govinfo:USCOURTS-pamd-4_25-cv-02149-2

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 
 
GLENN ELLSWORTH and 
JACQUELINE ELLSWORTH, H/W, 
 
 Plaintiffs, 
 
 v. 
 
TENDER TOUCH REHAB 
SERVICES, LLC; TENDER TOUCH 
REHAB PA, LLC; ENHANCE 
THERAPIES OPCO, LLC and 
ENHANCE THERAPIES, LLC, 
 
 Defendants. 
 No. 4:25-CV-02149 
 
 (Chief Judge Brann) 
 
 
 
MEMORANDUM OPINION 
 
JUNE 17, 2025 
I. BACKGROUND 
Plaintiffs Glenn Ellsworth (“Mr. Ellsworth”) and Jacqueline Ellsworth (“Mrs. 
Ellsworth”) (collectively, “Plaintiffs”) sued Defendants Tender Touch Rehab 
Services, LLC, Tender Touch Rehab PA, LLC, Enhance Therapies Opco, LLC, and 
Enhance Therapies, LLC (collectively, “Defendants”) for negligence and loss of 
consortium arising out of a fall that Mr. Ellsworth experienced on May 12, 2023 
while in the care of Defendants. 1 The suit was originally filed on May 16, 2025, in 
the Court of Common Pleas of Philadelphia County,2 but was removed to the United 
 
1 Doc. 9 (Amend. Compl.). 
2 Doc. 1-1 (Exhibit A) at 1, 2. 

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States District Court for the Eastern District of Pennsylvania by Defendants and 
subsequently transferred to this Court.3 
Defendants brought their first motion to dismiss under Federal Rule of Civil 
Procedure 12(b)(6) on December 3, 2025, asserting the claim was facially barred by 
the applicable statute of limitations. Th is Court granted the motion to dismiss 
without prejudice, finding that the compla int was facially barred by the statute of 
limitations.4 Plaintiffs filed a second amende d complaint on March 17, 2026, and 
Defendants again moved to dismiss on the same grounds as the original motion. 5 
The issue is now ripe for disposition. Fo r the reasons stated below, Defendants’ 
motion to dismiss is granted with prejudice. 
II. LAW 
A. Motion to Dismiss Standard 
Under Federal Rule of Ci vil Procedure 12(b)(6), courts dismiss a complaint, 
in whole or in part, if the plaintiff fails to “state a claim upon which relief can be 
granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly
6 and 
Ashcroft v. Iqbal ,7 “[t]o survive a motion to dism iss, a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 
 
3 Doc. 1 (Not. of Removal). 
4 Doc. 33 (Mem. Op.) at 7. 
5 Doc. 35 (Amend. Compl.); Doc. 36 (Mot.); Doc. 37 (Br. in Supp.). 
6 550 U.S. 544 (2007). 
7 556 U.S. 662 (2009). 

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on its face.’”8 The United States Court of Appeals for the Third Circuit has instructed 
that “[u]nder the pleading regime established by Twombly and Iqbal, a court 
reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the 
elements the plaintiff must plead to stat e a claim”; (2) “identify allegations that, 
because they are no more th an conclusions, are not entitled to the assumption of 
truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and 
then “determine whether they plausibly give rise to an entitlement to relief.”9 
Typically, the statute of limitations should be raised as an affirmative defense; 
however, “a court may nonetheless dismiss a suit for failing to state a claim when 
the limitations defense is obvious from the face of the complaint.”10 
B. Facts Alleged in the Second Amended Complaint 
The facts alleged in the second amended complaint are largely the same as the 
facts in the first amended complaint. I have previously set out the facts in detail in 
my previous Memorandum Opinion, and will provide only a brief overview here. 
The facts relevant to the instant motion are brief and straightforward. Mr. 
Ellsworth had a patella tendon repair surgery on May 2, 2023 and was admitted to a 
skilled nursing facility. 11 During a therapy session on May 12, 2023, Defendants’ 
 
8 Id. at 678 (quoting Twombly, 550 U.S. at 570). 
9 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations 
and citations omitted). 
10 McPherson v. United States, 392 F. App’x 938, 943 (3d Cir. 2010). 
11 Doc. 35 at ¶¶ 13-14. 

