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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 :IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA : 94-5926 CIVIL PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC., and McCLURE COMPANY, t/a McCLURE MECHANICAL SERVICES, a registered fictitious name, Defendants :CIVIL ACTION -LAW :JURY TRIAL DEMANDED IN RE: DEFENDANT McCLURE COMPANY's MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, J. and GUIDO, J. ORDER OF COURT AND NOW, this 29th day of June, 2001, pursuant to the opinion filed on this date, defendant McClure Company's Motion for Summary Judgment is hereby denied. By the Court, George E. Hoffer, P.J. Andrew L. Swope, Esq. Kirkpatrick & Lockhart, LLP 240 North Third Street Harrisburg, PA 17101 Attorney for Plaintiffs Dennis J. Bonetti, Esq. Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant McClure Company Megan E. Trend, Esq. Joseph A. Manfredi & Associates, P.C. 336 Main Street P. O. Box 323 Bedminster, NJ 07921 Attorney for Defendants Petroleum Products Equipment Company and Carlos R. Leffler, Inc. 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 : 94-5926 CIVIL VI. PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC., and McCLURE COMPANY, t/a McCLURE MECHANICAL SERVICES, a registered fictitious name, Defendants :CIVIL ACTION -LAW :JURY TRIAL DEMANDED IN RE: DEFENDANT McCLURE COMPANY's MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, J. and GUIDO, J. OPINION HOFFER, P.J.: In this opinion, we address defendant McClure Company's Motion for Summary Judgment. The facts of the case are as follows: plaintiffs own real estate located at 1041 Mumma Road, Wormleysburg, Cumberland County, Pennsylvania, at which is located a commercial office complex known as Pennsboro Center. 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 16, 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 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. Upon plaintiffs' information and belief, McClure's employees who removed and replaced the product lines were not certified by the Department of Environmental Protection as installers of underground storage tanks who are authorized to perform underground storage tank handling activities. 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 tank revealed that there was no leak. An examination of the underground storage tank did not reveal petroleum hydrocarbon contamination. In 1992, PADER contacted plaintiffs to perform a site assessment at Pennsboro Center because it had discovered fuel oil entering the storm water culvert in the vicinity. Plaintiffs retained Tethys Consultants, Inc. (hereinafter "Tethys") to perform the site assessment. Tethys indicated that the underground storage tank was tight, while the underground product lines were suspect. They excavated the underground product lines and discovered numerous perforations in the supply and return lines at the point where the underground product lines entered the building. Plaintiffs allege the perforations were in eighteen (18) inches of the underground product lines that were not replaced by McClure and that these perforations are what caused the release of the fuel oil. Plaintiffs filed suit against McClure for breach of contract, negligence, and violation of the Storage Tank and Spill Prevention Act (hereinafter "STSPA"). McClure filed the ensuing Motion for Summary Judgment on the breach of contract claim (Count I of the Complaint), the negligence claim (Count II of the Complaint), the violation of the STSPA claim (Count III of the Complaint), and on the basis of spoliation of evidence (all counts of the Complaint).~ Discussion Parties may move for summary judgment when there is no genuine issue of material fact as to any necessary element of the cause of action or a defense to the action. Pa.R.Civ. P. 1035.2. The courts have stated that "an entry of summary judgment may be granted only in cases where the right is clear and free from doubt." Demmler v. Smithkline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996) (citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989)). When considering summary judgment, the Court must examine the record in the light most favorable to the non-moving party. Id. "[T]he trial court must accept as true, all well-pleaded facts in the non-moving party's pleadings...giving the non-moving party the benefit of all reasonable inferences which may be drawn therefrom." Thompson v. Nason Hosp., 370 Pa. Super. 115, 117, 535 A.2d 1177, 1178 (1988). Furthermore, "[i]n a summary judgment proceeding, the court's function is not to determine the facts, but only to determine if a material fact exists." Kelly v. Ickes, 427 Pa. Super. 542,547, 629 A.2d 1002, 1004 (1993). McClure has moved for summary judgment on two basic premises. The company asserts that the applicable statutes of limitations bar all of plaintiffs' See Motion of Defendant McClure Company for Summary Judgment, filed November 16, 2000. claims and that spoliation of evidence is an additional basis for granting the aforementioned motion.2 We will address each issue accordingly. Statutes of Limitations The applicable statutes of limitations in the present action is four (4) years for the contract claim, two (2) years for the negligence claim, and two (2) years for the STSPA claim. See 42 Pa.C.S.A. [}5525, 42 Pa.C.S.A. [}5524, and Two Rivers Terminal, L.P.v. Chevron USA, Inc., 96 F. Supp. 2d 432 (M.D. Pa. 2000). Pursuant to these statutes of limitations, the periods begin to run "[a]s soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations." Pocono Int'l Raceway v. Pocono Produce, 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). One asserting a claim is under a duty to use "all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period." Id. In those circumstances where the plaintiff cannot reasonably be expected to be aware of the injury or of its cause, the discovery rule may apply to toll the running of the statute of limitations. Pocono Int'l Raceway, 503 Pa. at 84, 468 A.2d at 471. The discovery rule is a judicially created device which provides that the limitations period begins to run when "the plaintiff knows or reasonably : In support of the summary judgment motion, McClure's counsel prepared a chronology of events related to the case at bar. While presumably submitted to aid the Court, it may not be used to decide the motion under Rule 10 3 5.2 of the Pennsylvania Rules of Civil Procedure. should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct." Redenz by Redenz v. Rosenber,q, 360 Pa. Super. 430, 434, 520 A.2d 883, 885, (1987), allocatur denied, 516 Pa. 635, 533 A.2d 93 (1987). Under the discovery rule, the statute of limitations begins to run when the injured party "possess sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress." Ha.q.qart v. Cho, 703 A.2d 522 (1997), c~uotin.q Brunea v. Gustin, 775 F. Supp. 844, 846 (W.D. Pa. 1991). Furthermore, when asserting the discovery rule as tolling the statute of limitations, a standard of reasonable diligence must be satisfied. Reasonable diligence is an objective, rather than a subjective standard. Under this standard, the plaintiff's actions must be evaluated to determine whether he or she exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985), (~uotin.q Petri v. Smith, 307 Pa. Super. 261,271,453 A.2d 342, 347 (1982). In defining reasonable diligence, the courts have stated, "[t]here are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful." A. McD. v. Rosen, 423 Pa. Super. 304, 309, 621 A.2d 128, 131 (1993). Despite the objective nature of the reasonable diligence standard, "[i]t is sufficiently flexible, however to take into account difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question." Burnside, 351 Pa. Super. at 292, 505 A.2d at 988, (~uotin,q Petri, 307 Pa. Super. at 271,453 A.2d at 347. Therefore, a plaintiff is not under an absolute duty to discover the cause of his or her complaint. Instead, he or she must exercise only the level of diligence that a reasonable person would employ under the facts and circumstances presented in a particular case. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245 (1995). Where the issue involves a factual determination regarding what constitutes a reasonable time for the plaintiff to discover his or her injury and its cause, the issue is usually for the jury. Cochran, 542 Pa. 210, 666 A.2d 245. However, the Court also recognizes the well-established principle where the facts are so clear that reasonable minds cannot differ, the commencement period may be determined as a matter of law. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992), (~uotin,q Sadtler v. Jackson- Cross, 402 Pa. Super 492,501,587 A.2d 727, 732 (1991). In our review of the record, the facts in this case are unclear. It is possible for reasonable minds to differ in regards to when the plaintiff should have discovered the alleged injury. As such, it is factual determination for a trier-of- fact to decide when the plaintiff should have discovered the alleged injury. Therefore, with respect to McClure's Motion for Summary Judgment on the breach of contract claim, negligence claim, and the violation of the STSP claim, this Court denies McClure's Motion under a statute of limitations analysis because there is an unresolved factual determination as to when the plaintiffs' right to institute and maintain a cause of action arose. Spoliation of Evidence McClure asserts that the unexplained disposal of evidence warrants Summary Judgment in their favor on the basis of spoliation of evidence. The Pennsylvania Supreme Court has addressed the spoliation of evidence issue and the standards to be applied regarding sanctions. The Supreme Court in Schroeder v. Commonwealth Department of Transportation, 551 Pa. 243, 710 A.2d 23 (1998), expressly adopted a three (3) prong test that was applied by the United States Third Circuit Court of Appeals in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3rd Cir. 1994). The Schroeder court held: "[i]n deciding the proper penalty for the spoliation of evidence, the Third Circuit found relevant (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct... Having considered this authority, we adopt the Third Circuit's approach to the spoliation of evidence in Schmid. Fashioning a sanction for the spoliation of evidence based upon fault, prejudice, and other available sanctions will discourage intentional destruction. The plaintiff's burden of proof at trial to establish that a defective product caused his injury will protect defendants in cases where it is determined that summary judgment is not warranted based upon spoliation." See Schroeder, 551 Pa. at 250-52,710 A.2d at 27. The test adopted in Schroeder is a balancing of all three prongs, based upon the facts of each specific case. Tenaqlia v. Proctor & Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999). In determining the applicability of the spoliation doctrine, a court cannot focus entirely on only one prong of the test, but must balance the facts of the case involved as to each prong. Tenaqlia, 737 A.2d at 308. Summary judgment is not mandatory simply because the plaintiff bears some degree of fault for the failure to preserve the product. Id~ An examination of all three (3) prongs of the Schroeder test is necessary to determine whether summary judgment is appropriate. Id. It is worthy to note there is no controlling Pennsylvania authority mandating summary judgment whenever the plaintiff fails to preserve the defective product. Dansak v. Cameron Coca-Cola Bottling Company, Inc., 703 A.2d 489, 495 (Pa. Super. 1997). In Dansak, the court held the plaintiff could establish the alleged defect through circumstantial evidence even though the product had been destroyed. Dansak, 703 A.2d 489. The nature of the defect in Dansak was such that it could be proven in the absence of preservation of the product, without substantial prejudice to the defendant, and the plaintiff was not at fault for the destruction of the evidence.3 Id. In Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998), even though the plaintiff was at fault for failing to preserve all the evidence, the defendant was not severely prejudiced because it could still ~ Preservation of the product in Dansak would not have made a difference in defendant's ability to defend the claim, since the nature of the defect was such that an examination of the broken bottle was not necessary to defend the claim. The defect was the existence of the broken bottle, when it left the manufacturer. adequately defend against the plaintiff's claims.4 Although the cases cited inter alia deal with products liability, the doctrine of spoliation is not restricted solely to products liability cases. Duquesne Light v. Woodland Hills School District, 700 A.2d 1038, 1050 (Pa. Comwlth. 1997). Although plaintiffs' action ultimately led to the loss of the underground product line, the summary judgement motion does not support the transfer was negligent or in bad faith. The defendant may present evidence of spoliation at trial and the Court may instruct the jury that it may infer the underground product line would have been unfavorable to the plaintiffs. See Schroeder, 551 Pa. at 252, 710 A.2d at 28. While the defendant may be unable to present some evidence without examining the underground product line, the burden of proof remains with plaintiffs to prove that the underground product line was what caused them harm. Id. In sum, the Court adopts the test in Schmid to determine the appropriate sanction against a party who fails to preserve a product that is the subject of the litigation. Summary judgement is not warranted due to plaintiffs' fault. We find, after thorough examination of the case at bar, that even if the Plaintiff is able to establish a defect even if the specific product is lost or destroyed, this case must be allowed to proceed. Thus as a result, McClure's 4 In Pia, a warehouse owner sued an electrical contracting firm following the destruction of her warehouse by an electrical fire. Plaintiff preserved only what she believed caused the fire, the faulty wiring in a metering cabinet rather than all the wiring in the warehouse. Motion for Summary Judgment on the basis of spoliation of evidence is denied.