J-A12021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER G. YANAKOS, SUSAN 

KAY YANAKOS AND WILLIAM 

RONALD YANAKOS, HER HUSBAND 

Appellants

v.

UPMC, UNIVERSITY OF PITTSBURGH 

PHYSICIANS, AMADEO MARCOS, 

M.D. AND THOMAS SHAW-STIFFEL, 

M.D.

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1331 WDA 2016

Appeal from the Order August 29, 2016

In the Court of Common Pleas of Allegheny County 

Civil Division at No(s): GD-15-022333

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED JULY 26, 2017

Christopher G. Yanakos, Susan Kay Yanakos, and William Ronald 

Yanaoks (collectively “Appellants”) appeal from the August 29, 20161order 

entered in favor of Appellees, UPMC, University of Pittsburgh Physicians, 

Amadeo Marcos, M.D., and Thomas Shaw-Stiffel, M.D. (collectively 

____________________________________________

1 There appears to be an error on the lower court docket, which suggests 

that the order granting judgement on the pleadings was filed on July 15, 

2016. The order was dated August 29, 2016. Although no Pa.R.C.P. 236 

notice was entered on the docket, the September 7, 2016 notice of appeal 

may be considered timely. See Pa.R.A.P. 903(a) (providing that notice of 

appeal shall be filed within 30 days after entry on the docket of the order 

from which appeal is taken); Pa.R.A.P. 108(b) (providing that date of entry 

of the order shall be the day on which the clerk makes the notation on the 

docket that notice of the entry of the order has been given).
J-A12021-17

- 2 -

“Appellees”), following a grant of judgment on the pleadings. After careful 

review of the parties’ briefs and the record below, we are constrained to 

affirm.

We adopt the following statement of relevant facts and procedure 

garnered from the trial court’s opinion, which in turn is supported by the 

record. 

This matter concerns medical treatment that was 

performed in September [] 2003. At said time, [Appellant] 

Christopher Yanakos [(“Christopher”)] volunteered to donate a 

lobe of his liver to his mother, [Appellant] Susan Yanakos 

[(“Susan”)], as she was experiencing problems with her liver 

[due to Alpha-1 Antitrypsin Deficiency (“AATD”)][2]and in need 

of a donation. [Prior to the surgery, Appellant Christopher 

advised Appellee Thomas Shaw-Stiffel, M.D. (“Appellee ShawStiffel”) that other members of his family had AATD, although 

Christopher was unsure whether he too had the disorder. In a 

letter of August 2003, Appellee Shaw-Stiffel wrote to Appellee 

Amadeo Marcos, M.D., documenting the family history of the 

disorder and advising to await additional laboratory test results 

before moving forward.] [] [Appellant] Christopher underwent 

various evaluations to determine whether his liver would be a 

suitable replacement. 

[] [Appellants] allege that [days after Appellee ShawStiffel’s letter in August 2003,] [Appellant]-son Christopher 

tested positive for AATD [], establishing that his liver was not 

functioning properly. [] [Appellants] further allege that the 

existence of AATD disqualified Christopher as a potential donor 

and that the liver donation should have never proceeded with 

Christopher as the donor.

____________________________________________

2 Alpha-1 Antitrypsin Deficiency (“AATD”) is a genetic disorder, which occurs 

when the liver fails to produce sufficient Alpha-1 Antitrypsin, a protein that 

protects the lungs from an enzyme which, left unchecked, can attack healthy 

lung tissue. Complaint, 12/17/15 at 2-3. This can cause emphysema. Id. 

AATD can also cause cirrhosis or liver failure. Id.
J-A12021-17

- 3 -

[Appellants] assert that it was not until June [] 2014 when 

[Susan again experienced problems with her liver that] they first 

discovered that [Appellant]-son Christopher had tested positive 

for AATD in the pre-surgery testing in August [] 2003. 

[Appellants] further assert that [] [Appellees] maintained this 

information in the [Appellant]-son’s file since the testing of 

August [] 2003. [] [Appellants’] complaint points to the 

aforesaid finding with Christopher’s test results to charge [] 

[Appellees] with allegations of negligence and lack of informed 

consent.

