J-A22002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRECIA & CHARLES SULLIVAN, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

DR. STEVEN HAYWOOD AND

DR. HAYWOOD AND ASSOCIATES

Appellees No. 2043 MDA 2013

Appeal from the Order Entered October 23, 2013

In the Court of Common Pleas of York County 

Civil Division at No. 2010-SU-004686-82

BEFORE: PANELLA, J., and SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED MARCH 16, 2015

Appellants, Trecia Sullivan and Charles Sullivan,1seek review of the 

orders granting summary judgment in favor of Appellees Dr. Steven 

Haywood. D.D.S., and Dr. Haywood & Associates.2 We affirm.

On November 14, 2006, Appellant consulted with Appellee, an expert 

in the field of restorative and cosmetic dentistry. Appellee conducted a full 

dental exam, including complete x-rays, noting multiple missing teeth, bone 

loss, and evidence of periodontal disease before extracting a tooth due to 

____________________________________________

* Former Justice specially assigned to Superior Court.

1 Mr. Sullivan’s claim is for a loss of consortium. Reference within this 

opinion to the singular “Appellant” is to Mrs. Sullivan, unless otherwise 

indicated. 

2 Reference within this opinion to the singular “Appellee” is to Dr. Haywood.
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infection. Appellee recommended that Appellant have work done on her 

upper and lower jaws on both sides of her mouth, and provided her with a 

computer-generated “after” picture of what she would look like if she were 

to have all of the recommended work done. Appellant instead opted for a 

limited treatment plan to repair and reconstruct her front teeth and upper 

right quadrant only. Appellee provided Appellant with a list of the procedures 

she desired, delineating the cost of each procedure and indicating the total 

cost would be $19,940.00.3 

On January 2, 2007, Appellee performed the first of several restorative 

procedures, including building up four teeth, inserting a temporary bridge, 

and placing veneers on five other teeth. On January 9, 2007, Appellee 

performed a sinus lift and associated bone graft, and inserted two dental 

implants in the upper right quadrant of Appellant’s mouth. Within a few 

days of that procedure, Appellant began experiencing problems, including 

seepage of particles and fluid from the site of the one of the implants and 

the bone graft, and loose sutures. She blamed Appellee then for having 

done “bad work.” Notes of Testimony Deposition, 9/28/12, at 389, RR 144a. 

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3 Appellants paid Appellees in installments, as follows: $10,000.00 on 

1/2/07; $6,000.00 on 1/9/07; $1,500.00 on 3/16/07; $500.00 on 6/29/07; 

and $400.00 on 10/5/07. On 10/8/08, Appellant gave Appellee a personal 

check for $1,800.00, but then stopped payment on the check. In addition to 

the fees for work done, Appellant was billed for missing at least four 

appointments. See Notes of Testimony Deposition, dated 5/2/12 at 34-38, 

RR517a-521a. 
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On January 19, 2007, Appellee re-sutured the site of the seeping implant. 

Appellant thereafter suffered toothaches in February and March 2007, and 

had difficulty eating. She returned to Appellee for routine dental follow-up 

and cleanings between March 2007 and December 2007. 

On December 17, 2007, Appellee performed crown work on Appellant’s 

front teeth and bridge work as part of the limited treatment plan. He also 

removed the dental implant that had been re-sutured on January 19 because 

it had not integrated into her bone. The next day, Appellant complained to 

her husband that the crowns and bridges were too big for her mouth, her 

new front teeth were on a slant, and her pre-existing left bridge had a 

cracked tooth and no longer fit properly. Because of her unhappiness with 

her teeth, Mrs. Sullivan refused to go out and, according to Mr. Sullivan, the 

marital relationship suffered. In early February 2008, Appellant’s bridges no 

longer fit properly and the teeth in them started falling out regularly. 

Appellant would use Polygrip and/or Super Glue to put them back in her 

mouth. She complained to Appellee about the appearance of her teeth and, 

noting that Appellant’s jaw was structurally on a slant, Appellee filed the 

teeth down as best he could to accommodate her concerns without 

compromising the strength of the teeth.

