Karen Cooper, M.d. v. Ronald H. Sirota

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-3620
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KAREN COOPER, M.D.,
Appellant
v.
RONALD H. SIROTA; STRATEGIC
FINANCIAL PLANNING, INC.
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Appeal from the United States District Court
For the Middle District of Pennsylvania
D.C. No.: 00-cv-00908
District Judge: Honorable Edwin M. Kosik
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Submitted Under Third Circuit LAR 34.1(a) June 14, 2002
Before: ROTH, RENDELL, and ROSENN, Circuit Judges.
(Filed: June 18, 2002)
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OPINION OF THE COURT
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ROSENN, Circuit Judge.
Karen Cooper, M.D., filed a four-count Complaint in the Court of Common
Pleas, Luzerne County, Pennsylvania. Cooper alleged negligent misrepresentation,
professional negligence, breach of contract, and a violation of Pennsylvania’s Unfair
Trade Practices and Consumer Protection Law (UTPCPL), Pa. Stat. Ann. tit. 73,
201-1 to 209-6. Based on the parties’ diversity, the defendants applied for removal of
the case to the United States District Court for the Middle District of Pennsylvania. The
District Court granted the defendants’ motion for summary judgment. Cooper timely
appeals. We affirm.
I.
Because the parties are familiar with the facts, we briefly summarize only the
most pertinent.
In 1993, Cooper, a medical doctor, retained the services of Strategic Financial
Planning, Inc., and its sole shareholder, Ronald Sirota, to provide financial services to
her and her professional corporation. Under their arrangement, the defendants were
responsible for, inter alia, obtaining disability insurance for Cooper.
In September 1994, Cooper, through the defendants, applied for two policies with
the Paul Revere Life Insurance Company (Paul Revere). The first was a personal
disability policy, which would pay Cooper $3,360 per month in the event of her
becoming disabled. The second policy would provide $14,000 per month for business
overhead expenses if Cooper were to become disabled. The company issued the policies
to Cooper on November 7, 1994.
In November 1995, Cooper applied for two replacement policies from the
Berkshire Life Insurance Company (Berkshire). These policies provided the same
benefits as Paul Revere’s policies, and were issued to Cooper on January 10, 1996.
In April 2000, Cooper filed her Complaint, alleging that Sirota had