[] [Appellees] vigorously deny the allegations advanced by 

[] [Appellants]; denying that [Appellant]-son was not a suitable 

donor. Additionally, [] [Appellees] raise the affirmative defense 

of the statute of limitations, asserting that any perceived 

negligence occurred during 2003, well over the two[-]year 

statute of limitations available to [] [Appellants] for their claim 

of negligence.

[] [Appellees] recognize the statute of repose and [] 

[Appellant’s] claim to an extended period of seven [] years to file 

suit, but find the effective date applicable in the case sub judice

as March 20, 2002. [] [Appellees] maintain that [] [Appellants] 

failed to meet their seven[-]year filing period by more than six [] 

years. [] [Appellants] filed suit on December 17, 2015, well past 

an extended date under the statute of repose of March 20, 2009, 

and even more than seven [] years past the date [Appellants] 

claim of August 2003.

[In December 2015, Appellants filed a complaint against 

Appellees for damages arising out of the incident described 

above. In the complaint, Appellants Christopher and Susan both 

alleged that their injuries, including decreased pulmonary 

functionality, were a result of Appellees’ medical malpractice and 

lack of informed consent. Also in the complaint, Susan’s 

husband, William Ronald Yanakos, alleged that the Appellees’ 

negligence resulted in a lack of consortium.] [] [Appellants] filed 

their certificates of merit as to the individual doctors and UPMC 

[in December 2015]. [] UPMC filed an answer and new matters 

[in March 2016], for each individual [Appellee, and Appellants 

filed a reply to new matter in May 2016].
J-A12021-17

- 4 -

[In July 2016], the [Appellees] filed a motion for judgment 

on the pleadings and brief in support. [Appellants filed a 

memorandum of law in opposition to Appellees’ motion on the 

pleadings and therein argued that (1) the foreign object 

exception to the MCARE Act statute of repose creates an 

unconstitutional classification of plaintiffs in violation of the equal 

protection and due process clauses of the Pennsylvania and 

United States Constitutions, (2) the statute of repose 

unconstitutionally violates Pennsylvania’s open courts guarantee, 

and (3) Appellees owed Appellants a continuing duty of care.] 

Following review of the parties’ briefs and [] argument [in 

August 2016], [the trial court] granted [] [Appellees’] motion for 

judgment on the pleadings.

Trial Court Opinion, 11/3/2016, at 1-3 (unnecessary capitalization omitted).

Appellants timely filed the instant appeal and filed a court-ordered 

Pa.R.A.P. 1925(b) statement. The court issued a responsive opinion.

Appellants present the following issues for our review:

1. The MCARE statute of repose violates equal protection 

because it makes arbitrary and capricious distinctions between 

similarly situated plaintiffs based only on the nature of the 

defendant physician’s negligence.

2. The arbitrary nature of the foreign object exception 

deprives potential plaintiffs of their right to seek redress for their 

injuries in violation of the due process protections of the United 

States and Pennsylvania Constitutions.

3. The statute of repose violates the open courts provision of 

the Pennsylvania Constitution.

4. The Appellees had a continuing duty to inform Appellants of 

the test results. As such, the repose period did not begin until 

Appellants discovered the results.

Appellant’s Brief at 4-5 (unnecessary capitalization omitted). 

This Court’s standard of review when considering the grant of a motion 

for judgment on the pleadings is as follows:
J-A12021-17

- 5 -

Entry of judgment on the pleadings is permitted under 

[Pennsylvania Rule of Civil Procedure 1034] which provides for 

such judgment after the pleadings are closed, but within such 

time as not to delay trial. A motion for judgment on the 

pleadings is similar to a demurrer. It may be entered where 

there are no disputed issues of fact and the moving party is 

entitled to judgment as a matter of law. In determining if there 

is a dispute as to facts, the court must confine its consideration 

to the pleadings and relevant documents. The scope of review 

on an appeal from the grant of judgment on the pleadings is 

plenary. We must determine if the action of the court below was 

based on a clear error of law or whether there were facts 

disclosed by the pleadings which should properly go to the jury.

Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 2002) (citing Kelaco v. 

Davis & McKean, 743 A.2d 525, 528 (Pa. Super. 1999)). “The grant of a 

motion for judgment on the pleadings will be affirmed by an appellate court 

only when the moving party's right to succeed is certain and the case is so 

free from doubt that a trial would clearly be a fruitless exercise.” Swift v.

