Kreiss, J. v. Main Line Health, Inc.

J-A01013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JARED KREISS : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

MAIN LINE HEALTH, INC. MAIN LINE : No. 1396 EDA 2018

HOSPITALS, INC. AND PAOLI :

HOSPITAL :

Appeal from the Judgment Entered June 7, 2018

In the Court of Common Pleas of Chester County

Civil Division at No(s): 2015-08189-MJ

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.: FILED MAY 29, 2019

Jared Kreiss appeals from the judgment entered June 7, 2018,1 in the

Chester County Court of Common Pleas in favor of Main Line Health, Inc., Main

Line Hospitals, Inc., and Paoli Hospital (collectively “Paoli Hospital”), in this

action based upon a violation of the Pennsylvania Medical Care Availability and

____________________________________________

1 We note Kreiss filed his notice of appeal from the April 26, 2018, order of

the trial court denying his post-trial motions. See Notice of Appeal, 5/9/2018.

Although an appeal “does not properly lie from an order denying post-trial

motions, but rather upon judgment entered following disposition of post-trial

motions[,]” this Court will treat an appeal as timely filed if judgment is later

entered on the docket. McConaghy v. Bank of New York for Certificate

Holders CWALT, Inc., Alternative Loan Tr. 2006-45T1, Mortg. Pass-

Through Certificates, Series 2006-45T1, 192 A.3d 1171, 1173 n.1 (Pa.

Super. 2018). Here, upon order of this Court, Kreiss praeciped the trial court

to enter judgment, on June 7, 2018. Accordingly, we consider the appeal to

have been timely filed after the entry of judgment. See Pa.R.A.P. 905(a)(5).

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Reduction of Error (“MCARE”) Act. See 40 P.S. §§ 1303.101-1303.910.

Kreiss’ issues on appeal focus on the trial court’s conclusion that his retaliatory

discharge action under MCARE is time-barred. For the reasons below, we

affirm.

The facts underlying Kreiss’ claim are as follows. In April of 2014, Kreiss

had been employed as a nurse at Paoli Hospital for over 10 years, and had

been assigned to the Interventional Radiology Department since March of

2011. On each of his annual performance evaluations, Kreiss either met or

exceeded expectations. See Stipulated Facts, 12/11/2017. Nevertheless, on

the afternoon of April 22, 2014, Kreiss received a telephone call from Doug

Hughes, Paoli Hospital’s Vice President of Administration, during which Hughes

informed Kreiss “he had a very serious incident situation to talk about” that

involved a joke Kreiss made to Tyler Warnecke, a physician’s assistant and

co-worker at the hospital, a few months earlier.2 N.T., 12/11/2017, at 120.

____________________________________________

2 Kreiss described the incident as follows. One morning when he arrived at

work, he noticed he had a dog leash in his backpack. He pulled the leash out

and said to Warnecke “I brought this in case you fall too far behind today.”

N.T., 12/11/2017, at 107. The joke referenced the fact that Warnecke

followed one of the hospital’s radiologists, Dr. Atul Gupta, around all day. See

id. at 185. Kreiss’ supervisor witnessed the joke, and neither she nor

Warnecke gave any indication at that time that the joke was inappropriate or

offensive. See id. at 108. However, as part of its evidence, Paoli Hospital

introduced an email purportedly sent by Warnecke to Dr. Gupta, in which

Warnecke stated Kreiss referred to him as Dr. Gupta’s “puppy,” and revealed

there had been other remarks made by other co-workers about the joke which

he felt were “belittling and disrespectful.” N.T., 12/13/2017, at 49-50,

Plaintiff’s Exhibit 37, email dated 5/8/2014 from Sarah Heilman to James

Paradis, forwarding 4/22/2014 email from Warnecke to Dr. Gupta.

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He told Kreiss not to report to work the next day (April 23), but to meet

Hughes and Human Resources Manager Sarah Heilman, in Hughes’ office at

9:00 a.m. When Kreiss arrived for the meeting, he discovered his access

badge no longer worked to unlock doors. See id. at 120-121. During the

meeting, Hughes and Heilman asked Kreiss about the statement he made to

Warnecke. Kreiss admitted making the comment, but insisted it was a joke.

See id. at 121-122. Heilman and Hughes informed Kreiss they had a few

more people to talk to about the incident, and that they would call him around

4:00 p.m. See id. at 123. After leaving the meeting, Kreiss called Hughes to

further explain his side of the story. Hughes gave him the option to resign.

When Kreiss refused to do so, Hughes called him back at 4:00 p.m., and told

Kreiss he was fired. See id. at 124-125. Kreiss subsequently received a letter

from Heilman which stated, in pertinent part:

As per our phone conversation with Doug Hughes on April 23,

2014, this letter serves to confirm that your employment with

Paoli Hosptial has been terminated effective April 24, 2014.

N.T., 12/13/2017, at 49-50, Plaintiff’s Exhibit 8, Termination Letter, dated

4/24/2014. Thereafter, Kreiss appealed the decision to the CEO of Paoli

Hospital, but he was not reinstated.

Kreiss initiated this action in the Philadelphia County Court of Common

Pleas by writ of summons filed on October 21, 2014. He subsequently filed a

first amended complaint on April 27, 2015, alleging an MCARE Act violation,

and common law wrongful discharge. Kreiss averred that his discharge, based

on the joke, was pretextual, and he was actually terminated in retaliation for

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his reporting of an incident involving Dr. Gupta. See First Amended

Complaint, 4/27/2015, at ¶ 42. With respect to this incident, Kreiss alleged

that on April 10, 2014, Dr. Gupta refused to respond immediately to an urgent

call that he was needed in the catheterization lab (“cath lab”). See id. at ¶¶

13-19. Kreiss stated he and his supervisor reported the incident in the interest

of patient safety. See id. at ¶¶ 21-24, 42-43.

In September of 2015, the case was transferred to the Chester County

Court of Common Pleas. Paoli Hospital filed an answer with new matter on

January 26, 2016, alleging, inter alia, Kreiss’ claims were barred by the

applicable statute of limitations. See Paoli Hospital’s Answer to First Amended

Complaint, 4/26/2016, at New Matter, ¶ 6. Thereafter, on November 17,

2016, Paoli Hospital filed a motion for partial summary judgment on Kreiss’

wrongful discharge claim. The trial court granted the motion on January 11,

2017. Kreiss’ MCARE retaliatory discharge claim proceeded to a non-jury trial

from December 11, 2017, to December 13, 2017. At the conclusion of Kreiss’

case-in-chief, Paoli Hosptial moved for a compulsory nonsuit, asserting Kreiss’

claim was time-barred under the applicable statute of limitations. The court

took the matter under advisement. Subsequently, on January 30, 2018, the

trial court entered a decision in favor of Paoli Hospital, concluding Kreiss’

action was time-barred. See Decision, 1/30/2018. Kreiss filed timely post-

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trial motions, which the court denied on April 26, 2018, following oral

argument. This appeal followed.3

In considering an appeal from a non-jury verdict, our scope and

standard of review are well-established:

Our appellate role in cases arising from non-jury trial verdicts is

to determine whether the findings of the trial court are supported

by competent evidence and whether the trial court committed

error in any application of the law. The findings of fact of the trial

judge must be given the same weight and effect on appeal as the

verdict of a jury. We consider the evidence in a light most

favorable to the verdict winner. We will reverse the trial court

only if its findings of fact are not supported by competent evidence

in the record or if its findings are premised on an error of law.

However, where the issue concerns a question of law, our scope

of review is plenary.

The trial court’s conclusions of law on appeal originating from a

non-jury trial are not binding on an appellate court because it is

the appellate court’s duty to determine if the trial court correctly

applied the law to the facts of the case.

