J-S12039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DR. KENNETH LEE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
NORRIS PLUMBING AND HEATING, :
INC. : No. 1419 MDA 2016
Appeal from the Order August 19, 2016
in the Court of Common Pleas of Centre County,
Civil Division, No(s): 2014-4888
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017
Dr. Kenneth Lee (“Dr. Lee”) appeals from the Order entering summary
judgment against him and in favor of Norris Plumbing and Heating, Inc.
(“Norris”), in his cause of action against Norris for the negligent installation
of a sump pump. We affirm.
The trial court summarized the relevant history underlying this appeal
as follows:
[Dr. Lee] originally filed … a [C]omplaint in the District
Magistrate Court on October 6, 2014. In that [C]omplaint, [Dr.
Lee] alleged that [he] had retained [Norris] to install a new
sump pump at his [rental] property, and that the work was
complete on June 13, 2011. [Dr. Lee] alleged that in December
of 2011, ground water entered the basement of the property
because [Norris had] replaced the wrong sump pump. According
to the [C]omplaint, [Dr. Lee] retained a professional, Todd
Giddings & Associates, Inc. (“G&A”), to evaluate the cause of the
flooding, and Giddings determined that the sump pump that
should have been replaced had a motor failure. [Dr. Lee]
demanded damages in the amount of $11,923.30, plus costs.
The Magisterial District Judge found in favor of [Norris], and [Dr.
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Lee] filed a timely appeal [de novo] to [the common pleas]
[c]ourt.
[Dr. Lee] filed his Complaint [in the common pleas court]
on January 20, 2015. In the Complaint, [Dr. Lee] again set forth
the allegations outlined above, although in somewhat greater
detail. [Dr. Lee] aver[red] that he was contacted by a tenant at
the property in June of 2011 regarding water in the basement at
the bottom of the staircase near the bathroom. [Dr. Lee]
allege[d] that there had been ongoing concerns with respect to
water entering the basement before that time, and that three
sump pumps had been installed on the property. An Invoice for
the work done by [Norris] in June 2011 reflects repair work in
the basement bathroom, and replacement of a sump pump
located in the electrical panel room.
[Dr. Lee] allege[d] that [Norris had] failed to properly
inspect all of the sump pumps in June of 2011, that he replaced
a properly functioning internal sump pump, and that he failed to
replace an external sump pump in need of repair. According to
[Dr. Lee], these alleged failures caused the flooding in the
basement of the property and the resulting damages demanded
by [Dr. Lee].
[Dr. Lee] attached a report from [Todd Giddings of G&A
(“the Giddings Report”)], dated December 31, 2011, to his
Complaint. The Giddings [R]eport outlines [Todd] Giddings’s
opinions on the basement water issue, including his opinions that
the two internal (“inside the house”) sump pumps were
operating properly, and that the failure of the external sump
pump was the principal contributing cause of the water entry.
The only cause of action set forth in [Dr. Lee’s] Complaint
sounds in negligence[,] based on [Norris’s] alleged failure to
properly investigate the water issue and identify the sump pump
in need of repair, thus leading to the flooding in December of
2011.
[Norris] filed an Answer with New Matter on February 25,
2015. [Norris] subsequently sought leave to amend its Answer
with New Matter to add the defense of the statute of limitations.
The [c]ourt granted leave to amend by [an Order] dated
February 3, 2016. [Norris filed an Amended Answer with New
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Matter on February 10, 2016, and subsequently filed a [M]otion
for summary judgment based on the statute of limitations….
Trial Court Opinion, 8/19/16, at 1-3 (citations omitted).
On August 19, 2016, the trial court entered summary judgment
against Dr. Lee, and in favor of Norris. Thereafter, Dr. Lee filed the instant
timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
Dr. Lee presents the following claims for our review:
A. WHETHER THE TRIAL COURT ERRED IN NOT APPLYING THE
DISCOVERY RULE TO TOLL THE STATUTE OF LIMITATIONS
PERIOD[?]
B. WHETHER THE COMPETENT EVIDENCE OF RECORD WAS NOT
SUFFICIENT TO SUPPORT THE TRIAL COURT’S DECISION[?]
C. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
NOT THOROUGHLY ANALYZING THE TESTIMONY AND EVIDENCE
PRESENTED TO THE COURT[?]
Brief for Appellant at 2.
“Our scope of review of an order granting summary judgment is
plenary.” DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585 (Pa.
Super. 2013).
[W]e apply the same standard as the trial court, reviewing all
the evidence of record to determine whether there exists a
genuine issue of material fact. We view the record 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. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.
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Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
action. ... Thus, a record that supports summary judgment will
either (1) show the material facts are undisputed or (2) contain
insufficient evidence of facts to make out a prima facie cause of
action or defense and, therefore, there is no issue to be
submitted to the [fact-finder]. Upon appellate review, we are
not bound by the trial court’s conclusions of law, but may reach
our own conclusions. The appellate Court may disturb the trial
court’s order only upon an error of law or an abuse of discretion.
Id. at 586 (citations and quotation marks omitted).
Although Dr. Lee raises three claims in his Statement of Questions, he
combines these issues in the Argument section of his appellate brief.
Consequently, we will address the issues together.
Dr. Lee claims that the trial court improperly failed to apply the
discovery rule to toll the two-year statute of limitations, where “material
facts exist as to when [he] knew or should have known [that] he had a claim
for negligence[.]” Brief for Appellant at 7. Dr. Lee argues that he
“undertook reasonable due diligence to determine if there was a cause of
action.” Id. However, according to Dr. Lee, Norris concealed facts from him
and, as a result, he became aware of Norris’s negligence only after receiving
a letter from his insurance carrier, “which called into question the sump
pump which had failed.” Id. The date of this letter was November 13,
2012. Id. at 10.
In arguing for application of the discovery rule, Dr. Lee explains that
he authorized his tenants to hire Norris to remediate a water issue “at the
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base of the basement stairs in June 2011.”1 Id. at 8. Dr. Lee explains that
he was not informed as to which sump pump was replaced, and reasonably
believed that it was the exterior sump pump near the area of water
infiltration. Id. Dr. Lee states that in December 2011, after substantial
rains, ground water again entered the basement. Id. According to Dr. Lee,
he undertook a reasonable investigation of the flooding by hiring Giddings.
Id. at 9. Dr. Lee states that, although Norris was given a copy of the
Giddings’s Report, Norris did not inform Dr. Lee that the failed exterior pump
was not the sump pump replaced by Norris. Id.
Dr. Lee states that he pursued a defective product claim until he
received a letter from his insurance carrier on November 13, 2012. Id. at
10. In that letter, the insurance company observed that “there are several
sump pumps” located on the property, and inquired as to which sump pump
had previously failed. Id. Dr. Lee indicated that this letter “made [Dr. Lee]
question what had been done or not done by [Norris] as the possible cause
[of] a defective sump pump.” Id. Under these circumstances, Dr. Lee
argues, there exists a material issue of fact as to whether or not he knew, or
reasonably should have known, of the existence of Norris’s negligence prior
to the November 13, 2012 letter. Id. Dr. Lee further posits that a material
fact exists as to whether Norris concealed key facts. Id. at 11.
Our legislature has required that
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The tenants’ outlay to Norris was deducted from their rent payments to Dr.
Lee. Id.
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[t]he following actions and proceedings must be commenced
within two years:
* * *
(7) Any other action or proceeding to recover damages for
injury to … property which is founded on negligent, intentional or
otherwise tortious conduct or any other action or proceeding
sounding in trespass, including deceit or fraud, except an action
proceeding subject to another limitation specified in this
subchapter.
42 Pa.C.S.A. § 5524(7). Pennsylvania favors strict application of the
statutes of limitation. Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565,
572 (Pa. Super. 2007).
As our Supreme Court has explained,
the statute of limitations begins to run as soon as the right to
institute and maintain a suit arises; lack of knowledge, mistake
or misunderstanding do not toll the running of the statute of
limitations …. Once the prescribed statutory period has expired,
the party is barred from bringing suit unless it is established that
an exception to the general rule applies which acts to toll the
running of the statute.
