author: GRAY, «/.,

text:
    In re Condemnation of Temporary Construction Easement

      C.P. of Lycoming County,
    Nos. 14-02,219 and 14-01,791
    Nov. 7, 2014
   GRAY, «/.,

Before the court is Curtis R. and Terri L. Lauchle’s answer/objections/complaint in equity opposing a condemnation of a temporary easement and right of way across their land by UGI Penn Natural Gas, Inc. (UGI PNG). An evidentiary hearing was held on October 17, 2014. Upon request, additional briefing was permitted and submitted by October 22, 2014. The matter is ripe for a decision. Upon review of the evidence presented at the hearing and the briefs and arguments by counsel, the court overrules the objections, denies and dismisses the equity action and grants the condemnation of the temporary construction easement. The court also concludes that the Lauchles are not entitled to relief in the matter filed at docket number 14-01,790.

Factual and Procedural Background

The court will address the Lauchle’s request for relief with respect to the instant matter as well as a condemnation matter filed to docket number 14-01,790. First the court will discuss the factual and procedural background of the instant matter.

14-02,219 — Temporary Construction Easement

On August 27, 2014, UGI PNG filed a petition for approval and Order for filing a condemnation bond for a temporary construction easement condemnation brought pursuant to 15 Pa. C.S.A. 15 P.S. 1511(g)(2). UGI PNG is Pennsylvania Corporation with its primary business of producing, purchasing, storing, transporting and distributing natural gas. It is a public utility which is regulated by the Pennsylvania Utility Commission (PUC). The easement area consists of 1.732 +/- acres. The term of the easement is for a limited period of time, not to exceed three hundred sixty-five days. The purpose of the easement is to allow parking and storing vehicles and equipment and materials related to the construction, maintenance, replacing and changing one or more pipelines for the transportation, transmission and distribution of natural gas. UGI PNG would erect a fence on this easement.

On September 9, 2014, Mr. and Mrs. Lauchle filed an answer to petition/objections/action in equity pursuant to 15 Pa. C.S.A. §1511. In this document, the Lauchle’s raised the following objections. First, they asserted that the taking is for a private rather than public purpose and therefore prohibited pursuant to Pennsylvania’s Property Rights Protection Act, 26 Pa.C.S. § 204(a)(“PRPA”). Second, they asserted that the $25,000 bond is insufficient to protect them from the harm they may suffer from the condemnation. Lastly, they asserted that they are entitled to an evidentiary hearing on these issues pursuant to Appeal of McKonly, 618 A.2d 1169 (Pa. Comwlth. 1992). As the latter two issues have been resolved, the only remaining issue is whether the proposed condemnation is prohibited as a private rather than public taking.

14-01,790 — Underground Pipeline

Docket number 14-01,790 involves the condemnation of an easement on Mr. and Mrs. Lauchle’s property that is approximately 354 feet in length and 30 feet wide for the purpose of an underground pipeline. The easement would not interfere with the owners’ use and enjoyment of the property except that it precludes the owners from erecting buildings or permanent non-moveable structures. The Lauchles could still operate their fruit stand on the property. On July 15, 2014, UGI PNG filed a notice of intent to present condemnation petition and bond. The notice warns that an answer or objections must be filed within (10) days. The petition was personally served upon Mr. and Mrs. Lauchle by hand delivery to Mrs. Lauchle at their residence on July 15, 2014. No answer or objection was filed within ten days. On August 19, 2014, there being no answer of objections filed, UGI PNG filed a motion for approval of the condemnation petition and bond. On August 26, 2014, the court entered an order approving the condemnation and bond.

On August 29, 2014, Mr. and Mrs. Lauchle filed a document titled “answer to petition/action in equity.” In that document, the Lauchles challenged the condemnation on the following grounds: (1) an inadequate bond, (2) taking more than is required for the purpose intended, and (3) condemning for a private enterprise as opposed to a public use. On September 30, 2014, UGI PNG filed a bond for damages under right of Eminent Domain in the amount of $25,000. Briefs were filed to this docket number on October 10, 15, 20 and 23, 2014.

Discussion

The primary issue in the present case is whether a public utility’s condemnation for the construction and maintenance of a pipeline for the transportation, transmission and distribution of natural gas to a private business which operates as a power generating plant within its service area violates Pennsylvania’s Property Rights Protection Act, 26 Pa.C.S. § 204(a) (“PRPA”). This court concludes that it does not.

The court concludes that the temporary construction easement and the pipeline easement at issue fall within the public utility exemption explicitly outlined in Section 204(b). UGI PNG seeks to supply natural gas to Panda Patriot Electric-Generation Station (Panda), which is a customer in UGI PNG’s service area. UGI PNG is the chosen supplier of natural gas to the area in which Panda is located. In general, the PRPA prohibits the exercise of eminent domain powers to “take private property in order to use it for private enterprise.” However, because UGI PNG is a public utility, regulated by the Public Utility Commision, it falls within “the limited, defined class of condemnors” permitted to use the eminent domain power to provide public services in tandem with benefits to a private enterprise. 26 Pa.C.S. § 204(b)(2)(i); Reading Area Water Auth. v. Schuylkill River Greenway Ass'n No. 62 MAP (Pa. Sept. 24, 2014) at 29. In making the conclusion that UGI PNG is a public utility, the court relies upon the language of the Pennsylvania Supreme Court in Reading Area Water Auth which states that 26 Pa.C.S. §204(b)(2) (i) exempts “regulated public utilities, but not municipal authorities, from the preclusive rule set forth.” Reading Area Water Auth, supra, at 29 (emphasis added).

In addition to being an exempt condemnor, the court notes that the relationship to the private enterprise is significantly different in the present case than the circumstances prohibited in Reading, supra. In Reading, the Reading Area Water Authority’s (RAWA) sought to condemn property for a private developer to own and operate a drainage system that RAWA was not authorized to own or operate and which the private developer had been unable to obtain by private negotiations. By contrast, in the present matter, UGI PNG is the sole owner of the easements and the operator of the pipeline providing natural gas to its customer. UGI PNG is the chosen supplier of natural gas to customers at the location of Panda. Unlike the private developers in Reading, Panda will not own, operate or control the condemned property in any way. Rather, Panda will use the natural gas it receives from the pipeline operated by UGI PNG to “generate enough energy to power approximately 1 million homes.”

For the foregoing reasons, the court concludes that the condemnations do not violate PRPA.

The court also concludes that the objections/equity action filed in docket number 14-01,790, are denied as untimely and denied on the merits. The Lauchles filed an answer/action in equity in 14-01,790 on August 29, 2014, after the order was entered approving the bond and forty-five days after personal service by hand delivery of notice giving them 10 days to object. The Lauchles seek to challenge the bond as inadequate by comparing it to land it sold to Transcontinental Pipeline Company for a regulator station which is fenced in on their property. The court finds that the purchase price paid by Transco does not provide evidence toward the appropriate amount of a bond for the underground pipeline. The time for challenging the bond has passed. The Lauchles also challenge the condemnation for the pipeline as larger than necessary for the intended purpose. In review of the extent of the taking, the condemnees must prove that the condemnee has abused its discretion, is guilty of fraud, or bad faith. See, Appeal of Waite, 641 A.2d 25, 28 (Pa. Cmwlth. 1994), appeal denied, 651 A.2d 543 (Pa. 1995). The court finds and concludes that the Lauchles have not met the burden of proof in showing that the condemnation should be denied as a taking is larger than needed.

