concurring and dissenting.
I join in all but that portion of the Majority’s Opinion denying Sta-Rite Industries, Inc. the opportunity to amend its answer and new matter to assert the Statute of Repose defense until a fact-finding proceeding is held to ascertain the (co-defendant’s) YMCA’s “intention” in installing “starting blocks” in its swimming pool.
The plaintiff was injured allegedly upon using the starting blocks. The blocks were anchored to the edge of the pool with bolts. However, the blocks were detachable upon removal of the bolts. Because this causes the blocks to fall within category three (physically attached, but removable without destroying chattel or property to which annexed) of the Majority’s newly created personalty/realty test for application of the Statute of Repose, a remand is perceived necessary to remedy the void with regard to the “intention” of the YMCA when the blocks were fitted to the pool.
The Majority believes that the YMCA’s “intention” is pivotal to a determination of whether an item of personalty is to be treated as realty, and, ultimately, whether its conversion insulates Sta-Rite Industries, Inc. under the Statute of Repose.
I believe that the Majority invites a response on remand that: “At the time the personalty was put in place — annexed to the realty — the intention was to have it become a permanent improvement despite its detachability from the realty.” This would invite parroting the correct words to circumvent accountability.
Accordingly, unlike the Majority, I would endorse a review of the facts to make an objective versus a subjective analysis of “any person lawfully performing or furnishing *300the design, planning, supervision or observation of construction, or construction of any improvement to real property ... within 12 years after completion of construction of such improvement____” 42 Pa.C.S.A. § 5536(a). To do otherwise would open the door to a perversion of the personalty/realty test.
The facts need not be supplemented except through the amendatory pleading rules of civil procedure. Otherwise, the case should stand on its merits as developed by the pleadings, interrogatories, answers and depositions.
At bar, my review of the record discloses that the starting blocks fall into the Majority’s category three: Personalty physically attached to realty, but is removable without destruction to the product or the property to which it is affixed.
Under such a standard, I find the starting blocks to be part and parcel of the realty, the consequences of which trigger the Statute of Repose and afford Sta-Rite Industries, Inc. the opportunity to amend its answer and new matter without resorting to a needless remand for fact-finding. The record is sufficient to stand on its own.
For the reasons herein stated, I respectfully join in part and dissent in part.