It appears the Pennsylvania Superior Court's New Year's resolution is to provide more guidance on what it takes to toll the statute of limitations under various circumstances.

In four eclectic cases over the past week, the intermediate appellate court examined the discovery rule in a variety of contexts—from environmental remediation contract disputes and legal malpractice claims to motor vehicle torts and firearms possession bans—only siding with the plaintiff/petitioner in one case.

Gun Ownership

In In re Robert Romano, from Jan. 10, a three-judge panel of the court unanimously ruled to uphold a Philadelphia trial court's decision denying a man's petition to expunge his involuntary commitment record under the Mental Health Procedures Act so that he could own a firearm.

Petitioner Robert Romano petitioned for expungement more than six years after his most recent involuntary commitment, at which point the catchall statute of limitations for civil actions has expired. But Romano argued that he had been unaware for years that his involuntary commitment record prohibited him from owning a firearm and that the statute of limitations should not have started to run until he discovered that basis for challenging the allegedly wrongful commitments.

But the trial and appellate courts both said the statute of limitations began to run as soon as Romano was committed.

"The trial court held that 'the knowledge of the commitment itself, not the knowledge of disability from firearm possession, triggers the statute of limitations.' We agree with the court's assessment," President Judge Jack Panella wrote in the panel's memorandum opinion, adding, "The 'injury' at issue here is appellant's involuntary commitment. One consequence of this injury was the loss of appellant's right to possess a firearm. After having been involuntarily committed, appellant was obligated to discover any 'reasonably knowable' conditions associated with that commitment."

Panella was joined by Judges Judith Ference Olson and Carolyn Nichols.

Romano is pro se in the case and contact information was not immediately available.

John Herman of the Office Chief Counsel for the Pennsylvania State Police also could not be reached.

Motor Vehicle Torts

In Moyer v. Conroy, from Jan. 13, a different three-judge panel tackled the issue of when the statute of limitations for filing a motor vehicle tort action can be tolled because of claims that the plaintiff's injuries worsened over time.

The panel unanimously ruled that the statute of limitations is not tolled where the plaintiff does not affirmatively plead that their injuries had worsened.

Edwin Moyer, in his capacity as the executor of his mother's estate, sued Matthew Conroy, the driver who allegedly injured Moyer's mother in a motor vehicle accident in 2015. The lawsuit was filed after the two-year statute of limitations had expired, but Moyer argued that the statute of limitations was tolled because his mother's injuries had gotten worse over time.

But the appellate court said that while Moyer made that argument on appeal, he failed to affirmatively plead as much in his complaint, thus distinguishing his case from prior Superior Court rulings in Walls v. Scheckler and Varner-Mort v. Kapfhammer.

"Unlike the plaintiffs in Walls and Varner-Mort, Moyer does not affirmatively plead that the decedent's injuries worsened," Judge John Musmanno wrote for the panel in a memorandum opinion. "Instead, Moyer pled that decedent sustained serious physical injuries to 11 different body parts, suffered a shock to the nerves and nervous system, the injuries might be of a permanent nature, and might restrict decedent's ability to attend to her daily activities in the future. Despite Moyer's argument on appeal that the discovery process is necessary to uncover if and when decedent's injuries worsened, we conclude that neither Walls nor Varner-Mort require or provide for the tolling of the discovery rule when a plaintiff does not affirmatively plead that their injuries had worsened."

The court said Moyer "had ample opportunity to discover if, and when, decedent suffered a serious bodily injury, as well as the extent of those injuries, prior to the statute of limitations expiring."

Counsel for Conroy, Joseph Pulcini Jr. of Thomas, Thomas & Hafer in Allentown, could not be reached for comment. Counsel for Moyer, Jeffrey Rosenbaum of Rosenbaum & Associates in Philadelphia, also couldn't be reached.

Contract Disputes

In Austin James Associates v. Musser, a panel consisting of Nichols, Judge Victor Stabile and Senior Judge James Gardner Colins unanimously affirmed a Lancaster County trial judge's ruling tossing out a lawsuit by a consultant who alleged unjust enrichment after it agreed to an environmental remediation contract for a much lower fee than ultimately was required to complete the job.