Accordingly, the court enters the following order.

ORDER

And now, this 7th day of November, 2014, upon petition for approval and order for filing condemnation bond, and following a hearing on condemnees’ answer/objections/ action in equity, it is ordered and directed as follows.

1. Mr. and Mrs. Lauchle’s answer/objections/action in equity/ are overruled, denied and dismissed.
2. UGI Penn Nature Gas, Inc., is hereby authorized and directed to file with the Lycoming County Prothonotary, the form of Condemnation Bond in the amount of $50,000.00, which amount has been agreed and stipulated to by the parties as an adequate Bond amount, and said Bond may be filed with the amount of security provided by that Bond which is hereby approved by the court.
3. UGI-PNG’s motion for and order requiring the execution of an application by the condemnor of an application for authorization of UGI-PNG to serve as agent to apply for a highway occupancy permit, is granted in part and denied in part as follows. As the court has granted the temporary construction easement, the Pennsylvania Department of Transportation is ordered and directed to allow UGI-PNG to serve as agent to apply for a highway occupancy permit and otherwise treat UGI-PNG as property owners of construction easement for the duration of the easement.
4. The Lauchle’s action in equity / objections to the condemnation at issue in Lycoming County Case No. 14-0170 as untimely and as overruled, denied and dismissed on the merits as this court has determined that the taking is for a public purpose specifically exempt under 26 Pa.C.S. § 204(b)(2)(i).
5. The court notes that Mr. and Mrs. Lauchle have filed a praecipe to mark any action in equity filed to Lycoming County Case No. 14-0171 as discontinued and ended. As a result, this court will not address that case.

      . In addition to the temporary construction easement in the present case, the Lauchles also sought review of issues with respect to two other condemnation matters filed to Lycoming County docket number 14-01,790 and 14-01,791. As a result, the Lauchles were afforded the opportunity to submit evidence with respect to 14-01790 (right of way) and/or 14-01791 (lands, 17,000 sq. ft.) as well the present matter at the evidentiary hearing held on October 17, 2014. The Lauchles filed a praecipe to discontinue the action in equity in docket number 14-01,791. Consequently, this opinion does not discusses the underlying facts of merits of 14-01, 791.

      . Pursuant to the secretary’s certificate dated August 12, 2014, UGI PNG sought a temporary construction easement located on the property of Mr. and Mrs. Lauchle.

      . The parties subsequently reached a stipulation as to the bond amount, increasing the bond to $50,000. An evidentiary hearing was afforded to Mr. and Mrs. Lauchle with respect to the instant matter as well as matters related to docket numbers 14-01,790 and not 14-01,791. In addition, some discovery was conducted.

      . Specifically, the notice states: “[I]f you do not file an answer of objections thereto, WITHIN TEN (10) DAYS AFTER SERVICE OF THIS PETITION UPON YOU, UGI PENN NATURAL GAS, INC. (“UGI PNG”) by and through its counsel, will file a motion with the Lycoming County Prothonotary, and present it to the court for approval, seeking entry of an order in the form attached as Exhibit “C” to UGI PNG’s petition, directing the filing of UGI PNG’S original bond.”

      . An affidavit of such service was filed on July 22,2014.

      . Pennsylvania’s Property Rights Protection Act, 26 Pa.C.S. § 204(a) is an “anti-Kelo” statute promulgated in response the U.S. Supreme Court’s decision in Kelo v. City of New London, Ct, 125 S.Ct. 2665 (2005) in which the taking of private property was approved for a commercial developer for private subdivisions.

      . The court further notes that — unlike Reading Area Water Auth, the takings at issue in the present case were made pursuant to the Pennsylvania Business Corporations Law, 15 Pa. C.S.A. § 1511(a) and the procedures outlined in (g). 15Pa. C.S.A. § 1511(a) provides a public utility with “right to take, occupy and condemn” added condemnation powers in addition to any other power of eminent domain power already conferred under the Eminent Domain Code, 26 Pa. C.S.A. § 101-1106, et. seq A (emphasis added). 15 Pa. C.S.A. § 1511(g)(2) provides that notwithstanding the fact that Eminent Domain Code is applicable to proceedings under the Business Corporations Law, a public utility may elect to follow the procedures of Business Corporations Law in lieu of those provided by the Eminent Domain Code. The Business Corporations Law provides more expansive powers for condemnation.

      . The court finds that UGI PNG is a public utility corporation regulated by the Public Utility Commission. See, 15 Pa. C.S.A. §1103, and Certificate of Public Convenience and related tariff.

      . There was no challenge to the water easement for RAWA to supply water service to the development.

      . The court further notes that —■ unlike the taking in reading the taking in the instant matter is for a purpose specifically authorized by the Business Corporations Law, which provides additional powers and alternate procedural steps for public utilities to take, occupy and condemn property as reasonable necessary for the transportation of natural gas and the “the production, generation, manufacture, transmission, storage, distribution or furnishing of natural or artificial gas” for the public. 15 Pa. C.S.A. § 1511(a) (2) & (3).

      . The court also concludes that the taking is not prohibited by the less restrictive constitutional limitations as outlined in Kelo v. City of New London, Ct, 125 S.Ct. 2665 (2005).


source: Caselaw Access Project

author: NEALON, J,

license: Public Domain

text:
    Moritz v. Horace Mann Property & Casualty Insurance Co.

      C.P. of Lackawanna County,
    No. 13 CV 544

      John M. Mulcahey, for plaintiffs.

      Richard Polacheck, for defendant.
    Nov. 10, 2014-
   NEALON, J,

ORDER

Plaintiffs, Cynthia Moritz (“Moritz”), and her husband, George Moritz, have filed this action seeking to recover underinsured motorist (UIM) benefits from their insurer, Horace Mann Property & Casualty Insurance Company (“Horace Mann”), as a result of an automobile accident on August 26, 2010, in which Moritz was injured. The accident occurred when a vehicle operated by Cynthia Parlanti crossed into Moritz’s lane of travel an collided with her automobile. (Joint pre-trial order, filed as docket entry no. 39, at p. 2). The parties agree that Ms. Parlanti was solely responsible for the accident, and the only issue to be decided by the jury is the amount of damages recoverable by Moritz and her husband. (Id. at pp. 2-3).

Moritz’s insurance policy with Horace Mann affords UIM coverage, and obligates Horace Mann to “pay damages which [Moritz] is legally entitled to recover from the owner or operator of...an underinsured motor vehicle... because of bodily injury: (1) sustained by [Moritz]; and (2) caused by an accident.” (Docket entry no. 46, Exhibit A at p. 29). An “underinsured motor vehicle” is defined by the policy as any vehicle “to which a bodily injury liability bond or policy applies at the time of the accident but its limits for bodily injuiy liability is (sic) not enough to pay the full amount the insured is legally entitled to recover as damages.” (Id. at p. 30). Under the UIM coverage provisions, Horace Mann agrees to “pay damages under this coverage arising out of an accident with an underinsured motor vehicle only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” (Id.). The parties have stipulated that Cynthia Parlanti’s liability insurer, Nationwide Insurance Company, has tendered its policy limits of $15,000.00 to Moritz in settlement of her liability claim. (Docket entry no. 39 at pp. 2-3). Horace Mann’s policy states that any damages which Moritz “is legally entitled to recover” pursuant to her UIM coverage “shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.” (Docket entiy no. 46 at p. 31). Thus, any verdict that Moritz secures in this UIM matter will be reduced by the $15,000.00 payment that Moritz received from the tortfeasor’s insurer.

