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A Philadelphia judge’s opinion dismissing the lawsuits of 17 adults who allege they were sexually abused as children by priests of the Philadelphia Archdiocese runs contrary to holdings in three other Pennsylvania trial courts, which have allowed similar lawsuits to proceed. Common Pleas Judge Arnold L. New’s 18-page opinion in C.J.M. v. Archdiocese of Philadelphia and Parisi v. Archdiocese of Philadelphia, published Friday, granted the defendants’ motions for judgment on the pleadings on the grounds that the plaintiffs claims were barred by the statute of limitations. Pennsylvania generally bars personal injury lawsuits that aren’t filed within two years of an alleged injury. The plaintiffs lawyers had argued at a hearing last month that the discovery rule tolled the statute of limitations. “The other [Pennsylvania] courts have all ruled that this is a jury question,” said attorney Richard M. Serbin, who represents plaintiffs who sued church officials in Lehigh, Pa., and Allegheny, Pa., counties under similar theories of liability, claiming officials there conspired for years to hide the role they played in protecting abusive priests. Pennsylvania courts have defined the discovery rule to apply in the limited circumstances in which a plaintiff’s injury wasn’t known to him within the statutory period, and, despite the plaintiff’s reasonable diligence, he couldn’t have known of the injury and its cause within that time. The courts have traditionally applied the rule to cases of unknown injuries such as a sponge being accidentally sewn into someone’s body after surgery or a “creeping disease” that resulted from continuous exposure to a hazardous material like asbestos. Serbin, of Serbin Kovacs & Nypaver in Altoona, stressed the latter half of the discovery rule definition: Could these plaintiffs have known of the cause of their injury within the statute of limitations period? The C.J.M. and Parisi plaintiffs admit they knew of their injuries at the time of the alleged sexual abuse by Roman Catholic priests, but they say they didn’t know the archdiocese was a possible defendant until 2002. That was the year when national and local church officials publicly acknowledged the existence of allegations of abuse against priests. The plaintiffs say it was only then that they learned that the church may have placed priests in the position to abuse by transferring them to other parishes and not warning the then-minor plaintiffs or their parents, according to their complaints. Therefore, the plaintiffs contend, the statute of limitations didn’t begin to run on their cases until between 2002 and 2004. New, ruling differently than judges in Allegheny, Lehigh and Westmoreland, Pa., counties, emphasized that the plaintiffs knew they were injured at the time the alleged abuse occurred. “This court has been unable to find any appellate authority for the proposition the statute of limitations is tolled as to an individual defendant’s tortious acts, even though the plaintiff is aware that he has suffered an injury and is aware of the cause of that injury,” New wrote. He said the plaintiffs failed to show in their pleadings that they used any diligence — “let alone reasonable diligence” — to be properly informed of the facts and circumstances of their injury. “Upon the actions of the priests, plaintiffs had a duty to investigate to determine if parties other than the priests were involved,” New wrote. “The plaintiffs do not allege in their pleadings any such investigation took place or was even attempted… . Plaintiffs knew or should have known, at the time of their battery that they had a valid legal action and an obligation at that time to investigate to determine all causes of action against all parties.” New also dismissed the plaintiffs’ claims that the archdiocesan defendants fraudulently concealed prior incidents of sexual abuse of children in the archdiocese. “Since they did not exercise due diligence, plaintiffs cannot use the doctrine of fraudulent concealment to toll the statute of limitations,” he held. Stewart J. Eisenberg, who represents six of the people suing the church, said the plaintiffs are asking New to reconsider his decision. Otherwise, they plan to appeal it to Superior Court. “He’s talking about 10-year-old kids having a duty to investigate their injuries — or their parents, who didn’t know in the first place,” said Eisenberg, an attorney at Eisenberg Rothweiler Schleifer Weinstein & Winkler. “The other courts didn’t buy that argument. They said that if the plaintiffs can prove there was concealment going on, the plaintiffs have a cause of action.” The Philadelphia Archdiocese’s lawyer, C. Clark Hodgson Jr. of Stradley Ronon Stevens & Young, declined to comment on New’s decision. A statement issued by the archdiocese on Friday said, “It has been the belief of the archdiocese that the statute of limitations does apply in these cases, and we are pleased by the court’s decision. The archdiocese is steadfastly committed to dealing with any allegations of abuse and has increased its efforts to prevent abuse of minors from occurring in the future.” Joseph F. Leeson, who represents the church in similar lawsuits in Lehigh and Schuylkill, Pa., counties, said that New was the first Pennsylvania judge to recognize that the statute of limitations bars claims alleging incidents that took place 20 to 30 years ago. “The publicity in 2002 all had to do with other cases,” said Leeson of Leeson Leeson & Leeson in Bethlehem. While the other county judges have focused their rulings on the church’s disclosures that year, New “was able to see