J-A13041-20
2020 PA Super 251
CHRISTOPHER A. CALABRETTA, : IN THE SUPERIOR COURT OF
LOUISE JOY CALABRETTA, SCOTT : PENNSYLVANIA
HORNBAKER, KAREN HORNBAKER, :
JAMES JOLINGER, ROBIN LERNER, :
BETH ANN MARCIN, MARC D. :
ZLOTNIKOFF AND LISA D. :
ZLOTNIKOFF :
:
v. :
:
GUIDI HOMES, INC., AND SPRING :
HOUSE FARM INC., AND MCINTYRE :
CAPRON & ASSOCIATES, P.C. :
:
v. :
:
KELLY PLASTERING, INC., :
EXTERIORS, INC. D/B/A EXTERIORS :
ASSOCIATES, HICKORY HILL :
BUILDERS, INC., AND J. SMITH :
CONSTRUCTION, LLC D/B/A JOHN :
SMITH CONSTRUCTION :
:
APPEAL OF: GUIDI HOMES, INC. AND :
SPRING HOUSE FARM, INC. : No. 2001 EDA 2019
Appeal from the Order Entered June 3, 2019
in the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2017-01624
BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: FILED OCTOBER 19, 2020
Guidi Homes, Inc. (Guidi Homes) and Spring House Farm, Inc. (Spring
House Farm) (collectively, Appellants) appeal from the order entered June 3,
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* Retired Senior Judge assigned to the Superior Court.
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2019, which granted in part and denied in part their motion for summary
judgment. Upon review, we quash this appeal.
Due to our disposition, a detailed recitation of the facts and procedural
history of this case is unnecessary. Briefly, Scott Hornbaker, Karen
Hornbaker, James Jolinger, Robin Lerner (collectively, the Homeowners),
and several others filed suit on February 13, 2017, alleging home
construction defects in the new-construction homes that they had purchased
from Spring Hill and were built by Guidi Homes.1 Additional parties were
joined, an amended complaint was filed, and Appellants filed preliminary
objections, which the trial court overruled on October 13, 2017.
Relevant to this appeal, on January 18, 2019, Appellants filed a motion
for summary judgment seeking dismissal of the Homeowners’ claims against
Appellants on the basis that, inter alia, the claims were barred by the statute
of repose.2 After hearing argument, the trial court entered an order on June
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1 The remaining parties listed in the caption are not involved in this appeal.
2 The statute of repose relating to construction projects provides as follows.
(a) General rule.--Except as provided in subsection (b), 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:
(Footnote Continued Next Page)
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3, 2019, granting in part and denying in part the motion for summary
judgment. Specifically, the trial court granted the motion for summary
(Footnote Continued) _______________________
(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.
(4) Contribution or indemnity for damages sustained on
account of any injury mentioned in paragraph (2) or (3).
(b) Exceptions.—
(1) If an injury or wrongful death shall occur more than
ten and within 12 years after completion of the
improvement a civil action or proceeding within the scope
of subsection (a) may be commenced within the time
otherwise limited by this subchapter, but not later than 14
years after completion of construction of such
improvement.
(2) The limitation prescribed by subsection (a) 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
action or proceeding.
(c) No extension of limitations.--This section shall not extend
the period within which any civil action or proceeding may be
commenced under any provision of law.
42 Pa.C.S. § 5536.
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judgment as to count IV (negligence claims dismissed under the gist of the
action doctrine3), and denied it in all other respects.
In its order denying Appellants’ motion for summary judgment based
on the statute of repose barring the Homeowners’ claims, the trial court
stated that the “current state of the law on the statute of repose is
somewhat unclear.” Order, 6/3/2019, at 2 n.3. As noted supra, section 5336
states, subject to exceptions, “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 certain
damages. 42 Pa.C.S. § 5336(a) (emphasis added). The trial court noted the
term “lawfully” in the statute is unclear as to whether it “requires compliance
with[] (1) all prerequisites necessary to obtain municipal permission to
engage in the various activities mentioned in the statute; or (2) all local and
state ordinances, regulations[,] and statutes.” Order, 6/3/2019, at 2 n.3.