Bank of New York Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super. 2017)

(quotation omitted), appeal denied, 170 A.3d 1019 (Pa. 2017). Furthermore,

when this Court engages in statutory interpretation, we must be mindful of

the following:

____________________________________________

3 On May 14, 2018, the trial court ordered Kreiss to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Kreiss

complied with the court’s directive and filed a concise statement on May 29,

2018. On June 28, 2018, the Honorable Jeffrey R. Sommer authored an

opinion in this matter. Judge Sommer explained he was assigned the case

after the presiding trial judge, the Honorable Edward Griffith, took medical

leave following the denial of Kreiss’ post-trial motion. See Trial Court Opinion,

6/28/2018, at 15 n.5.

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As in all cases of statutory interpretation, our goal is to ascertain

the intent of the General Assembly in adopting the statute. 1

Pa.C.S. § 1921(a). In doing so, we must, if possible, give effect

to all the provisions of a statute. 1 Pa.C.S. §§ 1921, 1922. “When

the words of a statute are clear and free from all ambiguity, the

letter of it is not to be disregarded under the pretext of pursuing

its spirit.” 1 Pa.C.S. § 1921(b). Only when the words are

ambiguous may we look to the general purposes of the statute,

legislative history, and other sources in an attempt to determine

the legislative intent. 1 Pa.C.S. § 1921(c). In construing a

statute, the courts must attempt to give meaning to every word

in a statute as we cannot assume that the legislature intended any

words to be mere surplusage. Furthermore, we should avoid

construing a statute in such a way as would lead to an absurd

result. 1 Pa.C.S. § 1922.

Holland v. Marcy, 883 A.2d 449, 455–456 (Pa. 2005).

All but one of Kreiss’ issues on appeal involve the trial court’s

determination that his MCARE retaliation claim is time-barred. First, Kreiss

argues his MCARE retaliation claim is not subject to the 180-day statute of

limitations set forth in the Whistleblower Law, 43 P.S. §§ 1421-1428. See

Kreiss’ Brief at 41-54.

Kreiss’ claim is premised upon Section 1303.308 of the MCARE Act,

which mandates that a health care worker report “a serious event or incident”

that jeopardizes patient safety. 40 P.S. § 1303.308(a). Subsection (c)

provides protection for an employee who makes such a report:

(c) Liability.--A health care worker who reports the occurrence

of a serious event or incident in accordance with subsection (a) or

(b) shall not be subject to any retaliatory action for reporting the

serious event or incident and shall have the protections and

remedies set forth in … the Whistleblower Law.

40 P.S. § 1303.308(c) (emphasis supplied).

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Similarly, “[t]he Whistleblower Law provides protection for employees

of a public employer who report a violation or suspected violation of state

law.” Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 430 (Pa. Super.

2018) (quotation and footnote omitted). Section 1424 of the Law provides,

in relevant part:

(a) Civil action.--A person who alleges a violation of this act may

bring a civil action in a court of competent jurisdiction for

appropriate injunctive relief or damages, or both, within 180

days after the occurrence of the alleged violation.

43 P.S. § 1424(a) (emphasis supplied).

In his first argument, Kreiss insists the 180-day statute of limitations

set forth in Section 1424(a) of the Whistleblower Law does not apply to claims

under Section 1303.308 of the MCARE Act. He maintains the MCARE Act

specifically adopted only the “protections and remedies” of the Whistleblower

Law, and the limitations period does not constitute either a protection or a

remedy for an injured employee under the common definition of those terms.

See Kreiss’ Brief at 43-48. While Kreiss acknowledges the 180-day limitations

period is codified under the heading “Remedies,” he contends “[t]he Statutory

Construction Act recognizes that headings in statutes are not necessarily

consistent with the actual provisions that fall under them[,]” and, therefore,

are not controlling. Id. at 50. Moreover, he refers to two Pennsylvania

Supreme Court decisions - O’Rourke v. Commonwealth, 778 A.2d 1194

(Pa. 2001), and Bailets v. Pennsylvania Turnpike Commission, 181 A.3d

324 (Pa. 2018) - which cite the statutory remedies available under the

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Whistleblower Law as those listed in Section 1425, under the heading

“Enforcement.” See 43 P.S. § 1425 (allowing a court judgment under the Act

to include “reinstatement of the employee, the payment of back wages, full

reinstatement of fringe benefits and seniority rights, actual damages or any

combination of these remedies[, as well as,] the costs of litigation”).