Plaintiff Austin James Associates alleged it entered into the contract with defendants Leroy and Mary Musser, along with their company Lee-Mar Inc., believing that the remediation project would only involve cleaning up contamination caused by underground gasoline tanks. It wasn't until later that the plaintiff discovered there was also diesel fuel contamination, which it alleged the defendants knew all along. The plaintiff also named as a defendant the law firm of Manko, Gold, Katcher & Fox, which initially reached out to Austin James on the Mussers' behalf to have the consultant assess the extent of contamination on the property and propose an effective remediation system.

In its lawsuit, Austin James sought $1.2 million in additional costs from the defendants, beyond the $1.2 million they initially agreed to. But both the trial and appellate courts found that the suit was not timely filed, waiving off the plaintiff's arguments as to why the statue of limitations should have tolled.

The Superior Court panel said that while the suit was filed in 2014, the consultant should have known as early as 2006 that there was additional contamination beyond what was contemplated in the agreement.

"Indeed, consultant already had notice at that time of possible diesel contamination as a cause," Colins wrote in the panel's Jan. 14 memorandum opinion. "Consultant's president admitted that when consultant signed the contract it knew that diesel had been sold on the property and that it had the first five pages of the closure report in its possession long before 2006. That portion of the closure report showed that there had been a diesel tank on the property and referred to 'presumed diesel-impacted soil' on the property."

The panel also rejected the plaintiff's argument that the delay was reasonable because the defendants knew of the diesel contamination and failed to disclose it.

"That argument fails because any such alleged misrepresentations are irrelevant to the cause of action that consultant asserted in this case," Colins said. "Consultant did not plead any cause of action for fraud or misrepresentation against Musser. Rather, its complaint set forth only a claim for unjust enrichment."

Counsel for Manko Gold, Edwin A.D. Schwartz of Marshall Dennehey Warner Coleman & Goggin in Philadelphia, could not be reached for comment. Austin James' attorney, Brett Datto of Weir & Partners in Philadelphia, and the Mussers' attorney, Steven Snyder of Harrisburg, also couldn't be reached.

Legal Malpractice

At least one attempt to challenge a trial court's application of the discovery rule was successful so far this year, however.

A Superior Court panel comprising Stabile, Musmanno and Judge Maria McLaughlin reversed a York County trial court's grant of summary judgment to attorney Stephen Lazun, finding that a jury must decide when plaintiff Pitney Road Partners should have been on notice that Lazun may have committed malpractice.

Pitney Road alleged that Lazun failed to exercise due diligence when structuring a refinance related to Harrisburg Area Community College's Lancaster Campus, which the plaintiff owned, ultimately costing Pitney Road an additional $350,000. Pitney Road argued that it could not have known about the alleged malpractice until 2011, when an arbitration panel entered a final award and made findings that the refinance was structured in such a way that denied the plaintiff the ability to collect certain savings.

But Lazun argued, and the trial court agreed, that the plaintiff should have been on notice of a potential problem with the refinance documents as of 2008, when HACC, Pitney Road's tenant, sent a letter to Pitney Road disputing the property owner's claim that HACC owed additional interest expenses, related to the refinance, as part of its rent.

The appeals court, however, agreed with Pitney Road's argument that "'a jury could certainly find that HACC's short payments of rent for a period of time in 2008 and 2009 was not a "clue" that should have triggered an inquiry into Lazun's work.'"

"Unlike the trial court, we cannot determine that the record, viewed in a light most favorable to Pitney, is so clear that 'reasonable minds could not differ on the subject[,]' … as to whether the 2008 letter should have reasonably put Pitney on notice of Lazun's alleged malpractice concerning the 2008 refinance," Musmanno wrote in the panel's Jan. 13 memorandum opinion. "The trial court thus erred in usurping the province of a jury to make a finding concerning this matter regarding the 2008 letter."

The appeals court remanded the case to the trial court for additional proceedings.

Pitney Road's attorney, Timothy Woolford of Woolford Law in Lancaster, could not be reached. Counsel for Lazun, Gregory Fox of Marshall Dennehey in Philadelphia, also could not be reached.