After discussing two unpublished memoranda from this Court, the trial court
found “that a genuine issue of material fact exists as to whether the homes
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3 The gist of the action doctrine is used to determine whether a claim sounds
in contract or negligence. Kelly Sys., Inc. v. Leonard S. Fiore, Inc., 198
A.3d 1087, 1092-93 (Pa. Super. 2018), citing Bruno v. Erie Ins. Co., 106
A.3d 48, 68-69 (Pa. 2014).
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were lawfully constructed, under either aforementioned interpretation of
‘lawfully’” and therefore, summary judgment could not be entered on the
issue of whether the statute of repose applies to Appellants. Id.
This appeal followed.4, 5 On July 22, 2019, the Homeowners filed an
application to quash the appeal and brief in support thereof with this Court.
They maintained that the June 3, 2019 order is not a final order under
Pa.R.A.P. 341(b)(1) because it did not dispose of all claims and all parties.
Application to Quash, 7/22/2019, at 5. The Homeowners further argued the
order is not a collateral order under Pa.R.A.P. 313 because it addressed
underlying claims and is not separable from and collateral to the main cause
of action, Appellants’ interests will not go unprotected because they can
defend this action at trial, and Appellants’ claims will not be irreparably lost
if review is postponed until final judgment. Id. at 5-6. On August 2, 2019,
Appellants filed a response, wherein they agreed the order is not final, but
argued that it is immediately appealable as a collateral order. Answer to
Application to Quash, 8/2/2019, at 2. Appellants contended that a
determination of whether the statute of repose bars the Homeowners’ claims
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4 On July 3, 2019, Appellants simultaneously filed a motion for
reconsideration, or in the alternative, to certify the June 3, 2019 order as
immediately appealable pursuant to 42 Pa.C.S. § 702(b), with the trial court,
and a notice of appeal with this Court. The trial court did not rule on the
motion or certify the appeal.
5 Appellants and the trial court complied with Pa.R.A.P. 1925.
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is separable from the main cause of action, i.e., whether the homes have
defects. Id. at 2-3. They further argued that the interest in “immunity from
suit [under the statute of repose] for a specific class of persons and
companies, rather than one company’s mere hope to escape liability,” as
well as an interest in finality, are sufficiently important interests to warrant
immediate review. Id. at 4. Finally, Appellants argued that their immunity
from suit under the statute of repose is irreparably lost if this case is
erroneously permitted to go to trial. Id. at 10-11. On November 21, 2019,
this Court denied the application to quash without prejudice to the
Homeowners’ right to “raise the issue in their brief or, after the appeal has
been assigned to the panel of this Court that will decide the merits of the
appeal, in a properly filed application.” Order, 11/21/2019. The
Homeowners declined to argue the issue of appealability in their brief or file
a subsequent application to quash.
Appellants present the following questions for our review.
1. Precedent to the main issue, below, the Court must first
decide the preliminary question whether its appellate
jurisdiction has been properly invoked, under the collateral
order doctrine codified in Pa.R.A.P. 313.
2. The main issue presented for decision by this Court is
whether the [s]tatute of [r]epose for construction projects
bars the claims of [the Homeowners] here, where suit was
filed more than twelve years from the completion of
construction, liability is asserted against those having a
role in the construction, the action claims deficiencies in
construction leading to harm, and there is no evidence of
any “unlawful” construction within the meaning of the
[s]tatute.
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Appellants’ Brief at 4.
As Appellants recognize, before we may address the applicability of the
statute of repose to Appellants, we must first determine whether the June 3,
2019 order is appealable, because appealability implicates our jurisdiction.6
Interest of J.M., 219 A.3d at 650. “Jurisdiction is purely a question of law;
the appellate standard of review is de novo and the scope of review
plenary.” Id. (citation and internal quotation marks omitted). To be
appealable, the order must be a final order, an interlocutory order
appealable by right or permission,7 or a collateral order. Pa.R.A.P. 341-42;
42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-13; In the Interest of J.M., 219
A.3d 645, 650 (Pa. Super. 2019).
Generally, a final order is any order that disposes of all claims and all
parties. Pa.R.A.P. 341(b). We agree with the parties that the June 3, 2019
order is not a final order because it does not dispose of all claims and all
parties. Id.; see also Melvin v. Doe, 836 A.2d 42, 44 n.4 (Pa. 2003)
(“[A]n order denying a motion for summary judgment does not terminate
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6 Because we “‘lack jurisdiction over an unappealable order, it is incumbent
on us to determine, sua sponte when necessary, whether the appeal is taken
from an appealable order.’” In the Interest of J.M., 219 A.3d 645, 650
(Pa. Super. 2019) (quoting Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super.
2000)).
7We need not examine the second category, as the trial court did not certify
permission to appeal the June 3, 2019 order, and the order is not appealable
as of right by law.
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the litigation, and thus is not an appealable order.”) (citations omitted).
Instead, Appellants maintain that the order is a collateral order pursuant to
Rule 313. Appellants’ Brief at 1, 7-16, 45.
“Whether an order is appealable as a collateral order is a question of
law; as such, our standard of review is de novo and our scope of review is
plenary.” Collier v. Nat'l Penn Bank, 128 A.3d 307, 312 (Pa. Super. 2015)
(citation omitted). We have explained the collateral order doctrine as
follows.
The “collateral order doctrine” exists as an exception to the
finality rule and permits immediate appeal as of right from an
otherwise interlocutory order where an appellant demonstrates
that the order appealed from meets the following elements: (1)
it is separable from and collateral to the main cause of action;
(2) the right involved is too important to be denied review; and
(3) the question presented is such that if review is postponed
until final judgment in the case, the claimed right will be
irreparably lost. See Pa.R.A.P. 313.
Our Supreme Court has directed that Rule 313 be interpreted
narrowly so as not to swallow the general rule that only final
orders are appealable as of right. To invoke the collateral order
doctrine, each of the three prongs identified in the rule’s
definition must be clearly satisfied.
Interest of J.M., 219 A.3d at 655, quoting In re W.H., 25 A.3d 330, 335
(Pa. Super. 2011).
The trial court did not discuss the appealability of its order in its Rule
1925(a) opinion. Appellants argue in their brief that each of the three prongs
of the collateral order test is met. See Appellants’ Brief at 1, 7-16.
Regarding the first prong, they contend that “the main issue appealed –
whether the [Homeowners’] case should be dismissed as time-barred under
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the [s]tatute of [r]epose – is entirely collateral to the merits of their case –
whether there are defects in their homes, caused by [Appellants],
redressable in a civil action.” Id. at 7.8 Next, Appellants claim their interests
are too important to be denied immediate review. They argue that, because
the statute of repose relating to construction projects “completely abolishes”
the cause of action when suit is not commenced within 12 years of
construction completion, their interests in statutory immunity and finality are
important “system-wide” for both them and non-parties alike. Id. at 10-12.
Appellants further reason that, because the trial court found the word
“lawfully” in the statute of repose unclear, there is an “immediate,
Commonwealth-wide interest in the resolution” of whether the statute of
repose “protects builders who operate with required permits, or only those
whose projects are built non-defectively and to code.” Id. at 13-14. Finally,
Appellants claim that their immunity from suit is irreparably lost if review is
delayed until after trial. Id. at 14. They argue that their immunity defense
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8 We note that Appellants state in their brief that they “seek a reversal of the
trial court’s refusal to enter summary judgment, but only as to the
Jolinger/Lerner [p]laintiffs. The other plaintiffs’ claims would remain
unaffected.” Appellants’ Brief at 6. However, in light of the remainder of
their brief, it is clear that Appellants seek reversal, based on the statute of
repose, as to Scott and Karen Hornbaker, as well as James Jolinger and
Robin Lerner (i.e., the Homeowners).
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“cannot be reclaimed after proceeding through plenary discovery and trial.”
Id. at 14-16.9
Turning to the application of the first prong of the collateral order test,
an order is separable from the main cause of action if it is
entirely distinct from the underlying issue in the case and if it
can be resolved without an analysis of the merits of the
underlying dispute. Although appellate courts tolerate a degree
of interrelatedness between merits issues and the question
sought to be raised in the interlocutory appeal, the claim must
nevertheless be conceptually distinct from the merits of
plaintiff’s claim.
Interest of J.M., 219 A.3d at 655-56 (footnote, citations, and quotation
marks omitted). “[W]here the issue presented is a question of law as
opposed to a question of fact, an appellant is entitled to review under the
collateral order doctrine; however, if a question of fact is presented,
appellate jurisdiction does not exist.” Collier, 128 A.3d at 312, citing
Aubrey v. Precision Airmotive LLC, 7 A.3d 256, 262 (Pa. Super. 2010).
Here, application of the statute of repose to Appellants is at issue.
While statutory interpretation of the term “lawfully” as used in section 5536
raises a legal question, resolution of this legal question does not answer
whether Appellants are entitled to protection under the statute of repose
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9 In their reply brief, Appellants argue that the Homeowners have conceded
appellate jurisdiction by failing to raise the issue in their brief. Appellants’
Reply Brief at 1-2. However, as noted supra, we may raise sua sponte the
issue of jurisdiction.
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because the factual issue of whether Appellants’ construction was lawful
remains.
Appellants argue the term “lawfully” is limited to an inquiry into
“builders’ and contractors’ general, overall operations,” rather than a
restrictive interpretation of the term to mean technical compliance with
building code requirements. Appellants’ Brief at 31-38. On the other hand,
the Homeowners maintain that “lawfully” means compliance with “state
and/or local building codes, ordinances, rules, and statutes.” Homeowners’
Brief at 11, 19-48. After a statutory construction analysis, the trial court
rejected Appellants’ interpretation and concluded the statute “offer[s]
protection only for those who perform, furnish, or design improvement to
real property in accordance with current local and state ordinances,
regulations[,] and statutes at the time” of construction. Trial Court Opinion,
8/15/2019, at 5-6.
Yet, as Appellants concede, regardless of how “lawfully” is interpreted,
there is still an unresolved factual issue relating to whether Appellants
“lawfully” constructed the homes. See Appellants’ Brief at 23-45 (stating
“[a]ll elements of the [s]tatute [of repose] are undisputed, save one” and
arguing there is no record evidence Appellants failed to act “lawfully” under
either statutory interpretation advanced by the parties); see also Trial Court
Opinion, 8/15/2019, at 2 (“[A] genuine issue of material fact exists as to
whether [Appellants] lawfully constructed the [Homeowners’] homes.”);
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Order, 6/3/2019 (“This [c]ourt finds that a genuine issue of material fact
exists as to whether the homes were lawfully constructed, under either
aforementioned interpretations of “lawfully[,”] thus[] precluding entry of
judgment as a matter of law on whether [Appellants] are members of the
class of persons protected by the [s]tatute of [r]epose.”). As the trial court
pointed out, during discovery the Homeowners “produced an expert report
wherein the expert opine[d] that [Appellants] failed to comply with the 1999
and/or 2000 [Building Officials Code Administrators International (BOCA)]
codes when constructing the [Homeowners’] homes.” Trial Court Opinion,
8/15/2019, at 2. Thus, under the trial court’s interpretation of “lawfully,” a
factual question remains as to whether Appellants violated building codes.
However, even assuming arguendo we agreed with Appellants’ interpretation
of “lawfully,” the case would not necessarily be at an end. The factfinder
would still need to determine whether the evidence showed Appellants had
all required permits at the time of construction to be considered “lawful”
under section 5536, which may or may not result in a resolution of the
statute of repose question in their favor.
Based on the foregoing, we do not find the order is clearly separable
from the main action. Appellants’ argument, i.e., the work was performed
“lawfully” and thus barred by the statute of repose, is not entirely distinct
from the underlying issue in the case, i.e., whether the construction of the
homes was defective. See Interest of J.M., 219 A.3d at 655. Although a
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degree of interrelatedness between merits issues and the question sought to
be raised in the interlocutory appeal is tolerable, the claim must nonetheless
be conceptually distinct from the merits of the Homeowner’s claim. See id.
We cannot say that is the case here. Resolving the issue presented by
Appellants concerning the applicability of the statute of repose necessarily
involves a determination of fact relating to whether the construction was
lawful, which is intertwined with the determination of liability. Thus, our
appellate review of Appellants’ issue would entail a fact-based inquiry that is
not appropriate under the collateral review doctrine. See Collier, 128 A.3d
at 312.
We next turn to the second prong, importance of the right. Pa.R.A.P.
313(b). “[T]he overarching principle governing ‘importance’ is that … an
issue is important if the interests that would potentially go unprotected
without immediate appellate review of that issue are significant relative to
the efficiency interests sought to be advanced by adherence to the final
judgment rule.” Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999). Thus,
“[i]n analyzing the importance prong, we weigh the interests implicated in
the case against the costs of piecemeal litigation.” Id.
As noted supra, Appellants assert the interests in immunity from suit
and finality are sufficiently important to warrant immediate review. We do
not believe the potential loss of these interests without immediate appellate
review are significant relative to the efficiency interest of the final order rule
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in discouraging piecemeal litigation. The construction statute of repose
represents a balance among public, industry, and individual interests and we
do not see any compelling public policy concerns that are too important to
be denied review at this stage of the proceedings. “For purposes of defining
an order as a collateral order under Rule 313, it is not sufficient that the
issue be important to the particular parties. Rather it must involve rights
deeply rooted in public policy going beyond the particular litigation at hand.”
Geniviva v. Frisk, 725 A.2d [1209,] 1213-14 (Pa. 1999). The statute of
repose is at issue in only two of the five homes in this litigation and
Appellants have only generally asserted that the interpretation of “lawfully”
implicates public policy concerns that extend beyond the parties at hand.
The resolution of this issue will not dictate whether a homeowner may
maintain an action against the builder, but rather it will determine what kind
of factual evidence is required to demonstrate the builder lawfully
constructed the home. Thus, we do not find that Appellants satisfied the
second requirement under Rule 313.
Nor do we find that going to trial constitutes the type of irreparable
loss contemplated by the third prong. See Pa.R.A.P. 313(b). To find
otherwise would be an archetypal case of the exception swallowing the rule.
See Interest of J.M., 219 A.3d at 655; Rae v. Pennsylvania Funeral
Directors Ass'n, 977 A.2d 1121, 1126 (Pa. 2009) (stating “our precedent
strongly cautions against permitting the collateral order doctrine to become
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an exception which swallows, in whole or in any substantial part, the final
order rule”). The court found the motion for summary judgment to be
premature and Appellants “would have ample opportunity to develop a
record and raise the issue later in the trial proceedings.” Trial Court Opinion,
8/15/2019, at 6. Appellants’ claim that the suit is barred under section 5536
is not irreparably lost, as there is a means by which to argue later that the
Homeowners are not entitled to relief. In denying summary judgment, the
trial court’s rejection of the statute-of-repose defense did not terminate the
litigation between the parties, dispose of the entire case, or put Appellants
out of court. Rather, Appellants may still litigate their case below and of
course, appeal the final order of the trial court. Appellants’ interests will not
go unprotected because they can defend this action at trial, and Appellants’
claims will not be irreparably lost if review is postponed until final judgment.
Appellants do not lose their right to raise later a defense based on the
statute of repose. As our Supreme Court noted, “[a]ny efficiencies gained in
reduced trial litigation would be at the expense of increased appellate
litigation.” Geniviva, 725 A.2d at 1214.
Moreover, our conclusion is consistent with precedent recognizing that
we “construe the collateral order doctrine narrowly so as to avoid ‘undue
corrosion of the final order rule,’ … and to prevent delay resulting from
‘piecemeal review of trial court decisions.’” Shearer v. Hafer, 177 A.3d
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850, 858 (Pa. 2018) (citation and brackets omitted). Our Supreme Court has
explained as follows.
As colorfully explained by then-Justice, later Chief
Justice, Henry X. O’Brien, “[i]t is more important to
prevent the chaos inherent in bifurcated, trifurcated,
and multifurcated appeals than it is to correct each
mistake of a trial court the moment it occurs.”
Calabrese v. Collier Township Municipal
Authority, [] 248 A.2d 236, 238 ([Pa.] 1968)
(O’Brien, J., dissenting). Moreover, as parties may
seek allowance of appeal from an interlocutory order
by permission, we have concluded that that
discretionary process would be undermined by an
overly permissive interpretation of Rule 313.
Geniviva, 725 A.2d at 1214 n.5.
Shearer, 177 A.3d at 858. See also Hession Condemnation
Case, [] 242 A.2d 432, 437 ([Pa.] 1968) (O’Brien, J., dissenting)
(commenting regarding statute permitting immediate appeal of
interlocutory order: “The bifurcated appeal foisted upon the
courts can only be termed a judicial Hydra. Would that a
Hercules could appear ... to slay this monster.”).
Interest of J.M., 219 A.3d at 655. Thus, having concluded that we have no
jurisdiction to review the trial court’s June 3, 2019 order, the appeal is
quashed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/20
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