HomeMy WebLinkAbout2018-03380
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: DEFENDASUMMARY JUDGMENT
BEFORE GUIDO, P.J., HYAMS and SIBERT, JJ.
OPINION and ORDER OF COURT
HYAMS, J., June 27, 2022.
For disposition in this civi
1
adjacent to that of Defendant school district amended motion for
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summary judgment. This matter will be resolved on briefs.
For the reasons stated in this opinioon will be denied.
1
See Amended Complaint, filed September d Complaint).
2
Defendant, East Pennsboro Area School Districts Amended Motion for Summary Judgment Pursuant to
Pa.R.C.P. 1035.2, filed 3March 1, 2022 (hereinafter Defendants Amended Motion for Summary
Judgment).
3
See Brief of Defendant, East Pennsboro School District, in Support of Its Amended Motion for
Summary Judgment Pursuant to Pa.R.C.P. 1035.2, filed March 1, 2022, and letter from Defendants
counsel, dated May 20, 2022 (hereinafter Defendants Brief or Supplemental Letter); Plaintiffs Brief
Contra Defendant East Pennsboro Area School Districts Amended Motion for Summary Judgment, filed
March 15, 2022 (hereinafter Plaintiffs Brief).
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STATEMENT OF FACTS
This action was commenced by the filing of a complaint by Plaintiffs on April 11,
4
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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, 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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\[Defendant\] buildings were con
37. \[Defendants\] design, development, and maintenance of their property,
including the storm water retention system, culvert, water drains, and water lines is in
violation of the Storm Water Management Act, 32 PS §680.13, and constitutes a public
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nuisance pursuant to §680.15.
* * * *
40. It was reasonably foreseeable to \[Defendant\] that their design, construction,
maintenance, and modifications of the aforementioned structures on the property,
including the storm water retention system, water lines, culvert, and water drains, and the
excavation and grading and re-grading of the property, would result in a diversion of
water onto the property of the \[Plaintiffs\] and others, and that if such structures were
carelessly designed or built, or improperly performed, resultant diversion of water would
cause injury to the \[Plaintiffs\] property. \[Defendant\], therefore, owed a duty to the
\[Plaintiffs\] to design and construct these structures, and to conduct the excavations and
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grading, in a manner that would not cause injury to the \[Plaintiffs\].
* * * *
4
Complaint, filed April 11, 2018.
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Plainded Complaint, ¶1.
6
-3.
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s Amended Complaint, ¶¶3-4.
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nded Complaint, ¶5.
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¶6. Additional Defendant Edward L. Heim, Co., is not directly involved
in the present matter and will not be further referenced.
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¶37.
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¶40.
2
44. \[Defendant\] failed to use due care in designing, constructing, maintaining,
and modifying the structures, including the storm water retention system, water lines,
culvert, and water drains, and in further excavating and grading of the properties, and
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further violated §680.13 of the aforementioned Act and common law.
Plaintiffs
13
Prior to development of its property and
faulty storm water retention system, ropflooding issues
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15
However, in 1996 significant flooding began to occur on Plaintiff
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meeti
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from East Pennsb led
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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
collects the water, then creates a backflow of water that drains directly into \[Plaintiffs
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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An attempt by Defendant in August of 2016 to rectify the problem failed.
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As a result of continuing events of flooding,
28. . . . \[Plainti
and will continue to cause serious health issues until the problems are abated.
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¶44.
13
Amended Complaint, ¶7.
14
Plainti
15
Plaiplaint, ¶9.
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mended Complaint, ¶10.
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nt, ¶14.
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mended Complaint, ¶¶14-19.
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20
Plaintded Complaint, ¶¶20-21.
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aint, ¶27.
3
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.
232425
ed complaint contains trespass, nuisance, and negligence
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claims. Monetary damages and injunctive relief are requested.
aint on
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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
3132
management systems, governmental immunity with respect to punitive damages,
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pleading specificity requirements, and prerequisites for injunctive relief. With the
exceptry
35
objections were overruled.