In anticipation of the jury trial scheduled to commence on November 12, 2014, the parties filed motions in limine on November 7, 2014, with respect to Horace Mann’s payment of first party medical expense benefits for treatment that Moritz received following the accident. (Docket entry nos. 47,49-51). Additionally, on November 5, 2014, Horace Mann filed objections to Moritz’s proposed voir dire inquiries which reference underinsured motorist coverage and the circumstances giving rise to Moritz’s UIM claim against Horace Mann. (Docket entry no. 43 at ¶¶17-21). The parties have requested rulings on these two issues prior to trial.

Reference to Underinsured Motorist Coverage

In her pre-trial submissions, Moritz has indicated her intention to advise the jury that Horace Mann issued a policy to Moritz which affords UIM coverage, that Moritz collected the negligent motorist’s liability insurance policy limits, and that Moritz is seeking to recover damages pursuant to the above-quoted provisions of Moritz’s UIM coverage. Horace Mann posits that the jury should merely be informed that this case involves an automobile accident between Moritz and Cynthia Parlanti, that liability for the accident is not in dispute, that the parties contest the nature and extent of the injuries caused by the accident, and that the only issues to be decided by the jury are the damages recoverable by Moritz and her husband. (Docket entry no. 50, Exhibit B at p. 1). The gist of Horace Mann’s argument is that any reference to or explanation of UIM insurance is irrelevant and unduly prejudicial. (Id; Docket entry no. 43 atfll7-21).

Prior to 2005, jury trials were not conducted in claims for uninsured motorist (UM) or underinsured motorist (UIM) benefits since those disputes were subject to binding arbitration due to Pennsylvania Insurance Department regulations mandating insurance policy language requiring arbitration of UM/UIM claims. See Ronca & Sloane, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law at pp. 6-14 to 6-20 (3d ed. 2013). In Insurance Federation of Pennsylvania, Inc. v. Koken, 585 Pa. 630, 889 A.2d 550 (2005), the Supreme Court of Pennsylvania overruled Prudential Property and Casualty Insurance Company v. Muir, 99 Pa. Cmwlth. 620, 513 A.2d 1129 (1986), and held that the Insurance Department does not have the express or implied authority to require binding arbitration of UM/UIM claims. Koken 585 Pa. at 637-638, 889 A.2d at 555. “In the wake of Koken, insurance policies now make arbitration of UM/ UIM disputes optional or conditioned upon the insurer’s consent, as a result of which UM/UIM claims are being litigated in court proceedings.” Bingham v. Poswistilo, 24 Pa. D. & C.5th 17, 24 (Lacka. Co. 2011).

Section III, p. 11 of Moritz’s insurance policy with Horace Mann provides for arbitration “in accordance with the provisions of the Pennsylvania Uniform Arbitration Act” if Moritz and Horace Mann cannot agree “as to the amount of damages” recoverable under the UIM coverage. (Docket entry no. 46, Exhibit A at p. 31). However, Horace Mann’s “Uninsured/Underinsured Motor Vehicle amendatoiy endorsement CC-N04PA1 (10/06)” accompanying Moritz’s policy expressly states that “[t]he Arbitration section has been deleted” from Moritz’s UIM coverage. (Id. at p. 17). As a consequence, Moritz’s UIM claim is not subject to arbitration, and pursuant to that amendatory endorsement, Moritz filed the instant civil action to collect UIM benefits.

Although Pennsylvania Rule of Evidence 411 generally provides that “[e]vidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully,” it further states that “the court may admit this evidence for another purpose....” Pa.R.E. 411. Since reference to insurance in the context of a UM/UIM benefits trial does not inject evidence of liability or indemnity insurance in contravention of Rule 411, we reasoned in Bingham that “Pennsylvania trial courts may join and try tort and UIM claims in a single action without running afoul of Pa.R.E. 411,” and that “the trial court may consider evidence of insurance as being’ offered for another purpose’ under Rule 411 and allow the UIM insurer to be identified, and the tort and UIM issues to be decided jointly, based upon carefully crafted instructions to the jury.” Bingham, 24 Pa. D. & C.5th at 44. Two years later, the Superior Court of Pennsylvania definitively addressed the application of Pa. R.E. 411 in a jury trial where liability and UIM claims are joined for a single trial, and held that “a course of action identifying [the UIM insurer] as a party would not necessarily run afoul of...Rule 411” in such a trial. Stepanovich v. McGraw, 78 A.3d 1147, 1150 (Pa. Super. 2013), app. denied, 89 A.3d 1286 (Pa. 2014).

Reference to insurance was a non-issue in UM/UIM proceedings when those disputes were subj ectto mandatory arbitration and decided by a panel of lawyers who were aware of the existence of UM/UIM coverage. See, e.g., Hartford Ins. Co. v. O’Mara, 907 A.2d 589, 591 (Pa. Super. 2006) (arbitration panel found that insured’s signature on coverage option forms did not constitute proper written request for reduction of UM/UIM coverage under 75 Pa. C.S.A. § 1734, reformed the UM/UIM policy to afford higher stacked coverage limits, and awarded damages to claimant), app. denied, 591 Pa. 727, 920 A.2d 833 (2007). However, “[t]he insurance industry’s successful challenge of mandatory UM/UIM arbitration clauses in Koken has created the prospect of...UIM actions and the resultant relevance of insurance evidence.” Bingham, 24 Pa. D. & C.5th at 39 (citing 17 Couch on Insurance § 246:36 (3rd ed.) (“It is also the case that where joinder of the insurance carrier is permitted under state law, reference to the insurance carrier is not regarded as prejudicial.”)). A recognized automobile insurance treatise has stated that following Koken, “a ‘Pandora’s box’ of legal issues has been opened,” including “how will the parties be identified,” “how much explanation can be given to a jury regarding the proceeding and the parties involved,” and “can ‘insurance’...or ‘underinsured’ be mentioned.” Ronca & Sloane, Pennsylvania Motor Vehicle Insurance, supra, at p. 6-15.