Accordingly, based on the plain language of the statute, Kreiss argues the

180-day time limitation in the Whistleblower Law was not incorporated into

Section 1303.308(c) of the MCARE Act.

The trial court, however, initially determined Kreiss waived this

argument because he failed to raise it in his written opposition to Paoli

Hospital’s request for a compulsory nonsuit. See Trial Court Opinion,

6/28/2018, at 3 n.2. We agree.

Pennsylvania Rule of Civil Procedure 227.1 provides, in relevant part,

“post-trial relief may not be granted unless the grounds therefor, … if then

available, were raised … at trial[.]” Pa.R.C.P. 227.1(b)(1). The law is clear:

“In order to preserve an issue for appellate purposes, the party must make a

timely and specific objection to ensure that the trial court has the opportunity

to correct the alleged trial error.” Rancosky v. Washington Nat. Ins. Co.,

130 A.3d 79, 102 (Pa. Super. 2015), aff'd, 170 A.3d 364 (Pa. 2017). See id.

(finding claim that insurance company’s conduct during trial evidenced its bad

faith toward the plaintiff waived when plaintiff did not raise the issue “at any

time before or during the bad faith trial[,]” but rather raised it for the first

time in post-verdict motion).

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At the conclusion of Kreiss’ case-in-chief, Paoli Hospital made a motion

for a compulsory nonsuit based, in part, on the fact Kreiss’ claim was time-

barred. See N.T., 12/13/2017, at 52. Paoli Hospital argued the 180-day

limitations period in the Whistleblower Law applied to Kreiss’ MCARE action,

and the limitations period began to run on the date Kreiss was informed of his

termination, that is, April 23, 2014. See id. at 54. Because Kreiss did not

initiate the present action until October 21, 2014, or 181 days after he was

terminated, the hospital argued Kreiss’ action was time-barred. See id. at

54-55. Kreiss’ attorney began his responsive argument with the following

summary:

Your Honor, addressing the statute of limitations issue, [opposing

counsel] is correct that the Whistleblower Act does contain [a]

180-day statute of limitations. Plaintiff’s Exhibit 8 [Kreiss

termination letter] clearly demonstrates that Mr. Kreiss was

informed of the termination of his employment, termination

effective April 24th. That is 180 days from the time that the writ

of summons was filed. Therefore, the 180[-day] statute of

limitations is satisfied.

Id. at 59. In fact, at no time during the discussion at trial did Kreiss assert

the 180-day limitations period in the Whistleblower Law was not incorporated

into Section 13.308 of the MCARE Act. See id. at 59-65. At the conclusion

of argument, the court indicated it would take the issue under consideration,

and directed Kreiss’ attorney to file a brief on that claim. See id. at 64-65.

Kreiss filed a memorandum of law in opposition to Paoli Hospital’s motion for

compulsory nonsuit, but again did not assert the limitations period in the

Whistleblower Law was not incorporated into MCARE. See generally

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Memorandum of Law in Opposition to Motion for Compulsory Nonsuit Based

on Statute of Limitations, 1/12/2018. In fact, Kreiss raised this argument for

the first time in his post-trial motion. See Plaintiff’s Motion for Post-Trial

Relief, 2/9/2018, at 4-9. Accordingly, it is waived on appeal.

Nonetheless, the trial court also found the 180-day limitation in the

Whistleblower Law was incorporated into the retaliatory termination protection

section of the MCARE Act. See Trial Court Opinion, 6/28/2018, at 3-6. The

court opined:

Although [Kreiss] argues that the section of the

Whistleblower Law at issue, 43 P.S. § 1424(a), is neither a

“protection” nor a “remedy” and is therefore not incorporated into

the MCARE Act, the legislature placed 43 P.S. § 1424(a) within the

section of the Whistleblower Law titled “Remedies”. While titles

in legislation do not control, in this instance[,] the title is accurate.

The remedy provided to a whistleblower is the right to [] “bring a

civil action in a court of competent jurisdiction for appropriate

injunctive relief or damages, or both, within 180 days after the

occurrence of the alleged violation.”3 Absent the incorporation of

§ 1424(a) of the Whistleblower Law, no right to a civil action would

exist for a whistleblower under the MCARE Act. The time limitation

included in § 1424(a) is a special statutory limitation qualifying a

newly created substantive right within the MCARE Act, i.e., the

right to bring an action to redress a retaliatory job action. The

legislature provided no right to bring a civil action independent of

the limitation. [Kreiss], having failed to bring suit within 180-days

of his injury, has no remedy.

__________

3 [Kreiss] relied in part on the definition of “remedy” in the Oxford

Living Dictionaries, oxforddictionaries.com, to assert that §

1424(a) does not provide a remedy. However, that definition, “a

means of legal reparation”, is clearly encompassed by the right to

bring a civil action.

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Id. at 6.4 We agree with the trial court’s interpretation of both Section

1303.308 of the MCARE Act and Section 1424 of the Whistleblower Law.

Therefore, assuming arguendo Kreiss did not waive this argument, we would

still conclude it is meritless.

Next, Kreiss asserts that even if the 180-day limitation applies, as we

concluded it does, his action was timely filed on the 180th day following the

termination of his employment, which he maintains occurred on April 24,

2014.5 He states he “was told on April 23 that his discharge would ‘occur’ or

____________________________________________

4 A federal court came to the same conclusion in Gillispie v. Regionalcare

Hosp. Partners, Inc., 2015 WL 1839149 (W.D. Pa. 2015). While we

recognize “decisions from federal district courts are not binding on this Court,

we may rely on them for persuasive authority.” AmQuip Crane Rental, LLC

v. Crane & Rig Servs., LLC, 199 A.3d 904, 918 n.4 (Pa. Super. 2018). In

Gillispie, the district court concluded the 180-day limitations period in Section

1424(a) applied to a retaliatory discharge claim under Section 1303.308 of

the MCARE Act. The Gillispie Court opined:

It is [] clear that the Pennsylvania Legislature’s expansion of the

scope of the Whistleblower Law in Chapter 3 [of the MCARE Act]

provides a remedy for reporting health care workers but does not

alter the requirements that a whistleblower claim be brought

within the 180–day statutory limitations period. This

interpretation gives meaning to the Whistleblower Law’s specific

inclusion of a 180–day statute of limitation for retaliation claims,

and avoids the undue judicial expansion of remedies expressly

provided through MCARE’s incorporation of the Whistleblower

Law.

Gillispie, supra, 2015 WL 1839149 at *5.

5We note the action was initiated by writ of summons filed on October 21,

2014, 180 days after April 24, 2014.

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‘come to pass’ on April 24, 2014[,]” and that Paoli Hospital admitted “the

discharge did not actually occur or come to pass as threatened until April

24[.]” Kreiss’ Brief at 62. Kreiss further insists Paoli Hospital admitted in both

its answer to his complaint and an interrogatory that he was discharged from

his employment on April 24th, and that this discharge constituted the

occurrence of a violation under the language in the Whistleblower Act.6 See

Kreiss’ Brief at 55-64. The trial court, however, determined the limitations

period began to run on April 23, 2014, the day Kreiss learned of his discharge

from Paoli Hospital. We agree.