Milner, 538 A.2d 28, 31 (Pa. Super. 1988) (citation omitted).

Appellants’ first three issues challenge the statute of repose included 

in the Medical Care Availability and Reduction of Error Act (“the MCARE 

Act”), effective March 20, 2002, which states, in relevant part:

§ 1303.513. Statute of repose

(a) General rule.--Except as provided in subsection (b) or (c), no 

cause of action asserting a medical professional liability claim 

may be commenced after seven years from the date of the 

alleged tort or breach of contract.

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

caused by a foreign object unintentionally left in the individual's 

body, the limitation in subsection (a) shall not apply.

40 P.S. § 1303.513.
J-A12021-17

- 6 -

Our Supreme Court has explained the significance of statutes of 

repose as follows:

A statute of repose ... limits the time within which an action may 

be brought and is not related to the accrual of any cause of 

action; the injury need not have occurred, much less have been 

discovered. Unlike an ordinary statute of limitations which 

begins running upon accrual of the claim, the period contained in 

a statute of repose begins when a specific event occurs, 

regardless of whether a cause of action has accrued or whether 

any injury has resulted.

Abrams v. Pneumo Abex Corp., 981 A.2d 198, 211 (Pa. 2009) (citing City 

of McKeesport v. Workers' Compensation Appeal Board (Miletti), 746 

A.2d 87, 91 (Pa. 2000) (citations and emphasis omitted)).

Subsection 1303.513(a) of the MCARE Act statute of repose sets forth 

a maximum allowable period of time (seven years) to file medical 

professional liability claims, and this time period commences on the date of 

the act of alleged negligence. Matharu v. Muir, 86 A.3d 250, 263 (Pa. 

Super. 2014). Subsection 1303.513(b) of the statute permits the filing of 

medical malpractice claims beyond seven years after the date of the alleged 

negligence in the case of a foreign object left in a patient’s body. Id. at 

265. If the MCARE Act statute of repose is applicable and a claimant does 

not meet this exception, all claims pursuant to the alleged negligent action 
J-A12021-17

- 7 -

are time-barred pursuant to 1303.513(a). Bulebosh v. Flannery, 91 A.3d 

1241, 1243 (Pa. Super. 2014).3

In the instant case, the MCARE statute of repose is applicable as the 

alleged negligent action, the surgery, occurred in September 2003. 

Complaint, 12/17/15, at 5. Appellants filed their complaint in December 

2015, over twelve years after the surgery. Accordingly, Appellants’ claims 

are time-barred. Nevertheless, Appellants present a series of arguments 

challenging the constitutionality of this exception.4 

As an initial matter, we note that legislative enactments, such as the 

MCARE Act statute of repose, enjoy a strong presumption of 

constitutionality. Edmonds by James v. W. Pennsylvania Hosp. 

Radiology Assocs. of W. Pennsylvania P.C., 607 A.2d 1083, 1087 (Pa. 

Super. 1992). A “party raising a constitutional challenge has a heavy 

burden of rebutting the presumption of constitutionality and demonstrating

that the statute clearly, plainly, and palpably violates constitutional 

precepts.” Dranzo v. Winterhalter, 577 A.2d 1349 (Pa. Super. 1990). 

____________________________________________

3 Subsection 1303.513(c) of the MCARE Act statute of repose also permits 

the filing of medical malpractice claims beyond seven years after the date of 

the alleged negligence in the case of minor patients. 40 P.S. § 1303.513(c).

4 Appellants asserted before the trial court that the MCARE statute of repose 

was inapplicable but have abandoned that argument on appeal. See

Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Judgment on 

the Pleadings, 8/22/12016, at 2-13.
J-A12021-17

- 8 -

Appellants’ assert in their first claim that the MCARE Act statute of 

repose violates the equal protection guarantees of the United States and 

Pennsylvania Constitutions, as the foreign object exception, which permits 

certain plaintiffs to seek remedy in the courts beyond the normal repose 

period, creates a classification that is under-inclusive and prevents similarly 

situated plaintiffs from seeking relief. Appellants’ Brief at 17-33. Appellants 

do not suggest that any of the liver tissue in the underlying surgeries of 

Appellant Susan or Appellant Christopher is akin to foreign objects. Rather, 

Appellants’ argue that the exception exists to protect plaintiffs who typically 

cannot learn of a negligent act in seven years of diligence. Similarly, 

according to Appellants, plaintiffs whose test results are undisclosed cannot 

discern negligence within the statute’s outlined timeframe. Id. at 21, 25. 