The Civil Instructions Subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions has not published any recommended instructions for UM/UIM jury trials after Koken, nor have the appellate courts had occasion to consider the propriety of specific instructions that have been fashioned and used by trial courts in such cases. See, e.g., Alabama Pattern Jury Instructions — Civil § 20.53 (3rd. ed. 2012); Connecticut Civil Jury Instruction § 3.7 — 14 (4th ed. 2008); Delaware Civil Pattern Jury Instruction § 17.4 (2000); Iowa Civil Jury Instruction No. 1440.1 (2012); Maryland Civil Pattern Jury Instruction 18:11 (4th ed.). Some states have adopted the approach currently being advocated by Horace Mann, and have barred plaintiffs from identifying the UIM insurer as the defendant or introducing evidence of the UIM coverage provisions. See Bardis v. First Trenton Ins. Co., 199 N.J. 265, 277, 971 A.2d 1062, 1069 (N.J. 2009) (“[W]e reject the request for a rule compelling the insurer in an UIM trial to be identified as the defendant, and we disagree with the [intermediate appellate court] panel’s suggestion that such a rule would be preferable,” as “we are persuaded that the insurer’s identity is ordinarily irrelevant.”); Gibson v. Geico General Ins. Co., 153 P.3d 312, 318 (Alaska 2007) (trial court did not abuse its discretion in refusing to advise jury about auto insurer’s status as the UIM carrier and the nature of UIM claim); Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 738, 639 S.E.2d 352, 357 (2006) (prohibiting insureds “from mentioning their insurance contract with Horace Mann” in UIM trial, and “omitting the word ‘Insurance’ from Horace Mann’s name, instead referring to the company as ‘the Horace Mann companies.’”). Other jurisdictions have concluded that their version of Rule 411 does not preclude the correct identification of the UM/UIM carrier as a party, or the admission of evidence pertaining to the applicability of the UM/UIM policy provisions. See Earle v. Cobb, 156S.W.3d 257, 258-259, 262 (Ky. 2004) (UIM carrier should have been identified to juiy “because it was named as a party by virtue of its contract” with plaintiff, K.R.E. 411 did not prevent such identification, and trial was “fundamentally misleading to the jury and it deprive[d] a plaintiff of the right to try her case against the party she chooses.”); State ex rel. Gadbaw v. Montana Eight Jud. Dist. Ct., 316 Mont. 25, 32, 75 P.3d 1238, 1242 (Mont. 2003) (holding that it was “clear that Rule 411, Mont. R. Evid., does not prohibit the introduction of [tortfeasor’s] liability coverage or the fact that [plaintiffs] have underinsured motorist coverage, and that [UIM carrier] has an obligation to pay [plaintiffs] pursuant to that coverage in the event their damages exceed the amount of [tortfeasor’s] liability coverage.”); Lamz v. Geico General Ins. Co., 803 So. 2d 593, 595 (Fla. 2001) (UIM insurer must be identified since “full disclosure of the identity of the parties protects the integrity of the jury system and prevents charades at trial,” and the “failure to specifically identify the underinsured carrier as such leaves the jury to speculate about the exact role of the plaintiffs carrier in the lawsuit, perpetuating the ‘charades in trials’ denounced by this court in Dosdourian.”); Boone v. American Manufacturers Mutual Insurance Company, 150 Md. App. 201, 231-233, 819 A.2d 1099, 1116-1117 (Md. App. 2003) (trial court committed reversible error in UIM trial by failing to instruct jurors that amount which plaintiffs already received from liability insurer would be deducted by the court from any juiy award of damages), cert. denied, 376 Md. 50, 827 A.2d 112 (2003).

Following Stepanovich, the UIM insurer may be identified as the party defendant without violating the proscription in Pa.R.E. 411 against the introduction of liability or indemnity insurance for the purpose of proving that a person acted negligently or wrongfully. With regard to specific jury instructions, “atrial court has wide latitude in its choice of language when charging a jury,” and should “explain the principles of law which are fairly raised under the facts of a particular case so as to enable the jury to comprehend the questions it must decide.” Drew v. Work, 95 A.3d 324, 329 (Pa. Super. 2014) (quoting Lockhart v. List, 542 Pa. 141, 148, 665 A.2d 1176, 1179(1995)). “A jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations.” Estate of Hicks v. Dana Companies. LLC, 984 A.2d 943, 972 (Pa. Super. 2009) (en banc), 610 Pa. 586, 19 A.3d 1051 (2011).

Moritz has confirmed in her pre-trial submissions that she does not seek to introduce evidence of Horace Mann’s UIM coverage limits or the amount of the tortfeasor’s liability insurance limits which she has already collected. Horace Mann contends that the jury should merely be advised “that this matter involves a motor vehicle accident involving 2 drivers, identifying the drivers, and also advising the jury that liability is not in dispute, but the extent of injuries being claimed by plaintiffs are in dispute and the only issue for the jury to decide is what injuries, if any, plaintiff, Cynthia Moritz, sustained as a result of the motor vehicle accident and what are the plaintiffs’ damages.” (Docket entry no. 50, Exhibit B at p. 1; docket entry no. 52 at p. 1). One common pleas court has furnished such an instruction in a UIM trial, and has simply informed the jury that “[a]ll that is necessary for you to know is that [plaintiff] has a claim for damages as a result of this accident” and that “[y]our duty will be to determine whether his claim is valid and, if so, how much in money damages he is entitled to receive.” Pelc v. Burkell, et al, 30 Crawford Co. L. J. 64, 71 (Crawford Co. 2013).

If the jury is not apprised of the reasons for Horace Mann being named as the only defendant in this case, some jurors may speculate as to why the admittedly negligent motorist, Cynthia Parlanti, is not named as a defendant or identified on the verdict slip. An insufficient explanation of the applicable UIM principles which are raised by the facts could cause other jurors to surmise that Moritz has already been fully compensated by the tortfeasor, or that any verdict in this matter may result in some form of a double recovery for Moritz. In order to avoid such potential juror confusion, the better approach is to properly inform the jurors of the relevant legal considerations in a manner comparable to the standard civil jury instructions that are utilized in Alabama, Connecticut, Delaware, Iowa and Maryland.

Consequently, the jury in this case will be instructed that: (1) plaintiffs have brought this action against their own insurance company under coverage known as underinsured motorist coverage, which serves to provide compensation to a plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the plaintiffs damages from an accident; (2) to recover against the defendant, the plaintiffs must prove that the other driver was negligent, that the negligence caused harm to the plaintiffs, and that the other driver did not have adequate liability insurance; (3) the defendant has stipulated that the plaintiffs’ insurance policy provides underinsured motorist coverage and that the policy was in effect at the time of the accident, such that the jurors need not concern themselves with the specifics of the policy; (4) the defendant has also agreed that the other driver was negligent and caused the accident, such that the jury need only determine whether the plaintiffs suffered harm as a result of the accident and, if so, what amount of money damages will fairly and adequately compensate the plaintiffs; (5) the fact that the plaintiffs are suing the defendant for underinsured motorist benefits suggests that the other driver had some insurance which was recovered by the plaintiffs; (6) the plaintiffs will not receive compensation twice for the same damages since any jury award of damages in this case will be reduced by any amount that the plaintiffs have already received from the other driver and her insurer; and (7) the jury should determine an amount of money damages that will fairly and adequately compensate the plaintiffs for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the plaintiffs may have received from the other driver or her insurer, since any such amount will be deducted by the court from the total sum that the jury may award. The instructions to be provided to the jury in this case will include the following:

Members of the jury, this case arises from an automobile accident that occurred on August 26, 2010, at approximately 8:54 AM on Sturges Road in Blakely Borough. At that time, the plaintiff, Cynthia Moritz, was operating her automobile when another vehicle being driving by Cynthia Parlanti crossed into Cynthia Moritz’s lane of travel and collided with Cynthia Moritz’s vehicle. It is undisputed that the other driver, Cynthia Parlanti, was negligent and that her negligence was the sole cause of this automobile accident. Therefore, you need not concern yourself with the question of fault in causing the accident since the parties agree that the accident was caused by Cynthia Parlanti’s negligence.
You will note that the only parties in this case are the plaintiffs, Cynthia Moritz and her husband, George Moritz, and the defendant, Horace Mann Property & Casualty Insurance Company. The plaintiffs have brought this action against their own insurance company, Horace Mann Property & Casualty Insurance Company, under coverage which is commonly referred to as underinsured motorist coverage. The purpose of such insurance coverage is to provide compensation to a plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the plaintiffs damages from a motor vehicle accident.
To recover damages from the defendant, Horace Mann Property & Casualty Insurance Company, the plaintiff must show by a fair preponderance of the evidence that the other driver was negligent, that the other driver’s negligence caused injury to the plaintiffs, and that the other driver did not have adequate insurance to fairly and adequately compensate the plaintiffs for their damages caused by the accident. As I already mentioned, the plaintiffs and the defendant agree that the other driver, Cynthia Parlanti, was negligent and caused the accident, such that you need not consider or decide who was at fault in causing the accident. The parties have also stipulated that the plaintiffs’ insurance policy with the defendant provides underinsured motorist coverage, and that the insurance policy was in full force and effect at the time of the accident on August 26, 2010. Therefore, you need not concern yourself with the specifics of that policy. Your only task is to determine whether the plaintiff, Cynthia Moritz, suffered injuries as a result of the accident, and, if so, what amount of money damages will fairly and adequately compensate the plaintiffs for their losses.
The fact that the plaintiffs are suing the defendant, Horace Mann Property & Casualty Insurance Company, for underinsured motorist benefits suggests that the other driver, Cynthia Parlanti, had some insurance which was paid to the plaintiffs. If you award damages to the plaintiffs, they will not receive compensation twice for the same injuries or losses. Any award of damages in this case will be reduced by any amount that the plaintiffs have already received from the other driver or her insurance company. Thus, you should determine an amount of money damages that you believe will fairly and adequately compensate the plaintiffs for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the plaintiffs may have received from another source, since any such amount will be deducted by me from the total sum that you may award in this case.

Evidence of Horace Mann’s Payment of First-Party Medical Expense Benefits

Moritz asserts that she suffered neck and shoulder injuries in the accident on August 26, 2010. Specifically, she maintains that she sustained a right rotator cuff tear requiring arthroscopic surgical repair, a comparable injury to her left shoulder which makes her a candidate for future shoulder surgery, and an aggravation of preexisting cervical degenerative disc disease. {See joint pretrial order, filed as docket entry no. 39, at pp. 6-8). Horace Mann has retained Dr. Peter Feinstein who conducted a physical examination of Moritz under Pa.R.C.P. 4010, and has opined that Moritz suffered a “cervical whiplash injury” and “right rotator cuff partial thickness to full thickness tear in the context of clearly defined pre-existing degenerative changes,” but that she “has made a full and complete recovery from those injuries.” (Docket entry no. 29, Exhibit A at pp. 6-7). Dr. Feinstein claims that Moritz’s continuing symptomatology is related to “longstanding degenerative and arthritic issues in the areas of ongoing symptoms of which she complains,” and that her accident-related injuries would have resolved within “six weeks to three months.” (Id. atpp. 1, 6-7).

Moritz has filed a motion in limine “to introduce evidence that [Horace Mann] provided first party benefits coverage to Mrs. Moritz for the date of loss, including payment of $17,500.00 of her medical bills,” which payments were “for the treatment of injuries [Horace Mann] now claims are not causally related to the August 26, 2010, automobile accident.” (Docket entry no. 49 at ¶¶ 7, 11). Moritz submits that Horace Mann’s payment of those medical expenses “is relevant and goes to the credibility of [Horace Mann’s] argument” in this UIM case. (Id. at ¶ 15). Horace Mann counters in its own motion in limine that its payment of medical bills under its first party benefits coverage is inadmissible based upon the reasoning in Pantelis v. Erie Insurance Exchange, 890 A.2d 1063 (Pa. Super. 2006). (Docket entry no. 50 at ¶ 6).

In Pantelis, the plaintiff similarly argued that her insurer “should not have been allowed to dispute causation in the underinsured motorist proceeding after it paid first party benefits pursuant to its contract with [plaintiff].” Pantelis, 890 A.2d at 1065. On appeal, the Superior Court noted that “[t]he statutory framework and applicable case law establishes that payment of UM/UIM claims is subject to a different analysis than payment of first party benefits.” Id. at 1068. Hence, the Pantelis court “conclude[d] that the trial court correctly determined that payment of first party benefits does not preclude an insurer from later denying third party UM/UIM benefits,” since “an insurer’s payment of first party benefits does not, without more, constitute a binding admission of causation under either the statute or case law.” Id. at 1067-68. Citing Pantelis with approval, the federal district courts in Pennsylvania have likewise held that an insurer’s acceptance of its obligation to provide coverage under the first-party benefits provisions of its policy does not bar that insurer from later contesting causation for the insured’s injuries in a UIM proceeding. See Shaffer v. State Farm Mutual Automobile Insurance Co., 2014 WL 5325340, at *8 (M.D. Pa. 2014); Thomer v. Allstate Insurance Company, 790 F.Supp.2d 360, 373 (E.D. Pa. 2011); Barry v. Ohio Casualty Group, 2007 WL 128878, at *10 (W.D. Pa. 2007).

Moritz attempts to distinguish Pantelis on the ground that it is not attempting to “preclude [Horace Mann] from refuting causation,” but instead “seeks to introduce evidence of such [medical expense] payments to refute the credibility of [Horace Mann’s] argument that the injuries for which it provided first party benefits are not causally connected to the automobile accident.” (Docket entry no. 47 atp. 5). Moritz’s argument in that regard is a conceptual distinction without a difference. “Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact.” Klein v. Aronchick, 85 A.3d 487, 498 (Pa. Super. 2014). Pantelis clearly states “that payment of UM/UIM claims is subject to a different analysis than payment of first party benefits,” Pantelis, 890 A.2d at 1068, as a result of which, any evidence of Horace Mann’s payment of first-party benefits under medical expense coverage lacks the requisite probative value for admission into evidence.

Moreover, even if that evidence was arguably relevant, its probative value is outweighed by the danger of unfair prejudice since the admission of that evidence could sway the jury to render a verdict on an improper basis. See Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013) (‘’’Unfair prejudice’ supporting exclusion of relevant evidence means a tendency to suggest decision on an improper basis or divert the jury’s attention away from its duty of weighing the evidence impartially.”), app. denied, 92 A.2d 812 (Pa. 2014). Admission of the fact that Horace Mann has paid $17,500.00 in medical expense benefits could be equally prejudicial to Horace Mann and Moritz. For example, the jurors could conceivably conclude that those medical expense payments, like the payment that Moritz has already received from Cynthia Parlanti’s liability insurer, should be deducted from its award of damages and thereby reduce its verdict sua sponte without prompting or suggestion by the court. For all these evidentiary reasons, Horace Mann’s payment of first party medical expense benefits of $17,500.00 is not admissible, and Horace Mann’s second motion in limine will be granted, whereas Moritz’s third motion in limine will be denied.

And now, this 10th day of November, 2014, upon consideration of defendant’s objections to plaintiffs’ proposed voir dire questions (Docket entry no. 43), “Plaintiffs’ motion in limine # 3 to Allow plaintiff to Introduce Evidence That the defendant Paid First Party Medical Benefits for the Injuries Sustained by the plaintiff in the August 26, 2010 Automobile Accident” (Docket entry no. 49), and “motion in limine # 2 of defendant, Horace Mann Property & Casualty Company” (Docket entry no. 50), and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. Defendant’s objections to plaintiffs’ proposed voir dire questions are overruled, and the jury will be furnished with explanatory legal instructions in accordance with this order;

2. Plaintiffs’ motion in limine # 3 is denied and defendant’s motion in limine # 2 is granted; and

3. Plaintiffs are precluded from referencing or introducing any evidence that defendant paid first-party medical expense benefits of $17,500.00 to plaintiffs.


author: TUNNELL, J.,

text:
    Ippolito v. Archdiocese of Philadelphia

      C.P. of Chester County,
    No. 2012-03154-TT

      Eugene A. Steger, Jr., for plaintiff.

