SPACK v. APOSTOLIDIS

BECK, Judge:

Appellants appeal the judgment on the pleadings entered in favor of appellee Dr. Apostolidis on the ground that the appellants' suit was barred by the two-year statute of limitations. We affirm.

In reviewing an order granting a motion for judgment on the pleadings, we "accept as true the opposing party's well-pleaded averments of fact and consider against him only those facts which he specifically admits." Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 279, 431 A.2d 1046, 1047 (1981). In ascertaining the facts, we must examine only the pleadings and the documents properly attached thereto. Gallo v. J.C. Penney Casualty Insurance Co., 328 Pa.Super. 267, 476 A.2d 1322 (1984). "No affidavits, depositions or briefs may be considered." Id., 328 Pa.Superior Ct. at 270, 476 A.2d at 1324. Judgment on the pleadings will be upheld only "`in cases which are so free from doubt that trial would clearly be a fruitless exercise.'" Id., 328 Pa.Superior Ct. at 270, 476 A.2d at 1324; Balush v. Borough of Norristown, 292 Pa.Super. 416, 437 A.2d 453 (1981).

Appellants Mrs. Spack and Mrs. Jackson and their husbands claim damages stemming from Dr. Apostolidis' alleged May 20, 1977, sexual assault on Mrs. Spack and Mrs. Jackson during gynecological examinations. Nearly four years after the reputed incidents, on May 18, 1981, appellants Spack and appellants Jackson instituted actions against Dr. Apostolidis by writs of summons. Eight months later, on January 18, 1982, appellants Spack and appellants Jackson filed substantively identical six-count complaints against Dr. Apostolidis. In each complaint five counts were labelled trespass, and one count was labelled assumpsit.

Appellants concede that the five counts designated trespass in each complaint are barred by the two-year statute of limitations applicable to actions seeking recovery for personal injuries. Section 2 of the Act of June 24, 1895, P.L. 236, 12 P.S. § 34, now repealed and reenacted at 42 Pa.C.S. § 5524(2).1 However, appellants contend that their cause of action pled in assumpsit is not time-barred because it is governed by the six-year statute of limitations applicable to actions seeking recovery for breach of contract. Section 1 of the Act of March 27, 1713, 1 Sm.L. 76, 12 P.S. § 31, now repealed and reenacted at 42 Pa.C.S. §§ 5525 and 5527.2

In Pennsylvania, the nature of the relief requested, rather than the form of the pleading, determines which statute of limitations controls a particular action. Murray v. University of Pennsylvania Hospital, 340 Pa.Super. 401, 490 A.2d 839 (1985); Sykes v. Southeastern Pennsylvania Transportation Authority, 225 Pa.Super. 69, 310 A.2d 277 (1973). As we explained in Murray,

Id., 340 Pa.Superior Ct. at 405-06, 490 A.2d at 841-42; see also Prosser and Keeton on the Law of Torts § 92, at 666-67 (W. Keeton 5th ed. 1984). The rationale for utilizing the two-year statute of limitations for all actions seeking recovery for personal injuries, whether premised on a contract or a tort theory, is that

2 Standard Pennsylvania Practice 2d § 13:39, at 444-445 (1981) (footnotes deleted); Moore v. McComsey, 313 Pa.Super. 264, 459 A.2d 841 (1983).

Thus, to ascertain whether the two-year or the six-year statute of limitations governs the case sub judice, we must consider whether the pertinent count in the appellants' complaints asks damages for personal injuries or, instead, asks other relief. The relevant count reads as follows:

Citing Murray, appellants argue that the count in question requests contract damages and hence falls within the purview of the six-year statute of limitations. In Murray, the plaintiff contracted with her physician for a tubal ligation to achieve the specific result of rendering her sterile. When she became pregnant after the tubal ligation, the plaintiff discovered that she had not received the result for which she had contracted. Thereafter, in an action against her physician, the plaintiff sought recovery for personal injuries and "recovery for the reasonable cost of achieving the result contracted for, i.e., prevention of conception; and the cost of remedying [the doctor's] failure to perform their contract, i.e., the cost of the therapeutic abortion" which the plaintiff was required to undergo. Id., 340 Pa.Superior Ct. at 408, 490 A.2d at 843. While the two-year statute of limitations was applied to that portion of the plaintiff's claim seeking damages for personal injuries, the six-year statute was applied to the remainder of the plaintiff's claim requesting damages for the "cost of completing performance of the contract or remedying defects in performance." Id., 340 Pa.Superior Ct. at 406, 490 A.2d at 842. In other words, the two-year statute did not bar the plaintiff's claim for "true contract damages intended to give the injured party the benefit of their [sic] bargain by awarding a sum of money that would, to the extent possible, put them [sic] in the same position as they [sic] would have been if the contract had been performed." Id., 340 Pa.Superior Ct. at 408, 490 A.2d at 843.

Although the pertinent count in appellants' complaints is couched in contractual terminology, we conclude that it asks relief for personal injuries and does not request true contract damages. In Moore, we defined personal injuries to encompass in

Id., 313 Pa.Superior Ct. at 270, 459 A.2d at 844 (citation omitted). The assumpsit count in appellants' complaints essentially seeks damages for physical pain, emotional distress and mental anguish — all of which come within the definition of personal injuries provided in Moore. The count in question also asks reimbursement for the cost of mental counseling and for wages lost during the period of mental recovery. We do not regard these requested damages as true contract damages of the type sought in Murray, i.e., cost of completing the bargained for performance and/or cost of remedying the defects in performance. Rather, we deem these asserted damages as wholly derived from and concomitant to the physical pain, emotional distress and mental anguish for which appellants seek redress. Hence, they also constitute damages for personal injuries.

Inasmuch as appellants have not sought true contract damages in their designated count in assumpsit but have confined their claim to damages for personal injuries, appellants' action against appellee is barred by the two-year statute of limitations.3 12 P.S. § 34. Therefore, the common pleas court has properly entered judgment on the pleadings for appellee, and we affirm.