On May 19, 2008, Appellee installed a new implant next to the site of 

the previously failed implant. Appellee informed Mr. Sullivan on that day 

that Appellants had a balance due of $1,800.00. In September 2008, 

Appellant gave Appellee a check for $1,800.00, but cancelled payment soon 
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thereafter. On October 8, 2008, when Appellant returned to Appellee’s office 

to have sutures removed, Appellee refused to continue treatment until 

Appellants paid him the $1,800.00 balance due on their account. Appellants 

refused to pay and never returned to Appellee’s office. 

On September 2, 2010, Appellants filed a writ of summons alleging 

dental malpractice against Appellees. On February 1, 2011, Appellants filed 

a complaint, which they amended on May 24, 2011, alleging negligence, 

breach of contract, and loss of consortium.4 A certificate of merit was filed 

on April 4, 2011. After the denial of preliminary objections, Appellees filed an 

answer and new matter on October 5, 2011. Extensive discovery ensued.

On April 15, 2013, Appellees filed a motion for partial summary 

judgment on the negligence and loss of consortium claims. After oral 

argument, the trial court granted the motion with prejudice, finding that 

Appellants had not commenced their action within the 2-year statute of 

limitations period applicable to claims of negligence and loss of consortium. 

The court observed that, at the earliest, Appellant knew that she had been 

injured by Appellee’s actions on or about January 9, 2007. The court found 

that, at the latest, the statute of limitations started running in May 2008 

when Appellant received her replacement implant from Appellee. See Trial 

Court Opinion, dated July 18, 2013. The court also observed that Mr. 

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4 Appellants also alleged Mrs. Sullivan, a life-long smoker, had acquired cancer 

from the bone graft. That claim was subsequently withdrawn by stipulation.
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Sullivan had testified that he noticed the marriage had been harmed after 

the December 2007 procedure.

On June 18, 2013, while the above-referenced summary judgment 

motion was pending, Appellees filed a second motion for partial summary 

judgment seeking the dismissal of the breach of contract claim. The trial 

court granted the motion with prejudice, observing that Appellants had not 

produced a written agreement and discovery had not revealed sufficient 

evidence of an express agreement or any special facts or circumstances that 

would otherwise support their breach of contract claim. After the denial of 

their motion for reconsideration and new hearing, Appellants timely 

appealed to this Court. They raise the following six issues for our review, 

reordered for ease of disposition:

A. Whether the [t]rial [c]ourt erred in finding that Appellant 

Trecia Sullivan should have known that she was injured by the 

Appellees and, thereby, beginning to run the statute of 

limitations on or about May 2008, when Appellants were only 

aware malpractice existed when Appellees failed to remove 

Appellant Trecia Sullivan's sutures on or about October 2008.

B. Whether the [t]rial [c]ourt erred in finding Appellant's [sic] 

consulted with another dentist during their treatment, who then 

allegedly confirmed the malpractice of the Appellees, thereby, 

effectively notifying the Appellants of the Appellees malpractice 

due to the fact Appellant Trecia Sullivan was seen by no other 

dentist while under the care of Appellees as supported by both 

the facts and record of this case.

C. Whether the [t]rial [c]ourt erred in finding that Appellees did 

not engage in fraudulent concealment of negligence (medical 

malpractice), when Appellees failed to make a referral to another 

doctor (e.g. periodontist) as warranted by the facts and instead 

Appellees held themselves out as top of the field in dental 

implants.
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D. Whether the [t]rial [c]ourt erred in finding that Appellees did 

not promise a specific result in dental implant work for a set fee 

(as evidenced by a picture produced by Appellees and 

memorandum outlining material terms of contract),which was an 

enforceable verbal or express contract.

E. Whether the [t]rial [c]ourt erred in finding that Appellees 

could not be negligent for medical malpractice and for breach of 

contract for failing to produce promised results in cosmetic 

dentistry for fixed fee in the same lawsuit, alleging that the claim 

was instead redundant.