      James J. Rohn, Nicholas M. Centrella and Timothy M. Stengel, for defendants, Archdiocese of Philadelphia and St. Joseph Parish.

      John L. Lachall, for defendant, Msgr. George J. Mazzota.
    Nov. 14, 2014
   TUNNELL, J.,

ORDER

And now, this 14th day of November, 2014, upon consideration of the motion for summary judgment of defendants, The Archdiocese of Philadelphia and St. Joseph Parish (“the Archdiocese Defendants”), plaintiff’s response thereto, and all other matters of record, it is hereby ordered and decreed that the motion is granted.

It is further ordered and decreed that judgment is entered in favor of the Archdiocese Defendants and against plaintiff, and that plaintiff’s complaint as to the Archdiocese Defendants is dismissed in its entirety with prejudice

      . This action arises out of plaintiff’s allegations that her deceased husband, John A. Ippolito (“plaintiff’s decedent” or “the decedent”), was sexually abused by an Archdiocese of Philadelphia priest beginning in 1966 and ending in 1971. Presently before the court is defendants’, The Archdiocese of Philadelphia and St. Joseph Parish (collectively, “defendants”), motion for summary judgment and plaintiff’s response thereto. For the reasons set forth below, defendants’ motion will be granted in its entirety, and plaintiff’s complaint will be dismissed, as to these defendants, with prejudice.
      The relevant facts and procedural history of this case are as follows: The plaintiff in this action is Michele Ippolito, the wife of the decedent, John A. Ippolito. According to the record before the court, beginning in 1966, when the decedent was 13 years old, and continuing until 1971, when the decedent was 18 years old, the decedent was sexually abused by a Roman Catholic priest, Msgr. George J. Mazzotta, while serving as an altar boy at St. Joseph Parish in Downingtown, Pennsylvania. John Ippolito died on September 9, 2011, and plaintiff was subsequently appointed administratrix of his estate by the Register of Wills of Chester County. Plaintiff ultimately instituted this action by way of writ of summons filed March 28, 2012, on behalf of herself, individually, and as administratrix of the Estate of John A. Ippolito. The writ named The Archdiocese of Philadelphia, St. Joseph Parish, Msgr. George J. Mazzota, and Msgr. William Lynn, as defendants. On January 27, 2014, plaintiff filed a complaint that alleged three causes of action: (1) wrongful death; (2) survival action; and (3) loss of consortium. Defendants filed an answer and new matter to the complaint on March 3rd, which raised the statute of limitations as an affirmative defense. See, Pa.R.C.P. No. 1030(a). Defendants’ now move for summary judgment, chiefly arguing that the record developed during discovery conclusively establishes that plaintiff’s claims are barred by the applicable statutes of limitations. Oral argument was heard on the motion on October 7, 2014. The matter is thus ripe for the court’s disposition.
      Summary Judgment Standard
      Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Potter v. Herman, 762 A.2d 1116, 1117-18 (Pa. Super. 2000); see also, LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009) (“The entry of summary judgment is proper whenever no genuine issue of any material fact exists as to a necessary element of the cause of action.”). In determining whether to grant a motion for summary judgment, the court examines the record in a light most favorable to the non-moving party, and resolves all doubts as to the existence of a genuine issue of material fact against the moving party. Ibid. In opposing the motion, an adverse party “may not rest upon the mere allegations or denials of the pleadings.” Pa.R.C.P. No. 1035.3(a). Instead, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Ertel v. Patriot-News Co., 61A A.2d 1038, 1042 (Pa. 1996). “[A] plaintiff’s failure to adduce evidence to substantiate any element of his cause of action entitles the defendant to summary judgment as a matter of law.” Lewis v. Phila. Newspapers, Inc., 883 A.2d 185, 190 (Pa. Super. 2003).

        A. Plaintiff’s Survival Action is Time-Barred
      Pennsylvania’s survival statute provides that “[a] 11 causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.” 42 Pa.C.S. § 8302. The survival statute is the vehicle by which a decedent’s estate may press a cause of action that a decedent would have had, had he lived. See, Baumgart v. Keene Bldg. Products Corp., 633 A.2d 1189, 1191 (Pa. Super. 1993) aff’d, 666 A.2d 238 (Pa. 1995)(“If a person is injured by the act of another, a cause of action may accrue to the injured person. His or her death thereafter does not abate the cause of action. [Rather,] the cause of action survives the death of the injured person and continues in the decedent’s personal representative.”); see also, 20 Pa.C.S. § 3373 (“An action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive.”).
      In survival actions, the period of limitations begins to run on the date of injury, as though the decedent were bringing his or her own lawsuit. Bell v. Willis, 80 A.3d 476, 480 (Pa. Super. 2013). Where, as here, the decedent’s personal representative seeks to recover damages for injury that resulted from the wrongful act or negligence of another, a two-year limitations period applies. Ibid.-, see also, 42 Pa.C.S. § 5524(2), (7). In sexual abuse cases involving claims of tortious conduct, the plaintiff’s cause of action accrues-and therefore the period of limitations begins to run-on the date the abuse occurred. See, e.g., Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 919 (Pa. Super. 2005) (Finding that two-year period of limitations began to run at the time alleged sexual abuse occurred); Dalrymple v. Brown, 701 A.2d 164, 170 (Pa. 1997) (In sexual abuse case involving a claim of battery, finding that “[i]n a typical battery all the elements of the offensive touching will be present and ascertainable by the plaintiff at the time of the touching itself.”); cf., Ingenito v. AC & S, Inc., 633 A.2d 1172, 1174 (Pa. Super. 1993) (“In general, the statutory period will begin to run when the cause of action accrues, i.e., the date on which the injury is sustained .... An injury is done ‘when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.’”) (quoting, Ayers v. Morgan, 154 A.2d 788, 792 (Pa. 1959)(internal citation omitted). Here, some 40 years have passed since the latest alleged instance of sexual abuse. Thus, unless plaintiff can establish an exception to the statutory period, her survival claim is time-barred.
      i. The Discovery Rule is Inapplicable
      Defendants first argue that the discovery rule does not apply to toll plaintiff’s survival claim. The “discovery rule” provides that “where the existence of [an] injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.” Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270, 276 (2005); see