Pocono Int’l Raceway v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa.
1983) (citations omitted).
“[T]here are two well-recognized legal constructs that toll the running
of the statute of limitations: the discovery rule and the doctrine of fraudulent
concealment.” Coleman v. Wyeth Pharms., Inc., 6 A.3d 502, 510 (Pa.
Super. 2010).
[W]here the complaining party is reasonably unaware that his or
her injury has been caused by another party’s conduct, the
discovery rule suspends, or tolls, the running of the statute of
limitations. To successfully invoke the discovery rule, a party
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must show the inability of the injured, despite the exercise of
due diligence, to know of the injury or its cause. A party fails to
exercise reasonable diligence when it fails to make an inquiry
when the information regarding the injury becomes available.
Mistake, misunderstanding, or lack of knowledge in themselves
do not toll the running of the statute.
Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 279 (Pa.
Super. 2016) (internal citations and quotation marks omitted).
Due diligence is ascertained by an objective standard, and
to demonstrate reasonable diligence, a plaintiff is required to
establish that he exhibited those qualities of attention,
knowledge, intelligence and judgment which society requires of
its members for the protection of their own interests and the
interests of others. The party seeking application of the
discovery doctrine bears the burden of proof.
Hanaway v. Parkesburg Grp., LP, 132 A.3d 461, 466-67 (Pa. Super.
2015) (internal citations and quotation marks omitted).
The doctrine of fraudulent concealment
is based on a theory of estoppel, and provides that the
defendant may not invoke the statute of limitations, if through
fraud or concealment, he causes the plaintiff to relax his
vigilance or deviate from his right of inquiry into the facts. The
doctrine does not require fraud in the strictest sense
encompassing an intent to deceive, but rather, fraud in the
broadest sense, which includes an unintentional deception. The
plaintiff has the burden of proving fraudulent concealment by
clear, precise, and convincing evidence. While it is for the court
to determine whether an estoppel results from established facts,
it is for the jury to say whether the remarks that are alleged to
constitute the fraud or concealment were made.
Fine v. Checcio, 870 A.2d 850, 860 (Pa. 2005).
“The common thread in our jurisprudence … is the recognition that at
some point, a plaintiff should become sufficiently aware of his injury and
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that it was caused by another to trigger or awaken inquiry.” Hayward v.
Med. Ctr. of Beaver County, 608 A.2d 1040, 1043 (Pa. 1992) (internal
quotation marks omitted). Notwithstanding, “[k]nowledge of an injury alone
is not sufficient to trigger such inquiry. One must have some reason to
suspect that the injury was caused by a third party to impose a duty to
investigate further.” Coleman, 6 A.3d at 510.
In its Opinion, the trial court addressed Dr. Lee’s claims, and
concluded that they lack merit. Trial Court Opinion, 8/19/16, at 3-6. We
agree with the sound reasoning of the trial court, as set forth in its Opinion,
and affirm on this basis with regard to Dr. Lee’s claims. See id. We
additionally state the following.
As previously stated, Dr. Lee commenced this action on October 6,
2014. In his Complaint, filed de novo in the common pleas court, Dr. Lee
averred the following facts:
7. [Dr. Lee] was aware of ongoing concerns regarding water in
the basement. A total of three (3) sump pumps had been
installed on the property.
8. In June 2011, [Dr. Lee] authorized [his tenants] to contact
[Norris] regarding the water issue.
9. [Norris] came to evaluate the situation on June 13, 2011. An
invoice for the work performed indicates some repair work was
done to the bathroom located downstairs in the basement and a
sump pump was replaced that was located in the
electrical panel room.
10. There was no indication by either the [tenants] or
[Dr. Lee] that water had ever entered the electrical panel
room.
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11. In December 2011, the basement [of the property] flooded
after periods of heavy rain.
12. As a result, [Dr. Lee] incurred significant expenses in
repairing the damage to the basement….
13. [Dr. Lee] avers, and therefore believes, that [Norris] failed
to appropriately inspect all sump pumps on the property[,] and
replaced a sump pump which was functioning appropriately. As
a result, the sump pump which was failing was not replaced.
Complaint, 1/20/15, at ¶¶ 7-13 (emphasis added).
Based upon the factual averments in his Complaint, Dr. Lee was aware
of the accumulation of water in the basement, requiring the installation of
three sump pumps. See id. at ¶ 7. Dr. Lee had knowledge, through
Norris’s invoice, that Norris had replaced a sump pump in the electrical panel
room. See id. at ¶ 9. Dr. Lee further acknowledged that no water
previously had entered the electrical panel room. See id. at ¶ 10. Finally,
Dr. Lee had knowledge that, after Norris had repaired the sump pump in the
electrical panel room, water again entered the basement in December 2011.
Id. at ¶ 11. With the exercise of due diligence, Dr. Lee should have been
aware, in December 2011, of Norris’s alleged failure to repair the
appropriate sump.
In addition, Dr. Lee’s Complaint does not aver that, prior to December
2011, Norris fraudulently concealed its work on the sump pump in the
electrical panel room. Because Dr. Lee failed to file his cause of action
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within the applicable statute of limitations, we conclude that the trial court
appropriately entered summary judgment against him.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
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Circulated 03/16/2017 11:01 AM
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1N THE COURT OF COMMON PLEAS, CENTRE COUNTY, PENNSYLVANIA
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DR. KENNITH LEE, 2014·4888
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Attorney for P/a;ntl/J: Amy Marshall Esq.
Attorneyfor Defendant: Richard Polachek, Esq,
Oliver, J,
OPlNION AND ORDER
Presently before the Court Is Defendant Norris Plumbing & Heating, lnc.'s Motion for Summary i
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Judgment. The Motion has been briefed and argued before the Court and is ripe for disposition. For the II
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reasons discussed below, Defendant's Motion Is granted. I
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Backgroung
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Plaintiff Kenneth Lee originally filed this action at the magisterial level by filing a complaint In I
the District Magistrate Court on October 6J 2014. In that cornplajnt, Plaintiff alleged that Plaintiff had
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retained Defendant to install a new sump pump at his property, and that the work was complete on
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June 13, 2011. (See Def. Mot. SJ., Exh. A). Plaintiff alleged that In December of201J., ground water
entered the basement of the property because Defendant replaced the wrong sump pump. (Id.).
According to the complaint, Plaintiff retained a professional, Todd Giddings & Assoclates, Inc.,
("Giddings"), to evaluate the cause of the flooding, and Giddings determined that the sump pump that
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should have been replaced had a motor failure. Plaintiff demanded damages In the amount of I
$11,923.30, plus costs. (Id.}. The Magisterial DJstrlctJudge found in favor of Defendant, and Plain.tiff
flied a timely appeal to this Court.
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Plaintiff filed his Complaint in this Court (hereinafter "Complaint") on January 20, 2015. In the
Complaint, ~lalntitf again sat forth the allegations outlined above, although Jn somewhat greaterdetaJJ.
Plaintiff avers that he was contacted by a tenant at the property in .lune of 2011 regarding water in the
basement at the bottom of the staircase near the bathroom. (Comp!. '!1'115-6). Plalntlff alleges that
there had been ongoing concerns with respect to water entering the basement before that time, and
that three sump pumps had been Installed on the property. An invoice for the work done by Defendant
In June 2011 reflects repair work in the basement bathroom, and replacement of a sump pump located
In the electrical panel room. (Id. 'II 9).
Plaintiff alleges that Defendant failed to properly inspect all of the sump pumps in June of 2011,
that he replaced a properly functioning internal sump pump, and that he failed to replace an external
sump pump in need of repair. According to Plaintiff, these alleged failures caused the flooding in the
basement of the property and the resulting damages demanded by Plaintiff. (Id. 1l'!I 11"15).
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Plalntlff attached a report from Giddings, dated December 31, 2011, to his Complaint. The I
Giddings report outlines Mr. Todd Giddings' oplnlons on the basement water Issue, including his
opinions that the two internal ("inside-the-house") sump pumps were operating properly; and that the
failure ofthe external sump pump was the principal contrlbuting cause ofthe water entry. (See P/'s.
Campi. ,i 16 and Exh. F).
The only cause of action set forth In Plaintiff's Complaint sounds In negligence based on
Defendant's alleged failure to properly investigate the water Issue and identify the sump pump in need
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of repair, thus leading to the floodfng In December of 2011.
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Defendant filed an Answer with New Matter on February 25, 2015. Defendant subsequently
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sought leave to amend its Answer with New Matter to add the defense of the statute of limitations. The
Court granted leave to amend by Order dated February 3, 2016. Defendant filed an Amende~ Answer
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with New Matter on February 101 2016, and subsequently-flied a motion for summary Judgment based I
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on the statute of /Imitations. The summary judgment motion has been briefed by both parties and
argued to the Court.1
Summary Judgment Standard
Summary Judgment ls governed by Pennsylvania Rule of Civil Procedure 1035.1, et seq.
Pursuant to Rule 1035.2, after the relevant pleadings are closed, any party may move for summary
Judgment in either of'ths following circumstances:
(1) Whenever there is no genuine issue of any material fact as to a
necessary element of a cause of action or defense which could be
established by additional discovery or expert report, or
(2) If, after completlon of discovery relevant to the motfon, ... an
adverse party who will bear the burden of proof at tr!al has failed to
produce evidence offacts essential to the cause of actlon or
defense which in a Jury trial would require the issues to be
submitted to a Jury.
Pa.R.C.P.1035.2(1)·(2}. The initial summary judgment burden is on the moving party, who must
establish the absence of a genulne issue of material fact and that he is entitled to judgment as a matter
of law. Lineberger v. Wyeth, 894 A.2d 141, 146 (Pa. Super. 2006). When the non-moving party will bear
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the ultimate burden of proof at trial, the moving party can meet the summary judgment burden by
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establishing the absence of prima fade evidence to support the non-moving party's clalm. Id. Once that
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burden is met to avoid summary judgment, the non-moving party must come forward with admissible i
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trial evidence such as would warrant a jury determination In his or her favor. Id. The non-moving party f
may not simply point to allegations in the pleadings to avoid summary Judgment. Pa. R.C.P. 1035.3.
Discussion
Defendant contends that It Is entitled to summary judgment because Plaintiff's only claim in this
action is barred by the two year statute of limitations applicable to negligence claims, citing to 42
Pa.C.S.A. § 5524(7). Defendant correctly notes that the alleged negligence at Issue occurred in June of
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This case was also heard on the merits before a compulsory arbitration panel on December 4, 2015, and an award
was entered In favor of Plaintiff. Defendant filed a tlmefv appeal from that award.
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2011, and that Plaintiff did not fife an action until f!lfng his magisterial district court complaint in October
of 2014, more than three years later. Plaintiff concedes that this action is governed by a two year
statute of Jlmitatfons in the first instance, but argues for application of the discovery rufe to toll the
limitations period. (See Pl.'s Brief in Opp. to Def/s Mot. SJ., at pp. 3-4 ).
As a general rule, the law req u.ires a party asserting a claim to exercise ull reasonable diligence
to ascertain the facts and circumstances Or) which a cause of action fs based and to bring his or her suit
within the applicable statute of limftations. Pocono Intern'! Raceway, Inc. v. Pocono Produce, lnc., 468
A.2d 468, 471 (Pa.1983), In a suit for damages, the cause of action accrues for purposes of the statute
of limitations when the Injury Is Inflicted. Ayers v, Morgan, 154 A.2d 788, 791 (Pa. 1959). Lack of
knowledge, mistake, or misunderstanding do not serve to toll the running of the statute ofllmitations.
Pocono Intern'!Raceway, 468 A.2d at 471. As stated by the Pennsylvania Supreme Court:
IE]ven though a person may not discover his injury until it is too late to
take advantage of the appropriate remedy, this Is incident to a law
arbitrarlly making legal remedies contingent on mere lapse of time.
Once the prescribed statutory period has expired, the party Is barred
from bringing suit unless It is established that an exception to the
general rule app lies which acts to tor! the run nine of the statute,
Id, at 471.
The discovery rule provides a limited exception to the principles discussed above. The discovery
rule serves to toll the statute of limitations when, despite the exercise of due diligence, a party is unable
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to know of the injut"y or Its cause. Pocono Intern'{ Raceway, 468 A.2d at 471, The exception only
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applies, however, when there Is a genuine Inability to learn of the predicate facts despite the exercise of
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due diligence. In assessing whether the discovery rule applies in any given case, courts are required to
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first determine whether the injured party had the ability to know of the cause of action in the exercise I
of due diligence. Id. When application of the discovery rule Is dependent on resohrtion of disputed l
material factual issues, whether the rule applles.is an Issue that cannot be resolved through summary
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judgment. See e.g. Crouse v. Cyclops Industries, 745 A.2d 606, 611-13 (Pa. 2000). In cases where the I
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record demonstrates the absence of any genuine dispute as to the requisite knowledge, however, the
discovery rule may be rejected in the context of a summary judgment motion. See Pocono Intern'}
Raceway, 468 A.2d, at 471w72, The burden rests with the party invoking the discovery rule to prove Its
application. Wilson v. £/-Dale!,964 A.2d 354, 362 {Pa. 2009}.
In the case at bar, the Court concludes that the record evidence demonstrates that there are no
genuine issues of material fact regarding application of the discovery rule, and that Plaintiffs negligence
claim Is time barred as a matter of law. Plaintiff acknowledges that the work at Issue was completed in
June of 2011, more than three years before Plaintiff filed suit. Attempting to avoid dlsrnlssal, Plaintiff
argues that a misunderstanding regarding which of the three sump pumps was replaced at the property
caused Plaintiff to believe the water infiltration was caused by a manufacturing defect in a newly
replaced pump, rather than by Defendant's alleged failure to properly Identify the correct pump for
replacement In June of2011. (See PJ's. Br. Opp. S.J., at 4). However, the fact that PlalntJff may have
been mistaken about which pump had been replaced, even assuming that to be true, would not warrant
application of the discovery rule to toll the statute of limitations in this case, and does not create a
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factual dispute precluding summary judgment. Even under Plaintiff's scenario, Plaintiff must concede
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that any alleged negligent acts by Defendant occurred in June of 2011 when the work was performed,
and that Plaintiff knew of the claimed damage by December of 2011. Furthermore, Plaintiff knew of the
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alleged cause of the damage-the failure of the externalsump pump-- in or around December 31,
2011, when the report setting forth Mr. Giddings' opinions was prepared. That report spedfically
identifies a problem with the outside pump, and by Plaintlff's own allegations, the repair invoice
submitted for Defendant's work in June of 2011 reflected replacement of an interior pump. (See com pl.,
1J 16 and E')(h. F). Regardless of whether Plafntiffwas mistaken or confused, the Court determines that
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Plaintiff had sufficient information to know of his cause of action and to file suit within the two year
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limitations period, and that, as a matter of law, the discovery rule rs not applicable.
Consistent with the discussion above, the Court enters the following Order:
Order
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AND NOW1 this ~day of August, 2016, for the reasons discussed in the accompanying
Opinion, Defendant's Motion for Summary Judgment is GRANTED.
BY THE COlJHT:
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Kath1er-irn:v. Oliver, Judge
i At the time of oral argument, an issue was ralsed regarding a letter dated July 10, 2012 that was allegedly sent to
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Plaintiffs counsel, In which Defendant directs counsel's attention to the Information contained in the June 2011
Invoice noting repair of an Interior pump and the information in the Giddings report Identifying a problem with the
exterior pump. In a supplemental flllng, Plaintiffs counsel lndlcatesthat this letter Is not included In counsel's file,
such that Plaintiff cannot stipulate to counsel's receipt of the letter in July of 2012. (See Position statement of i
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Parties RegardingMot. S.J., 5-23-16 }. The Court concludes that any factual dispute as may exist regarding
counsel's recelpt of the latter does not present a genuine Issue of material fact that would preclude summary
Judgment. Plaintiff could have formed this same conclusion by reference to the June 2011 invoice and the
December 2011 Giddings report, both ofwhlch were in Plaintiffs possession.
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