F. Whether the [t]rial [c]ourt erred in finding that a contract 

action could not stand because no separate, special contract 

action was developed through discovery, and therefore 

concluding that the gravamen of the action was in medical 

malpractice, thereby, precluding a contract claim.

Appellants’ Brief at vii-viii.

The standards that govern summary judgment dispositions are well 

settled. 

When a party seeks summary judgment, a court shall enter 

judgment whenever there is no genuine issue of any material 

fact as to a necessary element of the cause of action or defense 

that could be established by additional discovery. A motion for 

summary judgment is based on an evidentiary record that 

entitles the moving party to a judgment as a matter of law. In 

considering the merits of a motion for summary judgment, a 

court views the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine 

issue of material fact must be resolved against the moving party. 

Finally, the court may grant summary judgment only when the 

right to such a judgment is clear and free from doubt. An 

appellate court may reverse the granting of a motion for 

summary judgment if there has been an error of law or an abuse 

of discretion.

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566–67 (Pa. 

2005) (citations omitted). See also Pa.R.C.P. 1035.2.
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The first three issues pertain to the trial court’s grant of Appellees’ 

partial summary judgment motion based on Appellants’ failure to file their 

negligence and loss of consortium claims within the applicable statute of 

limitations period. Appellants aver that it was not until Appellee refused to 

remove Appellant’s stitches on October 8, 2008 that they became “aware of 

negligence of Appellees [sic].” Appellants’ Brief at 6. They also aver that 

even if the statute of limitations period started earlier, it was tolled as a 

result of fraudulent concealment because Appellees “held themselves out as 

top or best in their field, and Appellants were thus “prevent[ed] ... from 

becoming aware earlier of medical malpractice.” Id. 

Pursuant to 42 Pa.C.S. § 5524, the statute of limitations applicable to 

negligence and loss of consortium claims is two years from the date of the 

injury. Once the statute of limitations has run, the injured party is barred 

from suing. Pennsylvania courts have not adopted a “continuous treatment” 

rule in cases involving medical or dental malpractice, which would toll the 

statute of limitations until the end of the medical treatment period. See 

Haggart v. Cho, 703 A.2d 522, 526 (Pa. Super. 1997). Our courts have 

adopted, however, other tolling mechanisms relied upon by Appellants here, 

i.e., the discovery rule and fraudulent concealment. Neither is applicable 

here. 

The discovery rule tolls the statute of limitations in any case where a 

party neither knows nor reasonably should have known of his or her injury 
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and its cause at the time his or her right to institute suit arises. See Fine v 

Checcio, 870 A.2d 850, 858 (Pa. 2005). 

When a court is presented with the assertion of the discovery 

rules application, it must address the ability of the damaged 

party, exercising reasonable diligence, to ascertain that he has 

been injured and by what cause. Since this question involves a 

factual determination as to whether a party was able, in the 

exercise of reasonable diligence, to know of his injury and its 

cause, ordinarily, a jury is to decide it. Where, however, 

reasonable minds would not differ in finding that a party knew or 

should have known on the exercise of reasonable diligence of his 

injury and its cause, the court determines that the discovery rule 

does not apply as a matter of law.

Id. at 858-59 (internal quotations marks and citations omitted) (emphasis 

added).

Here, the trial court observed that there are three distinct dates when 

Appellant knew she had been harmed, all of which were well-before the 

October 2008 date claimed by Appellants. “At the very earliest,” the court 

noted, Appellant knew on or about January 9, 2007, that she had been 

injured by Appellee's actions after the site of the implant, the sinus lift, and 

the associated bone grafts seeped particles and blood through loose stitches. 