The Fourteenth Amendment to the United States Constitution provides 

that no state shall "deny to any person within its jurisdiction the equal 

protection of the laws." U.S. Const. amend XIV, § 1. “The equal protection 

provisions of the Pennsylvania Constitution[5]are analyzed [] under the 

____________________________________________

5 Article 1, § of the Pennsylvania Constitution provides: “All men are born 

equally free and independent, and have certain inherent and indefeasible 

rights, among which are those of enjoying and defending life and liberty, of 

acquiring, possessing and protecting property and reputation, and of 

pursuing their own happiness.

Article 1, § 26 provides: “Neither the Commonwealth nor any political 

subdivision thereof shall deny to any person the enjoyment of any civil right, 

nor discriminate against any person in the exercise of any civil right.”
J-A12021-17

- 9 -

same standards used by the United States Supreme Court when reviewing 

equal protection claims under the Fourteenth Amendment to the United 

States Constitution.” Love v. Borough of Stroudsburg, 597 A.2d 1137, 

1139 (Pa. 1991) (citing James v. Southeastern Pennsylvania 

Transportation Authority, 477 A.2d 1302 (Pa. 1984)).

We begin an equal protection analysis by determining the type of 

interest at issue.

Under a typical fourteenth amendment analysis of governmental 

classifications, there are three different types of classifications 

calling for three different standards of judicial review. The first 

type - classifications implicating neither suspect classes nor 

fundamental rights - will be sustained if it meets a “rational 

basis” test. In the second type of cases, where a suspect 

classification has been made or a fundamental right has been 

burdened, another standard of review is applied: that of strict 

scrutiny. Finally, in the third type of cases, if “important,” 

though not fundamental rights are affected by the classification, 

or if “sensitive” classifications have been made, the United 

States Supreme Court has employed what may be called an 

intermediate standard of review, or a heightened standard of 

review.

Southeastern Pennsylvania Transportation Authority, 477 A.2d at 

1305-1306 (citations omitted) (some formatting modified).

The MCARE Act statute of repose restricts access to courts. As such, 

Appellants argue that strict scrutiny should be applied because access to 

courts is a fundamental right. Appellant’s Brief at 20. However, “an 

unconditional right of access exists for civil cases only when denial of a 

judicial forum would implicate a fundamental human interest—such as the 

termination of parental rights or the ability to obtain a divorce.” Abdul-
J-A12021-17

- 10 -

Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001) (citing M.L.B. v. 

S.L.J., 117 S.Ct. 555 (1996); Boddie v. Connecticut, 91 S.Ct. 780 

(1971)). “[E]ntitlement to monetary damages for negligence ... has never 

been held to be a fundamental right under the United States Constitution.” 

Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 52 (3d Cir. 1985). 

Here, potential victims of medical malpractice such as Appellants who are in 

a delayed discovery situation do not represent a suspect class and no 

fundamental human interests are at stake.6 

Accordingly, the trial court correctly concluded that the appropriate 

standard to be applied is the “rational basis” test. A two-step analysis is 

required when applying the rational basis test: 

First, we must determine whether the challenged statute seeks 

to promote any legitimate state interest or public value. If so, 

we must next determine whether the classification adopted in 

the legislation is reasonably related to accomplishing that 

articulated state interest or interests. 

Commonwealth v. Albert, 758 A.2d 1149, 1152 (Pa. 2000). 

Classifications will be upheld as constitutional if directed towards a legitimate 

governmental interest, “in a manner which is not arbitrary or unreasonable.” 

____________________________________________

6 Appellants provide no legal support for their alternate contention that 

intermediate scrutiny is more appropriate here than a rational basis analysis. 

Appellants’ Brief a 21. We note that intermediate scrutiny has generally 

been applied to discriminatory classifications based on sex or illegitimacy, 

and therefore is inappropriate. See Commonwealth v. Scarborough, 89 

A.3d 679, 686 (Pa. Super. 2014) (citing Clark v. Jeter, 108 S.Ct. 1910 

(1988)).
J-A12021-17

- 11 -

Fischer v. Dep’t of Public Welfare, 502 A.2d 114, 123 (Pa. 1985). “A 

classification, though discriminatory, is not arbitrary or in violation of the 

equal protection clause if any state of facts reasonably can be conceived to 

sustain that classification. Commonwealth v. Albert, 758 A.2d 1149, 

1151–52 (Pa. 2000) (citing Federal Communications Commission v. 

