
    CIRCUIT COURT OF FAIRFAX COUNTY
    Sally H. Spencer v. Sharp Electronics Corp. et al.
    Case No. (Law) 153395
    December 18, 1996
   By Judge Marcus D. Williams

This matter comes upon Defendants’ Motion for Clarification of an Order entered on October 18, 1996, denying Defendants’ Motion for Partial Summary Judgment Plaintiff has filed a brief in opposition to Defendants’ motion, or alternatively, in support of Plaintiff’s Motion for Clarification. After consideration of the briefs submitted, Defendants’ Motion for Clarification is granted. Plaintiff’s alternative Motion for Clarification is timed.

On October 18, 1996, Defendants moved for summary judgment as to Count I of the Motion for Judgment, a wrongful termination claim, arguing that the one-year limitation period prescribed in Va. Code § 8.01-248 bars that cause of action. The Court denied Defendants’ motion, concluding that the two-year limitation period prescribed in Va. Code § 8.01-243(A) governs Plaintiffs suit for wrongful termination because it seeks damages for mental anguish. The Court based its ruling on a narrow reading of Purcell v. Tidewater Const. Corp., 250 Va. 93 (1995), wherein the Virginia Supreme Court states that for purposes of applying Va. Code § 8.01-243(A), courts must construe injury to mean “[a] positive, physical, or mental hurt to the claimant” Id. at 95 (alteration in original).

Defendants argue in their Motion for Clarification that tire Court should reconsider its ruling because it incorrectly recognizes two limitations periods for die tort of wrongful discharge: one year for economic injuries and two years for physical and mental injuries. Alternatively, Defendants seek an order that limits recovery under Count I to damages for Plaintiffs physical and mental injuries and excludes recovery of damages for economic injuries. Plaintiff opposes die motion and asks die Court to clarify its order by ruling that Plaintiffs Motion for Judgment, filed in an earlier, nonsuited action, tolled the one-year statute of limitation. For the reasons stated below, the Court grants Defendants’ request for reconsideration and denies Plaintiffs alternative Motion for Clarification.

In Purcell v. Tidewater Const. Corp., 250 Va. 93 (1995), the plaintiff-employee filed a wrongful termination action against his former employer, who argued that Va. Code § 8.01-248 barred die action because it was filed more than one year after termination of the employee. The employee maintained that his wrongful termination action was an action for personal injury, governed by die two-year limitation period defined in Va. Code § 8.01-243(A). It is unclear from the Purcell opinion what specific personal injuries the employee allegedly suffered. Nevertheless, the Virginia Supreme Court concluded that his suit for wrongful termination was not a suit for a positive, physical or mental hint, and thus, Va. Code §8.01-243(A) was inapplicable. Id. at 95-96.

Plaintiff attempts to distinguish Purcell by pointing to allegations in the Motion for Judgment that she suffered mentid anguish as a result of her discharge. She contends that Va. Code § 8.01-243(A) applies because mental anguish is a positive, physical or mental hurt. This Court accepted Plaintiffs alignment initially. However, upon reconsideration of die rationale in Purcell, as well as of the implications of accepting Plaintiffs assertions, this court must grant Defendants' motion.

In Purcell the Supreme Court analyzed various personal actions and categorized them as actions that involve mental or physical injury to the body, as wrongful birth, and actions not involving those injuries, such as fraud and defamation. The Purcell Court looked to die causes of action themselves to determine what sort of injury resulte: e.g., fraud leads to financial damage, whereas wrongful birth causes direct emotional injury. See id. at 95. It appears that, in die Supreme Court's view, wrongful termination, like fraud and defamation, does not result in direct emotional injury.

To rule that Va. Code § 8.01-243(A) applies because Plaintiff alleges mental anguish would mean that any cause of action could have two possible limitation periods, depending on the injuries alleged. If the Virginia Supreme Court intended such a radical departure, it would have expressly stated that in Purcell.

Accordingly, this Court concludes it must read Purcell more broadly. Va. Code § 8.01-243(A) does not govern Plaintiffs action for wrongful discharge because that cause of action does not involve mental or physical injury to the body.

Plaintiffs alternative Motion for Clarification requests this Court to find that the Motion for Judgment filed in Plaintiffs earlier, nonsuited defamation action tolled die statute of limitations as to this wrongful termination action. The thrust of Plaintiffs argument is that the facts alleged in the earlier defamation action were sufficient to put Defendants on notice of the instant wrongful termination action. This Court is not persuaded by this argument, particularly as die record indicates that the first Motion for Judgment, filed at Law No. 145428, was not served on the Defendants. Consequently, Defendants did not have notice of the facte underlying the defamation action or any other cause of action.

March 12,1997

This matter comes upon Plaintiffs Motion for Reconsideration of an Order entered on January 17, 1997, granting Defendants’ Motion for Clarification and denying Plaintiffs Motion for Clarification. Plaintiffs Motion for Reconsideration is denied for the following reasons.

The issue presented in Plaintiffs Motion for Clarification, as well as in tins Motion for Reconsideration, is whether commencement of a defamation action tolls die stabile of limitations as to a wrongful discharge action where the Motion for Judgment alleges facts that would support both actions but seeks redress for defiimation only and does not request relief for wrongful discharge.