that the information had nothing to do with their allegations,” Leeson said. In May, Westmoreland County, Pa., Common Pleas Judge Gary P. Caruso denied the Diocese of Altoona-Johnstown, Pa.’s preliminary objections to a suit brought by the mother of a man who says a priest sexually abused him in 1980 and 1981. Caruso found that it was a jury question as to when the mother, Mary Bonson, should have reasonably known that her son had suffered an injury. Bonson says she didn’t learn of the abuse until her son told her about it in 2002, according to Caruso’s opinion in Bonson v. Diocese of Altoona-Johnstown. In June, a three-judge panel in Lehigh County refused to throw out the allegations of seven plaintiffs who had also argued that the church concealed an ongoing abuse problem in the Diocese of Allentown, Pa. Judge Alan Black, writing for the panel in A.L.M. v. Diocese of Allentown, said “if the plaintiffs’ allegations are correct, a question remains as to when the plaintiffs knew or had reason to know that the defendants were also a cause of their harm.” Black distinguished the A.L.M. plaintiffs’ claims from claims based on the vicarious liability of an employer. Citing the Superior Court’s reasoning in a 2000 decision, R.A. ex rel N.A., Black said that “the acts of sexual abuse committed by the offending priests were, if true, clearly outrageous and outside the scope of their priestly duties. Thus, the plaintiffs could not have pursued claims against the defendants at the time of the abuse based on vicarious liability.” Allegheny County Common Pleas Judge R. Stanton Wettick Jr. ruled in line with the Lehigh County panel in an order issued Aug. 3 in the case of Matthews v. the Roman Catholic Diocese of Pittsburgh. The lawsuit’s allegations are nearly identical to those in A.L.M. Wettick also found that it is for a jury to decide whether the plaintiff exercised “reasonable diligence” in discovering the cause of his injury “unless reasonable minds would not differ in finding that plaintiff failed to exercise reasonable diligence.” Leeson, who represents the church in A.L.M., noted that Wettick also seemed to be carving out a “special statute of limitations for the Catholic Church.” In Matthews, the diocesan defendants had argued that the plaintiffs couldn’t invoke the discovery rule because a person injured by an employee should have reason to suspect that the employer may also have independent responsibility for the injury. Wettick wrote that he did “not find this rationale to be persuasive when the employer is a church which the plaintiff attends, and the employee is engaging in activity that may be reasonably viewed as conduct that the church could never tolerate.” Indeed, the judge said, “a jury may find that there is a loud ring of truth to the plaintiff’s statement that he and his family never approached diocesan officials to ask whether they had knowingly assigned to their church, to work directly with the parishioners including young boys, a priest with a history of sexually molesting children, because it would never cross their minds that the church would do so.” Leeson said Pennsylvania law does not support Wettick’s reasoning. “Churches should not be treated any differently than a for-profit business is treated under the law,” Leeson said. Both Black and Wettick rejected the defendants’ contentions that they should apply the reasoning from Dalrymple v. Brown, a 1997 state Supreme Court opinion. The Dalrymple court refused to apply the discovery rule to extend the statute of limitations in a case where the plaintiff claimed that her repressed memory of an injury was the reason she hadn’t filed the action earlier. Wettick and Black said Dalrymple didn’t apply because there were no assertions of repressed memory in the cases before them. New, however, relied on Dalrymple, saying it indicates the courts’ favor for a strict application of the statute of limitations period. “Although the archdiocesan defendants’ actions may have placed the priests in a position to commit the batteries, it was the actions of the priests which caused the actual injury,” New wrote. Although the archdiocesan defendants may have contributed to the plaintiffs’ injuries, “they did not create a new injury, a creeping injury or alter the cause of the injury.” Therefore, the statute of limitations began to run “at the time of the harm,” or the battery, New held. Jay N. Abramowitch, who represents some of the Philadelphia and Lehigh county plaintiffs, said he was surprised that New considered the issue of culpability with “such a narrow scope.” He said the statute of limitations issues in New, Black and Caruso’s opinions might have an intersection with criminal law. A grand jury has been meeting for more than a year to determine whether criminal charges are warranted against any priests or church officials. “Analogize this to someone who’s a co-conspirator to a bank robbery,” said Abramowitch of Leisawitz Heller Abramowitch Phillips in Wyomissing. “If the bank finds out two years later that there was a co-conspirator involved in the robbery, they should be able to go after the co-conspirator in civil court. “Obviously, if someone is criminally responsible for the commission of a crime, they could also be civilly responsible.” But if New’s opinion is accepted by the appellate courts, Abramowitch said, “then someone could be culpable for criminal negligence but not civilly liable. That just can’t be right.” Joseph W. Selep of Zimmer Kunz in Pittsburgh represented the Roman Catholic Archdiocese of Pittsburgh in Matthews. He was not available for comment.

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