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Home My WebLink About2007-3163 JANE S. EBERTS a/k/a S. JANE : IN THE COURT OF COMMON PLEAS EBERTS, : OF CUMBERLAND COUNTY, PLAINTIFF : PENNSYLVANIA : V. : : MICHAEL F. RONCA & SONS, : INC., : DEFENDANT : 07-3163 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., November 18, 2011:-- In this breach of contract and negligence action, Plaintiff, Jane S. Eberts, sues Defendant, Michael F. Ronca & Sons, Inc., alleging Defendant’s blasting activity caused physical damage to Plaintiff’s home. Plaintiff avers that this damage led to water entering her home, resulting in mold and mildew growth which ultimately caused respiratory problems and deterioration in her health. For its part, Defendant asserts Plaintiff’s contract claim is legally insufficient and that her negligence claim is time-barred. Before the Court is Defendant’s motion for summary judgment seeking dismissal of all counts. Following oral argument, we are ready to render our decision. For the following reasons, we deny the motion in all respects. Background I. Defendant was hired by the South Middleton Township Municipal Authority to extend a sanitary sewage and water distribution system to the Western Village area of the Township. To reach this end, Defendant began conducting blasting 07-3163 CIVIL TERM activity in January 2004 and concluded such activity on May 24, 2005. Plaintiff alleges that Defendant’s blasting activity caused damage to her home resulting in water damage. On May 24, 2007, Plaintiff initiated the instant matter by writ of summons. Plaintiff then filed her complaint on February 4, 2008. Three alternative counts are included in this complaint: Breach of Contract and Warranties; Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL); and Negligence. In its motion for summary judgment, Defendant first asserts the Breach of Contract claim is unfounded because it contracted directly with the municipality and not with Plaintiff. Therefore, Defendant contends that it did not owe a contractual duty to Plaintiff. Next, Defendant asserts the UTPCPL claim is unfounded as Plaintiff is not included in the definition of consumers in the 1 UTPCPL. Finally, Defendant argues the negligence claim is time-barred because the two year statute of limitations expired prior to Plaintiff filing this claim. Discussion II. A. Standard of Review Defendant moves for summary judgment pursuant to Pennsylvania Rules of Civil Procedure 1035.2. “In considering the merits of a summary judgment, a court views the record in the light most favorable to the non-moving party...” Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). Further, there can 1 At oral argument, Plaintiff admitted that the UTPCPL claim was unfounded. Therefore, that claim will not be addressed in the discussion . -2- 07-3163 CIVIL TERM be “no genuine issue of any material fact as to a necessary element of the cause of action…” Pa.R.C.P. No. 1035.2 (1). B. Breach of Contract & Warranties Claim Plaintiff avers that she is an intended third-party beneficiary because the service lines were installed for her direct benefit and because her property was one of many required to connect to the new sewer and waterlines in this construction project. The blasting activity that Defendant conducted was a prerequisite to the installation of these service lines. Defendant argues that Plaintiff’s third-party beneficiary claim should be dismissed because she does not have standing to enforce the contract between Defendant and the municipality. Plaintiff counters this with the language of the contract, which explicitly requires Defendant to perform the blasting without damaging surrounding structures, such as Plaintiff’s house. In reviewing the contract between the municipality and Defendant, and applying the language contained therein, this Court finds that Plaintiff is an intended third-party beneficiary to the agreement between Defendant and the municipality, and therefore has standing to bring the instant breach of contract claim. Defendant relies on Scarpetti v. Weborg, where the Supreme Court affirmed an earlier adoption of Restatement (Second) of Contracts §302 in analyzing third- party beneficiary claims. Scarpetti v. Weborg, 609 A.2d 147, 150 (Pa. 1992). However, that holding and analysis pertain to contracts between private parties, not municipalities and contractors, and thus is inapplicable to this case where an -3- 07-3163 CIVIL TERM agreement existed between Defendant and a municipality – the South Middleton Township Municipal Authority. In addressing municipal contracts, the Supreme Court of Pennsylvania held that a municipality can demonstrate its intention to protect the public through contractual language. Keefer v. Lombardi, 102 A.2d 695 (Pa. 1954). In Keefer, buildings were damaged when a company conducted blasting work for a municipality. The relevant contract contained a provision stating that the company “expressly assume[s] liability for ‘any and all loss and damage sustained by any person or party…that may occur either during the performance or subsequent to the completion of the work…’” Id. at 696. The Court held that the property owners could recover as third-party beneficiaries because the contractual language explicitly stated the contracting parties’ intent to protect third-parties from damages related to the blasting