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misrepresented the amount of her personal disability policies by informing her that she
was entitled to $14,000 per month under her plan. The District Court held that Cooper
had failed to demonstrate any misrepresentations on Sirota’s part, and that she therefore
could not satisfy an essential element of her UTPCPL and negligent misrepresentation
claims. The Court further ruled that the statute of limitations had expired on her breach
of contract, professional negligence, and negligent misrepresentation claims, and entered
summary judgment in favor of the defendants.
II.
We exercise plenary review over the District Court’s grant of summary judgment.
Bixler v. Cent. Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1297 (3d Cir.
1993). Summary judgment should only be granted if "the pleadings, depositions . . . and
admissions on file . . . show that there is no genuine issue as to any material fact." Fed.
R. Civ. P. (56)(c); Bixler, 12 F.3d at 1297. Inferences drawn from facts in evidence are
to be viewed in the light most favorable to the non-moving party. Id.
A.
Cooper’s UTPCPL and negligent misrepresentation claims both require an actual
misrepresentation on the part of the defendant. Kramer v. Dunn, 749 A.2d 984, 991 (Pa.
Super. Ct. 2000) (negligent misrepresentation requires misrepresentation of material
fact); Pa. Stat. Ann. tit. 73, 201-2(4)(v) (unfair practice includes "[r]epresenting that
goods or services have . . . characteristics . . . benefits or quantities that they do not
have"). The District Court ruled that Cooper failed to identify any misrepresentation by
Sirota. We perceive no error in that conclusion.
Cooper testified that she could not recall the details of her conversations with
Sirota regarding her disability benefits. The only things she clearly recalled were the
number 14,000 and her belief that she had $14,000 a month in personal disability
benefits. Cooper did not recall Sirota ever stating that he was obtaining $14,000 per
month in personal disability benefits for her. Indeed, Cooper could not even recall
whether Sirota represented any amount she would be receiving in personal disability
benefits.
Cooper’s testimony makes clear that she cannot prove misrepresentation on
Sirota’s part. Even a generous interpretation of Cooper’s testimony leads to the
conclusion that Cooper formed her own assumptions regarding the amount of her
personal disability coverage. She cannot recall whether Sirota made any statement
relating to the amount of her personal disability coverage, let alone an affirmative
misrepresentation that she was covered for $14,000 per month. Cooper believed she had
$14,000 in personal disability benefits, but there is nothing in the record tying this belief
to any representations made by Sirota. Therefore, the District Court did not err by
finding that Cooper failed to satisfy a necessary element of her negligent
misrepresentation and UTPCPL claims.
B.
Generally, a statute of limitations begins to run when the plaintiff’s cause of
action arises or accrues. Leedom v. Spano, 647 A.2d 221, 226 (Pa. Super. Ct. 1994). In
a contract case, the cause of action accrues when there is an existing right to sue based on
the breach of contract. Id. There is a four-year statute of limitations on Cooper’s breach
of contract claim. 42 Pa. Cons. Stat. Ann. 5525(3). In a tort case, the cause of action
accrues on the date of injury. Stroback v. Camaioni, 674 A.2d 257, 262 (Pa. Super. Ct.
1996). A two-year limitation applies to Cooper’s negligent misrepresentation and
professional negligence claims. 42 Pa. Cons. Stat. Ann. 5524(7).
As the District Court ruled, Cooper "could have brought all of her complaints on
the day she allegedly received a substantially different policy or policies than that which
she had requested." (D.C. op., 10-11) Therefore, the latest possible date the statutes of
limitations began to run on Cooper was January 10, 1996, the date the Berkshire policies
were issued to her. Cooper filed her claim on April 19, 2000, more than four years after
her causes of action had accrued. Thus, the District Court held that Cooper’s breach of
contract, negligent misrepresentation, and professional negligence claims were untimely.
Cooper asserts that the Court erred because she is entitled to the protection of the
discovery rule. This argument is without merit and we reject it.
The discovery rule is an exception to the requirement that a plaintiff bring suit
within the applicable statute of limitations. Dalrymple v. Brown, 701 A.2d 164, 167 (Pa.

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1997). The discovery rule provides that when the existence of an injury is not known to
a plaintiff and the knowledge cannot reasonably be ascertained within the statute of
limitations, the statute tolls until the injury reasonably could have been discovered. Id.
The time when an injured party should reasonably be aware of the injury is usually an
issue of fact for the jury. Sadtler v. Jackson-Cross Co., 587 A.2d 727, 732 (Pa. Super.
Ct. 1991). Only when the facts are so clear that reasonable minds cannot disagree may a
Court treat the commencement of the statute of limitations as a matter of law. Id.
Cooper has the burden of establishing her inability to learn of the injury despite
exercising reasonable diligence. Brown, 701 A.2d at 167. The standard of reasonable
diligence is an objective one, id., although it is flexible enough to consider a person’s
capacity to meet certain situations. Burnside v. Abbott Labs., 505 A.2d 973, 988 (Pa.
Super. Ct. 1985). "If a party has the means of discovery within his power but neglects to
use them, his claim will still be barred." Burnside, 505 A.2d at 988. In short, we must
inquire whether Cooper "exhibited those qualitites of attention, knowledge, intelligence
and judgment which society requires of its members for the protection of their own
interests." Id. (internal quotations omitted).
Cooper testified that she never read the Paul Revere policies. (D.C. op, 12) As
the District Court stated, "[h]ad [Cooper] simply read the policies in question on the day
she received them, she would have been put on notice that the policies were not that
which she had expected." (D.C. op., 11) Cooper is an educated person a medical
doctor and there is simply no apparent explanation, nor does she offer one, for not
having read the policies within a reasonable time after receiving them. Cooper also fails
to explain why a reasonably diligent doctor would not have read the terms of her
disability insurance policy. Cooper’s failure to read the policies was a failure to use
reasonable diligence and the District Court did not err in holding that her lawsuits were
untimely. Accordingly, the District Court’s judgment is affirmed. Costs taxed against
the appellant.
TO THE CLERK:
Please file the foregoing opinion.
/s/Max Rosenn
Circuit Judg

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