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employee attempted to help Mr. Ellsworth stand and walk despite his status as a fall 
risk, requiring a two-person assist.12 As a result, Mr. Ellsworth was “dropped and/or 
caused to fall down to the ground, resulting in injury to him,” including a patella 
tendon tear/rupture to the recently repaired patella.13 Mr. Ellsworth “was bedridden 
and in pain for days following these events.”14 Mr. Ellsworth was not aware of the 
extent of his injury until May 16, when he received an x-ray, and did not know or 
have any reason to believe that Defendants acted negligently in the course of his fall 
until much later.15 Plaintiffs filed the original complaint on May 16, 2025, two years 
and four days after his fall.16 
The only changes in Plaintiffs’ sec ond amended complaint are conclusory 
allegations regarding the fact that, at the time of his fall, Plaintiffs did not know 1) 
the extent of Mr. Ellsworth’s injury or 2) that Defendants’ conduct fell below the 
standard of care.17 
C. Analysis 
Pennsylvania proscribes, as applicable here, a two-year statute of limitation 
for personal injury stemming from “the wrongful act or neglect or unlawful violence 
 
12 Doc. 35 at ¶¶ 19-21. 
13 Doc. 35 at ¶ 26. 
14 Doc. 35 at ¶ 30. 
15 Id. at ¶¶ 22-25. 
16 Doc. 1. 
17 Doc. 35 at ¶¶ 22, 25, 38. 

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or negligence of another.”18 “The two-year statute of limitations generally begins to 
run ‘when an injury is inflicted.’”19 However, to protect parties who are “reasonably 
unaware of latent injuries or suffer from injuries of unknown etiology,” the 
Pennsylvania “discovery rule” tolls the applicable statute of limitations until plaintiff 
discovers, or should have discovered, the injury. 20 “The rule is thus intended ‘to 
ensure that persons who are reasonably unaware of an injury that is not immediately 
ascertainable have essentially the same rights as those who suffer an immediately 
ascertainable injury.’”21 
“Under the Pennsylvania discovery rule, the ‘commencement of the 
limitations period is grounded on inquiry notice that is tied to actual or constructive 
knowledge of at least some form of significant harm and of a factual cause linked to 
another’s conduct, without the necessity of notice to the full extent of the injury, the 
fact of actual negligence, or precise cause.’”22 “The statute of limitations accordingly 
begins to run when the plaintiff knew or, exercising reasonable diligence, should 
have known (1) he or she was injured a nd (2) that the injury was caused by 
another.”23 This is an objective inquiry, and “a plaintiff's actions are examined to 
 
18 42 Pa.C.S. § 5524(2); see also Hills v. Borough of Colwyn, 978 F. Supp. 2d 469, 474-75 (E.D. 
Pa. 2013). 
19 Adams v. Zimmer, 943 F.3d 159, 163 (3d Cir. 2019) (quoting Wilson v. El-Daief, 600 Pa. 161 
(2009)). 
20 Id.; Kennedy, 2020 WL 4050459, at *7. 
21 Kennedy, 2020 WL 4050459, at *7 (quoting Nicolaou v. Martin, 195 A.3d 880, 892 n.13 (Pa. 
2018)) (emphasis added). 
22 Adams, 943 F.3d at 163 (quoting Gleason v. Borough of Moosic, 609 Pa. 353 (Pa. 2011)). 
23 Id. 

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determine whether the plaintiff demons trated ‘those qualities of attention, 
knowledge, intelligence and judgment which society requires of its members for the 
protection of their own interest and the interest of others.’” 24 Moreover, Plaintiffs 
bear the burden of showing their reasonable diligence.25 
Typically, the notice and diligence of Plai ntiff are for the jury to determine, 
but where reasonable minds cannot differ in finding that a party “‘knew or should 
have known on the exercise of reasonable d iligence of his injury and its cause . . . 
the discovery rule does not apply as a matter of law.’” 26 “‘Pennsylvania’s 
formulation of the discovery rule reflects a narrow approach to determining accrual 
for limitations purposes and places a greater burden upon Pennsylvania plaintiffs 
vis-á-vis the discovery rule than most other jurisdictions.’”27 
The Third Circuit has stated that, under the Pennsylvania discovery rule, 
actual or constructive knowledge of one’s harm does not require “‘notice to the full 
extent of the injury, the fact of actual negligence, or precise cause.’” 28 Instead, the 
discovery rule protects parties “who are reasonably unaware of latent injuries or 
suffer from injuries of unknown etiology.”29 
 
