J-E02001-16

 2016 PA Super 300

NANCY NICOLAOU AND NICHOLAS 

NICOLAOU

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JAMES J. MARTIN, M.D., AND LOUISE A. 

DILLONSYNDER, CRNP, JEFFREY D. 

GOULD, M.D., ST. LUKE’S HOSPITAL, ST 

LUKE’S HOSPITAL AND HEALTH 

NETWORK, ST LUKE’S HOSPITAL UNION 

STATION MEDICAL SURGICAL CLINIC 

D/B/A ST. LUKE’S SOUTHSIDE MEDICAL 

CENTER, ST. LUKE’S ORTHOPAEDIC 

SURGICAL GROUP, AND NAZARETH 

FAMILY PRACTICE

Appellee No. 1286 EDA 2014

Appeal from the Order Entered February 24, 2014

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2012-C-0518

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., 

BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., 

and OTT, J.

DISSENTING OPINION BY LAZARUS, J.: FILED DECEMBER 22, 2016

I respectfully dissent. In my view, the majority has improperly 

assumed the role of the fact-finder in determining whether the Nicolaous 

were reasonably diligent in determining that Appellees had caused Mrs. 

Nicolaou injury by failing to diagnose and treat her with Lyme disease 

between 2001 and 2008.

As the majority correctly states, 
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[t]he discovery rule applies to toll the statute of limitations in 

any case in which a party is reasonably unaware of his or her 

injury at the time his or her cause of action accrued. . . . Only 

where the facts are so clear that reasonable minds could not 

differ may a court determine as a matter of law at the summary 

judgment stage, the point at which a party should have been 

reasonably aware of his or her injury and its cause and thereby 

fix the commencement date of the limitations period. 

Fine v. Checcio 870 A.2d 850, 859. The foregoing requires a determination 

of whether “the plaintiff was able, through the exercise of reasonable 

diligence, to know that he or she had been injured and by what cause. . . . 

[This] is not an absolute standard.” Gleason v. Borough of Moosic, 15 

A.3d 479, 485 (Pa. 2011).

Here, the trial court found that the negligence Mrs. Nicolaou 

complained of occurred between 2001 and 2008; the discovery rule applied 

for a period of time thereafter. The court did not make a precise ruling as to 

the length of time the discovery rule applied, but found that “a reasonable 

person would have had reason to suspect injuries might have been caused 

by medical treatment rendered by [Appellees] . . . on or about July 20, 

2009[.]” Trial Court Opinion, 2/24/14, at 12. Regardless of the specific 

date the discovery rule ceased to apply, the court determined that the filing 

of the complaint on February 10, 2012, was untimely because “the evidence 

supports the conclusion that the commencement of the statute of limitations 

period began prior to February 10, 2010[.]” Id. at 9. 

In coming to its conclusion that the statute of limitations period began 

to run prior to February 10, 2010, the trial court found that reasonable 
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minds could not differ that with reasonable diligence, the Nicolaous would 

have determined prior to that date that Mrs. Nicolaou had been injured by 

not being diagnosed and properly treated for Lyme disease. Accordingly, the 

crux of this appeal is whether the Nicolaous were not “reasonably diligent” 

as a matter of law. Gleason, supra at 486 (citing Cochran v. GAF Corp.,

666 A.2d 245, 248 (Pa. 1995)). In reviewing the court’s decision, we must 

consider the facts in the light most favorable to the Nicolaous as the nonmoving party. Fine, supra at 857.

Instantly, it is not disputed that Mrs. Nicolaou suspected she had Lyme 

disease in July 2009, when she began treatment with Nurse Practitioner Rita 

Rhoads. Nurse Rhoads acknowledged that Mrs. Nicolaou turned down a fifth 

Lyme disease test at the beginning of treatment, at least in part because she 

was not in a position to pay for the test. See Deposition of Rita Rhoads, 

11/1/13, at 29 (Mrs. Nicolaou “did not have the money for [the test] at that 

point” and she “just didn’t have the money for anything.”) In my opinion, 

hardship regarding paying for a fifth test when first suggested, along with 

four previous negative tests and Mrs. Nicolaou’s stated intention to 

determine whether the antibiotics Nurse Rhoads had prescribed would work, 

combine to create a jury question as to whether the Nicolaous were 

reasonably diligent in determining the suspected injury actually had been 

suffered. 

I emphasize that although “reasonable diligence is an objective test, 

[i]t is sufficiently flexible . . . to take into account the difference[s] between 
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persons and their capacity to meet certain situations and the circumstances 

confronting them at the time in question.” Id. at 870 (citation and 

quotation marks omitted). Accordingly, viewing the foregoing facts in the 

light most favorable to the Nicolaous, I would reverse and remand the 

matter to the trial court to permit the fact-finder to determine whether the 

statute of limitations should have remained tolled until February 13, 2010, 

the date Mrs. Nicolaou received positive Lyme disease results, thereby 

making the Nicolaous’ complaint timely.

President Judge Gantman and Judge Bowes join in this Dissenting 

Opinion.