BRIAN MALEWICZ, ET. AL. vs MICH'L BAKER - The Philadelphia ...

IN THE COURT COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

BRIAN MALEWICZ, ET. AL., : December 2002 

Plaintiffs, : 

v. : No. 01741 

MICHAEL BAKER CORPORATION, ET. : 

AL., : COMMERCE PROGRAM 

Defendants. : 

: Control Numbers 061853/061848 

ORDER 

AND NOW, this 15 th day of February, 2005, upon consideration of the Motion 

for Summary Judgment of Defendants Fred Johnson and Dwight Sangrey (cn 061853) 

and the Motion for Summary Judgment of Defendants Michael Baker Corporation and 

Donald P. Fusulli, Jr. (cn 061848), all responses in opposition, Memoranda, all matters of 

record and in accord with the contemporaneous memorandum opinion being filed of 

record, it hereby is ORDERED and DECREED that Defendants’ respective Motions for 

Summary Judgment are Granted and plaintiffs’amended complaint is dismissed against 

all Defendants. 

BY THE COURT, 

_____________________________ 

C. DARNELL JONES, II, J.

IN THE COURT COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

BRIAN MALEWICZ, ET. AL., : December 2002 

Plaintiffs, : 

v. : No. 01741 

MICHAEL BAKER CORPORATION, ET. : 

AL., : COMMERCE PROGRAM 

Defendants. : 

: Control Numbers 061853/061848 

JONES, II, J. 

MEMORANDUM OPINION 

Presently before the court is the Motion for Summary Judgment of Defendants 

Fred Johnson and Dwight Sangrey and the Motion for Summary Judgment of Defendants 

Michael Baker Corporation and Donald P. Fusilli, Jr. For the reasons that follow, 

Defendants respective Motions for Summary Judgment are Granted. 

I. Parties 

BACKGROUND 

The parties involved in this suit are the following: the plaintiffs are Brian T. 

Malewicz, Michael D. Burns, David L. Jannetta, Mark J. DeNino and Mobility 

Technologies Inc. (Mobility). Mobility is in the business of designing and installing real- 

time automobile traffic sensor networks in major metropolitan areas throughout the 

United States. Mobility was formerly known as Argus Network, Inc. Jannetta is a 

principal and shareholder of Mobility. DeNino, Burns and Malewicz are shareholders of 

Mobility but are not employed by the company. 

The defendants in this action are Michael Baker Corporation (“MBC”), Donald P. 

Fusilli (“Fusilli”), Fred Johnson, Dwight Sangrey and Howard Kraye. MBC is an

engineering firm. Since September 1999, Fusilli has been a member of MBC’s senior 

management team and has been the company’s president since April 2000. In April 

2001, Fusilli gained the additional title of chief executive officer. 

Defendants Kraye, Sangrey and Johnson are or were principals and shareholders of 

Santa Fe Technologies (“SFT”). SFT is a New Mexico company engaged in the business 

of installing and maintaining sensors for various purposes such as recording 

environmental data or recording automobile traffic density. Sangrey was SFT’s CEO 

from 1996 through the latter part of 1999. Additionally, Kraye, Sangrey and Johnson 

have been the directors of the company throughout the relevant time period. 

II. Factual Background 

A. SFT and MBC’s Exclusivity Agreement and Due Diligence Period 

(January 1997 to May 1997). 

In January 1997, MBC and SFT entered into an Exclusivity Agreement whereby 

MBC loaned SFT $600,000.00 for a period of ninety days to conduct due diligence and 

enter into an Acquisition Agreement with SFT. According to the terms of the agreement, 

upon expiration of the ninety day period without an Acquisition Agreement, or upon 

default by SFT or notice by MBC that it will not proceed with acquisition, SFT would 

have 120 days to repay the full amount of the loan plus accrued interest. Repayment of 

the loan was secured by the pledge of 100 percent of SFT stock and by personal 

guarantees issued by Fred Johnson, Howard Kraye and their wives. 

