HomeMy WebLinkAbout2018-03380 Mardis
ALFRED MARDIS and : IN THE COURT OF COMMON PLEAS OF
LORRAINE MARDIS, husband : CUMBERLAND COUNTY, PENNSYLVANIA
and wife, :
Plaintiffs :
: CIVIL ACTION
v. :
:
EAST PENNSBORO AREA :
SCHOOL DISTRICT, :
Defendant :
:
v. :
:
EDWIN L. HEIM CO., :
Additional Defendant : NO. 2018-03380 CIVIL TERM
IN RE: DEFENDA
BEFORE SMITH and HYAMS, JJ.
OPINION and ORDER OF COURT
HYAMS, J., July 28, 2021.
For disposition in this civi
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adjacent to that of Defendant school district
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pleadings. Oral argument was held on the matter on June 18, 2021.
For the reasons stated in this opinion will be denied.
STATEMENT OF FACTS
This action was commenced by the filing of a complaint by Plaintiffs on April 11,
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2018.
may be summarized as follows:
Plaintiffs are Alfred Mardis and Lorraine Mardis, individuals residing on property
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in Enola, Cumberland County, Pennsylvania. Defendant is the East Pennsboro Area
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See
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East Pennsboro Area School Distri
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Complaint, filed April 11, 2018.
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containing an
administration building, high school (built around 1958), middle school (built around
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1970), and elementary school (built around 1995), as well as soccer, baseball, and
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football fields and a storm water retention system, which was installed
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Plaintiffs
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Prior to development of its property and
faulty storm water retention system,
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from East Pennsb
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storm water retention system as a whole is designed improperly. The system does not
take into consideration large rain events. The pipes are too small to keep up with storm
water. When there is a heavy rain, the system cannot keep up with the rain. The system
property. This condition has gotten worse over the years with the expansion of
\[Defendant\] over time, including the building of the elementary school in the mid-
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1990s . . . .
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-3.
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s Amended Complaint, ¶¶3-4.
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in the present matter and will not be further referenced.
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nt, ¶7.
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-19.
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An attempt by Defendant in August of 2016 failed to rectify the problem.
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As a result of continuing events of flooding,
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and will continue to cause serious health issues until the problems are abated.
29. The flooding issue has caused extensive property damage. The damage,
includes, but is not limited to, crosion \[sic\] of the cinder blocks in the basement, damage
to their yard and basement, and damage to personal property.
30. \[Plaintiffs\] have incurred and will continue to incur substantial expenses to
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repair/replace their damaged property.
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trespass, nuisance, and negligence
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claims. Monetary damages and injunctive relief are requested.
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October 23, 2018. These interposed objections based upon the statute of repose codified
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at Section 5536 of the Judicial Code,
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flow of surface water, the prerogative of local agencies not to provide storm water
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management systems, governmental immunity with respect to punitive damages,
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pleading specificity requirements, and prerequisites for injunctive relief. With the
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ded Complaint, ¶¶20-21.
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-30.
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omplaint, Claim I.
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2-35.
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reliminary Objections, ¶¶36-40.
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-44.
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-115.
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-111.
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objections were overruled.
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A response to the amended complaint filed on behalf of Defendant generally
denies many of the critical allegations in the pleading in accordance with Pennsylvania
Rule of Civil Procedure 1029(e) (authorizing general denials in certain types of actions),
and in new matter challenges averments pertaining to negligent conduct and
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legal causation, and raises defenses in the form of the statute of limitations,
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contributory negligence, comparative negligence, mitigation of damages, absence of
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notice, preexisting condition, assumption of the risk, governmental immunity,
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Recreational Use of Land and Water Act.
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on February 22, 2020.
sub judice was filed on
February 25, 2021. Three bases for such action are expressed in the motion:
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c.124-143.
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Order of Court, dated January 14, 2019 (Placey, J.).
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Defendant, East Pennsboro Area School District, Answer with New Matter
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Defendato Plainti-64, 71-72.
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Amended Complaint, ¶67.
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t, ¶73.
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22, 2020.
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A. Defendant East Pennsboro Is Entitled to Judgement on the Pleadings as a
Matter of Law in That the S
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Matter of Law.
B. Defendant East Pennsboro Is Entitled to Judgement on the Pleadings as a
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Law.
C. Defendant East Pennsboro Is Entitled to Partial Judgement on the Pleadings as
a Matter of Law in That East Pennsboro Is Immune from Claims for Personal Injury
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Claims That Are Not Recognized in 42 Pa. C.S. § 8553.
On the third point, Defendant argues that Plain
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immunity statute.
DISCUSSION
Statement of law. With respect to judgment on the pleadings, Pennsylvania Rule of
Civil Procedure 1034 provides that
such time as not to unreasonably delay the trial, any party may move for judgment on the
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considering the motion, the court should be guided by the same principles as would be
applicable if it were disposing of a preliminary objection in the nature of a demurrer
Bykowski v. Chesed, Co.,425 Pa. Super. 595, 598, 625 A.2d 1256, 1258 (1993) (citation
omitted).
true, or as admitted, unless their falsity is apparent from the record. This rule also
encompasses every reasonable inference that the court can draw from the facts as set out
in the pleadings. Averments of fact which are material and relevant are accepted as true
even though denied. Under Rule 1034, when a party moves for judgment on the
pleadings, he admits, for the purposes of the motion, not only the truth of the allegations
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otion for Judgment on the Pleadings, at 3.
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-7.
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Pa. R.C.P. 1034(a).
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of his adversary, but also the untruth of his own allegations which have been denied by
his adversary.
Id. (emphasis omitted).
. . . earlier
arguments rejected in \[a\] demurrer,
DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 543, 456 A.2d
1066, 1069 (1983).