Trial Court Opinion, dated 7/18/13, at 7. The second date noted by the court 

was December 17, 2007, when Appellant believed immediately after the 

procedure on her front teeth that she had been harmed because her teeth 

appeared to be slanted. The court noted that it was also after the December 

17, 2007 procedure that Appellant’s husband believed that the marital 

relationship suffered as a result of Appellee’s actions. See Notes of 
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Testimony Deposition, 9/28/12, at 126, RR.158a. The third date noted by 

the court was May 19, 2008, the day Appellant received the new implant to

compensate for the failed implant that Appellee had originally inserted in 

January 2007. The court noted that after each of those procedures, 

Appellants blamed Appellee for having done poor quality work. 

Our extensive review of the record supports the trial court’s conclusion 

that the statute of limitations for Appellants’ negligence and loss of 

consortium claims began to run on January 9, 2007, at the earliest, and May 

19, 2008, at the latest. These are both dates on which “reasonable minds 

would not differ in finding that” Appellants knew of their injuries and the 

cause of those injuries. See Fine, supra at 859. Accordingly, the discovery 

rule is not applicable as a matter of law. Pursuant to 42 Pa.C.S. § 5524, 

Appellants should have commenced their action no later than May 19, 2010, 

over three months prior to their September 2, 2010 filing date. 

Appellants also aver that the statute of limitations had been tolled until 

October 2008 under principles of fraudulent concealment because Appellees 

had improperly held themselves out to the public as experts in their field and 

had failed to make a referral to another doctor who could perform dental 

implants or conduct periodontal work. See Appellants’ Brief at 8-9.5 

____________________________________________

5 Appellants do not assert that they asked for a referral and that Appellee 

refused to give them one.
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The doctrine of fraudulent concealment serves to toll the running of 

the statute of limitations based on a theory of estoppel. It provides that:

the defendant may not invoke the statute of limitations if 

through fraud or concealment, [the defendant] causes the 

plaintiff to relax his [or her] vigilance or deviate from his [or her] 

right of inquiry into the facts. The doctrine does not require 

fraud in the strictest sense encompassing an intent to deceive, 

but rather, fraud in the broadest sense, which includes an 

unintentional deception. The plaintiff has the burden of proving 

fraudulent concealment by clear, precise, and convincing 

evidence. 

Fine, supra, at 860.

“[T]he defendant must have committed some affirmative independent 

act of concealment upon which the plaintiffs justifiably relied. Mere mistake 

or misunderstanding is insufficient. Also, mere silence in the absence of a 

duty to speak cannot suffice to prove fraudulent concealment.” McClean v. 

Djerassi, 84 A.3d 1067, 1070 (Pa. Super. 2013) (citation omitted) 

(emphasis added).

Appellants essentially argue that because Appellee marketed himself 

as top in the field of restorative dentistry and did not refer Appellant to any 

other specialists, Appellants were limited in their ability to seek second 

opinions or otherwise ask for outside advice when they became unhappy 

with Appellee’s work. Based on our review of the record, we agree with the 

trial court that Appellants provided no evidence to support a finding that 

Appellee through fraud or concealment caused them “to relax [their] 

vigilance or deviate from [their] right of inquiry into the facts.” Fine,

supra, at 860. Because there is no evidence of fraudulent concealment and 
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the discovery rule is not applicable as a matter of law, we conclude that the 

trial court did not abuse its discretion or err in granting Appellees’ motion for 

partial summary judgment on Appellants’ negligence and loss of consortium 

claims.

The last three issues set forth above challenge the trial court’s grant of 

Appellees’ motion for partial summary judgment on the breach of contract 

claim. Appellants aver that the parties entered into a verbal contract and 

Appellee breached that contract by not providing the result promised in the 

“after” photograph. See Appellants’ Brief at 10-11 (citing Gallagher v. 

