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HomeMy WebLinkAbout96-0171,272,271 & 97-002 CIVILMECHANICSBURG OVEN, INC., et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-0171 CIVIL TERM FRANCES PRIBULSKY, et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-0272 CIVIL TERM DEBORAH C. ESPOSITO, et al.,: Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-0271 CIVIL TERM CIPRIANO ARENA, et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-0002 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT RONALD RAFFENSPERGER BEFORE HESS and OLER~ JJ. OPINION and ORDER OF COURT OLER, J., December ,2001. This case arises from the collapse of part of a roof at a shopping center on January 21, 1994, which allegedly caused economic losses to various tenants of the shopping center.~ These tenants have sued various companies and individuals who were involved in the construction or subsequent modifications of the building) One such Defendant is Ronald Raffensperger, a professional engineer who, in 1973, reviewed and certified plans for the initial construction of the part of the roof that later collapsed) For disposition at this time is a motion for summary judgment filed by Defendant Raffensperger. The motion contends that Plaintiff has failed to adduce evidence that would allow a factfinder to assign liability to Defendant Raffensperger.4 The motion also argues that all causes of action against Defendant Raffensperger with respect to his involvement in the construction of the roof are barred by the applicable statute of repose. For the reasons stated in this opinion, the motion for summary judgment will be granted and all claims against Defendant Raffensperger in this case will be dismissed as barred by the applicable statute of repose. ~ Second Am. Compl., filed June 28, 2000, para. 55, Pribuls/cy v. Kermisch (No. 96- 0272). The documents filed or submitted in this case largely mirror the documents filed or submitted in the other cases contained in the caption. For simplicity, all references hereafter are to the case docketed at No. 96-0272. ~ See Second Am. Compl., filed June 28, 2000. 3 Id. paras. 37-38; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 37-38; Pls.', Arena, Pribulsky and Esposito's Resp. to Ronald Raffensperger's Mot. for Summ. J., filed July 20, 2001, para. 4 (incorporating attached certificate signed by Ronald Raffensperger and dated September 10, 1973) (hereinafter Pls.' Resp.); Aff. of Def., Ronald Raffensperger, and Report from David J. Brinjac, P.E., Filed on Behalf of Def. Raffensperger, filed September 20, 2001, at 2-4, 7 (hereinafter Def.'s Aff.) 4 Mot. for Summ. J. of Def., Ronald Raffensperger, filed June 26, 2001, para. 10. 5 Id. para. 12. The motion also avers that the action is barred by a statute of limitations. Id. para. 11. However, the court finds no support for this argument and Defendant Raffensperger did not maintain this argument in the supporting brief. 2 STATEMENT OF FACTS The Pennsylvania Rules of Civil Procedure establish the standard of review for a motion for summary judgment: 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 issues to be submitted to a jury. Pa. R.C.P. 1035.2. Under subparagraph (1) of Rule 1035.2, summary judgment may be granted if the material facts are not in dispute and "the moving party is entitled to judgment as a matter of law." Dean v. Commonwealth, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). In this context, "the record must be viewed in the light most favorable to the [non-moving] party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Id. at 507, 751 A.2d at 1132. Under subparagraph (2), summary judgment also may be granted if the non-moving party has not offered evidence sufficient to support its burden of proof on a key element of the claim or defense. Young v. Commonwealth Dept. ofTransp., 560 Pa. 373, 375-76, 744 A.2d 1276, 1277 (2000). Viewed in the light most favorable to the non-moving party, the evidence in the present case may be summarized as follows: On Friday, January 21, 1994, a portion of the roof at the Windsor Park Shopping Mall in Mechanicsburg, Lower Allen Township, Cumberland County, collapsed under an accumulation of snow.6 Numerous tenants of the shopping center allegedly suffered damages as a result.7 The portion of the roof that collapsed was constructed as part of the final addition to the shopping center.8 In 1973, Defendant Raffensperger, in his capacity as a professional engineer, reviewed and certified the plans for construction of the roof.9 These plans were filed, pursuant to state regulations, with the Pennsylvania Department of Labor and Industry and with local building authorities, l0 The certification form, signed by Defendant Raffensperger, stated that "[t]he undersigned will supervise the construction" of the roof.