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Plaint28-30.
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24
Paint, Count II.
25
26
Plaint Amended Complaint, Claim I.
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Claim II.
28
Preliminary Objections to Plaintiinafter
iminary Objections).
29
2-35.
30
Defreliminary Objections, ¶¶36-40.
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minary Objections, ¶¶41-44.
32
iminary Objections, ¶¶112-115.
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nary Objections, ¶¶60-111.
34
Defendants Preliminary Objections, ¶¶124-143.
35
Order of Court, dated January 14, 2019 (Placey, J.).
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36
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 Plaiaverments pertaining to negligent conduct and
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legal causation, and raises defenses in the form of a failure to state a claim upon which
383940
relief can be granted, the statute of limitations, contributory negligence, comparative
41424344
negligence, failure to mitigate damages, absence of notice, preexisting condition,
4546
assumption of the risk, governmental immunity, town
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storm water drainage system, s Recreational Use of Land and Water
4849
Act. the new matter was filed on February 22, 2020.
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Defendant filed a motion for judgment on the pleadings on February 25, 2021.
One of the three bases for the motion was the aforesaid statute of repose:
36
Defendant, East Pennsboro Area School District, Answer with New Matter
Complaint, filed February 4, 2019 (hereinafter Defr mplaint).
37
Defendar to Plaintied Complaint, ¶¶62-64, 71-72.
38
Defendants Answer to Plaintiffs Amended Complaint, ¶60.
39
Defendant1.
40
aint, ¶65.
41
Answer to Plain
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Amended Complaint, ¶67.
43
44
45
Defded Complaint, ¶70.
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Complaint, ¶73.
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Defendan Complaint, ¶74.
48
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e to Defendant, East Pennsboro Area Scho
22, 2020.
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East Pennsboro Area School Districts Motion for Judgement on the Pleadings, filed February 25, 2021
(hereinafter Defendants Motion for Judgment on the Pleadings).
5
A. Defendant East Pennsboro Is Entitled to Judgement on the Pleadings as a
Matter of Law in That the Statu\[t\]e of Repose Abolished All
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Matter of Law. . . .
On this point, in disposing of Defendants motion for judgment on the pleadings
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adversely to Defendant, the court stated, inter alia:
uest for judgment on the pleadings based on
the . . . statute of repose, it is far from clear that Defendant would be entitled to the
benefit of the statute if Defendant relationship to the construction in question as alleged
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by Plaintiffs is credited. . . .
Defendants amended motion for summary judgment sub judice was filed on
March 1, 2022. It alleges that, by virtue of its failure to timely respond to requests for
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admissions propounded by Defendant, Plaintiff is deemed to have admitted the
following facts:
Defendant East Pennsboro Area School district was involved in the design of the
storm water retention system construction project at issue as alleged in paragraph 37 of
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Plaintiffs Complaint.
Defendant East Pennsboro Area School District was involved in the design and
construction of the storm water retention system at issue as alleged in paragraph 40 of
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Plaintiffs Complaint.
Defendant East Pennsboro Area School District was involved in the design,
construction, and modification of the structures regarding the storm water retention
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system at issue as alleged in paragraph 44 of Plaintiffs Complaint.
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t on the Pleadings, at 3.
The other two bases for the motion were as follows:
B. Defendant East Pennsboro Is Entitled to Judgement on the Pleadings as a
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
Claims That Are Not Recognized in 42 Pa. C.S. § 8553.
Defendants Motion for Judgment on the Pleadings, at 5-6.
52
See Opinion and Order of Court, dated July 28, 2021.
53
Opinion of Court, dated July 28, 2021, at 8.
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See Defendants Amended Motion for Summary Judgment, ¶¶10-12.
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Defendants Amended Motion for Summary Judgment, ¶13.
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Defendants Amended Motion for Summary Judgment, ¶14.
