at 504a-505a (emphasis in original 

and citations omitted). Although “[i]t is not clear to Plaintiff why these documents 

were not turned over in response to [his] September 8, 2015 request,” id. at 505a, 

there is no indication in the record that he filed a motion in the trial court to compel

the production of any additional documents from the Township at any time.

Ultimately, that matter was “resolved and discontinued” with respect to all claims 

and all parties. Id. at 501a.2

On December 27, 2016, Plaintiff hired James Sobek, P.E., to prepare 

another expert report, which was issued on February 17, 2017. R.R. at 602a-622a. 

In the report, the expert concluded, in relevant part:

The actual 52.8 inch radius of curvature mirror that is 

currently in place, the effective sight distance as viewed in 

the mirror is only 187 feet for drivers with 20/20 vision 

and 94 feet for drivers with 20/40 vision, substantially less 

than is required by PennDOT standards and not sufficient 

2 On July 18, 2016, Plaintiff filed a Complaint against FirstEnergy alleging negligence with 

respect to the dangerous and/or hazardous conditions of the premises owned or maintained by it at 

and/or near the intersection of State Route 550 and Township Route 567. See R.R. at 481a-491a. 

On August 12, 2017, Plaintiff executed a Pro Rata Joint Tortfeasor Release and Settlement 

Agreement resolving the claims against FirstEnergy in that case and in the proceedings on 

Plaintiff’s First Amended Complaint. See Original Record (O.R.) Docket Entry No. 27, Exhibit 

A at 1-9.
9

for human recognition and response to approaching 

vehicles on [State Route 550] heading eastbound.

It [is] our opinion that [the] Township, by selecting and 

installing that mirror, made the situation worse than if 

there was no mirror present at all and motorists are safer if 

they ignore the presentation in the mirror and depend upon 

what they see directly. Making this bad situation even 

worse and more dangerous was the placement of a mirror 

with the incorrect radius of curvature.

Id. at 606a-607a.

As a result, the expert opined:

With a required 390 feet sight distance for left turning 

vehicles, even a mirror with an 80 inch radius of curvature 

will only produce an image that is 0.41 inches wide and 

subtends 2.41 arc minutes, nowhere close to what will be 

required to make a decision as to whether or not there is a 

vehicle coming that is so close [as] to be a problem. Thus, 

PennDOT’s policy is inadequate and does not make the 

intersection safer, and, in fact, even using a convex mirror 

that complies with their guidelines does not increase the 

sight distance sufficiently and makes the intersection more 

dangerous.

* * *

[There are] several alternatives [that] exist to remedy the 

poor visibility circumstances at this intersection. We defer 

to an appropriate engineer for any additional details, 

however. An obvious one (and probably the lowest 

financial cost) would be to make [Township Route 567] 

one-way only to the south thereby avoiding anyone having 

to deal with the limited sight distances to east and west.

A tri-color traffic signal with a demand circuit arranged 

such that the east-west traffic always has a green light until 

a vehicle arrives northbound. Given the limited sight 

distance to the west, it would seem that a NO TURN ON 

RED prohibition would also be in order.
10

It is not likely feasible to improve the sight distance by 

excavating enough terrain at each cut slope. And the costs 

of moving all or even part of the power substation are 

certainly prohibitive.

It is clear to me that until some change is made to this 

intersection, collisions will continue to occur, some of 

them serious. Clearly though, putting in a mirror with a 

longer radius of curvature is in order first and should be 

do[ne] immediately until such other more appropriate and 

adequate changes can be implemented with more 

planning. In order to provide an adequate view to drivers 

with 20/40 vision, a mirror with curvature radius of 263 

inches will create an image that subtends 5 arc minutes at 

a vehicle-mirror distance of 390 feet. But, because traffic 

on eastbound [State Route] 550 approaching [Township 

Route 567] is traveling along a right-hand curve and thus 

more or less directly at the mirror, a physically larger 

mirror might not be required. Most drivers within their 

vehicles come to a stop with their eyes well within the 

projected field of view that the mirror now provides. They 

don’t have to move left or right or farther forward or back 

to see into the mirror. But the image that the mirror 

currently provides is far too small.

However, even with the correct radius mirror in place, the 

left-right reversal produced by convex and plane mirrors 

will continue to be a problem. It is confusing to see a 

vehicle coming at you “in the wrong lane” in the mirror 

image. It is worse to see a vehicle in the mirror, 

misinterpret the lane that [it] is in (right versus left) and 

then to incorrectly conclude after a momentary view that 

the vehicle is moving away from you. Even with over 50 

years’ experience in the field of optics, we found the 

appearance of vehicles coming and going in that mirror’s 

presentation to be unexpected and initially very confusing. 

It was only after applying our optical experience that we 

began to understand what was actually in the image and 

the degree to which objects have been reduced in size.