In May 1997, after performing due diligence, MBC ultimately decided not to 

proceed with the acquisition of SFT. As such, MBC informed SFT that under the terms 

of the Exclusivity Agreement it had 120 days from the date of the expiration of the 

negotiation period to repay the $600,000.00 plus interest. (Plaintiffs’ Exhibit 10). Over a 

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two year period, SFT paid the debt down to an outstanding principal amount of 

$117,405.48 but it was never paid off completely. Although MBC made repeated 

demands for payment, it never exercised its legal rights for payment. 

B. SFT and Mobility’s Plan of Merger and Termination. (May 1998- 

March 5, 1999). 

In May or June of 1998, Sangrey (SFT) proposed to Jannetta (Mobility) that 

Mobility merge with SFT so that the companies could bid for an upcoming federal 

contract to be offered by the Federal Highway Administration for the design and 

installation of real-time traffic networks in two major metropolitan areas, Philadelphia 

and Pittsburgh, Pennsylvania. 

On November 2, 1998, Mobility entered into an Agreement and Plan of Merger 

with SFT. (Plaintiffs’ Exhibit “32”). In the weeks following the signing of the merger 

agreement, Mobility advanced SFT $240,000 to help with SFT’s cash-flow problems. 

SFT represented that the monies would be used to cover ordinary business expenses such 

as payroll. 

In December 1998, SFT and Mobility learned that the Federal Highway 

Administration issued its invitation to bid on the federal contract and that all contract bids 

were due by March 1, 1999. On January 25, 1999, Sangrey (SFT), in preparation for a 

meeting with SFT’s Board, prepared a status report stating that the plan merger 

agreement with Mobility was on hold pending resolution of several issues. The existing 

approved merger plan contained a condition required by the SFT Board that a state or 

federal contract must be in hand to conclude the merger between SFT and Mobility. 

(Plaintiffs’ Exhibit “45”). In the status report, Sangrey discussed the options available to 

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SFT in the event the federal contract was not awarded and the plan merger did not occur. 

(Id.). One of the options discussed was a merger with MBC. (Id.). 

On February 19, 1999, despite the merger agreement with SFT and unknown to 

SFT, Mobility principals David Jannetta and Michael Burns called the principals of a 

competing New Mexico firm, Sensor Management Systems (“SMS”), to “discuss 

working together” on the federal bid with Mobility instead of SFT. The next day, Burns 

wrote an email to his supervisor Mark DeNino proposing to swap SMS for SFT in 

connection with the federal bid. DeNino approved but expressed concern that SFT might 

sue. On February 22, 1999, Burns met with Jerry Musnitsky and Mark Nash of SMS in 

San Francisco to discuss the terms of the merger between SMS and Mobility. 

On February 24, 1999, Mobility and SMS set forth in writing their agreement and 

understanding regarding the terms of the merger of their companies. (Plaintiffs’ Exhibit 

48). On the same day the merger agreement between SMS and Mobility was signed, 

Jannetta (Mobility) wrote to Sangrey (SFT) to terminate the Agreement and Plan of 

Merger with SFT citing Mobility’s lack of desire to proceed with the merger. (Plaintiffs’ 

Exhibit “49”). 

On February 26, 1999, counsel for SFT acknowledged receipt of Mobility’s letter 

terminating the merger agreement between Mobility and SFT. (Plaintiffs’ Exhibit “50”). 

The letter also placed Mobility as well as SMS on notice of potential legal action by SFT 

against Mobility for tortious interference with the federal contract bid, unjust enrichment 

and other potential causes of action. (Plaintiffs’ Exhibit “50”). 1 

On March 1, 1999, Mobility acquired SMS and that same day Mobility submitted 

its bid for the federal highway contract without SFT. In connection with the bid, MBC 

1 Plaintiffs admit that MBC played no part in the letter by SFT threatening litigation against Mobility. 

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served as a subcontractor. Mobility was ultimately awarded the federal contract by the 

Federal Highway Administration to install traffic sensors in Pittsburgh and Philadelphia, 

Pennsylvania. 

In the meantime, unknown to Mobility, MBC contacted SFT questioning whether 

MBC should continue to be involved with the bid process. (Plaintiffs’ Exhibit 22 p. 421- 

424). 