Beach Communications, Inc., 113 S.Ct. 2096, (1993)).

The Legislature explained that its purpose in enacting the MCARE Act 

was “to ensure that medical care is available in this Commonwealth through 

a ... high-quality health care system,” and to maintain the system through 

ensuring that “medical professional liability insurance” was “obtainable at an 

affordable and reasonable cost[.]” 40 P.S. § 1303.102(1)-(3). The 

declaration of policy also noted the importance of prompt determinations 

and fair compensation for individuals injured or killed as a result of medical 

malpractice and the need “to reduce and eliminate medical errors” and 

“implement solutions to promote patient safety.” Id. at (4)-(5). 

The government has a legitimate interest in prompt determinations of 

medical negligence and fair compensation to its victims. In the instance 

where a foreign object is left in a patient, it is conceivable that commencing 

an action may take more time than the seven years generally allotted. The 

foreign object exception recognizes and clearly defines a group of patients 
J-A12021-17

- 12 -

where negligence is implied res ipsa loquitur7, and the passage of time does 

little to diminish the evidence underlying the claim. Although Appellants 

align themselves with patients in the foreign object classification, the same 

observation of the durability of evidence cannot be made in other delayed 

discovery cases. Specifically, in foreign object cases, the evidence of the 

negligence is nestled within the victim until eventual discovery, whereas, in 

other varieties of delayed discovery cases, the passage of time can erode 

the credibility of eye-witness testimony, causal relationships, and the 

availability of documentation. 

The ability to sue in delayed discovery of potential negligence cases 

outside of the foreign object classification would expose health care 

providers to further liability, undermining the equally legitimate government 

interest of keeping medical professional liability insurance affordable for the 

benefit of citizens of this Commonwealth, and would do so in a manner that 

would likely involve stale evidence: 

Statutes of limitations, which are found and approved in all 

systems of enlightened jurisprudence, represent a pervasive 

legislative judgment that it is unjust to fail to put the adversary 

____________________________________________

7 See Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1232 (Pa. 

Super. 2014) (noting Pennsylvania “courts long have cited the proverbial 

‘sponge left behind’ case as a prototypical application of res ipsa loquitur” 

(citing Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1138, n.1 

(Pa. 1981) (“[T]here are other kinds of medical malpractice, as where a 

sponge is left in the plaintiff's abdomen after an operation, where no expert 

is needed to tell the jury that such events do not usually occur in the 

absence of negligence.”).
J-A12021-17

- 13 -

on notice to defend within a specified period of time and that the 

right to be free of stale claims in time comes to prevail over the 

right to prosecute them. These enactments are statutes of 

repose; and although affording plaintiffs what the legislature 

deems a reasonable time to present their claims, they protect 

defendants and the courts from having to deal with cases in 

which the search for truth may be seriously impaired by the loss 

of evidence, whether by death or disappearance of witnesses, 

fading memories, disappearance of documents, or otherwise.

U. S. v. Kubrick, 100 S.Ct. 352, 356-57 (1979) (internal citations omitted). 

Appellants further assert that the foreign object exception in the 

MCARE Act statute of repose is arbitrary and capricious; we disagree. While 

this exception may not represent the only scenario in which a potential 

medical malpractice victim would experience a delay in the discovery of 

negligence, our General Assembly provides a mechanism for fair 

compensation to patients who almost presumptively experienced negligence. 

Thus, the exception afforded the foreign object class is reasonably related to 

the legitimate purpose of ensuring that injuries resulting from medical 

negligence are determined promptly and that injured individuals are 

compensated fairly. To the extent Appellants argue other exceptions to the 

MCARE Act statute of repose should be recognized, that is not for our Court 

to decide. Accordingly, we discern no error in the trial court’s conclusion 

that the MCARE Act statute of repose does not violate the equal protection 

clause.
J-A12021-17

- 14 -

Appellants assert in their second claim that the MCARE Act statute of 

repose violates the due process protections of the United States and 

Pennsylvania Constitutions.8 Appellant’s Brief at 34-40. No relief is due. 