work. In the case at bar, the contractual language indicates the municipality’s intent to protect the public. There are two relevant paragraphs in the contract; both are located in Section 11. In relevant part, Paragraph 11.1 states that the contractor will take all necessary precautions for the safety of, and will PROVIDE THE NECESSARY PROTECTION TO PREVENT DAMAGE, INJURY OR LOSS TO ALL EMPLOYEES on the WORK and other persons who may be affected thereby, all the WORK and all MATERIALS OR EQUIPMENT to be incorporated therein, whether in storage on or off the site, and other property at the side or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. Agreement, filed September 2, 2011 (emphasis added, capitalization in original). -4- 07-3163 CIVIL TERM This paragraph assigned liability to the contractor for the safety of employees as well as other affected persons. Paragraph 11.1 also assigned liability for property damage, whether the property was part of the work site or adjacent to it. This language clearly indicates the contracting parties’ intent to protect all adjacent property owners from damages associated with the blasting operations. Further, paragraph 11.2 states that the contractor will erect and maintain, as required by the conditions and progress of the WORK, all necessary safeguards for safety and protection. . . . The CONTRACTOR will remedy all damage, injury or loss to any property, caused directly or indirectly, in whole or in part, by the CONTRACTOR, any SUBCONTRACTOR or anyone directly or indirectly employed by any of them. Agreement, filed September 2, 2011 (emphasis added, capitalization in original). These two paragraphs were repeated and predominantly placed in a separate two-page agreement entitled “Safety Guidelines and Requirements.” This separate document had an independent signature line, which Defendant signed. In Keefer, the Pennsylvania Supreme Court ruled that members of the public can be third-party beneficiaries if the language in the contract, so provides. Here, Defendant signed a contract that specifically assigns it liability for property damage caused by the blasting activity. Therefore, based on the plain language of the contract, we conclude that Plaintiff was an intended third-party beneficiary and can therefore pursue her breach of contract claim. -5- 07-3163 CIVIL TERM C. Timeliness of Negligence Claim Next, we address whether Plaintiff’s negligence was timely filed. For a negligence claim, the statute of limitations is two years. 42 Pa. C.S. §5524(4). However, there are exceptions that, if applicable, can toll the limitation period. Defendant argues Plaintiff’s negligence claim is time-barred because it was initiated more than two years after Plaintiff first noticed any damage to her home on April 13, 2005. Plaintiff admits that some damage occurred to her home as a result of a blasting activity on April 13, 2005. However, Plaintiff avers she did not discover the extensive damage to her home until sometime later, when leaking and flooding occurred. Therefore, Plaintiff argues that her action remains timely. The discovery rule may toll the limitation period where an injured party does not know and reasonably could not have known about an injury. Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). “[T]he recognized purpose of the discovery rule [is] to see to it 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.” Id. at 860. And, the determination as to whether a party exercising due diligence could have discovered the injury is a question of fact. As such, that question is normally for the jury. Id. at 858. Defendant conducted blasting activities from January 4, 2005 - May 24, 2005. Plaintiff noticed minor damage to her home after a blasting event in April. However, Plaintiff did not discover the extensive damage to her home until sometime later; when moisture entered her home following rain events resulting in leaking, flooding, and ultimately mold growth. Neighbors did not become -6- 07-3163 CIVIL TERM aware of water entering their homes until later that spring, shortly after the blasting activity stopped. In applying the discovery rule we find that the date the statute of limitations began to toll was the date Plaintiff first discovered water entering her home. The determination of that date is a factual question and, as such, should go to a jury. See Gleason v. Borough of Moosic, 15 A.3d 479 (Pa. 2011). Accordingly, we enter the following order. ORDER OF COURT AND NOW, this ______________ day of November, 2011, after considering the briefs and arguments of counsel, defendant’s motion for summary judgment DENIED. is By the Court, __________________________ Albert H. Masland, J. Douglas G. Miller, Esquire For Plaintiff Anthony T. Lucido, Esquire For Defendant :saa -7- JANE S. EBERTS a/k/a S. JANE : IN THE COURT OF COMMON PLEAS EBERTS, : OF CUMBERLAND COUNTY, PLAINTIFF : PENNSYLVANIA : V. : : MICHAEL F. RONCA & SONS, : INC., : DEFENDANT : 07-3163 CIVIL TERM IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J. AND MASLAND, J. ORDER OF COURT AND NOW, this ______________ day of November, 2011, after considering the briefs and arguments of counsel, defendant’s motion for summary judgment DENIED. is By the Court, __________________________ Albert H. Masland, J. Douglas G. Miller, Esquire For Plaintiff Anthony T. Lucido, Esquire For Defendant :saa