6
These admissions, according to Defendant, implicate the aforesaid statute of
repose codified at Section 5536 of the Judicial Code, whereby 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
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such improvement to recover \[various types of damages\]. Based upon the admissions
and this statute, Defendant renews its argument that Plaintiffs pursuit of the present case
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against it is founded upon a cause of action that has been extinguished.
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In a response to Defendants motion for summary judgment, Plaintiffs counsel
suggests that this issue has already been litigated, on Defendants motion for judgment on
the pleadings:
. . . Defendants Motion for Judgment on the Pleadings was filed on February 25,
2021, briefed by both sides, orally argued, and denied by Judge Carrie E. Hyams on the
28th of July 2021. The standard of review under Pa 1035.2 is virtually identical to the
standard of review under Pa R Civ Procedure 1034 (Motion for Judgment on the
Pleadings). Please see discussion on page 5 of Judge Hyams opinion . . . . East Pennsboro
Area School Districts attached Requests for Admission does not change the facts or
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law.
In addition, an affidavit was filed on Plaintiffs behalf, containing photographs that
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purportedly serve to elucidate Plaintiffs claims.
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Defendants Amended Motion for Summary Judgment, ¶15.
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42 Pa. C.S. §5536(a).
59
Defendants Amended Motion for Summary Judgment, ¶¶19, 22, 28-29.
In this regard, Defendant directs the courts attention to a 1975 opinion of the Pennsylvania Superior
Court, Leach v. Philadelphia Savings Fund Society, 234 Pa. Super. 486, 340 A.2d 491 (1975). Plaintiffs
Supplemental Letter, ¶5.
60
Plaintiffs Response to Defendant East Pennsboro Area School Districts Amended Motion for
Summary Judgment, filed March 15, 2022 (hereinafter Plaintiffs Answer to Defendants Amended
Motion for Summary Judgment).
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See, e.g., Plaintiffs Answer to Defendants Amended Motion for Summary Judgment, ¶10.
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Affidavit of Richard C. Angino, filed May 7, 2022.
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DISCUSSION
Statement of law. With respect to summary judgment, Pennsylvania Rule of Civil
Procedure 1035.2 provides as follows:
After the relevant pleadings are closed, but within such time as not to unreasonably delay
trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could be
established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will bear the
burden of proof at trial has failed to produce evidence of facts essential
to the cause of action or defense which in a jury trial would require the
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issues to be submitted to a jury.
For purposes of a motion for summary judgment, the record in a case includes (1)
pleadings, (2) depositions, answers to interrogatories, admissions and affidavits, and (3)
reports signed by an expert witness . . . . Pa. R.C.P. 1035.1.
Summary judgment is only appropriate when . . . the movant clearly establishes
entitlement to judgment as a matter of law, and it is to be granted only in the clearest of
cases. Dwight v. Girard Medical Center, 154 Pa. Cmwlth 326, 331, 623 A.2d 913, 915
(1993).
With respect to a request for admissions, Pennsylvania Rule of Civil Procedure
4014 provides as follows:
(a) A party may serve upon any other party a written request for the admission, for
purposes of the pending action only, of the truth of any matters within the scope of Rules
4003.1 through 4003.5 inclusive set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including the genuineness,
authenticity, correctness, execution, signing, delivery, mailing or receipt of any document
described in the request. Copies of documents shall be served with the request unless they
have been or are otherwise furnished or available for inspection and copying in the
county. The request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after service of the
original process upon that party.
(b) Each matter of which an admission is requested shall be separately set forth. The
matter is admitted unless, within thirty days after service of the request, or within such
shorter or longer time as the court may allow, the party to whom the request is directed
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Pa. R.C.P. 1035.2.
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serves upon the party requesting the admission an answer verified by the party or an
objection, signed by the party or by the party's attorney; but, unless the court shortens the
time, a defendant shall not be required to serve answers or objections before the
expiration of forty-five days after service of the original process upon him or her. If
objection is made, the reasons therefor shall be stated. The answer shall admit or deny the
matter or set forth in detail the reasons why the answering party cannot truthfully do so.
A denial shall fairly meet the substance of the requested admission, and when good faith
requires that a party qualify the answer or deny only a part of the matter of which an
admission is requested, the party shall specify so much of it as is true and qualify or deny
the remainder. An answering party may not give lack of information or knowledge as a
reason for failure to admit or deny unless the answering party states that he or she has
made reasonable inquiry and that the information known or readily obtainable by him or
her is insufficient to enable him or her to admit or deny. A party who considers that a
matter of which an admission has been requested presents a genuine issue for trial may
not, on that ground alone, object to the request. That party may, subject to the provisions
of Rule 4019(d), deny the matter or set forth reasons why he or she cannot admit or deny
it.
(c) The party who has requested the admission may move to determine the sufficiency of
the answer or objection. Unless the court determines that an objection is justified, it shall
order that an answer be served. If the court determines that an answer does not comply
with the requirements of this rule, it may order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of these orders, determine that final
disposition of the request be made at a pre-trial conference or at a designated time prior to
trial.
(d) Any matter admitted under this rule is conclusively established unless the court on
motion permits withdrawal or amendment of the admission. Subject to the provisions
of Rule 212.3 governing pre-trial conferences, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be subserved thereby
and the party who obtained the admission fails to satisfy the court that withdrawal or
amendment will prejudice him or her in maintaining the action or defense on the merits.
Any admission by a party under this rule is for the purpose of the pending action only and
is not an admission by the party for any other purpose nor may it be used against the
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party in any other proceeding.
With respect to the statute of repose under Section 5536(a) 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.
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Pa. R.C.P. 4014 (Request for Admission).
9
(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, titation . . . 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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action or proceeding.
In interpreting this exception to the operation of the statute, the Pennsylvania
Superior Court held, in 1975, that it was not meant to deprive a defendant of the benefit
of the statute merely because the defendant happened to own the premises at the time it
performed the allegedly deficient construction. Leach v. Philadelphia Savings Fund
Society, 234 Pa. Super. 486, 340 A.2d 491 (1975). However, the Court was careful to
distinguish the case from one in which the defendant was the owner at the time an injury
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occurred.
Application of law to facts. The court finds itself in agreement with Plaintiffs
position that the factual admissions and legal theory upon which Defendants motion for
summary judgment is based are not basically different from the record and thesis
presented when the statute-of-repose issue was decided adversely to Defendant on its
motion for judgment on the pleadings, or for that matter on its preliminary objections.
The putative admissions simply excerpt portions of Plaintiffs pleading, while omitting
references to Defendants management of the improvements, and the legal theory
disregards the arguable consequence of the currency of Defendants ownership. In short,
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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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The parties do not dispute that the Act excludes the owner of the improvement or any person in actual
possession or control at the time any deficiency in such an improvement constitutes the proximate cause
of the injury. Leach v. Philadelphia Savings Fund Society, 234 Pa. Super. 486, 490 n.6, 340 A.2d 491,
493 n.6 (1975).
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the court remains of the view that it isfar from clear that Defendant would be entitled to
the benefit of the statute \[of repose\] if Defendantrelationship to the construction in
question as alleged by Plaintiffs is credited....
For theforegoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this27day of June, 2022,upon consideration of Defendant, East
Pennsboro AreaSchoAmended Motion for Summary Judgment Pursuant to
Pa.R.C.P. 1035.2, filed March 1, 2022, and for the reasons stated in the accompanying
opinion, the motion is denied.
BY THE COURT,
_______________
Carrie E. Hyams, J.
DISTRIBUTION:
Richard C. Angino, Esq.
ANGINO LAW FIRM, P.C.
Suite301
1800 Linglestown Road
Harrisburg, PA 17110
Attorney for Plaintiffs
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.
KevinC. McNamara, Esq.
THOMAS, THOMAS& HAFER, LLP
P.O. Box 999
Harrisburg, PA 17108-0999
Attorneys for Additional Defendant
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