With respect to the statute of repose under Section 5536 of the Judicial Code, the
general rule reads as follows:
\[A\] civil action or proceeding brought against any person lawfully performing or
furnishing the design, planning, supervision or observation of construction, or
construction of any improvement to real property must be commenced within 12 years
after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation
of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such
deficiency.
(3) Injury to the person or for wrongful death arising out of any such
deficiency.
(4) Contribution or indemnity for damages sustained on account of any
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injury mentioned in paragraph (2) or (3).
However, t . . . shall not be asserted by way of defense by any
person in actual possession or control, as owner, tenant or otherwise, of such an
improvement at the time any deficiency in such an improvement constitutes the
proximate cause of the injury or wrongful death for which it is proposed to commence an
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With respect to the statute of limitations, under Section 5524 of the Judicial Code
actions which must be commenced within two years include
damages for injuries to the person or for the death of an individual caused by the
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42 Pa. C.S. §5536(a).
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42 Pa. C.S. §5536(b)(2).
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. . . 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 . . .
42 Pa. C.S. §5524(2), (4), (7).
the discovery rule, a cause of
action for tortious injury, for purposes of the statute of limitations, accrues when a
significant harm and of a factual cause linked to anoth
Wilson v. El-Daief, 600 Pa. 161, 178, 964 A.2d 354, 364 (2009); see Pennsylvania
Suggested Standard Jury Instructions 11.10 (Fifth Ed.).
Nicolaou v. Martin, 649 Pa. 227, 249, 195 A.3d 880, 893 (2018).
reasonable diligence standard is sufficiently flexible to take into account the differences
between persons and their capacity to meet certain situations and the circumstances
Id. \[B\]ecause the
reasonable diligence determination is fact intensive, the inquiry is ordinarily a question
for the jury.Id. (emphasis added).
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a tortious offense to property rights that is intermittent as
opposed to constant in its effect may give rise to successive causes of action. See Graybill
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v. Providence Township, 140 Pa. Cmwlth. 505, 593 A.2d 1314 (1991). Thus, in Miller
v. Stroud Township, 804 A.2d 749 (Pa. Cmwlth. 2002), the Pennsylvania Commonwealth
Court sanctioned a claim by landowners against a municipality where a malfunctioning
-of-way caused flooding damage to the property
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See Kowalski v. TOA PA V, L.P., 2019 PA Super 93, ¶__, 206 A.3d 1148, 1168.
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The principle is not a new one. See Stout v. Kindt, 24 Pa. 449, 1855 WL 7129 (1855); see generally
When Statute of Limitation Commences To Run against Damage from Overflow of Land Caused by
Artificial Construction or Obstruction, 5 A.L.R.2d 302 (1949).
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on a continuing, periodic basis, notwithstanding that the offending condition predated the
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two-year limitations period.
Kowalski v. TOA PA V, L.P., 2019 PA Super 93, ¶__, 206 A.3d 1148, 1168.
With respect to pain and suffering as a compensable form of loss in common tort
actions against local agencies, Section 8553(c)(2) of the Judicial Code provides that such
damages shall be recoverable only in the following instances:
(i) death; or
(ii) . . . in cases of permanent loss of a bodily function, permanent disfigurement
or permanent dismemberment where the medical and dental expenses . . . are in excess of
$1,500.
42 Pa. C.S. §8553(c)(2).
ns that the plaintiff . . . can no longer
perform a physical act or acts which \[he or\] she was capable of performing prior to
injury . . . , and that this loss of bodily function will exist for the remainder of \[his or\]
her . . . Walsh v. City of Philadelphia, 526 Pa. 227, 241, 585 A.2d 445, 452 (1991).
An application of this definition is obviously fact-dependent, and typically within
the purview of the fact-finder. See Brown v. Marraccini, 61 Pa. D. & C.4th 32, 2002 WL
32136250 (Northampton County 2002) (summary judgment on damages issue denied).
Application of law to facts.
the pleadings based on the above-quoted statute of repose, it is far from clear that
Defendant would be entitled to the ben relationship to the
construction in question as alleged by Plaintiffs is credited. In any event, the court does
not choose to revisit this issue previously disposed of adversely to Defendant on a
demurrer.
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See also Kowalski v. TOA PA V, L.P.,
impossible to know exactly how many incidents of trespass will occur in the future, or the severity of the
damage that may be caused, such that the full amount of damages cannot be calculated in a single action,
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With respect to the statute of limitations, it cannot be said with certainty that
neither the discovery rule nor the continuous tort doctrine can be of benefit to Plaintiffs
on the issue. The continuous tort doctrine, in particular, may serve to preserve at least a
port
Finally, with respect to the possibility of a recovery for pain and suffering in this
exposure to mold rise to the level of a permanent loss of bodily function involves a
factual analysis that will benefit from a more developed record than is available at this
judgment on the pleadings on this aspect of damages will be denied.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this day of , 2021, upon consideration of East
July
28th
eadings, filed February
25, 2021, and for the reasons stated in the accompanying opinion, the motion is denied.
BY THE COURT,
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Carrie E. Hyams, J.
DISTRIBUTION:
Richard C. Angino, Esq.
ANGINO LAW FIRM, P.C.
Suite 301
1800 Linglestown Road
Harrisburg, PA 17110
Attorney for Plaintiffs
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Charles E. Haddick, Jr., Esq.
DICKIE, McCAMEY & CHILCOTE, P.C.
Suite 105
2578 Interstate Drive
Harrisburg, PA 17110
Attorney for Defendant
Matthew R. Clayberger, Esq.
Kevin C. McNamara, Esq.
THOMAS, THOMAS & HAFER, LLP
P.O. Box 999
Harrisburg, PA 17108-0999
Attorneys for Additional Defendant
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