Preliminarily, we note Kreiss mischaracterizes the trial testimony in his

appellate brief. Our review of the transcript reveals Kreiss admitted he was

fired on the afternoon of April 23, 2014. Kreiss explained that Hughes called

him on April 22nd, and told him not to report to work the next day. Instead,

Hughes instructed Kreiss to meet with him and Heilman at 9:00 a.m. on April

23rd to discuss the incident with Warnecke. See N.T., 12/11/2017, at 119-

120. Kriess stated that when he reported to the hospital on April 23 rd, his

access badge did not work. See id. at 120-121. After meeting with Hughes

and Heilman, Kreiss stated he was told they were going to continue the

investigation of the incident, and would call him around 4:00 p.m. to tell him

“what they came up with.” Id. at 123. Kreiss testified he called Hughes while

driving home from the meeting to further explain his side of the story, and, at

____________________________________________

6 See 43 P.S. § 1424 (stating an aggrieved employee may bring an action

“within 180 days after the occurrence of the alleged violation”).

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that time, Hughes gave him the option to resign. See id. at 124. Kreiss told

Hughes he would think about it, but later came to the realization he would not

resign. See id. at 124-125. Kreiss then testified to the following:

[Kreiss’ counsel:] Okay. And then Mr. Hughes called you

and told you that you were fired, right?

[Kreiss:] Yes.

[Kreiss’ counsel:] That afternoon?

[Kreiss:] That afternoon, 4:00, 4:30.

Id. at 125. Furthermore, both Hughes and Heilman also testified definitively

that Kreiss was terminated on April 23, 2014. See id. at 27, 35; N.T.,

12/12/2017, at 80. Therefore, Kreiss’ assertion that he was told on April 23 rd

he would be fired the next day, is a mischaracterization of the trial testimony.

Nevertheless, Kreiss argues Paoli Hospital is bound by judicial

admissions in its pleadings that Kreiss was discharged from his employment

on April 24, 2014. Specifically, in paragraphs 5 and 35 of his first amended

complaint, Kreiss averred he was fired on April 24th, and Paoli Hospital

admitted those allegations. See Defendants’ Answer to First Amended

Complaint, 1/26/2016, at ¶¶ 5, 35. Moreover, in its answer to paragraph 25

of the complaint, Paoli Hospital denied Kreiss’ allegation that he was fired for

reporting the cath lab incident, and averred that while that incident occurred

on April 10, 2014, “Mr. Kreiss was not terminated until April 24, 2014.” Id.

at ¶ 25. Moreover, Kreiss points out that Paoli Hospital again acknowledged

that he was terminated on April 24th in its response to Kreiss’ first set of

interrogatories. See Memorandum of Law in Opposition to Motion for

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Compulsory Nonsuit based on Statute of Limitations, 1/12/2018, Exhbit D,

Defendants’ Reponses to Plaintiff’s First Set of Interrogatories, at #11. Based

on these admissions, Kreiss insists it is “a conclusive, undisputed fact in this

case” that he was discharged on April 24, 2014, and that this discharge was

the “retaliatory action” prohibited by MCARE, which triggered the running of

the 180-day limitations period. Kreiss’ Brief at 64.

The trial court found, however, Kreiss’ argument “conflates the issue of

[his] effective date of termination with the day the limitation on the action

began to run.” Trial Court Opinion, 6/28/2018, at 8. We agree. The MCARE

Act protects a healthcare worker from “any retaliatory action” for reporting

the occurrence of a serious event or incident, and affords the worker the

protections and remedies of the Whistleblower Law. 40 P.S. § 1303.308(c).

The Whistleblower Law requires an aggrieved employee to bring a civil action

within 180 days after “the occurrence of the alleged violation.” 43 Pa.C.S.

§ 1424(a) (emphasis supplied). This “alleged violation” is not necessarily the

effective date of the employee’s termination. See 43 Pa.C.S. § 1423(a) (“No

employer may discharge, threaten or otherwise discriminate or retaliate

against an employee regarding the employee’s compensation, terms,

conditions, location or privileges of employment …”).

In the present case, Kreiss conceded an adverse employment action was

taken against him on the afternoon of April 23, 2014, when Hughes fired him.