        also, Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983) (“The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury.”). In such cases, the statute does not begin to run until the injured party “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” Baselice, 879 A.2d at 276 (quoting, Haggart v. Cho, 703 A.2d 522, 526 (Pa. Super. 1997)).
      In the context of cases alleging past sexual abuse, application of the discovery rule has been pressed in two types of cases. First, those cases in which the plaintiff-victim claims to have been aware of the fact of abuse at or near in time to when it occurred, but who failed to bring an action within the statutory period because he or she failed to recognize that the abuse they experienced gave rise to an injury for which a cause of action could be brought (“Type 1” cases). Second, those cases in which the plaintiff-victim alleges that he or she repressed all memoiy of the sexual abuse until shortly before suit was filed (“Type 2” cases). See, Seto v. Willits, 638 A.2d 258, 260 (Pa. Super. 1994) (Recognizing distinction); Dalrymple, supra, 701 A.2d at 169 (same); see also, E.J.M. v. Archdiocese of Phila., 622 A.2d 1388 (Pa. Super. 1993) (Noting that sexual abuse plaintiffs have alleged “that they could not sue within the limitations period either because they had repressed all memory of the abuse and were, therefore, unaware of it[,] or because, despite the fact that they did remember that the abuse had occurred, they nevertheless did not know it had harmed them or was wrongful.”). In both types of cases, Pennsylvania courts have uniformly held that application of the discovery rule is unavailable because a plaintiff’s (a) failure to appreciate that the acts inflicted upon him or her gave rise to a putative cause of action; or (b) repression of memory of the acts of abuse until sometime after the statutory period has run, are both the result of the mental or psychological “incapacity” of that particular plaintiff to discover the cause of his or her injury. In other words, Pennsylvania law takes an objective approach to application of the discovery rule, and “does not permit the tolling of the statute of limitations on account of the subjective incapacity of the particular plaintiff which allegedly impaired [their] ability to discover the injury or its cause.” Id. at 1394; see also, 42 Pa.C.S. § 5533(a) (Prohibiting tolling of the statute of limitations during a period of “insanity” of the plaintiff); E.J.M., supra, 622 A.2d at 1394 (Holding that discovery rule did not apply where plaintiff “knew the abuse was occurring and who was inflicting it”, but did not know that the abuse was wrongful or had caused him psychological and emotional harm until after the statutory period had run); Seto, supra, 638 A.2d at 261-62 (Holding that discovery rule did not apply where plaintiff allegedly repressed all memory of the sexual abuse because Pennsylvania law does now allow the mental incapacity of a plaintiff to toll the period of limitations); Meehan, supra, 870 A.2d at 919-23 (Holding that the discovery rule did not apply to one group of plaintiffs who were aware of abuse at the time it occurred, and a separate plaintiff that repressed all memory of sexual abuse).
      In this case, plaintiff testified at her deposition that she and the decedent met in 1987, married in 1988, and that he never mentioned to her that he had been sexually abused by a priest for the first 20 years of their knowing each other. Plaintiff further testified that, although she did not know if the decedent “forgot” the abuse, the decedent told her that he did not remember the abuse, and that he “believes...he suppressed the memories and...that it came out during...therapy’’’ that the decedent received in 2009 and 2010. (Defs.’ Ex. D, Dep., 144:3-6; see also id., at 27:11-17 (Testifying that the decedent told her “I didn’t remember” the abuse, and that the decedent stated “through the therapy that he was receiving, it came to a head and he remembered.”)). Thus, plaintiff has put forth evidence that the decedent repressed all memory of the alleged acts of abuse, and that he did not recall the abuse until sometime in 2009 or 2010 while under the care of certain therapist. The law is clear, however, that “recovery of repressed memory cannot extend statutory limitations.” Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1275 (Pa. Super. 2005) (quoting, Dalyrmple, supra, 701 A.2d at 171). Nor does the fact that plaintiff has alleged that the decedent manifested emotional and psychological injury decades after the abuse occurred change this analysis. “Once the limitations period began to run on the initial injury ... it also began to run on any related injuries arising from the same wrongful conduct.” Baily v. Lewis, 763 F. Supp. 802, 810 (E.D. Pa. 1991); see also, E.J.M., supra, 622 A.2d at 1394 (adopting the reasoning of Baily in Type 1 case); Seto, supra, 638 A.2d at 260-61 (adopting the reasoning of Baily in Type 2 case); see also, Cathcart v. Keene Industrial Insulation, 471 A.2d 493, 507 (Pa. Super. 1984). Accordingly, the court is bound to find that two-year statute of limitations applicable to plaintiff’s survival claim is not subject to tolling under the discovery rule.
      ii. The Fraudulent Concealment Doctrine Does Not Apply Defendants next argue that the doctrine of “fraudulent concealment” does not serve to toll the period of limitations applicable to plaintiff’s survival claim. The doctrine of fraudulent concealment is an exception to the requirement that a complaining party must file suit within the statutory period. As explained by the court in Meehan, supra:

      Where, through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the statute of limitations. The defendant’s conduct need not rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient [ ] mere mistake, misunderstanding or lack of knowledge is insufficient however, and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party. Moreover, in order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiffs justifiably relied.

        Meehan, 870 A.2d at 921 (internal citations and quotations omitted). The fraudulent concealment doctrine has been specifically considered in the context of sexual abuse cases. In Delaney v. Archdiocese of Philadelphia, 924 A.2d 659 (Pa. Super. 2007), the court held that proof of “general and systematic fraudulent conduct on the part of the Archdiocesan [defendants]” — such as by systematically misrepresenting that certain priests were in “good standing”, and systematically concealing knowledge of offending clerics misconduct • — ■ did not constitute an “affirmative act” for purposes of the fraudulent concealment exception. Id. at 662; accord, Lazarski v. Archdiocese of Philadelphia, 926 A.2d 459, 465 (Pa. Super. 2007) (“The general and systematic conduct alleged by the plaintiffs here . . . does not constitute an affirmative act for purposes of the fraudulent concealment exception and the plaintiffs have not [otherwise] shown that they relied on any affirmative act of concealment by the defendants which caused them to forego pursuit of their causes of action.”). In Meehan, the Superior Court considered what would constitute fraudulent concealment in sexual abuse cases involving the Archdiocese:
      Had the plaintiffs (sometime after the abuse but before the running of the statute of limitations) questioned the Archdiocese about their abusers (for example, questions about their abusers’ current location or history within the church), and had the Archdiocese affirmatively and independently acted in response to the plaintiffs’ inquiries so as to mislead the plaintiffs into forgoing their suits, the fraudulent concealment exception would later allow the plaintiffs’ suits.

        Meehan, 870 A.2d at 922. This formulation of the rule has been the guide by which our courts have applied the fraudulent concealment doctrine to allegations of sexual abuse where the Archdiocese is a defendant. See, Delaney, supra, 924 A.2d at 663 (Holding that fraudulent concealment doctrine did not apply where plaintiff did not put forth any evidence that he inquired of the defendants regarding his potential causes of action, and did not allege that the defendants’ “reassignment of Father Brzyski from St. Cecilia and listing him on ‘sick leave’ misled [plaintiff] or his parents into believing that the alleged sexual abuse did not occur, that it had not been committed by Father Brzyski, or that the alleged sexual abuse had not resulted in injury to [plaintiff].”); E.J.M., supra, 622 A.2d at 1395 (Holding that fraudulent concealment exception did not apply where plaintiff alleged that priest assured him that “the physical acts being performed on [him] were necessary for his spiritual development”, and further noting that “a defendant’s general assurances that a situation or condition being experienced by the plaintiff is normal do not rise to the level of fraudulent concealment where the plaintiff’s own common sense should inform him that he has been injured.”); Aquilino, supra, 884 A.2d at 1269 (Holding that fraudulent concealment doctrine did not apply where plaintiff asserted that offending priest “told him that his actions were sanctioned by God” and “made assertions about the Archdiocese’s knowledge of, and concealment of, the problem of sexual abuse among the clergy.”).
      The court agrees with defendants that the doctrine of fraudulent concealment does not toll the statute of limitations in this case. Plaintiff has neither alleged nor offered any evidence that plaintiff’s decedent, or anyone acting on his behalf, inquired of the Archdiocese and/or St. Joseph Parish about Msgr. Mazzota’s alleged acts of abuse during the period of limitations, and that these defendants “affirmatively and independently acted in response to [such] inquiries so as to mislead the [the decedent or someone acting on his behalf] into forgoing [ ] suit Meehan, 870 A.2d at 922. Instead, the record indicates that the Archdiocese first became aware of plaintiff’s decedent’s allegations of abuse in March 2009 or April 2010, when the decedent reported the abuse to the Archdiocese’s Victim Assistance Program. (Compare, Defs.’ Ex. A, Compl. at ¶ 16 [March 2009], with, Defs.’ Exs. C, E, F [April 2010], see also, Defs. Ex. D., Dep., 44: 2 -6). In addition, plaintiff’s allegations that “the Archdiocese knew, had reason to know, or were otherwise on notice of the unlawful sexual conduct of [Msgr.] Mazzotta and/or other priests within the Archdiocese”; that “Defendants ... engaged in a policy of secrecy to protect the Archdiocese”; and that, as a result, plaintiff’s decedent was “injured by the Archdiocese’s affirmative acts of concealing its actual purpose to enable those who molested children and to attack those who reported abuse by [Msgr.] Mazzotta”, (Defs.’ Ex. A, Compl. at ¶¶ 30,38 -39), fails to set forth facts that would support a finding of fraudulent concealment. Not only did plaintiff admit at her deposition that she was unaware of any evidence to support these allegations, even if she did come forth with such evidence, it would only be proof of “general and systematic fraudulent conduct” on the part of the defendants, and therefore would not constitute an “affirmative act” for purposes of the fraudulent concealment exception. See Delaney, 924 A.2d at 662; Lazarski, 926 A.2d at 465. Accordingly, the court must find that the fraudulent concealment doctrine does not apply, and that plaintiff’s survival claim is time-barred as a matter of law.
      B. Plaintiff’s Wrongful Death Action is Time-Barred
      Defendants have also moved to dismiss plaintiff’s claim of wrongful death. In support, defendants’ assert that the claim is barred as a matter of law because (1) the evidence of record establishes that plaintiff’s decedent died of natural causes, and not as a result of the alleged sexual abuse or wrongful acts of defendants (i.e., plaintiff cannot establish that defendants’ acts were the “proximate cause” of plaintiff’s decedent’s death); and (2) like plaintiff’s survival claim, plaintiff’s wrongful death claim is also time-barred.
      Pennsylvania’s wrongful death statute provides that an action may be brought “to recover damages for the death of an individual caused by the wrongful act or neglect or . . . negligence of another . . . “. 42 Pa.C.S. § 8301(a). Unlike a survival action, “[a] wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.”
        Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229, 1235 (Pa. Super. 2012) (citation omitted). The statute of limitations applicable to a claim of wrongful death is two years. See, 42 Pa.C.S. § 5524(b) (“An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or... negligence of another” must be commenced within two years). This period of limitations beings to run on the date of death. See, Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 390 (Pa. Super. 2002) (“An action for wrongful death must be brought within two years of the death.”). However, “if, at the time of death, the underlying negligence action would have been time-barred as to [the decedent], then the wrongful death cause of action is [also] time barred as to [the decedent’s] relatives.” Moyer v. Rubright, 651 A.2d 1139, 1141 (Pa. Super. 1994). In other words, a statutory beneficiary under Pennsylvania’s wrongful death act has no cause of action for wrongful death if the underlying negligence would have been time-barred at the time of death. See, Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 657 (Pa. Super. 2013) (Explaining that only if the underlying negligence action is not time-barred at the time of death, does the statute of limitations applicable to a survival action have no affect on a wrongful death claim). This is because a “wrongful death action is derivative of the original tortious act which would have supported [a decedent’s] own cause of action.” Moyer, 651 A.2d at 1142.
      For example, in Moyer a husband brought a wrongful death and survival action following his wife’s death from a late cancer diagnosis. The wife’s putative medical malpractice action accrued in September, 1986 (while she was still alive), wife passed away fourteen months later, in November, 1987, and her husband subsequently filed a survival action on behalf of her estate in November, 1989. The Moyer court held that the survival claim was time-barred because it was filed one year and two months after the two-year period of limitations began to run (September 1986 — November 1989). However, the court found that husband’s wrongful death action was timely because, on the date of his wife’s death in November, 1987, her potential medical malpractice claim (which had accrued fourteen months earlier, in September, 1986) was not time-barred. “Since [wife’s] cause of action was viable at the time of her death and [husband’s] wrongful death action was brought within two years of his wife’s death, [husband’s wrongful death action] was timely.” Id. at 1143.
      In this case, it is clear that plaintiff’s wrongful death action is time-barred. The court has already determined that plaintiff’s decedent’s cause of action against defendants is not subject to tolling, and that his claim against them accrued, at the latest, on December 31, 1971, and expired two years later, on December 31, 1973. As a result, the decedent’s cause of action at the time of his death (September 9, 2011) was not viable for failure to file within the period of limitations. Accordingly, the court finds that plaintiff’s wrongful death action must be dismissed as untimely. See, Moyer, 651 A.2d at 1141.a

        C. Plaintiff’s Loss of Consortium Claim is Time-Barred
      Finally, defendants assert that the court must dismiss plaintiff’s claim for loss of consortium because, like plaintiff’s wrongful death and survival action, her consortium claim is barred by the statute of limitations. The court agrees.
      In Pennsylvania, “a consortium claim is grounded on the loss of a spouse’s services after injury.” Burns v. Pepsi-Cola Metro. Bottling Co., 510 A.2d 810, 812 (Pa. Super. 1986). As such, in actions involving claims for both loss of consortium and wrongful death, recovery on the consortium claim is limited to the time period between the spouse’s injury and death. Novelli v. Johns-Manville Corp., 576 A.2d 1085, 1087 (Pa. Super. 1990); cf., Linebaugh v. Lehr, 505 A.2d 303, 305 (Pa. Super. 1986) (“[A] surviving spouse cannot maintain a separate cause of action for loss of consortium [for damages] resulting from the death of a spouse[,] but must instead recover damages for loss of the deceased spouse’s society in an action for wrongful death.”). Moreover, it has long been settled that an action for loss of consortium is “derivative” of the injured spouse’s claim, “emerging from the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities.” Darr Const. Co. v. W.C.A.B. (Walker), 715 A.2d 1075, 1080 (Pa. 1998). “The consortium claim and the personal injury claim are [thus] interconnected; together, they represent the total, compensable damages ... suffered as a result of the principal plaintiff’s injury.” Scattaregia v. Shin Shen Wu, 495 A.2d 552, 553 (Pa. Super. 1985). Given this, “[t]he limitations period for a wife’s claim for loss of consortium [begins] to run on the same date that her husband’s personal injury claim began to run.” Berardi v. Johns-Manville Corp., 482 A.2d 1067, 1071 (Pa. Super. 1984).
      As noted, the statute of limitations on plaintiff’s decedent’s tort claim against defendants, brought by plaintiff in her survival action, began to run, at the latest, on December 31,1971, and expired two years later, on December 31,1973. Because the period of limitations on any consortium claim necessarily “ran with” the period of limitations on the survival claim, the court must find plaintiff’s claim for loss of consortium is time-barred.1’
      D. Conclusion
      The evidence put forth in this case conclusively establishes that plaintiff’s wrongful death and survival action, as well as plaintiff’s claim for loss of consortium, are barred by the applicable statutes of limitations. While the court is certainly sympathetic to the claims of plaintiff, the court must remain faithful to the laws of this Commonwealth. Accordingly, defendants’ motion is granted, and plaintiff’s complaint as to defendant, The Archdiocese of Philadelphia, and defendant, St. Joseph Parish, is dismissed with prejudice.