24 Kennedy, 2020 WL 4050459, at *8 (quoting Nicolaou, 195 A.3d at 893). 
25 Adams, 943 F.3d at 163-64. 
26 Adams, 943 F.3d at 164. 
27 Kennedy, 2020 WL 4050459, at *7 (quoting Gleason, 609 Pa. at 362 (2011)). 
28 Adams, 943 F.3d at 163 (quoting Gleason, 15 A.3d at 484). 
29 Id. (emphasis added). 

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Plaintiffs plead that, on May 12, 2023, Mr. Ellsworth was dropped and/or 
caused to fall to the ground.30 After the fall, he needed three people to help him back 
into his wheelchair, and was bedridden in pain for days.31 For the same reasons I set 
out in my prior Memorandum Opinion, th e discovery tolling rule does not apply 
here.32 That is, this is not the kind of “latent” injury not readily discoverable to 
Plaintiffs to justify tolling the applicable statute of limitations;33 to the contrary, Mr. 
Ellsworth was certainly on notice that he ha d an injury when he fell to the ground 
and was bedridden in pain for days. Reasonable minds cannot differ on this point. 
In the second amended complaint, Plain tiffs add a variety of quite minimal 
edits that do not address the deficienci es laid out in my prior analysis. 34 Plaintiffs’ 
edits relate only to their assertion that, at the time of Mr. Ellsworth’s fall, Plaintiffs 
did not know the extent of Plaintiffs’ in jury nor that Defendants fell below the 
standard of care. However, it is clear th at the Pennsylvania discovery rule is not 
dependent on either of those considerations, as Plaintiffs need not be aware of “‘the 
full extent of the injury, the fact of actual negligence, or precise cause.’”35 Plaintiffs 
 
30 Doc. 35 at ¶¶ 27, 30. 
31 Doc. 35 at ¶ 30. 
32 Doc. 33. 
33 Adams, 943 F.3d at 163. 
34 Nor is the Court benefitted by Plaintiffs’ insistence on bolding and underlining arguments they 
believe the Court should revisit. Doc. 39-1 at 4-5, 9-10. The Cour t read in detail those very 
arguments in the first submis sion. The Court wonders, though, wh ether Plaintiffs gave the 
same attention to the Court’s prior Memorandum Opinion, given that Plaintiffs ’ choice to 
reiterate the same arguments pr eviously dismissed w ithout addressing the legal deficiencies 
enumerated by this Court. 
35 Adams, 943 F.3d at 163 (quoting Gleason, 609 Pa. at 484). 

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minimal new pleadings, therefore, do not render Plaintiffs’ claim timely, nor do they 
address in any way the applicable law. 
Among the grounds that could justify a de nial of leave to amend are undue 
delay, bad faith, dilatory motive, prejudice, and futility.”36 A complaint is “futile” if 
even, as amended, it would fail to state a claim upon which relief could be granted.37 
Given that the Court has already allowed Plaintiffs a further opportunity to fix these 
deficiencies, and that Plaintiffs have failed to address the relevant issues, I find that 
permitting any further amendment would be futile. 
Accordingly, Plaintiffs claims remain untimely pursuant to the applicable 
statute of limitations. Therefore, Defendants’ motion to dismiss under Rule 12(b)(6) 
is granted with prejudice. 
III. CONCLUSION 
Defendants’ motion to dismiss Plaintiffs’ claim as barred by the applicable 
statute of limitations under Rule 12(b)(6) is granted with prejudice. 
An appropriate Order follows. 
 B Y T H E C O U R T : 
 
 
s/ Matthew W. Brann 
 M a t t h e w W . B r a n n 
 Chief United States District Judge 
 
36 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting In re Burlington Coat Factory 
Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). 
37 Id. 

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