See N.T., 12/11/2017, at 125. Accordingly, although Paoli Hospital admitted

in its pleadings that Kreiss was terminated on April 24, 2014, none of its

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admissions, or Kreiss’ allegations, specifically focused on the date Paoli

Hospital took a “retaliatory action” against Kreiss. 40 P.S. § 1303.308(c).

Therefore, we decline to find Paoli Hospital’s limitations defense fails based on

admissions in its pleadings.

Kreiss also contends Paoli Hospital waived or abandoned its statute of

limitations defense. See Kreiss’ Brief at 65-72. He argues the defense is

waived because Paoli Hospital’s answer was untimely filed, and, in any event,

the statute of limitations allegation in its new matter was legally insufficient

because it was “unsupported by any factual averments.” Id. at 66.

Furthermore, Kreiss maintains Paoli Hospital abandoned the defense when it

“waited until the last day of trial to spring it on” Kreiss and the trial court. Id.

at 70.

Preliminarily, we agree Paoli Hospital’s answer and new matter was not

timely filed in accordance with the trial court’s December 14, 2015, order. In

that order, the court denied Paoli Hospital’s preliminary objections to Kreiss’

complaint and directed Paoli Hospital to file an answer and new matter within

20 days. See Order, 12/14/2015. The answer and new matter were not filed

until January 26, 2016 (43 days after entry of the order). Moreover, we also

agree Paoli Hospital failed to include any factual representations in its

paragraph raising the statute of limitations defense. See Defendants’ Answer

to First Amended Complaint, 1/26/2016, New Matter at ¶ 6 (“Mr. Kreiss’ claims

are barred in whole or part by the applicable statute of limitations.”).

Furthermore, after stating the defense in its new matter, Paoli Hospital did not

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raise it again until the conclusion of Kreiss’ case-in-chief. However, none of

these facts provide Kreiss with a basis for relief.

First, Kreiss did not object to Paoli Hospital’s late filing of its answer and

new matter. Had he done so, the trial court could have exercised its discretion

to permit or strike the untimely pleading. See Peters Creek Sanitary

Authority v. Welch, 681 A.2d 167 (Pa. 1996). Accordingly, his claim now is

waived. Similarly, Kreiss failed to challenge the purported “insufficient

specificity” of Paoli Hospital’s statute of limitations averment via preliminary

objections. See Pa.R.C.P. 1028(a)(3). Therefore, that claim too is waived on

appeal. Lastly, Kreiss provides this Court with no authority mandating that a

properly preserved statute of limitations defense must be argued before the

completion of a plaintiff’s case-in-chief in order to avoid abandonment of the

claim on appeal. See Kreiss’ Brief at 70-72. While this Court has explained,

“[t]he statute of limitations is a procedural bar to recovery which may be

waived by explicit consent or by conduct[,]” we find no such circumstances in

the present case. Cobbs v. Allied Chem. Corp., 661 A.2d 1375, 1378 (Pa.

Super. 1995) (finding statute of limitations defense raised in new matter not

waived when additional defendant stipulated to liability in reverse-bifurcated

asbestos case), appeal denied, 672 A.2d 303 (Pa. 1996).

In his next argument, Kreiss contends his claim was not time-barred

because he appealed his termination to the President of Paoli Hospital in May

of 2014 and January of 2015 “as part of [Paoli Hospital’s] discharge appeal

process[.]” Kreiss’ Brief at 72. Therefore, Kreiss maintains Paoli Hospital’s

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“refusals to reinstate” him were either “discrete acts” of retaliation or part of

its “continuing practice of retaliating against [him] that began on April 24,

2014, and continued through January of 2015.” Id. at 73.

The trial court succinctly addressed this issue as follows:

Paoli Hospital’s appeal process is an optional process, which

a discharged employee may employ to obtain review of a

discharge decision that has already been made. The existence of

a procedure to assure fairness in the discharge decision should

not obscure the principle that limitations periods normally

commence when a decision is made and communicated.

Delaware State Coll. v. Ricks, 449 U.S. 250[] (1980).