Upper Darby Township, 539 A.2d 463 (Pa. Cmwlth. 1988)).6

Appellants original complaint contained no breach of contract claim. In 

their amended complaint, Appellants included the following breach of 

contract claim, set forth in its entirety:

¶ 41. Defendants entered into an express contract with Plaintiffs 

when they authorized Defendants to perform tooth implants and 

cosmetic surgery. An implied term of that contract was that 

Defendants and its agents would act with due care and would 

meet the standard of care expected in the medical profession 

and would meet the standard of care expected of an ordinary 

____________________________________________

6

In Gallagher, the Commonwealth Court observed that even where there is 

an unambiguous written contract, parol evidence can admitted to show that 

“an obligation was within the contemplation of the parties when making the 

contract or is necessary to carry out their intention,” and “the law will imply 

that obligation and enforce it even though it is not specifically and expressly 

set forth in the written contract.” Id. at 467. Gallagher provides no 

support for Appellants’ breach of contract claim under the facts presented.
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and reasonable person under the circumstances with respect to 

all aspects of the procedure.

¶42. Defendants and Defendants’ actual agents, ostensible 

agents, joint agents, servants and/or employees have breached 

that contract by failing to provide good and competent care for 

Decedent [sic], failing to follow negotiated fee schedule [sic], 

and failing to provide adequate training to its agents and 

employees, all as expected in the medical profession as well as 

in a non-medical situation.

¶43. Further, Defendants and Defendants’ actual agents, 

ostensible agents, joint agents, servants and/or employees have 

breached that contract by failing to abide by the terms of the 

original agreement whereby Defendants agreed that all Plaintiff’s 

dental described herein [sic] would be included in Plaintiff’s 

$19,940.00 cash payment.

WHEREFORE, Plaintiffs claim of the Defendants, a sum in excess 

of One Hundred Thousand ($100,000) Dollars and such other 

relief as this Honorable Court would deem appropriate.

Amended Complaint, dated 5/18/11, at 8-9.7

The trial court here opined, “no express contract has been produced” 

and observed that Appellants had admitted “that no written contract 

specifying the alleged terms of the agreement exists.” Trial Court Opinion, 

dated 10/23/2013, at 7. The trial court noted that “an implied contract is 

____________________________________________

7 Exhibit “A” annexed to the amended complaint is a copy of a typewritten 

list of procedures done in the limited treatment plan chosen by Appellant, 

indicating a total cost of $19,940.00. The list is not signed or dated by 

either party and indicates no particular schedule for payment, except with 

notations by some of the entries indicating that the work had been done. 

Exhibit “B” is a compilation of the before and “after” photos purportedly 

showing what Appellant could look like if she had had all of the 

recommended work done.
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one imposed by force of law by virtue of the fact that the parties engage in 

activities which create mutual obligations,” before noting that “the basis of 

[Appellants’] breach of contract claim is that [Appellees] would act with due 

care and would meet the standard of care in performing tooth implants and 

cosmetic surgery, and that [Appellees] failed to competently do so.” Id. 

Accordingly, the trial court concluded, “the gravamen of the action is in 

medical malpractice, as there were no special facts or circumstances 

developed through discovery supporting a breach of contract claim separate 

from a negligence claim.” Id. at 8.

Our Supreme Court has recently observed:

A negligence claim based on the actions of a contracting party in 

performing contractual obligations is not viewed as an action on 

the underlying contract itself, since it is not founded on the 

breach of any of the specific executory promises which comprise 

the contract. Instead the contract is regarded merely as the 

vehicle, or mechanism, which established the relationship 

between the parties, during which the tort of negligence was 

committed. 

Bruno v. Erie Insurance, ___ A.3d ___, ___, 2014 WL 7089987 at *19 

(Pa. filed December 14, 2014) (citation omitted).

In the instant case, the amended complaint refers to duties that are 

“imposed by law as a matter of social policy, rather than one imposed by 

mutual consensus; thus [the] action [lies] in tort.” Id. at ___, 2014 WL at 

*18 (citation omitted). Neither the photograph representing what might 

have been had Appellant had all of the work recommended done, nor the list 

of procedures in the limited treatment plan that Appellant actually 
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requested, present “specific executory promises which comprise the 

contract” so as to sustain a breach of contract action. Id. at 19. Accordingly, 

the trial court did not abuse its discretion or err as a matter of law in 

granting Appellee’s motion for summary judgment on the breach of contract 

claim.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2015