On March 5, 1999, Sangrey (SFT) pursued his contingency plan expressed in his 

January 1999 status report to SFT’s Board, he asked MBC to purchase SFT’s assets. 

(Plaintiffs’ Exhibit “51”). MBC responded that it was not interested in purchasing SFT’s 

assets. (Id.). 

In late April or May 1999, MBC contacted SFT to express its concern with the 

technical competence of the team, Mobility and SMS, and sought advice from SFT on 

how to handle the situation. (Plaintiffs’ Exhibit “22” p. 421-424). 

C. Mobility and ICG (1998- July 1999). 

Sometime prior to the award of the federal contract and thereafter, Mobility 

sought financing from Internet Capital Group (“ICG”). Prior to delivering the requested 

financing to Mobility, ICG performed due diligence. As part of the due diligence 

process, it is unknown whether the letter dated February 26, 1999 from SFT threatening 

suit was provided to ICG. (Defendants’ Exhibit “18” p. 80; Defendants’ Exhibit “8” p. 

110; Defendants’ Exhibit “33”). However, Burns recalls discussing the termination of 

the merger agreement with SFT and the SMS acquisition with ICG. (Defendants’ Exhibit 

“18” p. 80). According to Burns, ICG was aware that SFT was unhappy with the 

termination of the merger, that Mobility received advice from counsel and concluded that 

5

it had a right to terminate the merger agreement with SFT and that Mobility did not 

believe the litigation instituted by SFT was meritorious. (Id. p. 82). 

At the time Mobility was discussing its financing plans with ICG, Mobility 

disclosed its plans to obtain financing from ICG with MBC and other vendors who were 

working along with Mobility on the federal contract in the spring of 1999. (Plaintiffs’ 

Exhibit “20” p. 31-32; 35). Mobility informed MBC and its other vendors that it hoped 

to close the transaction in late July, 1999. (Id. p. 41). 

The discussions between ICG and Mobility progressed and ultimately ICG 

delivered a term sheet to Mobility on July 28, 1999. (Defendants’ Exhibit “34”). The 

term sheet delivered to Mobility outlines the terms and conditions of a proposed 

investment by ICG in Mobility and was solely an expression of intentions and was not to 

be construed as a binding agreement. (Defendants’ Exhibit “34”). The transaction was 

expected to close on or before August 15, 1999. (Id.). In addition to a term sheet, a stock 

swap was also drafted between ICG, Burns and Malewicz. (Id. p. 187-188). 

D. The New Mexico Lawsuit (7-28-99). 

On the day that ICG delivered the term sheet to Mobility, SFT filed a lawsuit 

against Mobility, DeNino, Burns, Jannetta and three principals of SMS, Nash, Musnitsky 

and Dollar in New Mexico. The gravamen of SFT’s claims were (1) Mobility and its 

principals stole SFT’s proprietary information and used that information to win the 

federal contract, (2) Nash, Musnitsky and Dollar—all of whom were minority 

shareholders, former employees, and competitors of SFT—misappropriated a corporate 

opportunity belonging to SFT, and otherwise breached fiduciary and unspecified “other” 

duties purportedly owed by those defendants to SFT and (3) civil conspiracy among all of 

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the defendants for their alleged tortious behavior. On August 3, 1999, discovery requests 

and the complaint were transmitted by overnight delivery to the named defendants. 

On or about August 4, 1999, Mobility and its officers and directors were in receipt 

of the lawsuit filed by SFT. At the time the lawsuit was received, Mobility’s transaction 

with ICG had not closed. Upon receipt of the lawsuit, plaintiffs allege that ICG 

immediately informed Mobility that the terms of the transaction would have to be 

changed because of the added risk to ICG created by the filing of the New Mexico 

litigation. (Plaintiffs’ Exhibit “54”). ICG’s investment in Mobility ultimately closed in 

October 1999. 

E. Requests to Purchase MBC’s Note to SFT. 

On September 8, 2000, counsel for MBC received a communication from counsel 

representing David Broeker Industries, LLC who expressed an interest in purchasing 

MBC’s interest in the outstanding promissory note due from SFT and the security 

pledged therein. (Plaintiffs’ Exhibit “61”). As a result, on October 11, 2000, a 

confidentiality agreement was forwarded to MBC for review and signature. (Plaintiffs’ 

Exhibit “62”). 

On December 4, 2000, MBC sent a formal demand letter to SFT demanding 

repayment and stating that legal action is certain to result if the loan was not repaid. 

(Plaintiffs’ Exhibit “63”). SFT responded by stating that it had no funds to repay the 

balance but had several plans in the works such as a commercial prospect involving a 

portable traffic monitoring tower developed by them which uses microwave and acoustic 

technology which does not require road sensors and SFT’s New Mexico lawsuit which 

Kraye stated was in its final stages. (Plaintiffs’ Exhibit “64”). MBC never heard from 

7

David Broeker Industries nor did they contact them on their pursuit of purchasing SFT 

indebtedness. 

In April 2001, Jannetta (Mobility) contacted MBC’s chief executive officer, 

Fusilli and expressed an interest in purchasing SFT’s debt. Fusilli replied that he would 

check into the matter more and get back to Jannetta. In August 2001, Jannetta again 

contacted Fusilli about purchasing the indebtedness; Fusilli referred Jannetta to MBC’s 

general counsel. On August 21, 2001, Jannetta and MBC’s counsel discussed the status 

of the SFT debt and collateral. (Plaintiffs’ Exhibit “68”). Jannetta offered to pay MBC 

10 or 20 cents on the dollar and asked MBC to make a counter offer. Fusilli informed 

Jannetta that the offer was under consideration. 

On September 7, 2001, MBC’s general counsel contacted Kraye and questioned 

him as to when payment would be received on the note. (Plaintiffs’ Exhibit “70”). Kraye 

indicated that SFT had no money to repay the debt. (Id.) MBC’s general counsel 

informed Kraye that MBC had been approached by a firm interested in acquiring its 

position on the note and foreclosing on the stock of SFT. (Id.). According to MBC 

counsel, Kraye surmised that the firm was Mobility. (Id.). Thereafter, MBC counsel 

informed Mobility that it had no desire to engage in a transaction that may result in MBC 

becoming involved in the litigation against Mobility. (Id.) 

On October 1, 2001, counsel for MBC received a phone call from Johnson (SFT). 

(Plaintiffs’ Exhibit 80). Johnson informed MBC counsel that SFT’s only asset was the 

lawsuit against Mobility. (Id ). Johnson further stated that he is judgment proof and that 

he wanted to see MBC get its money back and stated that he may have a potential buyer 

of the MBC note. (Id.). 

8

Thereafter, in or about the end of 2001 and beginning of 2002, Malewicz 

discovered from Mark Nash, a co defendant in the New Mexico litigation, that Kraye 

informed him that the SFT lawsuit was a devised plan to extort money from Mobility. 

(Plaintiffs’ Exhibit “21” p. 160-161). 

In December 2002, plaintiffs commenced this action against defendants alleging 

claims of tortious interference with prospective contractual relations (Count I), prima 

facie tort under New Mexico law (Count II), malicious abuse of process (Count III) and 

civil conspiracy to interfere with prospective contractual relations (Count IV), civil 

conspiracy to commit prima facie tort (Count V), and civil conspiracy to commit 

malicious abuse of process (Count VI). Defendants MBC and Donald P. Fusilli, Jr. filed 

preliminary objections to plaintiffs’ complaint. On August 6, 2003, the court entered an 

order dismissing the claims for malicious abuse of process and civil conspiracy to 

commit malicious abuse of process. The court also sustained objections for plaintiffs 

failure to attach a document and as to the specificity of the allegations and required 

plaintiffs to file an amended complaint. Defendants have now filed the instant motions 

for summary judgment. 

I. LEGAL STANDARD 

DISCUSSION 

A proper grant of summary judgment depends upon an evidentiary record that 

either (1) shows the material facts are undisputed or (2) contains insufficient evidence of 

facts to make out a prima facie cause of action or defense. Destefano & Associates, Inc. 

v. Cohen, 2002 WL 1472340,* 2 (Pa. Com. Pl. 2002) (Herron, J.). Under Pa. R.C. P. 

1035.2(2), a defendant may make the showing necessary to support the entry of summary 

9

judgment by pointing to evidence which indicates that the plaintiff is unable to satisfy an 

element of his cause of action. Id. In response, the nonmoving party must adduce 

sufficient evidence on an issue essential to its case and on which it bears the burden of 

proof such that a jury could return a verdict favorable to the non-moving party. Id. 

Summary judgment may only be granted in cases where it is clear and free from doubt 

that the moving party is entitled to judgment as a matter of law. 

II. Plaintiffs’ Claims Against Defendants Are Barred by the Applicable Statute of 

Limitations. 

Moving defendants argue that the statute of limitations bars all claims made 

against them since the plaintiffs knew of their injury as early as July 28, 1999 when SFT 

filed the lawsuit in New Mexico against Mobility, its officers and other related 

companies. Plaintiffs on the other hand argue that the discovery rule tolls the running of 

the statute of limitations. For the reasons discussed below, this court finds that the statute 

of limitations bars all of plaintiffs’ claims against defendants. 

Pennsylvania’s two year statute of limitations applies to the case at hand. See 42 

Pa. C. S. A. § 5524. 2 The statute of limitations begins to run as soon as the right to 

institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding does 

not toll the statute of limitations. Pocono International Raceway Inc. v. Pocono Produce 

Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). A person asserting a claim is under a 

duty to use all reasonable diligence to be properly informed of the facts and 

circumstances upon which a potential right of recovery is based and to institute suit 

2 The following actions and proceedings must be commenced within two years pursuant to 42 Pa. C.S.A. § 

5524, assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process. 

Additionally, any other action or proceeding to recover damages for injury to person or property which is 

founded on negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding 

in trespass, including deceit or fraud. 

10

within the prescribed statutory period. C.J.M. v. Archdiocese of Phila., 67 Pa. D. & C. 

4 th 474, 481 (2004). 

A judicially created exception, known as the discovery rule, exists to toll the 

statute of limitations. The discovery rule tolls the statute of limitations until the plaintiff 

knows or reasonably should know that (1) he has sustained an injury and (2) his injury 

has been caused by another party’s conduct. Weik v. Estate of Brown, 794 A.2d 907, 

909 (Pa. Super. 2002). The limitations period begins to run when the injured party 

“possess[es] 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.” C.J.M. v. 

Archdiocese of Phila., supra at 482 (quoting Haggart v. Cho, 703 A.2d 522, 526 (Pa. 

Super. 1997). In determining whether to apply the discovery rule to a case, “the court 

must address the ability of the injured party, exercising reasonable diligence, to know that 

the party has been injured by the act of another.” Bowe v. Allied Signal Inc., 806 A.2d 

435, 439 (Pa. Super. 2002). 

The party seeking to invoke the discovery rule bears the burden of establishing 

the inability to know he or she has been injured by the act of another despite the exercise 

of reasonable diligence. Reasonable diligence is defined as “a reasonable effort to 

discover the cause of an injury the facts and circumstances present in the case.” 

Matthews v. Roman Catholic Diocese of Pittsburgh, 67 Pa. D. & C. 4 th 393, 396 (2004) 

(citing Cochran v. GAF Corp., 542 Pa. 210, 217, 666 A.2d 245, 249 (1995)). 

Since the discovery rule’s application involves a factual determination as to 

whether the plaintiff exercised reasonable diligence in discovering the cause of the injury, 

ordinarily a jury must decide whether the discovery rule applies. Id. However, whenever 

11

easonable minds would not differ in finding that the plaintiff has failed to exercise 

reasonable diligence, the court shall decide the matter rather then submit it to a jury. Id 

(citing Weik v. Estate of Brown, supra. 794 A.2d at 909)). 

A. Defendants Johnson and Sangrey. 

In the amended complaint as well as the response to defendants’ motion for 

summary judgment, Plaintiffs allege that the filing of the New Mexico lawsuit by the 

SFT defendants thwarted the proposed $19,000,000 infusion of capital which directly 

resulted in significant changes to the structure of the financing ultimately obtained by 

Mobility causing plaintiffs substantial harm. 

The SFT defendants filed the New Mexico lawsuit on July 28, 1999. The instant 

lawsuit was filed on December 12, 2002. Although plaintiffs argue that reasonable minds 

could plainly differ as to when plaintiffs should have known (a) that SFT was seeking to 

extort a payment of money from Mobility in order to pay off its indebtedness to MBC, 

and (b) that MBC shared information with SFT regarding the timing of Mobility’s fund 

raising efforts, reasonable minds can not differ as to when plaintiffs suffered an injury. 

As set forth in the amended complaint as well as the record evidence before the 

court, plaintiffs suffered an injury at the time the New Mexico lawsuit was filed on July 

28, 1999. It is that date which begins the running of the statute of limitation. Whether 

plaintiffs were aware of the motive behind the filing of the New Mexico lawsuit is not 

determinative as to when the statute of limitations begins to run. Rather, it is when 

plaintiffs discovered they were injured that begins the clock for statute of limitation 

purposes. 

12

The record evidence demonstrates that (1) Burns, Jannetta and Malewicz knew 

that they were injured by the filing of the lawsuit on July 28, 1999, (2) believed that the 

timing of the lawsuit to be very suspicious and frivolous and (3) knew that SFT and its 

officers and directors caused their injury. The evidence presented to the court leads to one 

conclusion, the statute of limitations began to run on July 28, 1999 when SFT filed the 

lawsuit in New Mexico against Mobility and knew their injury was caused by SFT and its 

officers and directors. Once plaintiffs became aware of the injury and who occasioned it, 

they were under a duty to investigate the matter and commence a cause of action. 

Burton-Lister v. Siegel, Sivitz and Lebed Assocs., 798 A.2d 231, 237 (Pa. Super. 2002). 

Plaintiffs, in an attempt to toll the limitations period, argue that the discovery rule 

exception should be applied to toll the limitations period. The court finds plaintiffs 

reliance upon the discovery rule to be misplaced. Under the discovery rule, the 

limitations period does not begin to run until it is reasonably possible for a party to 

discover that he or she has been injured by the act of another. Here, as demonstrated 

above, plaintiffs knew (discovered) they were injured on or about August 4, 1999 when 

they received a copy of the New Mexico lawsuit which caused the terms of the ICG 

financing to change. As such, the court finds that the discovery rule exception does not 

apply since the parties were aware of the injury and the cause of injury within the 

limitations period. 3 Based on the foregoing, Sangrey and Johnson’s motion for summary 

judgment is granted. 

3 

Although, a formal motion has not been filed by defendant Howard Kraye, the court finds that plaintiffs’ 

claims against Kraye are also time barred. 

13

B. MBC and Fusilli. 

Mobility maintains that it had no knowledge of and no ability to gain knowledge 

that MBC shared information regarding the timing of Mobility’s fund raising effort with 

SFT. Plaintiffs maintain that it was not until the summer of 2001 that Jannetta first 

communicated with Fusilli about Mobility’s interest in purchasing the SFT indebtedness 

and it was only after that time that Mobility learned that MBC was acting against its 

economic interests by refusing to negotiate with a willing buyer. 

Plaintiffs further maintain that it was not until after Jannetta’s contact with Fusilli 

that Mobility learned that a co-defendant in the New Mexico litigation and a friend of 

Kraye’s, Mark Nash, had been told by Kraye that SFT’s principals intended to 

recapitalize the company through monies paid by Mobility in the New Mexico lawsuit. 

There are two grounds for invoking the discovery rule. The first ground is that 

the existence of the injury was not known and could not have been reasonably ascertained 

within the limitations period. The second ground is that the plaintiff knew of the injury 

but exercising reasonable diligence, did not know the injury was caused by the tortious 

act of another. See Matthews v. Roman Catholic Diocese of Pittsburgh, 67 Pa. D. & C. 

4 th 393, 397 (Pa. Com. Pl. 2004). As it pertains to the MBC defendants, the second 

ground is invoked. While plaintiffs knew of the injury within the limitations period, it is 

plaintiffs’ position that until late 2001 they neither knew nor had reason to know that they 

had been injured by the conduct of the MBC defendants. 4 

As stated previously, the discovery rule provides that where the existence of the 

injury is not known to the complaining party and such knowledge cannot reasonably be 

4 This court has been unable to find any Pennsylvania appellate authority providing any guidance for the 

second ground of the discovery rule except for the case law on the discovery rule itself. 

14

ascertained within the prescribed statutory period, the limitations period does not begin to 

run until the discovery of the injury is reasonably possible. The discovery rule applies in 

only the most limited of circumstances, where the plaintiff despite, the exercise of 

reasonable diligence, was unable to discover his or her injury or its cause. The party 

seeking to invoke the discovery rule bears the burden of establishing the inability to know 

he or she has been injured by the act of another despite the exercise of reasonable 

diligence. Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa. 1995). 

Applying the foregoing standard to the instant matter, the court finds that 

Plaintiffs have failed to demonstrate that they exercised reasonable diligence in 

discovering that MBC was the cause of their injury. Once the lawsuit was filed by the 

SFT defendants in New Mexico, plaintiffs had a duty to investigate to determine if parties 

other than the SFT defendants were involved. Although plaintiffs suffered an injury as a 

result of the New Mexico lawsuit, they waited more than two years to determine all those 

that were involved in causing the injury. Indeed had the plaintiffs instituted the instant 

lawsuit within two year limitations period against the SFT Defendants, the alleged 

involvement of the MBC defendants would have been discovered within the limitations 

period. No reasonable minds would disagree that Mobility failed to exercise reasonable 

diligence in discovering MBC’s involvement. 

In C.J. M. v. Archdiocese of Philadelphia, 67 Pa. D.&C. 4 th 474 (2004), the court 

was faced with a similar situation. In C.J.M., plaintiffs commenced lawsuits against 

various religious authorities alleging they suffered abuse during their childhoods. 

Defendants filed a motion for judgment on the pleadings alleging that the statute of 

limitations barred plaintiffs’ claims against the Archdiocesan defendants. Plaintiffs 

15

argued that the discovery rule tolled the statute of limitations in their cases. Similar to 

the plaintiffs herein, the plaintiffs in C.J.M. admitted that they were injured and that they 

were aware of their injuries at the time they were abused. Nonetheless, the plaintiffs in 

C.J.M. argued that they were unaware of the Archdiocesan acts until various disclosures 

were made in 2002 through 2004, after the limitations period expired. 

The court in C.J.M. found that plaintiffs’ claims against the Archdiocese were 

time barred and granted defendants motion. The court reasoned that while the 

Archdiocesan defendants may have contributed to the harm caused by the priests, they 

did not create a new injury, a creeping injury or alter the cause of the injury. Id. 484. 

The court found that while the Archdiocesan’s actions may have contributed to plaintiffs’ 

initial injuries, the Archdiocesan’s actions were a secondary cause of action related to the 

injury brought about by the abuse. Id. As such, the court found that the statute of 

limitations must be deemed to begin to run at the time of the abuse itself, not when the 

various disclosures were made in 2002 through 2004. Id. 

The court finds the reasoning applied in C.J.M. to be persuasive. Here, like the 

plaintiffs in CJM, plaintiffs ask this court to separate the harm caused by each of the 

defendants, SFT and MBC, and create a separate clock for statute of limitation purposes. 

However, plaintiffs fail to provide the court with any evidence to suggest that they 

suffered a new injury as a result of MBC’s actions. The court finds that plaintiffs 

suffered an injury on July 28, 1999 by the filing of the lawsuit in New Mexico and that 

with the exercise of reasonable diligence plaintiffs could have discovered that the MBC 

defendants were involved within the limitations period. Accordingly, the court finds that 

plaintiffs’ claims against the MBC defendants are time barred. 

16

CONCLUSION 

For the foregoing reasons, Defendants respective Motions for Summary Judgment 

are Granted and Plaintiff’s amended complaint is dismissed against all Defendants. An 

Order contemporaneous with this Opinion will follow. 

BY THE COURT, 

___________________________ 

C. DARNELL JONES, II, J. 

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BRIAN MALEWICZ, ET. AL. vs MICH'L BAKER - The Philadelphia ...

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