Permitting the statute of limitations to be continually reset by an

internal appeals process would act as a deterrent to review.

[Kreiss’] claim is anchored to Paoli Hospital’s decision to terminate

his employment. That decision was communicated to [Kreiss] on

April 23, 2014.

Trial Court Opinion, 6/28/2018, at 14.

We find no basis to disagree with the trial court’s ruling. Both parties

agree Kreiss was fired from Paoli Hospital in April of 2014. Kreiss did not

allege in his complaint that Paoli Hospital’s refusal to overturn its original

decision constituted a continuing retaliatory action. Accordingly, the fact that

Kreiss appealed his firing through a voluntary, internal appeal process is of no

moment.

In his penultimate argument, assuming we agree with the trial court’s

ruling that his claim is time-barred, Kreiss implores this Court to apply the

ruling prospectively only. See Kreiss’ Brief at 74-76. He insists he

“maintained a good faith belief” that (1) the 180-day limitations period in the

Whistleblower Law did not apply to the MCARE Act, (2) his retaliatory

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discharge claim “accrued” on April 24, 2014, the date Paoli Hospital admitted

he was discharged, and (3) Paoli Hospital was not pursing its statute of

limitations defense based on their course of conduct during the litigation. Id.

at 74. Paoli Hospital, however, contends Kreiss did not raise this argument

before the trial court. See Paoli Hospital’s Brief at 18. We agree. The first

time Kreiss argued for the prospective application of the law was in his post-

trial motion. For that reason, this argument is waived. See Pa.R.C.P.

227.1(b)(1); Rancosky, supra.7

Lastly, Kreiss insists the trial court abused its discretion when it failed

to grant his timely filed post-trial motion as uncontested. See Kreiss’ Brief at

77-79. He argues that pursuant to Rule 208.3(b) of both the Pennsylvania

and Chester County Rules of Civil Procedure, Paoli Hospital was required to

file an opposition to his post-trial motion within 20 days, that is, by March 1,

____________________________________________

7 We note, nevertheless, the trial court addressed this issue in its opinion,

concluding it was “apparent that even [Kreiss] understood when he filed this

case that he needed to meet a 180-day filing deadline.” Trial Court Opinion,

6/28/2018, at 14. Accordingly, although the outcome was harsh, the court

found its decision was justified under the law. See id. at 14-15. We agree.

It is well-settled that this Court has the discretion to limit a “new rule of law”

to prospective application. Passarello v. Grumbine, 29 A.3d 1158, 1164

(Pa. Super. 2011), aff'd, 87 A.3d 285 (Pa. 2014). However, “[a] new rule of

law is established where an abrupt and fundamental shift from prior

precedent, upon which litigants may have relied, has occurred.” Id. at 1164

n.2 (quotation omitted). The ruling in the present case does not represent an

“abrupt and fundamental shift from prior precedent.” Id. Accordingly, even

if this claim were not waived, Kreiss would still be entitled to no relief.

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2018.8 However, Paoli Hospital did not file a response until April 2, 2018, or

32 days late. It offered no reason for its late filing. Accordingly, Kreiss asserts

his motion should have been granted as uncontested.

As the trial court explained in its opinion, post-trial practice is governed

by Pennsylvania Rule of Civil Procedure 227.1 and Chester County Rule of Civil

Procedure 227.2. See Trial Court Opinion, 6/28/2018, at 15. Neither rule

requires the non-moving party to file a response to a post-trial motion.

Accordingly, the court determined, and we agree, “Paoli Hospital was not

required to the answer [Kreiss’] post-trial motion to preserve its opposition.”

Id.

Therefore, because we find no basis to overturn the trial court’s

determination that Kreiss’ claim is time-barred, we affirm the judgment

entered in favor of Paoli Hospital.

Judgment affirmed.

Judge Stabile joins in this memorandum.

Judge McLaughlin concurs in the result.

____________________________________________

8 Kreiss filed his Motion to Post-Trial Relief on February 9, 2018.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/19

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