R.R. at 618a, 620a.
11

On January 17, 2017, Gary Royer, the Township’s Road Manager, 

testified during a deposition regarding the maintenance of the mirror at the 

intersection of State Route 550 and Township Route 567 in 2013. See R.R. at 572a573a. He stated that a new mirror was installed at the intersection in 2013, and that 

it had been purchased from Bradco. See id. at 573a-574a. On January 25, 2017, in 

a supplemental discovery response, the Township provided Plaintiff with a copy of 

the invoice for the purchase of the mirror from Bradco and a copy of the mirror’s 

installation instructions. See id. at 576a-581a. On March 2, 2017, Bradco sent 

Plaintiff a copy of the sales invoice for the mirror and its installation instructions in 

response to a subpoena. See id. at 582a-599a.

On November 27, 2017, Plaintiff filed a new Complaint against 

Campus and Bradco alleging in Count I, inter alia, negligence with respect to the 

design, construction, manufacture, and testing of the mirror, and that they placed the 

mirror into the stream of commerce for purchase by the Township in this defective 

state, which resulted in Plaintiff’s serious and permanent injuries. R.R. at 366a367a, 370a-372a. In Count II, Plaintiff alleged, inter alia, strict liability due to 

placement of the mirror into the stream of commerce for purchase by the Township 

in its unreasonably dangerous and defective condition based on its improper and 

inadequate design and manufacture, and based on their failure to warn of the mirror’s 

dangerous condition resulting in Plaintiff’s serious and permanent injuries. Id. at 

372a-373a. Finally, in Count III, Plaintiff alleged a breach of express or implied 

warranty by Campus and Bradco’s provision of the dangerous and defective mirror 

that was neither adequate nor suitable for its intended uses resulting in Plaintiff’s 

serious and permanent injuries. Id. at 373a-374a.
12

On January 31, 2018, Campus filed a Joinder Complaint against 

Additional Defendants the Comlys, PennDOT, the Township, FirstEnergy, U.S. 

Municipal, and Vision. See R.R. at 95a-141a. The Joinder Complaint alleged, in 

pertinent part, that William Comly owned the car that was operated by Velvet Comly 

and involved in the collision. Id. at 104a. The Joinder Complaint also alleged that 

PennDOT and/or the Township owned, controlled, repaired, or maintained State 

Route 550 and Township Route 567, acted as each other’s agent in this regard, and 

knew or should have known of the dangerous condition of these roadways. Id. at 

104a-105a. The Joinder Complaint also alleged that FirstEnergy owned, controlled, 

and maintained property at or near the intersection of State Route 550 and Township 

Route 567, including the maintenance of vegetation, acted as each other’s agent in 

these respects, and knew or should have known of the dangerous condition of these 

premises that created an unreasonable hazard to people traveling on these roadways. 

Id. at 105a-106a. The Joinder Complaint also alleged that, in the ordinary course of 

its business, U.S. Municipal manufactured, designed, labeled, marketed, distributed, 

supplied, sold, or placed into the stream of commerce the alleged Sentinel Convex 

Mirror, which was purchased by the Township in a new and unused condition for 

use at the intersection of the roadways. Id. at 106a-107a. The Joinder Complaint 

also alleged that, in the ordinary course of its business, Vision manufactured, 

designed, labeled, marketed, distributed, supplied, sold, or placed into the stream of 

commerce the alleged Sentinel Convex Mirror, which was purchased by the 

Township in a new and unused condition for use at the intersection of the roadways. 

Id. at 110. The Joinder Complaint asserted claims of: (1) negligence against Velvet 

Comly, PennDOT, the Township, FirstEnergy, and Vision; (2) negligent entrustment 
13

against William Comly; (3) strict liability against U.S. Municipal and Vision; and 

(4) breach of express and implied warranties against Vision. Id. at 108a-141a.

On March 5, 2018, Plaintiff filed a three-count Second Amended 

Complaint (2017 Complaint) against Campus and Bradco again alleging negligence, 

strict liability, and breach of express or implied warranty resulting in his serious and 

permanent injuries. R.R. at 16a-30a.3 In relevant part, the 2017 Complaint also 

alleged:

8. Plaintiff did not learn until after January 8, 2017, 

following an inspection of the mirror by [Sobek,] a 

professional engineer with particular expertise in optics 

and mirrors[,] that a cause of his injuries was a dangerous 

and defective mirror, said properties of the mirror that 

rendered it dangerous and defective and not proper for its 

intended purpose not being within the general knowledge 

of lay persons.

9. This accident resulted solely from the negligence

and/or breach of warranties of [Campus and/or Bradco]

herein, and was due in no manner whatsoever to any act, 

failure to act or misuse on the part of [] Plaintiff.

10. At no time did [] Plaintiff, or any other person or 

entity, abuse or misuse the aforesaid Sentinel Convex 

Mirror or utilize it in a[] manner for which it was not 

designed and intended nor fail to follow any instructions 

or warning sold with or affixed to said Sentinel Convex 

Mirror.

Id. at 19a.

On March 12, 2018, the Township filed an Answer with New Matter to 

Campus’s Joinder Complaint in which it asserted in New Matter:

3

In the interim, Plaintiff filed a three-count First Amended Complaint asserting the same

causes of action against Campus and Bradco. See O.R. Docket Entry No. 15.
14

83. Plaintiff’s and [Campus’s] claims are barred by the 

statute of limitations.

84. Plaintiff was aware of the alleged defective radial 

curvature of the mirror on August 8, 2014, when his 

expert, DJS Associates, performed a site inspection, 

including high definition surveying, laser scans and three 

dimensional measurements.

O.R. Docket Entry No. 31 at 13, ¶¶83, 84.

On March 14, 2018, Bradco also filed a Joinder Complaint against 

Additional Defendants the Comlys, PennDOT, the Township, FirstEnergy, U.S. 

Municipal, and Vision. See R.R. at 181a-226a. The Joinder Complaint asserted 

claims of: (1) negligence against Velvet Comly, PennDOT, the Township, 

FirstEnergy, U.S. Municipal, and Vision; (2) negligent entrustment against William 

Comly; (3) strict liability against U.S. Municipal and Vision; and (4) breach of 

express and implied warranties against Vision. Id. at 194a-226a.

On March 16, 2018, Campus filed an Answer and New Matter to 

Plaintiff’s 2017 Complaint, which stated in New Matter: “Plaintiff’s claims are, or 

may be, barred by the applicable Statute of Limitations.” O.R. Docket Entry No. 36 

at 10, ¶22.

On March 31, 2018, FirstEnergy filed a voluntary petition for 

bankruptcy in the United States Bankruptcy Court for the Northern District of Ohio 

(bankruptcy court). R.R. at 33a-34a. On April 17, 2018, FirstEnergy filed a Notice 

of Suggestion of Pendency of Bankruptcy and Automatic Stay of Proceedings in the 

trial court, which resulted in the trial court staying the instant proceedings on the 

2017 Complaint. See id. at 31a-38a, 40a. On Plaintiff’s motion, on October 24, 

2018, the bankruptcy court issued an order continuing the stay as to all claims against 

FirstEnergy, but lifted the stay as to all remaining parties in the instant action thereby 

granting the trial court discretion to sever FirstEnergy from the instant proceedings. 
15

See id. at 41a-45a. On March 18, 2019, the trial court issued an order granting 

Plaintiff’s motion to lift the stay as to all parties in the proceedings on the 2017

Complaint except FirstEnergy. Id. at 47a-48a.

On March 29, 2019, PennDOT filed a Motion for Judgment on the 

Pleadings, which alleged, in relevant part:

17. Plaintiff filed [the 2015 Complaint] on August 31, 

2015, which alleged that PennDOT was negligent for 

allowing a dangerous and defective mirror to exist at the 

intersection. . . .

18. During the litigation of the case[,] Plaintiff’s experts 

Justin Schorr, Ph.D. and Steven Schorr, P.E., conducted a 

site inspection on August 8, 2014, which included 

examination of the mirror at issue. . . .

19. This matter is barred by the two-year statute of 

limitations which expired on July 3, 2016, and the 

[“discovery rule”] does not apply. 42 Pa. C.S. §5524(2).[4]

20. It is the duty of the party asserting a cause of action 

to use all reasonable diligence to properly be informed of 

the facts and circumstances upon which the right of 

recovery is based; and to institute a lawsuit within the 

applicable statute of limitations.

21. The discovery rule is a limited exception to the 

prescribed statute of limitations when the facts and 

circumstances of the cause of action could not have been 

discovered despite the exercise of reasonable diligence.

* * *

4 Section 5524(2) of the Judicial Code states, in pertinent part, that “[t]he following actions 

and proceedings must be commenced within two years: . . . An action to recover damages for 

injuries to the person . . . caused by the wrongful act or neglect or unlawful violence or negligence 

of another.”
16

23. The discovery rule is inapplicable if a plaintiff has 

the reasonable ability to discover the facts necessary, 

regardless of whether the party actually ascertained the 

information.

24. Plaintiff pled in [the] verified [2015 Complaint] 

that he believed the mirror at issue was dangerous and 

defective and contributed to the happening of his July 3, 

2014 crash.

25. [Pa.R.Civ.P.] 1024 provides that “every pleading 

containing an averment of fact not appearing of record in 

the action or containing a denial of fact shall state that the 

averment or denial is true upon the signer’s personal 

knowledge or information and belief. ([E]mphasis 

added).

26. Thus, by at least August 31, 2015, at the latest, 

Plaintiff swore that he had personal knowledge, 

information, and a belief that the mirror at the intersection 

was dangerous and/or defective and contributed to the 

accident and his injuries.

27. Plaintiff had the duty to use reasonable diligence to 

research the facts and circumstances of his case, including 

but not limited to, his belief that the dimensions and 

specifications of the mirror allegedly contributed to the 

crash.

28. The mirror is out in the open, and was examined by 

a civil engineer at the direction of Plaintiff in 2014, 

including taking measurements and researching standards.

29. Reasonable minds could not differ that Plaintiff had 

the ability to investigate and pursue his claim regarding 

the mirror within the two-year statute of limitations as a 

matter of law.

30. Therefore, Plaintiff’s case filed on November 27, 

2017[,] is untimely, because the statute of limitations 

expired and the discovery rule does not apply.
17

R.R. at 74a-76a (citations omitted and emphasis in original). Accordingly, 

PennDOT asked the trial court to grant judgment in its favor on the pleadings, and 

dismiss Plaintiff’s 2017 Complaint as untimely. Id. at 77a.

On April 2, 2019, U.S. Municipal filed an Answer with New Matter to 

Campus’s Joinder Complaint in which it asserted in New Matter:

83. The instant matter is time barred by the applicable 

statute of limitations. This matter arose on July 3, 2014, 

though it was not filed until November 27, 2017. 

Although U.S. Municipal anticipates that Plaintiff will 

likely contend that he was not aware of the potential 

lawsuit until retention of an expert witness and the expert’s 

subsequent inspection in 2017, the same was an 

investigation that could have been conducted at any time 

after the accident, and thus, is time barred.

O.R. Docket Entry No. 72 at 13, ¶83.

On April 8, 2019, Campus filed a reply and joinder in PennDOT’s 

Motion for Judgment on the Pleadings. See O.R. Docket Entry No. 74. That same 

day, Campus also filed a Motion for Judgment on the Pleadings alleging, in relevant 

part, that the 2017 Complaint is time barred because the statute of limitations in 

Section 5524(2) had run before it was filed, and that the discovery rule does not 

apply. See R.R. at 342a-348a. Specifically, Campus asserted that “at the very least 

by August 31, 2015, Plaintiff swore he had personal knowledge, information and 

belief that the mirror at the intersection was dangerous and/or defective and 

contributed to the accident and his injuries,” and that “[r]easonable minds cannot 

differ that this case filed by Plaintiff on November 27, 2017, as the accident 

occurred on July 3, 2014, and therefore, is untimely because the statute of limitations 

has expired and the discovery rule does not apply.” Id. at 347a-348a.
18

On April 15, 2019, Vision filed an Answer with New Matter to 

Campus’s Joinder Complaint, which alleged, in pertinent part, that “[t]he averments 

in the [2015 Complaint] were verified by [Plaintiff] on August 26, 2015,” so that “as 

of at least August 26, 2016, [Plaintiff] reasonably believed, and averred in a verified 

pleading that there existed a condition with the mirror at the intersection at issues in 

this matter,” and that “[t]his lawsuit was initiated on November 27, 2017, in which 

Plaintiff alleges the same mirror is dangerous and defective,” so, “[t]herefore, the 

current action is barred by the statute of limitations.” Docket Entry No. 82 ¶¶58-61. 

Ultimately, with the exception of Vision,5 all of the remaining Defendants and 

Additional Defendants filed or joined in the Motions for Judgment on the Pleadings 

filed by PennDOT and Campus. See, e.g., O.R. Docket Entry Nos. 84, 95, 104, 117.

On April 29, 2019, Plaintiff filed a Response in Opposition to both 

PennDOT’s and Campus’s Motions for Judgment on the Pleadings admitting the 

relevant allegations raised therein. See R.R. at 496a-824a. Nevertheless, in a 

memorandum of law filed in opposition to PennDOT’s Motion, Plaintiff asserted, in 

relevant part:

It was during the December 27, 2016, through 

February 17, 2017 (the date of Mr. Sobek’s report)[,]

timeframe that Plaintiff learned the mirror was a defective 

product for its intended/foreseeable purpose (traffic 

control device). In fact, no other engineering expert, 

including the defendants’ own experts, knew or should 

have known of this fact as they were not trained in physics 

with expertise in optics. In fact, defense expert Joseph M. 

Fiocco, P.E., studied engineering and was a traffic 

5 As noted by Vision in its appellate brief, although Vision did not file a motion for 

judgment on the pleadings or join in the other motions, “this Court’s order affirming [the trial 

court’s] order will establish law of the case on the controlling issue [of] whether [Plaintiff] filed 

[h]is complaint after the statute of limitations. Farber v. Engle, [525 A.2d 864, 866 n.5 (Pa. 

Cmwlth. 1987)].” Brief for Appellee Vision at 2.
19

engineer. Defense expert Joseph P. Tarris, P.E., studied 

Civil Engineering and was a traffic engineer. Neither of 

these experts with extensive training and skill in 

engineering and traffic formed an opinion that the mirror 

was defective as a defense nor did counsel who employed 

them seek to join the manufacturer of the mirror. 

Moreover, PennDOT with teams of engineers did not 

conclude that convex mirror[s] are dangerous products for 

use in controlling traffic, even to the extent of having 

policies in place for their use. Thus, simply stated, 

defendants seek to hold Plaintiff, who attended 

schooling to the 11th grade, “knew” or “should have 

known” what 4 engineers were unable to conclude, and 

that he should have imputed to him the knowledge and 

skill of a physicist with training in optics. If defendants 

wish to make such an argument, it is a jury question, and 

not a matter of law.

R.R. at 505a-506a (citations omitted and emphasis in original).

By Opinion and Order dated September 27, 2019, the trial court granted 

the Motions for Judgment on the Pleadings. See R.R. at 832a-837a. In relevant part, 

the trial court explained:

In the present matter, Plaintiff’s cause of action lies in 

negligence, thus invoking the two-year statute of 

limitations. Therefore, from the time of the accident on 

July 3, 2014, Plaintiff generally had a two-year period of 

time to file his complaint. However, the complaint, as 

already stated, was not initiated until November 27, 2017. 

Despite the fact that Plaintiff had previously hired experts 

to conduct an inspection of the allegedly defective mirror 

in 2014, thus invoking Plaintiff’s claim of defective 

condition and breach of warranty, he claims that it was not 

until January of 2017 that he learned that the cause of his 

injuries was the dangerous and defective mirror. This 

claim by Plaintiff was following a second inspection 

conducted by a professional engineer with expertise in 

optics, which clearly could have been done earlier.

. . . The burden is on [] Plaintiff to reasonably investigate

the cause of injury in order to gain an understanding of the 
20

facts concerning that injury. Plaintiff and his experts had 

access to the mirror, which existed out in the open and 

therefore, in any of the several complaints filed by 

Plaintiff, he certainly knew or should have known of the 

mirror’s allegedly defective condition. . . . In the case sub 

judice, Plaintiff’s injury occurred on July 3, 2014. In 2015 

following site inspections by experts, Plaintiff pled and 

verified that the mirror was defective. As PennDOT 

correctly points out in its supporting brief, “[Plaintiff] was 

either untruthful in his original Complaint in [2015] when 

he signed a verification swearing that he had ‘personal 

knowledge or information and belief’ that the mirror 

allegedly contributed to the crash, or Plaintiff must admit 

that he actually held that ‘personal knowledge or 

information and belief’ before the tolling of the statute of 

limitations. Pa.R.[Civ.]P. 1024(a).[6]” Thus, reasonable 

minds cannot differ that this case filed on November 27, 

2017, is untimely, as the statute of limitations has expired 

and the discovery rule does not apply.

Id. at 836a-837a (footnotes omitted and emphasis in original).

On September 30, 2019, the trial court issued an order stating, in 

pertinent part: “[B]ased upon the Court’s recent rulings on Motions for Judgment 

on the Pleadings in this matter and the only remaining [Additional] Defendant[] 

being [FirstEnergy,] which [is] in bankruptcy, this matter is stayed until th[at 

Additional] Defendant [is] out of bankruptcy.” R.R. at 838a.

As a result, on October 15, 2019, Plaintiff filed an Application for a 

Determination of Finality pursuant to Pa. R.A.P. 341(c),7 asking the trial court to file 

6 Pa.R.Civ.P. 1024(a) states, in relevant part, that “[e]very pleading containing an averment 

of fact not appearing of record in the action . . . shall state that the averment . . . is true upon the 

signer’s personal knowledge or information and belief and shall be verified.”

7 Pa.R.A.P. 341(c) states, in pertinent part:

When more than one claim for relief is presented in an action . . . or 

when multiple parties are involved, the trial court . . . may enter a 

(Footnote continued on next page...)
21

an amended final appealable order. R.R. at 840a-862a. On October 24, 2019, the 

trial court filed an order in which it “determined that an immediate appeal in th[is] 

matter would facilitate resolution of the case in its entirety,” and “expressly entered 

as a final Order” its September 27, 2019 order granting the Motions for Judgment 

on the Pleadings. Id. at 864a-865a. Plaintiff then filed the instant appeal to the 

Pennsylvania Superior Court; however, upon PennDOT’s motion, the matter was 

transferred to this Court. R.R. at 866a-878a, 890a.8

final order as to one or more but fewer than all of the claims and 

parties only upon an express determination that an immediate appeal 

would facilitate resolution of the entire case. Such an order becomes 

appealable when entered.

