McConnaughey v. Building Components, Inc.

KELLY, Judge,

dissenting.

I respectfully dissent. The majority finds that under the applicable statute of repose, 42 Pa.C.S.A. § 5536, the trusses which were incorporated into appellant’s barn, constituted an “improvement to real estate.” I cannot agree.

As the majority suggests, the instant case turns on the more general question of whether the relevant statute is meant to include within the reach of its protection only builders or whether the legislature intended the defense to be enjoyed by suppliers as well. In the absence of definitive Supreme Court guidance on the appropriate extent such protection is intended to be afforded, see McCormick v. Columbus Conveyer Co., 522 Pa. 520, 525 n. 2, 564 A.2d 907, 910 n. 2 (1989), I am most persuaded by a recent panel of this Court which, in holding that a manufacturer of plywood was not entitled to the protection of the statute of repose, construed relevant Superior Court decisions as follows:

In Mitchell v. United Elevator Company, supra, the installation of an elevator system was being considered. The trial court ruled that the manufacturer could not avail itself of the bar against liability provided by the

*337statute since “it simply supplied and installed the necessary elements for the elevator system as part of the overall construction of the complex.” Id., 290 Pa.Superior Ct. 488, 434 A.2d at 1249. In reversing this decision, the superior court stated:

The lower court seems to be likening the building of an elevator system with all its myriad components, motors, cables, wiring and machinery to uncrating and plugging in a television set. The fact that the basic design of the elevator may be identical in different buildings does not render the elevator system any less an improvement to real estate. Id. (emphasis added).

Likewise in Catanzaro v. Wasco Products, Inc., this court recognized a skydome installed on the roof of a building as a fixture. A skydome, which was likened to a window by the court is a finished product which is uniquely suited to be included in the construction of a structure. A finished product such as window, skydome, or elevator is meant for use solely as a fixture, as an improvement to real estate. The individual component parts of these completed products do not have such a sole purpose. It is their purchaser who controls their use.

As we have stated, in McCormick v. Columbus Conveyor Co., the supreme court’s most recent decision concerning the Statute of Repose, the court was asked to consider the applicability of this provision to the designer and manufacturer of a coal delivery system. The court ruled that the statute was applicable since the defendant was “engaged in the design of an improvement to real property.” Id., 522 Pa. 526, 564 A.2d 911. In reaching this determination, the court remarked:

It is abundantly clear from the record that Columbus did more than supply a standard piece of equipment, indistinguishable from any other it mass-produced, that by chance became affixed to the University’s property. Using specification and a general layout provided by Rust Engineering, Columbus devised a coal delivery system to be integrated into the construction of the new power plant that was uniquely suited to that site.
*338This passage calls attention to the distinction between products which are produced for incorporation into a finished product and the finished product itself which is designed to be included as a fixture or improvement in real estate. The individuals who provide these two distinct services can often be labeled as suppliers and builders. The McCormick court noted that in Freezer Storage Inc. v. Armstrong Cork Co. [476 Pa. 270, 382 A.2d 715 (1978) ], it examined an argument that the statute distinguished between these two groups. Therein, the court accepted arguendo that the statute applied to builders but not suppliers and commented that such a distinction would be rationally based on real differences. The court noted that suppliers produce items in large quantities and can maintain quality control standards in the controlled environment of a factory. However, the only test available to a builder is one conducted over the years following construction. Thus, while the court did not decide whether suppliers could be entitled to the protection of the statute, it did provide sound rationale for the ruling we make today.
The manufacturer of plywood, a building material with many distinct purposes, only one of which is to be used as a component in the construction of an improvement on real estate, is not entitled to the protection of the statute of repose. Merely because the purchaser of this product incorporated it into the design of a structure, should provide no insulation to its manufacturer who must make its product safe for this and all other potential uses.

Ferricks v. Ryan Homes, 396 Pa.Super. 132, 139, 578 A.2d 441, 444-45 (1990). I find this more limited interpretation of the appropriate degree of protection compelling, and the holding of this case indistinguishable from the facts presented to this Court instantly.

Plywood, like the preconstructed trusses at issue herein, (which were neither custom built nor in any way modified for appellant’s purposes), is not a finished product (such as a window, skydome, or elevator), but rather merely a component part of a completed product, which itself has no sole *339purpose. More significantly, suppliers of plywood, like those who supply trusses, may produce their product in such quantities as to allow quality control standards to be employed in the controlled environment of the factory; in contrast, the builder may only test his completed product over the years following construction. It is for this reason, therefore, that the mere incorporation of plywood, or trusses, into the design of a structure should not in any way provide insulation to its manufacturer who must make the product safe for whatever structure the plywood or trusses are used in. To read the statute more broadly is, in my opinion, to allow protection beyond the legislature’s intent.

Accordingly, I would hold that the Statute of Repose should not be applied to protect appellees instantly, and would reverse the order of summary judgment. Hence, I dissent.