The guarantees associated with the due process clause of the federal 

constitution are analyzed the same as and are coextensive with those under 

the Pennsylvania Constitution. Pennsylvania Game Commission v. 

Marich, 666 A.2d 253 (Pa. 1995). Where laws restrict rights protected under 

Article 1, § 1, which are not fundamental, Pennsylvania courts apply a rational 

basis test. Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa. 2003). To pass 

a rational basis test, the law at issue “must not be unreasonable, unduly 

oppressive or patently beyond the necessities of the case, and the means which 

it employs must have a real and substantial relation to the objects sought to be 

attained.” Gambone v. Commonwealth, 101 A.2d 634, 636-37 (Pa. 1954). 

Additionally, a statute of repose does not violate due process if the limitation 

period is otherwise reasonable. Ciccarelli v. Carey Canadian Mines, Ltd., 

757 F.2d 548, 555 (3d Cir. 1985).

As noted previously, the right of access to courts is not fundamental. 

Kranson, 755 F.2d at 52. Further, Appellants’ due process claim must fail 

because here the period is reasonable. The seven-year limitations period 

____________________________________________

8 The due process clause of the Fourteenth Amendment of the United States 

Constitution prohibits a state from depriving an individual of “life, liberty or 

property without due process of law.” U.S. Const. amend XIV, § 1.
J-A12021-17

- 15 -

balances the Legislature’s initiative to provide affordable, high-quality 

healthcare with providing fair compensation to victims of negligence. The 

MCARE statute of repose limits the exposure of medical providers; however, in 

creating specific exceptions for negligence foreseeably difficult to discover, the 

General Assembly promotes fair compensation for negligence victims. 

Accordingly, Appellants’ due process rights were not offended.

Appellants also contend that the MCARE Act statute of repose violates 

Article I, § 11 of the Pennsylvania Constitution, which guarantees “open 

courts” and provides that individuals “shall have remedy by due course of 

law, and right and justice administered without sale, denial or delay” for 

injuries suffered. Appellants’ Brief at 40-45; see Pa. Const. art. I, § 11. 

Our Supreme Court has previously rejected an open courts argument in the 

context of statutes of repose, as Section 11 does not prohibit the Legislature 

from abolishing a common law right of action without enacting a substitute 

means of redress. Freezer Storage, Inc. v. Armstrong Cork Co., 382 

A.2d 715, 720 (Pa. 1978); see also Columbia Gas of Pennsylvania, Inc. 

v. Carl E. Baker, Inc., 667 A.2d 404, 410 (Pa. Super. 1995). As such, the 

trial court properly concluded that the MCARE Act statute of repose was 

constitutional.

Lastly, Appellants’ entreat this Court to hold that a physician has a 

continuing duty to inform a patient of test results and that the MCARE Act 

repose period should begin only upon discovery of the results. Appellant’s 
J-A12021-17

- 16 -

Brief at 45. We decline to do so. Appellants concede that there is no 

precedent in this Commonwealth for the proposed finding but argue that 

health care providers undertaking a course of treatment should be obligated 

to complete it at the risk of incentivizing failures to disclose. Id. at 45-51. 

The cases cited by Appellants in support of this proposition are inapposite, 

as they are predicated on a theory of “continuous treatment.” Even if 

applicable, this doctrine, unrecognized in Pennsylvania, would be unavailable 

to Appellants as they did not assert a continuing relationship with Appellees. 

See, e.g., McCullogh v. World Wrestling Entertainment, Inc., 172 

F.Supp. 3.d 528, 551 (D. Conn. 2016); Harlfinger v. Martin, 754 N.E.2d 

63, 75 (Mass. Supp. Ct. 2001). No relief is due.

Accordingly, Appellants’ arguments failed to circumvent the applicable 

MCARE Act statute of repose, where it was undisputed that the alleged 

negligence occurred in September 2003, twelve years prior to Appellants’ 

complaint in December 2015. We discern no error in the trial court’s 

decision to enter judgment on the pleadings to Appellees, as a trial would 

clearly be a fruitless exercise. Milner, 538 A.2d at 31; Olczak, 797 A.2d at 

345.

Order affirmed.
J-A12021-17

- 17 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2017