Allentown Plaza Associates v. Suburban Propane Gas Corp.

Decision Date10 September 1979
Docket NumberNo. 1274,1274
Citation405 A.2d 326,43 Md.App. 337
PartiesALLENTOWN PLAZA ASSOCIATES et al. v. SUBURBAN PROPANE GAS CORPORATION et al.
CourtCourt of Special Appeals of Maryland

Jerome P. Friedlander, II, Washington, D. C., and David S. Bruce, Upper Marlboro, with whom were Friedlander, Friedlander & Brooks, Washington, D. C., P. C. and Lancaster, Bland, Eisele & Herring, Hyattsville, on the brief, for appellants.

L. Palmer Foret, Washington, D. C., with whom were Carr, Jordan, Coyne & Savits, Rockville, on the brief, for appellee, Suburban Propane Gas Corp.

Martin L. Goozman, Laurel, with whom were Frank J. Ragione, Clinton, Silber, Wilson & Goozman, Laurel, and Interdonato & Ragione, Clinton, on the brief, for appellee, Joseph J. Palmer, Jr.

Peter E. Derry and McChesney & Pyne, Chartered, Chevy Chase, for appellee K-Lo Plumbing, Inc.

Robert B. Myers, Rockville, for other appellees.

Argued before GILBERT, C. J., and MORTON and MOORE, JJ.

MOORE, Judge.

In the proceedings below, the Circuit Court for Prince George's County (Levin, J.) granted summary judgment motions filed by the defendants, four in number, based upon the general three-year statute of limitations contained in Md. (Cts. & Jud.Proc.) Code Ann. § 5-101 (1974). 1 The court rejected the contentions of the plaintiffs, appellants here, that their causes of action in assumpsit and tort, arising out of the construction of a shopping mall, were saved by the provisions of section 5-108 of the same Article, 2 under which no claim for damages accrues "from the defective and unsafe condition of an improvement to real property" occurring more than 20 years after the completion of the improvement. We shall affirm.

I

The appellant, Allentown Plaza Associates, is a Maryland limited partnership, which entered into a prime construction contract in March 1972 with appellant, Rand Industries, Inc., as general contractor, for the construction of a shopping center, known as Allentown Mall, located in Camp Springs, Prince George's County, Maryland. Rand later became a partner in Allentown Plaza Associates.

Because of the unavailability of natural gas from the Washington Gas Light Company, appellants installed an underground pipeline system to provide liquid propane gas for its tenants. In March 1972, Allentown Plaza entered into a contract with the appellee, Suburban Propane Gas Corporation (Suburban), to supply the propane, to provide a propane gas storage tank, and to install 23 meters for measuring and controlling pressures for the base usage on each rental unit in the Mall. These meters were to be temporary and were to be removed when natural gas became available. The first paragraph of the contract provided in part:

"All Suburban's equipment shall remain personalty, regardless of how attached to the realty and shall remain the sole property of Suburban, and Suburban shall have access thereto at all times for purposes of removal, repair, alteration, replacement and service, including the equipment of the individual tenants, except as otherwise provided for in this agreement . . . . (Emphasis added.)

Pursuant to the contract, Suburban supplied the gas meters to the site but, for reasons not disclosed in the record, did not install them. Appellants were aware on November 30, 1972 of this breach of the propane contract, but took no legal action at that time. Rather, they employed two plumbing contractors, the appellees, Joseph J. Palmer, Jr. and K-Lo Plumbing, Inc., to make the installations. By October 1973, all the meters had been installed. Service to the stores with liquid propane gas commenced. A gas leak was discovered in the underground pipeline system in February 1975, and some corrective action was taken by the appellants. In September 1975, however, additional leaks were detected and the entire underground system was abandoned and replaced by pipelines above ground. Replacement costs were approximately $30,500.

On January 1, 1977, over 3 years after the last meter and coupling had been installed, appellants filed a declaration against the aforementioned appellees and against the firm of Freidin and Arey Associates, the mechanical and electrical engineers for the project. They alleged that the leaks were caused by corrosion of the pipes and that the corrosion was due to appellees' failure to install insulating fittings, known in the trade as "dielectric couplings," where the gas lines connected to the gas meters. 3

More specifically, the claim against Suburban was in assumpsit for failure to install the meters as required under the agreement, and in tort for failing to provide dielectric couplings with the meters and to warn the appellants of the need for such couplings. The plumbing contractors who made the installations were alleged to be negligent in failing to use and to install dielectric couplings. The cause of action against Freidin and Arey was based upon negligence in failing to provide specifications or warnings concerning the need for such couplings or insulating fittings and otherwise failing to protect the pipes from corrosion.

Following discovery, each of the appellees, filed a motion for summary judgment on various grounds, including, in each instance, a claim that the declaration was barred by the three-year statute of limitations governing civil actions. Md. (Cts. & Jud.Proc.) Code Ann. § 5-101 (1974). 4 In a concise memorandum opinion and accompanying order, the motions were granted.

With respect to the count in assumpsit against Suburban, the court found that a breach of the Allentown-Suburban contract occurred prior to January 1, 1974, "a time computed most favorably for Allentown." Because the declaration was not filed until January 11, 1977, more than three years had elapsed and the assumpsit claim was barred by section 5-101. The court rejected the contention that the statute did not commence to run until February 1975 when the defects in the pipe system were discovered, instead holding that the three-year period began to run from the date of the breach of the agreement and not from the time the breach was discovered. Mayor & Council of Federalsburg v. Allied Contractors, Inc., 275 Md. 151, 338 A.2d 275, Cert. denied, 423 U.S. 1017, 96 S.Ct. 452, 46 L.Ed.2d 388 (1975). See also Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972). With respect to the negligence counts, the court also found that section 5-101 was applicable, again rejecting a contention by the appellants that the period of limitations should begin to run from the date the wrong was discovered (February, 1975) and not the date when it occurred (December, 1973). 5 Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972). With respect to appellants' reliance upon section 5-108, 6 the court held as follows:

"We do not believe that the gas pipe and meter system involved in this instance is an 'improvement to real property' within the meaning of § 5-108. The law in this state regarding what constitutes an improvement for purposes of § 5-108 treatment is very unclear. As a matter of fact, we have been unable to find any recorded case on this subject. However, Bankers' & Merchants' Credit Company v. Harlem Park Building & Loan Association, 160 Md. 230, 153 A. 64 (1930) points to a distinction between a fixture and an improvement to realty. This Court is of the opinion that the entire underground pipe and meter system was a fixture attaching to an improvement, the improvement being the above ground structure known as Allentown Mall Shopping Center."

II

Appellants' sole contention on this appeal is that the court erred in its failure to apply section 5-108. Succinctly stated, appellants contend that section 5-108 changes established law as to when an action, involving an improvement to real property, accrues. Appellants concede that, prior to the adoption of the section, the applicable time for accrual was when the wrong occurred. Watson v. Dorsey, 265 Md. 509, 290 A.2d 530. They argue, however, that the enactment of section 5-108(c) which provides that a cause of action under the section "accrues when the injury or damage occurs" changed prior law. In accordance with the change, they claim, the normal three-year statute of limitations begins to run when damage or injury caused by a defective and unsafe condition of an improvement to real estate is Discovered, except, of course, that after the lapse of 20 years all rights to file an action are lost. Applying section 5-108 to the instant case, it is appellants' position that their damage and injury occurred not when the inadequate couplings were installed but when the underground pipe leaked in 1975. They state: "This was their damage and injury and it occurred (in February 1975) within three years before the Declaration was filed (on January 11, 1977) and before 20 years had passed."

As the Revisor's Note to section 5-108 indicates, the section derived from former Md.Ann.Code art. 57, § 20, Repealed by 1973 Md.Laws, 1st Spec.Sess., ch. 2, § 2, effective January 1, 1974. The Note goes on to state:

"It is believed that this is an attempt to relieve builders, contractors, landlords, and realtors of the risk of latent defects in design, construction, or maintenance of an improvement to realty manifesting themselves more than 20 years after the improvement is put in use. The section is drafted in the form of a statute of limitations, but, in reality, it grants immunity from suit in certain instances. Literally construed, it would compel a plaintiff injured on the 364th day of the 19th year after completion to file his suit within one day after the injury occurred, a perverse result to say the least, which possibly violates equal protection. Alternatively, the section might allow wrongful death suits to be commenced 18 years after they would be barred by the regular statute of limitations.

The section if conceived of as a grant of immunity, avoids these anomalies. The normal statute of limitations will apply...

To continue reading

Request your trial
33 cases
  • PRESIDENT AND DIRECTORS, ETC. v. Madden, Civ. No. K-77-1438.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 24, 1980
    ......Beauchamp Associates, Inc. .         J. Snowden Stanley, Jr., ...In Westinghouse Electric Corp. v. State Tax Commission, 206 Md. 392, 402, 111 ....          Allentown Plaza Associates v. Suburban Propane Gas Corp., ......
  • Canton Lutheran Church v. SOVIK, MATHRE, ETC., Civ. No. 79-4068.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • February 13, 1981
    ......Future Chattanooga Development Corp., 358 F.Supp. 246 (E.D.Tenn.1973), cited with ...1979); Maryland, Allentown Plaza Associates v. Suburban Propane Gas Corp., ......
  • Gill v. Evansville Sheet Metal Works, Inc.
    • United States
    • Supreme Court of Indiana
    • June 25, 2012
    ...have emerged—a common-law fixture analysis and a “commonsense” analysis.11E.g., Allentown Plaza Assocs. v. Suburban Propane Gas Corp., 43 Md.App. 337, 405 A.2d 326, 331 (1979). A small number of courts have looked to the common law of fixtures to determine whether something constitutes an i......
  • McMacken v. State, 13349
    • United States
    • Supreme Court of South Dakota
    • September 7, 1982
    ......Future Chattanooga Development Corp., 358 F.Supp. 246 (E.D.Tenn.1973), cited with ...1979); Maryland, Allentown Plaza Associates v. Suburban Propane Gas Corp., ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT