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HomeMy WebLinkAbout94-5926 CivilLISA M. MORGAN AND BARBARA McK. MUMMA, TRUSTEES, on behalf of the MARITAL TRUST OF ROBERT M. MUMMA, Plaintiffs PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER INC. and McCLURE COMPANY, trading as McCLURE MECHANICAL SERVICES, a registered fictitious name, Defendants. IN THE COURT OF COMMON : PLEAS, CUMBERLAND COUNTY, :PENNSYLVANIA NO. 94-5926 CIVIL TERM CIVIL ACTION -LAW IN RE: DEFENDANT MCCLURE COMPANY'S RENEWED MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J. and OLER, J. OPINION HOFFER, P.J.: In this opinion, we address Defendant McClure Company's Renewed Motion for Summary Judgment. The facts of the case are as follows: The plaintiffs own real estate located at 1041 Mumma Road, Wormleysburg, Cumberland County, Pennsylvania. A commercial complex known as Pennsboro Center is located on this property. Plaintiffs allege that fuel oil for the boilers was provided by an underground storage tank and associated underground product lines. On or about March 1, 1990, Plaintiffs contacted Defendant McClure Company (hereinafter "McClure") regarding an odor of fuel oil in the base of an elevator shaft at Pennsboro Center. On March 1, 1990, McClure sent an employee to Pennsboro Center in order to assess the problem. McClure's employee discovered fuel oil in the elevator shaft, and on March 16, 1990, began work on a leak found in the underground product lines in the parking lot. On March 27, 1990, McClure replaced the underground product lines. The new underground product lines were reconnected to the existing product lines at a point before they entered the building. Plaintiffs allege McClure did not perform a pressure tightness test on the underground product lines. Plaintiffs also allege that McClure reported that it had repaired the underground product lines and certified that the underground storage tank system was tight and not leaking. It is undisputed that McClure performed no other work for the Plaintiffs after March 27, 1990, which relates to, or is part of this action. In October 1990, the Pennsylvania Department of Environmental Resources (hereinafter "PaDER") discovered fuel oil in the storm water culvert located underneath Mumma Road. Plaintiffs retained Petroleum Products Equipment Company (hereinafter "Petroleum Products") to perform a series of tightness tests of the underground storage tank and the underground product lines. These tests revealed a leak in the underground storage tank system. Thereafter, Petroleum Products performed repair work on the storage tank and/or product lines. In March 1991, Petroleum Products completed the installation of a new underground storage tank. An examination of the removed underground storage 2 tank revealed that there was no leak. An examination of the tank pit after removal of the storage tank did not reveal petroleum hydrocarbon contamination. On or about March 27, 1991, PaDER discovered fuel oil was entering the storm water culvert in the vicinity of the Pennsboro Center. In 1992, PaDER contacted Plaintiffs to perform a site assessment at Pennsboro Center. As a result, Plaintiffs retained Tethys Consultants, Inc. (hereinafter "Tethys") to perform the tightness test on the underground storage tank and product lines at Pennsboro Center. On July 6, 1992, Tethys proceeded to excavate the product lines. Numerous perforations in the supply and return lines were discovered at the point where the product lines entered the building. On or about July 8, 2002, at the request of PaDER, Plaintiffs assumed the maintenance of the booms located at the mouth of the storm sewer, which had been maintained by PaDER. In their complaint, Plaintiffs allege that the perforations were located in approximately 18 inches of the products lines that had not been replaced by McClure when they were hired to replace the line in March of 1990. They assert that the "perforated product lines caused the release of a significant quality of fuel oil into the ground at Pennsboro Center.''~ Plaintiffs have filed suit against McClure for breach of contract (Count I), negligence (count II), and violation of the Pennsylvania Storage Tank and Spill Prevention Act ("STSPA"), 35 PS § 6021.101 etseq. (Count III). See Complaint, ¶¶ 55-56. PROCEDURAL HISTORY Plaintiffs commenced this action on October 14, 1994 by filing a Praecipe for Writ of Summons against the Defendants Petroleum Products and Carlos R. Leffler, Inc. ("Leffler"). On May 11, 1995, Plaintiffs added McClure as a defendant by filing a Praecipe for Writ of Summons. On or about March 20, 1996, Plaintiffs filed a complaint against all of the defendants in the suit. After preliminary objections were disposed of, Plaintiffs filed their First Amended Complaint on or about August 21, 1996. McClure filed its Answer and New Matter and New Matter in the Nature of a Crossclaim against Petroleum and Leffler on October 2, 1996. On November 16, 2000, McClure Company filed its initial Motion for Summary Judgment. On June 29, 2001, this Court denied McClure's Motion for Summary Judgment because the facts were "unclear" with regard to when the Plaintiffs should have discovered the alleged injury. Following the denial of summary judgment, the parties performed additional discovery. On January 28, 2003, the defendants took the deposition of the plaintiff, Lisa M. Morgan (Ms. Morgan). Because of the admissions of Ms. Morgan in her deposition, McClure filed its Renewed Motion for Summary Judgment on January 1,2004, asserting that all of Plaintiffs' claims against McClure are barred by the statute of limitations. 4 NEW EVIDENCE A later motion should not be entertained or granted when a motion of the same kind has previously been denied, unless intervening changes in facts or the law clearly warrant a new look at the question.2 Moreover, a judge may overrule a prior judge of the same court where there has been a substantial change in the facts or evidence which give rise to the dispute in the matter.3 Although a motion for summary judgment was previously denied by this court, the admissions of Ms. Morgan regarding her discovery of the injury allegedly caused by McClure substantially change the facts in this case. Therefore, it is now unnecessary to have a jury determine when the Plaintiffs should have discovered the existence of a cause of action against McClure. The key elements of Ms. Morgan's deposition include when Ms. Morgan testified about the work McClure performed on March 26 and 27, 1990: The only thing I remember is that I knew that [McClure was] replacing, I thought, the whole length of pipe, because I got an oral estimate as to how much it was going to be and it was a lot of pipe. And when the bill came through, I saw on there, replaced the pipes from the tank to the building, which is what I thought [McClure was] doing. It was old pipe, and I think the thought was just replace the whole thing even though the leak or the holes were predominately in one section, to replace the whole thing because it was old pipe. And I recall some conversation about not wanting to have a lot of, you know, joints, so just replace the whole thing.'~ 2 See Ryan v. Berman, 572 Pa. 156, 813 A.2d 792 (2002). 3 See Electronic Laboratory Supply Co. v. Cullen, 712 A.2d 304 (Pa. Super 1998). '~ Morgan deposition at 71-72. McClure did not perform any work after March 27, 1990 that is at issue in this lawsuit. On July 6, 1992, Tethys excavated the pipes for the first time since McClure had replaced the pipes in March of 1990. Ms. Morgan was present at the Pennsboro site on July 6, 1992 and able to observe and ascertain the pipes upon excavation. She testified: A= Was the pipe still in the ground when you observed it? Yes. And all the connection were still--was it still connected, or had they cut it off? No, I think it was connected. And when you looked into the hole, you could see problems? Yes. I was standing there, DER was on site, and basically we were hovering over the hole at this point...And I just remember we were standing there and they were digging the hole, and they uncovered that section of the pipe and all of us going essentially, Oh, My God; there it is.~' Additionally, Ms. Morgan testified that a two foot section of pipe, which was highly rusted with multiple holes, had not been replaced.6 Upon her observation, Ms. Morgan recalled: I remember thinking to myself, What an idiot? If the pipe [McClure] took out of the ground looked like this, why in the world would have they have stopped?7 Morgan deposition at 82. (emphasis added). Morgan deposition at 81-82. (emphasis added.) Morgan deposition at 84. (emphasis added). Ms. Morgan testified that she believed McClure did not properly replace the leaking section of the pipe as early as July 6, 1992: Q. So as of the time of the second excavation, you had a recollection with regard to the work that McClure--that you thought McClure was supposed to do? A. Yes. Q. And when you saw that approximately two foot of pipe, you understood at that point that that was at odds with the work with the work you thought McClure was going to perform? A. Yes. I remember thinking to myself, What idiot made the decision to stop here?8 Ms. Morgan immediately requested that the two foot section of pipe be preserved following the July 6, 1992 excavation. She wanted the pipe preserved, "because [she] had no idea what the ramifications of this was going to be, and [she] just thought we should save it in case we ever need it for D--for evidence with DER, or for whatever happened, that we needed to keep that piece of pipe.''9 Ms. Morgan understood that the pipe was going to be an important piece of evidence,l° Moreover, Ms. Morgan acknowledged that she had conferred with her counsel regarding the potential fuel oil spill prior to the July 6, 1992 excavation. ~ ~ 8 Morgan deposition at 87. (emphasis added). 9 Morgan deposition at 43. lO Morgan deposition at 98. 11 Morgan deposition at 91-92. 7 Furthermore, billing invoices reveal that she had contacted her counsel regarding the fuel oil spill as early as May 29, 1992. Finally, Ms. Morgan testified regarding her complaint against McClure: My complaint against McClure is that they messed up. They didn't replace--they missed the leak that was the ultimate leak that caused the problem. And because it went on for, I don't know, it was probably two years, it took a problem that was small and it ended up being a very big problem because two years elapsed until the pipes were redug up and it was seen that there was a section that hadn't been replaced.~2 DISCUSSION This case falls on all fours with both Murphy v. Saavedra and Pocono Intemational Raceway, Inc. v. Pocono Produce, Inc. In Murphy v. Saavedra, the appellant Murphy, underwent a total abdominal hysterectomy.~3 Prior to surgery she had pain on the left side of her pubic area, but after surgery she had a much more severe, different kind of pain, located in a different area. Dr. Saavedra explained that it was a result of his sewing the wall in the left inguinal area to prevent a hernia from developing. However, appellant continued to suffer from the new symptoms and visited Dr. Saavedra multiple times. She requested reports from her surgery, which showed that no procedure involving the sewing of the wall in the left inguinal area was performed. Therefore, the appellant 12 Morgan deposition at 81. 43 Murphy v. Saavedra, 746 A.2d 92 (Pa. 2000). consulted several other physicians. Appellant was examined by Dr. Smart on February 6, 1992, underwent exploratory surgery, and discovered that Dr. Saavedra had looped the suture around the ligamentum teres. As such, appellant was informed that the cause of her pain was the suture. On September 22, 1993, the appellant filed a praecipe for a writ of summons. They filed a complaint against appellees in which they alleged that Dr. Saavedra negligently placed a suture around a nerve during surgery and failed to discover what he had done. Appellants also commenced a second action against only Dr. Saavedra, which was identical in all material respects to the first action. Alleging that the appellants' claims were barred by the two year statute of limitations, appellees moved for summary judgment. The Common Pleas Court granted summary judgment as a matter of law in favor of the appellees because the appellants knew, or reasonably should have known, the injury, the operative cause of the injury and the causal relationship between the injury and the operative conduct by middle to late summer of 1991. By not bringing the malpractice action until September of 1993, the action was time barred. At the Superior Court level, summary judgment was affirmed. Superior Court reasoned that in her deposition testimony she was aware on the day of her surgery that the pain she was experiencing might be connected to Dr. Saavedra's suturing.14 The Pennsylvania Supreme Court affirmed, and held that as a matter of law the 14 Murphy v. Saavedra, 746 A.2d 92, 94 (Pa. 2000). appellants knew, or reasonably should have known, of the injury shortly following the June 1, 1991 surgery because appellant's severe pain following surgery reasonably put her on notice of a problem with the procedure.15 As a result, summary judgment was entered in favor of the appellees.16 This case also falls all fours with Pocono Intemational Raceway, Inc. v. Pocono Produce, Inc.17 In Pocono, the Supreme Court also held that an action was time barred because the plaintiff became aware of the injury within the two year statutory period, but did not timely file suit. Pocono International Raceway, the plaintiff, brought suit against Pocono Produce for trespass in order to recover for damages that occurred to a tunnel owned by the Raceway. The damage was the caused when a driver of a Pocono Produce truck collided with the tunnel. The accident that caused the damage happened on June 15 or June 18, 1978. Pocono Raceway closed the tunnel until April 1979. Upon reopening the tunnel, the plaintiff found that the tunnel had collapsed because the structural beams were damaged by the accident. The plaintiff did not file suit until June 27, 1980, approximately two weeks and two years after the incident.18 15 Id at 97. 16 Id. at 98. 17 Pocono International Raceway, Inc., v. Pocono Produce Inc., 503 Pa. 80, 468 A.2d 468 (Pa. 1983). 18 Pocono at 470. ]0 The plaintiff argued that it did not have knowledge of the injury until April 1979 when the tunnel was reopened. However, the court held that the statute barred the action because the plaintiff had the ability to ascertain the cause of the injury and failed to institute the suit within the applicable period of limitations.19 We can distinguish neither Murphy nor Pocono from the present case. See also; Kingston Coal Company v. Felton Mining Company, Inc., 690 A.2d 284 (Pa. Super. Ct. 1997) (conversion action filed on June 14, 1994, while open and obvious coal mining activity had occurred between November 1980 and 1981, was barred by statute of limitations); Haggar v. Cho, 703 A.2d 522 (Pa. Super. Ct. 1997) (malpractice action filed on February 26, 1992, while doctor's alleged misconduct occurred not later than March of 1988, was barred by statute of limitations and discovery rule argument is without merit); Aberman, Inc. v. Funk Building Corporation, 420 A.2d 594 (Pa. Super. Ct. 1980) (breach of contract action filed on December 21, 1973 was barred by six-year statute of limitations because through due diligence roof leak could have been discovered at least by December 1967). CONCLUSION Ms. Morgan's deposition testimony clearly establishes that the Plaintiffs discovered the existence of a cause of action against McClure not later than July 6, 1992. In light of this new evidence, the statute of limitations bars the present 19 Pocono at 471. claim for negligence, which was not filed by Plaintiffs until May 11, 1995. By the same token, Plaintiffs' cause of action under the STSPA is also barred by the statute of limitations. Furthermore, the breach of contract claim is also time barred because Plaintiffs discovered the claim within the four-year statute of limitations, which began from possible date of breach of contract, but they did not file the claim until the period ended.2° Therefore, summary judgment for all claims in the present action is granted in favor of McClure. 2o The latest possible date for a breach of contract is March 27, 1990, which is the last day McClure worked for the Plaintiffs ]2 LISA M. MORGAN AND BARBARA McK. MUMMA, TRUSTEES, on behalf of the MARITAL TRUST OF ROBERT M. MUMMA, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-5926 CIVIL TERM CIVIL ACTION - LAW PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC. and McCLURE COMPANY, trading as: McCLURE MECHANICAL SERVICES, a registered fictitious name, Defendants IN RE: DEFENDANT MCCLURE COMPANY'S RENEWED MOTION FOR SUMMARY JUDGMENT ORDER OF COURT AND NOW, this day of ,2004, upon consideration of Defendant McClure's Renewed Motion for Summary Judgment and arguments presented, it is hereby ORDERED that the Defendant's Motion is GRANTED. The Court hereby enters summary judgment in favor of Defendant, McClure Company, against Plaintiffs on all counts of Plaintiffs' Complaint. By the Court, George E. Hoffer, P.J. Andrew L. Swope, Esquire Kirkpatrick & Locke, LLP 240 North Third Street Harrisburg, PA 17101 For the Plaintiffs Adam L. Seiferth, Esquire Peters & Wasilefski 2961 North Front Street Harrisburg, PA 17110 For Defendant McClure ]3