~ The plans approved by Defendant Raffensperger indicated that steel trusses would be used in the construction of the roof, the same material used in 6 Second Am. Compl., filed June 28, 2000, para. 55; Pls.' Expert Report of Eugene J. Aufiero, filed July 20, 2001, at 5. 7 See Second Am. Compl., filed June 28, 2000. 8 Id paras. 31-47; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 31-47; Pls.' Expert Report of James A. Kerns, filed July 20, 2001, at 2. 9 Second Am. Compl., filed June 28, 2000, paras. 37-38; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 37-38; Pls.' Resp., filed July 20, 2001, para. 4 (incorporating attached certificate signed by Ronald Raffensperger and dated September 10, 1973). l0 Second Am. Compl., filed June 28, 2000, paras. 37-38; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 37-38; Pls.' Resp., filed July 20, 2001, para. 4 (incorporating attached certificate signed by Ronald Raffensperger and dated September 10, 1973). Both authorities approved the plans in 1973-74. Second Am. Compl., filed June 28, 2000, para. 35; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, para. 35. ~ Pls.' Resp., filed July 20, 2001, para. 4 (incorporating attached certificate signed by Ronald Raffensperger and dated September 10, 1973); Second Am. Compl., filed June 28, 2000, paras. 38; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 38; Def.'s Aff., filed September 20, 2001, at 2-4, 7. 4 the construction of other parts of the roof of the shopping center.~2 However, contrary to these plans, wood trusses were employed to support the weight of the roof.13 Construction was completed in 1974, and businesses were able to open in the new addition.TM Modifications were made to the roof in 1988, but no allegations or evidence was presented to support a finding that Defendant Raffensperger was involved in construction or modification projects after 1974.15 In 1994, twenty years after completion of the initial construction, in which Defendant Raffensperger was involved, the roof collapse that precipitated the pending damage claims occurred. 16 ~2 Second Am. Compl., filed June 28, 2000, paras. 35-40; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 35-40; Pls.' Expert Report of James A. Kerns, filed July 20, 2001, at 2; Def.'s Aff., filed September 20, 2001, at 2-4, 7. ~3 Second Am. Compl., filed June 28, 2000, paras. 35-40; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 35-40; Pls.' Expert Report of James A. Kerns, filed July 20, 2001, at 2; Pls.' Expert Report of Eugene J. Aufiero, filed July 20, 2001, at 7. ~4 Second Am. Compl., filed June 28, 2000, paras. 35-40; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 35-40; Pls.' Expert Report of James A. Kerns, filed July 20, 2001, at 2; Def.'s Aff., filed September 20, 2001, at 2-4, 7. ~5 Second Am. Compl., filed June 28, 2000, paras. 47-49; Answer and New Matter of Def., Ronald Raffensperger, filed June 20, 2001, paras. 47-49; Pls.' Expert Report of James A. Kerns, filed July 20, 2001, at 34; Pls.' Expert Report of Eugene J. Aufiero, filed July 20, 2001, at 2. 16 Second Am. Compl., filed June 28, 2000, para. 55. Section 5536 establishes a statute of repose for individuals provides, in pertinent part, as follows: [A] civil action or proceeding brought DISCUSSION Statement of Law of Title 42 of the Pennsylvania Consolidated Statutes, which involved in construction projects,~7 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. Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa. C.S.A. § 5536(a) (West 1998 & Supp. 2001). This statute may properly be asserted as grounds for summary judgment. See, e.g., McConnaughey v. Bldg. Components', Inc., 536 Pa. 95, 97-98, 637 A.2d 1331, 1332-33 (1994). A party asserting the applicability of this statute must establish three elements: "(1) what is supplied is an improvement to real estate; (2) more than 12 years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party [is] within the class which is protected by the statute." ~7 Section 5536 is considered a statute of repose, rather than a statute of limitations. Nol! v. Harrisburg Area YMCA, 537 Pa. 274, 280, 643 A.2d 81, 84 (1994). The latter procedurally bars a party's right to recovery for an otherwise viable cause of action, whereas the former substantively extinguishes the cause of action, regardless of whether the plaintiff acted promptly in bringing a claim after discovery of the alleged defect. A statute of repose acts as an absolute prohibition against any cause of action covered by the statute. AltoonaArea Sch. Dist. v. Campbell, 152 Pa. Commw. 131, 141, 618 A.2d 1129, 1134 (1992). Id. at 99, 637 A.2d at 1333. If these elements have been met, section 5536 "completely abolishes and eliminates" all causes of action against the moving party in connection with that party's activities in the construction project. Noll v. Harrisburg Area YMCA, 537 Pa. 274, 280, 643 A.2d 81, 84 (1994). An improvement to real estate is defined broadly as "everything that permanently enhances the value of real property." Id. at 286, 643 A.2d at 87. Generally, this includes the construction or substantial modifications of the building. Id. at 286, 643 A.2d at 87. Specifically, Pennsylvania courts have found that roof trusses may be considered permanent improvements. See McConnaughey, 536 Pa. at 99-100, 637 A.2d at 1333-34. The second element requires that more than 12 years have elapsed between the completion of construction and alleged injury. The 12-year period begins running at the point at which the construction project is "so completed that it can be used by the general public." Noll, 537 Pa. at 281, 537 A.2d at 84. Subsequent modifications to the building do not serve to toll this statutory period as it pertains to parties involved in the original construction. AltoonaArea Sch. Dist. v. Campbell, 152 Pa. Commw. 131, 141, 618 A.2d 1129, 1134 (1992). The third element requires that the activity be one that the statute of repose was intended to protect. Section 5336 has been held to apply to those activities in which a party provides "individual expertise" in the design, supervision, or construction of the improvement. Noll, 537 Pa. at 284, 537 A.2d at 86. Parties that have traditionally supplied this type of expertise to a construction project include architects, engineers, and contractors. McCormick v. Columbus Conveyor Co., 522 Pa. 520, 524, 564 A.2d 907, 910 (1989). Application of Law to Facts In this case, all elements of section 5336 have been satisfied; therefore, all claims against Defendant Raffensperger in this case must be dismissed. First, the activity at issue was in connection with the initial construction of the building, specifically, installation of the roof. This constituted a permanent, necessary and valuable enhancement to the real estate, and is properly considered an improvement within the meaning of the statute. Second, the construction of the building and of the roof were completed in 1974, at which time the building was suitable for public use. The injuries in this case allegedly occurred in 1994, well beyond the 12-year minimum period. Third, Defendant Raffensperger participated in this project in his capacity as a professional engineer. In this position, he supplied his individual expertise to review and approve the plans for the construction of the roof; thus, this activity was within the type protected by the statute. Because Defendant Raffensperger's activities fall under the protection of the statute of repose, all causes of action against him based on those activities must be dismissed.~8 For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this day of December, 2001, after careful consideration of the "Motion for Summary Judgment of Defendant, Ronald Raffensperger," "Plaintiff's Answer to Ronald Raffensperger's Motion for Summary Judgment," "Plaintiffs', Arena, Pribulsky and Esposito's Response to Ronald Raffensperger's Motion for Summary Judgment," and the briefs and arguments in support thereof, and for the reasons stated in the accompanying opinion, the motion for summary judgment is granted and all claims against Defendant Ronald Raffensperger are dismissed. BY THE COURT, /s/J. Wesley Oler, Jr., J. J. Wesley Oler, Jr., J. la Because of the disposition of the motion on this ground, it is unnecessary to address Defendant Raffensperger's alternative argument that Plaintiffs have failed to introduce evidence to allow a factfinder to assign liability for the collapse to Defendant Raffensperger. Douglas B. Marcello, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Plaintiffs Arena, Esposito, Pizzatown, Sew With Us Sewing Center, Silva Daniel M. Taylor, Jr., Esq. 411 Seventh Avenue, Suite 1200 Pittsburgh, PA 15219-1905 Attorney for Plaintiff Mechanicsburg Oven, Inc. Samuel L. Andes, Esq. 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 Attorney for Defendant Ronald Raffensperger Reginald H. Belden, Jr., Esq., 117 North Main Street Belden Building Greensburg, PA 15601 Attorney for Defendants Moore Dennis J. Bonetti, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Donald B. Smith, Inc. Thomas E. Brenner, Esq. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant Cory Construction, Inc. John Gerard Devlin, Esq. 100 Pine Street, Suite 260 Harrisburg, PA 17101 Attorney for Defendant Charles Klein & Sons Michael A. Farrell, Esq. 4423 North Front Street Harrisburg, PA 17110 Attorney for Defendants Kermisch, Kleiman, Brown, Cohen, Lipitz, Windsor Park Shopping Centers David J. Hickton, Esq. 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 Attorney for Defendant Rothschild Architects James W. Kutz 100 Pine Street Harrisburg, PA 17101 Attorney for Defendants Firestone, Bridgestone Timothy J. McMahon, Esq. 100 Pine Street Harrisburg, PA 17101 Attorney for Defendant Davis, Bert & Associates Anthony J. Nestico, Esq. 475 West Governor Road Hershey, PA 17033 Attorney for Defendants Pyramid Fabricators, Cooperman, Berg Stuart S. Smith, Esq. 14 West Second Street P.O. Box 229 Media, PA 19063 Attorney for Defendants Smith Michael Marshall 409 South Kenilworth Avenue Oak Park, IL 60302 Pro Se Defendant McDonald Englehart Architects 3132 North l0th Street Arlington, VA 22201 10 Pro Se Defendant Patricia Reynolds 4401 West Roosevelt Boulevard Chicago, IL 60624 Pro Se Defendant Jerome Shuman 4790 Byron road Pikesville, MD 21208 Pro Se Defendant Stmctomatic, Inc. c/o Helen Eagle 233 South Wacker Drive Chicago, IL 60606-6404 Pro Se Defendant Charles Uslander 4401 West Roosevelt Boulevard Chicago, IL 60624 Pro Se Defendant 11 12 MECHANICSBURG OVEN, INC., et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-0171 CIVIL TERM FRANCES PRIBULSKY, et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-0272 CIVIL TERM DEBORAH C. ESPOSITO, et al.,: Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-0271 CIVIL TERM CIPRIANO ARENA, et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-0002 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT RONALD RAFFENSPERGER BEFORE HESS and OLER~ JJ. ORDER OF COURT AND NOW, this day of December, 2001, after careful consideration of the "Motion for Summary Judgment of Defendant, Ronald Raffensperger," "Plaintiff's Answer to Ronald Raffensperger's Motion for Summary Judgment," "Plaintiffs', Arena, Pribulsky and Esposito's Response to Ronald Raffensperger's Motion for Summary Judgment," and the briefs and arguments in support thereof, and for the reasons stated in the accompanying opinion, the motion for summary judgment is granted and all claims against Defendant Ronald Raffensperger are dismissed. BY THE COURT, J. Wesley Oler, Jr., J. Douglas B. Marcello, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Plaintiffs Arena, Esposito, Pizzatown, Sew With Us Sewing Center, Silva Daniel M. Taylor, Jr., Esq. 411 Seventh Avenue, Suite 1200 Pittsburgh, PA 15219-1905 Attorney for Plaintiff Mechanicsburg Oven, Inc. Samuel L. Andes, Esq. 525 North Twelfth Street P.O. Box 168 Lemoyne, PA 17043 Attorney for Defendant Ronald Raffensperger Reginald H. Belden, Jr., Esq., 117 North Main Street Belden Building Greensburg, PA 15601 Attorney for Defendants Moore Dennis J. Bonetti, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Donald B. Smith, Inc. Thomas E. Brenner, Esq. 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Defendant Cory Construction, Inc. John Gerard Devlin, Esq. 100 Pine Street, Suite 260 Harrisburg, PA 17101 Attorney for Defendant Charles Klein & Sons Michael A. Farrell, Esq. 4423 North Front Street Harrisburg, PA 17110 Attorney for Defendants Kermisch, Kleiman, Brown, Cohen, Lipitz, Windsor Park Shopping Centers David J. Hickton, Esq. 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 Attorney for Defendant Rothschild Architects James W. Kutz 100 Pine Street Harrisburg, PA 17101 Attorney for Defendants Firestone, Bridgestone Timothy J. McMahon, Esq. 100 Pine Street Harrisburg, PA 17101 Attorney for Defendant Davis, Bert & Associates Anthony J. Nestico, Esq. 475 West Governor Road Hershey, PA 17033 Attorney for Defendants Pyramid Fabricators, Cooperman, Berg Stuart S. Smith, Esq. 14 West Second Street P.O. Box 229 Media, PA 19063 Attorney for Defendants Smith Michael Marshall 409 South Kenilworth Avenue Oak Park, IL 60302 Pro Se Defendant McDonald Englehart Architects 3132 North l0th Street Arlington, VA 22201 Pro Se Defendant Patricia Reynolds 4401 West Roosevelt Boulevard Chicago, IL 60624 Pro Se Defendant Jerome Shuman 4790 Byron road Pikesville, MD 21208 Pro Se Defendant Structomatic, Inc. c/o Helen Eagle 233 South Wacker Drive Chicago, IL 60606-6404 Pro Se Defendant Charles Uslander 4401 West Roosevelt Boulevard Chicago, IL 60624 Pro Se Defendant