Va. Code § 8.01-229(E)(3) provides:

If a plaintiff suffers a voluntary nonsuit... the statute of limitations with respect to such action shall be tolled by die commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation... whichever period is longer...

It is clear that Plaintiff could recommence die defiunation action under Va. Code § 8.01-229(E)(3). Plaintiff attempts, however, to commence a wrongful discharge action. Plaintiff contends that this action, filed within six months of the nonsuit, is not time-barred because the facts alleged in the first Motion for Judgment would have supported a wrongful discharge claim; therefore, Plaintiff maintains, the first Motion for Judgment clearly informed Defendants of the true nature of die claim.

The Court disagrees that die first Motion for Judgment clearly informed Defendants of the true nature of die claim. The pleading may have alleged facts to support various actions, but it sought redress for the alleged defiunation only. Thus, it is not clear how a reasonable defendant would know that Plaintiff was suing for anything but defamation. Moreover, as Defendants have correctly pointed out, the Court could not have granted Plaintiff relief for wrungfol termination in the first action, regardless of die evidence presented, because Plaintiff did not plead or claim a right to such relief. Ted Lansing Supply Co. v. Royal Aluminum and Const. Corp., 221 Va. 1139, 1141-42(1981).

In Vines v. Branch, 244 Va. 185 (1992), the Supreme Court of Virginia considered a dispute similar to die case at bar. Specifically, the Supreme Court considered whether an oral contract claim asserted in an amended motion for judgment constituted a new substantive cause of action and was therefore barred by the statute of limitations. Much like in this case, the plaintiff argued that the new claim merely stated a different theory of recovery based die same facts that she pleaded originally. In deciding that the amendment alleged a new cause of action, foe Supreme Court recited and applied the following test:

It has been declared to be a fair test in determining whether a new cause of action is alleged in an amendment to inquire if a recovery had upon the original complaint would be a bar to any recovery under foe amended complaint, or if the same evidence would support both, or If foe same measure of damages is applicable.

Id. at 189. This Court recognizes that foe instant case does not involve an amended Motion for Judgment Nevertheless, foe Court finds Vines to he instructive in deciding that Plaintiff’s wrongful discharge claim is a new cause of action. First of all, recovery upon foe defamation action would not bar recovery under a wrongful discharge theory. Secondly, foe evidence needed to support Plaintiff’s defamation claim would not be sufficient to establish wrongful discharge.

In foe instant Motion for Reconsideration, Plaintiff states that this Court denied her Motion for Clarification "on foe ground font foe first nonsuited Motion for Judgment was never served on Defendants and hence they did not have notice of foe facts underlying Plaintiff’s wrongful discharge claim... This statement of foe Court’s ruling is inaccurate. The actual discussion of Plaintiff’s Motion for Clarification in foe letter opinion dated December 18, 1996, is as follows:

Plaintiff’s ... [motion] requests this Court to find that foe Motion for Judgment filed in Plaintiff’s earlier, nonsuited defamation action tolled foe statute of limitations as to this wrongful termination action. The thrust of Plaintiff’s argument is font foe facts alleged in foe earlier defamation action were sufficient to put Defendants on notice of foe instant wrongful termination action. This Court is not persuaded by this argument, particularly as the record indicates that the first Motion for Judgment, filed at Law No. 145428, was not served on the Defendants. Consequently, Defendants did not have notice of foe facts underlying foe defamation action or any other cause of action.

Letter opinion dated December 18, 1996 (emphasis added).

The Court did not deny Plaintiff’s Motion for Clarification because foe Motion for Judgment was not served. Rather, foe Court denied foe Motion for Clarification because it did not find Plaintiff’s arguments convincing. The Court noted foe lack of service in particular to refute Plaintiff’s argument that *[t]he allegations of the First Motion for Judgment... obviously are sufficient to have 'clearly informed’ die defendants 'of the true nature’ of Spencer’s wrongful discharge claim within the meaning of Rule 1.4(d) [sic].” (PL’s Br. in Opp’n. to Mot for Clarification by Defs., at 10-11). The allegations of die first Motion for Judgment could not have clearly informed Defendants of any claims because diere was no service of that document.

For the foregoing reasons, the Motion for Reconsideration is denied. 
      
       Mor to amendment in My 1993, Va. Code §8.01-248 provided that "(ejveiy personal action for which no limitation is otherwise prescribed shall be brought within one year after the right to bring such action has scented.” Plaintiffs cause of action accrued on October 23, 1994, when Defendant Sharp Electronics Corporation terminated her employment.
     
      
       Va. Code § 8.01-243(A) states, in relevant put, that “every action fiar personal injuries, whatever the theory of recovery... shall be brought within two years after the cause of action accrues"
     
      
       It is not difficult to imagine a plaintiff who alleges mental anguish resulting from fraud or defamation. Nonetheless, die Supreme Court suites categorically dial fraud and defamation actions do not involve mental or physical injury to die body &nd diat Va. Code§ 8.01-248 governs those actions. Purcell, 250 Va. at 95.
     
      
       Plaintiff contends that she erroneously labeled her claim in the first Motion for Judgment However, Count 1, the only count named in that pleading, clearly sets forth the elements of defamation. It (toes not address die elemento of wrongful discharge.
     