8 Following the transfer, by February 6, 2020 order, we directed the parties “to address in 

their principal briefs on the merits . . . whether this Court may proceed with the appeal where 

[FirstEnergy is] in bankruptcy and where the trial court stayed the matter.” R.R. at 892a. The 

parties have complied with our direction, and have demonstrated that we may proceed with this 

appeal. As indicated, the automatic stay under Section 362(a)(1) of the federal Bankruptcy Code, 

11 U.S.C. §362(a)(1), only provides protection to the bankruptcy debtor and not to a non-debtor 

third party absent extraordinary circumstances. Bankers Trust Company v. Tax Claim Bureau of 

Delaware County, 723 A.2d 1092, 1093-94 (Pa. Cmwlth. 1999). No extraordinary circumstances 

are alleged to exist herein. Additionally, the automatic stay is “not intended to stay actions which 

assert that a non-debtor is ‘independently liable as, for example, where the debtor and another are 

joint tortfeasors or where the non-debtor’s liability rests upon his own breach of duty.’” In re 

Phar-Mor, Inc. Securities Litigation, 166 B.R. 57, 62 (W.D. Pa. 1994) (citation omitted).

As outlined above, the October 24, 2018 bankruptcy court order continued the stay as to 

all claims against FirstEnergy, but lifted the stay as to all remaining parties in this case thereby 

granting the trial court the discretion to sever FirstEnergy from the case. See R.R. at 41a-45a. The 

March 18, 2019 trial court order granted Plaintiff’s motion to lift the stay as to all parties in the

case except FirstEnergy. Id. at 47a-48a. Thus, although FirstEnergy is not part of the trial court’s 

ruling on the Motions for Judgment on the Pleadings, the court properly certified its order as final 

and appealable under Pa. R.A.P. 314(c) with respect to the remaining parties because FirstEnergy 

had already been severed from the case at that time. Moreover, our disposition of this appeal will 

establish law of the case on the dispositive issue of whether Plaintiff filed his 2017 Complaint after 

the statute of limitations had expired. See Farber, 525 A.2d at 866 n.5 (“The doctrine of ‘law of 

the case’ provides that where an appellate court has considered and decided a question on appeal, 

(Footnote continued on next page...)
22

On appeal,9 Plaintiff claims that the trial court erred in granting the 

Motions for Judgment on the Pleadings because the discovery rule applies in this 

case and the question of its application should be submitted to a jury. Plaintiff asserts 

that he adduced multiple facts establishing that he acted with reasonable diligence 

in investigating and prosecuting his claims, so that the trial court erred in 

determining that the discovery rule was inapplicable herein as a matter of law.10

that court will not, in a subsequent appeal of another phase of the same case, reverse its previous 

ruling, even though convinced it was erroneous.”) (citation omitted and emphasis in original).

9 As the Pennsylvania Supreme Court has recently observed:

When reviewing a trial court’s order sustaining judgment on the 

pleadings, our standard of review is to determine whether, based on 

the facts the plaintiffs pled, “the law makes recovery impossible.” 

A judgment on the pleadings will be granted where, on the facts 

averred, the law says with certainty that no recovery is possible. We 

regard as true all well-pleaded allegations in [the plaintiff’s] 

pleadings as []he is the non-moving party, and consider against 

h[im] only those factual allegations in the [defendant’s] pleadings 

that [the plaintiff] has admitted.

Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237, 244 (Pa. 2021) (citations omitted).

10 Specifically, in support of the invocation of the discovery rule, Plaintiff claims that: (1) 

he had professional engineers perform a site inspection of the premises before any lawsuit was 

filed; (2) his failure to recognize that the convex mirror was a dangerous and defective product is 

reasonable because PennDOT and its engineers did not recognize the same; (3) he was diligent in 

sending discovery requests that were not answered for more than a year; (4) his initial civil and 

traffic engineers, and Defendants’ civil and traffic engineers, did not recognize that the convex 

mirror was a dangerous and defective product; (5) PennDOT’s policies regarding the use of convex 

mirrors leads one to conclude that a convex mirror is not a dangerous or defective product; (6) the 

police report regarding the collision cited Velvet Comly as the cause of the accident in violation

of the Vehicle Code, 75 Pa. C.S. §§101-9805, and did not recognize that the mirror was defectively 

designed; and (7) he was not provided with discovery regarding the mirror product until January 

2017, and filed suit against Campus and Bradco within two years of that discovery. Brief of 

Appellant at 64-65.
23

In Rice, the victim of sexual abuse by her parish priest between 1974 

and 1981, filed a complaint against the priest, the Diocese of Altoona-Johnstown

(Diocese), and the Diocese’s bishops on June 20, 2016, alleging breach of fiduciary 

duty, fraud, and conspiracy. The victim did not report the abuse to the authorities 

until 2006. In 2014, the Cambria County District Attorney referred a number of 

claims of sexual abuse by priests in the Diocese to the Pennsylvania Attorney 

General. On March 1, 2016, the Thirty-Seventh Investigating Grand Jury issued a 

report in which it determined, inter alia, that the Diocese’s bishops further 

endangered children by returning known abusive priests to its parishes, and that 

secret archives existed that were used to hide information regarding the sexual abuse. 

The report also showed that the parish priest had abused other victims and that the 

Diocese was made aware of the abuse. Rice, 255 A.3d at 241-42.

In her 2016 complaint, the victim alleged that she first learned from the 

2016 Grand Jury report that the Diocese was aware of, and protected, the abusive 

priests, and knew or should have known of the parish priest’s sexual attraction to 

young children and his abuse of them. The Diocese filed an answer and new matter 

to the complaint, raising a statute of limitations defense, and a motion for judgment 

on the pleadings. Specifically, the Diocese asserted that the last sexual assault 

occurred in 1981, and that the statute of limitations had run long before the complaint 

was filed in 2016. The trial court granted the motion and dismissed the complaint, 

and the Superior Court reversed. Id. at 242.

However, on further appeal, the Pennsylvania Supreme Court reversed

the Superior Court. With respect to the application of the statute of limitations

defense, the Supreme Court explained:

“Generally speaking, statutes of limitations are 

rules of law that set time limits for bringing legal claims.” 
24

Nicole B. v. Sch[ool] Dist[rict] of Phila[delphia], [237 

A.3d 986, 993-94 (Pa. 2020)]. The time to file begins 

running “from the time the cause of action accrued[.]” 42 

Pa. C.S. §5502(a). Normally, a cause of action accrues 

“when an injury is inflicted.” Wilson [v. El-Daief, 964 

A.2d 354, 361 (Pa. 2009)]. Thus, the clock “begins to run 

as soon as the right to institute and maintain a suit arises; 

lack of knowledge, mistake or misunderstanding do not 

toll the running of the statute of limitations[.]” Pocono 

Int[ernationa]l Raceway, Inc. v. Pocono Produce, Inc., 

[468 A.2d 468, 471 (Pa. 1983)] (citations omitted). If the 

plaintiff fails to file before the clock expires, the statute of 

limitations bars the suit.

Various doctrines can save suits that would be 

otherwise untimely. . . . [T]he discovery rule, “tolls the 

statute of limitations when an injury or its cause is not 

reasonably knowable.” In re Risperdal Litig[ation], [223 

A.3d 633, 640 (Pa. 2019)]. The purpose of this rule is 

clear: to “ensure that persons who are reasonably unaware 

of an injury that is not immediately ascertainable have 

essentially the same rights as those who suffer an 

immediately ascertainable injury.” Nicolaou [v. Martin, 

195 A.3d 880, 892 n.13 (Pa. 2018)]. The plaintiff’s 

inability to know of the injury must be “despite the 

exercise of reasonable diligence[.]” Fine [v. Checcio, 870 

A.2d 850, 858 (Pa. 2005)]. This “is not an absolute 

standard, but is what is expected from a party who has 

been given reason to inform himself of the facts upon 

which his right to recovery is premised.” Id.

In Wilson, we explained that two competing 

approaches have developed to the discovery rule. The 

more liberal approach, favorable to plaintiffs, “key[s] the 

commencement of the limitations period to such time as 

the plaintiff has actual or constructive knowledge of her 

cause of action.” Wilson, 964 A.2d at 363 (citation 

omitted). In contrast, the stricter and less plaintiff 

favorable “inquiry notice” approach “t[ies] 

commencement of the limitations period to actual or 

constructive knowledge of at least some form of 

significant harm and of a factual cause linked to another’s 

conduct, without the necessity of notice of the full extent 
25

of the injury, the fact of actual negligence, or precise 

cause.” Id. at 364. “Pennsylvania’s formulation of the 

discovery rule reflects the narrower of the two overarching 

approaches[.]” Id.

The Wilson Court explained that adoption of the 

stricter approach effectuates legislative intent. “Although 

the discovery rule evolved out of the common law, it is 

now appropriately regarded as an application of statutory 

construction arising out of the interpretation of the concept 

of the ‘accrual’ of causes of action.” Id. at 363 (footnote 

omitted). Thus, the rule “is best justified as an exercise in 

legislative interpretation rather than judicial innovation.” 

Id. at 367. Accordingly, our ability to expand the 

discovery rule beyond the boundaries of the inquiry notice 

approach is circumscribed if not eliminated in the absence 

of a constitutional claim. “Absent a constitutional claim, 

we decline to question the legislative judgment.” Id. at 

369. We adhere to our statutory interpretations because 

“the legislative body is free to correct any errant 

interpretation of its intention.” Shambach v. Bickhart, 

[845 A.2d 793, 807 (Pa. 2004)] (Saylor, J., concurring).

Rice, 255 A.3d at 246-47 (footnote omitted); see also id. at 255 (“Statutes of 

limitations exist ‘to expedite litigation and thus discourage delay and the 

presentation of stale claims which may greatly prejudice the defense of such claims.’ 

Delay is discouraged, first and foremost, through the imposition of diligence 

obligations that require the plaintiff to conduct investigations of potential lawsuits.”) 

(citation omitted).

Applying the stricter “inquiry notice” approach to the discovery rule to 

the facts herein demonstrates that the trial court did not err in granting the instant 

Motions for Judgment on the Pleadings because the two-year statute of limitations 

had run as a matter of law by the time that Plaintiff filed the 2017 Complaint. As 

exhaustively outlined above, in the 2015 Complaint that Plaintiff verified, he

asserted causes of action for his legal injuries based upon the defective condition of 
26

the mirror. Although Plaintiff may not have been aware of the particular defect 

asserted in the 2017 Complaint at the time that the 2015 Complaint was filed, the 

“‘inquiry notice’ approach ‘t[ies] commencement of the limitations period to actual 

or constructive knowledge of at least some form of significant harm and of a factual 

cause linked to another’s conduct, without the necessity of notice of the full extent 

of the . . . precise cause.’ [Wilson, 964 A.2d] at 364.” Rice, 255 A.3d at 247.

Moreover, the cases cited by Plaintiff to support the application of the 

discovery rule in this case are inapposite. In those cases, the discovery rule was 

applied because the plaintiffs therein were unaware that they had suffered the legal 

injury underlying the lawsuit in the first instance. In Rice, the Supreme Court noted:

It is obvious that there are no circumstances that are 

remotely comparable to Nicolaou in the case before us. 

The question in Nicolaou was when the plaintiff knew she 

was injured. Here, tragically, [the plaintiff] knew of her 

injury at the time of each alleged assault and she knew that 

[the parish priest] caused the injury. “In Pennsylvania, a 

cause of action accrues when the plaintiff could have first 

maintained the action to a successful conclusion.” Fine, 

870 A.2d at 857 (citation omitted). An action against [the 

parish priest] could have been brought to a successful 

conclusion against [him], at the latest, in 1983 or 1987. 

She did not file suit against the [parish priest] and seek 

discovery from the Diocese. Her complaint does not 

allege that she made any formal or informal inquiries of 

the Diocese regarding, among other things, what it knew 

about [the parish priest], its efforts to supervise or monitor 

him or its protocols, in general, for the placement of priests 

in its parishes. [The victim] concedes that she did nothing 

until the grand jury report was published in 2016.

Id. at 251 (footnote omitted). The Court added: “As [the Superior Court in] Meehan

[v. Archdiocese of Philadelphia, 870 A.2d 912, 920 (Pa. Super. 2005),] correctly 
27

concluded, the real claim here is ignorance ‘of a secondary cause’ of the known legal 

injury.” Id.

Likewise, in this case, Plaintiff’s 2017 Complaint is based on a 

secondary cause of the known legal injury resulting from the mirror’s defective 

condition. Although Plaintiff may have diligently filed the 2017 Complaint shortly 

after receiving Sobek’s February 17, 2017 expert report describing another theory 

regarding the mirror’s defective condition, there is no indication that Plaintiff could 

not have asserted such a claim within the relevant statute of limitations. Plaintiff’s 

failure to timely discover a secondary basis upon which the mirror could be deemed 

to have been defective is not a circumstance in which the discovery rule is applied 

to toll the relevant statute of limitations. Rice. As a result, the trial court did not err 

in determining that the discovery rule did not apply as a matter of law, or in granting 

the Motions for Judgment on the Pleadings, because the applicable statute of 

limitations had expired at the time that the 2017 Complaint was filed in this case. 

Id.

Accordingly, the trial court’s order granting the Motions for Judgment 

on the Pleadings is affirmed.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James E. Rupert, :

:

Appellant :

:

 v. : No. 90 C.D. 2020

:

Campus Crafts, Inc. and Bradco :

Supply Co., Inc. :

:

 v. :

:

Velvet Comly, William D. Comly, Jr., :

Pennsylvania Department of :

Transportation of the Commonwealth :

of Pennsylvania, Spring Township, :

West Penn Power Company, :

FirstEnergy Corp., FirstEnergy :

Solutions Corp. f/k/a FirstEnergy :

Services Corp., U.S. Municipal :

Supply, Inc. and Vision Metalizers, :

Inc. :

O R D E R

AND NOW, this 27th day of October, 2021, the order of the Centre 

County Court of Common Pleas dated September 27, 2019, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge