Carulli v. N. Versailles Twp. Sanitary Auth., No. 751 C.D. 2017

CourtCommonwealth Court of Pennsylvania
Writing for the CourtOPINION BY JUDGE FIZZANO CANNON
Citation216 A.3d 564
Parties Carmen CARULLI and Barbara Carulli, husband and wife v. NORTH VERSAILLES TOWNSHIP SANITARY AUTHORITY v. Port Vue Plumbing, Inc., Appellant
Decision Date13 August 2019
Docket NumberNo. 751 C.D. 2017

216 A.3d 564

Carmen CARULLI and Barbara Carulli, husband and wife
v.
NORTH VERSAILLES TOWNSHIP SANITARY AUTHORITY
v.
Port Vue Plumbing, Inc., Appellant

No. 751 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued October 17, 2018
Decided August 13, 2019


David Raves, Pittsburgh, for Appellant.

Corey A. Bauer, Canonsburg, for Appellee North Versailles Township Sanitary Authority.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE FIZZANO CANNON

Port Vue Plumbing, Inc. (Port Vue) appeals a judgment of the Allegheny County Court of Common Pleas (trial court) entered against Port Vue and in favor of North Versailles Township Sanitary Authority (Authority), awarding damages in the amount of $39,033.69 in a breach of contract action. In doing so, the trial court rejected Port Vue's claim that the four-year statute of limitations applicable to contract actions barred the Authority from bringing its claim. The trial court applied the discovery rule, reasoning that the Authority had no reason to know of the breach until it received a complaint from residents alleging damage to their residence

216 A.3d 568

approximately 10 years later. We vacate and remand.

I. Background

In December 2002, the Authority contracted with Port Vue to replace terra cotta sewer pipes along Bevan Road in North Versailles Township. Port Vue agreed to replace the pipes using the "pipe bursting" method, which bursts the existing pipe while simultaneously pulling through a new pipe. Notes of Testimony 11/21/2016 (N.T.) at 75, Reproduced Record (R.R.) at 138a. The portion of sewer line to be replaced stretched from manhole 755 to manhole 767. Port Vue also contracted to excavate the new line to reconnect all residential sewer laterals to the new line. In July 2003, Port Vue notified the Authority that it had completed work on the project and requested final payment, which was approved by the Authority's engineer. Trial Court Opinion at 1.1 In accordance with the contract, the Authority paid Port Vue for completion of the project. Id. at 1-2.

In March 2012, the Authority was notified that the basement of a house along Bevan Road belonging to Carmen and Barbara Carulli (together, Carullis) had flooded with raw sewage. Trial Court Opinion at 2. The Authority also discovered that manhole 767 was surcharged2 to within several feet of its top. Id. The Authority inspected the sewage lines with a camera and discovered that 112.71 lineal feet of piping between manhole 766 and manhole 767 had not been replaced in accordance with the contract. Id. The Authority requested that Port Vue replace the sewer line between manhole 766 and manhole 767. Id. When Port Vue refused, the Authority retained another contractor, State Pipe Services, to replace the old sewer line. Id.

In September 2012, the Carullis filed a complaint for damages against the Authority. In response, on or about November 20, 2012, the Authority filed a complaint to join Port Vue as an additional defendant arising from Port Vue's alleged failure to fulfill its obligations under the contract. Trial Court Opinion at 2. The Carullis settled their claims, and the Authority and Port Vue proceeded to a non-jury trial.

Before the trial court, Port Vue argued that the statute of limitations bars the Authority's claims. Trial Court Opinion at 2. The parties did not dispute that Pennsylvania's statute of limitations for a breach of contract claim of this nature is four years. Id. (citing 42 Pa.C.S. § 5525(1) ). The parties also did not dispute that Port Vue was not made a party to the lawsuit until nearly 10 years after it completed work on the project. Id. The Authority, however, claimed it was unaware that a section of the project was unfinished until those pipes caused the damage to the Carullis' home, and therefore, the discovery rule tolled the running of the statute of limitations. See id. at 2-3.

At trial, the Authority presented the testimony of Donald Glenn (Glenn), an engineer from the Authority's engineering firm, Glenn Engineering and Associates Ltd. N.T. at 10-11, R.R. at 73a-74a. Glenn testified that he designed the project for the Authority, which consisted of replacing the sewer lines, reconnecting the house

216 A.3d 569

laterals to the new line and installing additional manholes. N.T. at 11, R.R. at 74a. The project was to be completed in two phases. N.T. at 12, R.R. at 75a. Phase 1 started at manhole 755 and ended at manhole 764. Id. Phase 2 started at manhole 764 and ended at manhole 767. Id. Port Vue contracted to do the work for both phases of the project. See N.T. at 13, R.R. at 76a.

Glenn testified that he was not at the site every day to inspect the work in progress. His colleague, Joseph Dursa (Dursa), and the Authority's representative, Jack Gaffney (Gaffney), were on-site. When asked if an individual could visibly inspect the new sewer line between manholes 764 and 767, Glenn testified that "you can't physically inspect" the pipe because there was no excavation of the pipe line. N.T. at 25-26, R.R. at 88a-89a. Further, the Authority did not have the physical equipment to do a camera inspection of the sewer line. N.T. at 59, R.R. at 122a. Glenn testified that Port Vue forwarded an invoice to him representing that the project had been completed, including bursting the entire line, and that based on such representation, Glenn authorized payment in full to Port Vue. N.T. at 24-25, R.R. at 87a-88a.

Glenn also testified about the incident that caused the damage to the Carullis' property. Glenn testified that after the incident, it was determined that the pipe bursting had not been done for the entire length as specified in the contract. N.T. at 27, R.R. at 90a. Glenn stated that this caused a backup in the sewer line and a surcharge at manhole 767. Id. Glenn testified that, after the incident, the Authority determined the line had collapsed using two methods: physical observation (climbing down a ladder in the manhole and shining a flashlight up and down the sewer) and inserting a camera. N.T. at 28-29, R.R. at 91a-92a. The inspection revealed that the old terra cotta pipe had collapsed and that a new liner had never been installed. N.T. at 27-29, R.R. at 90a-92a. Glenn testified that the backup in the sewer line and the surcharge at manhole 767, and the resulting photographs from the inspection, were the first indication that the sewer line had not been completed all the way to manhole 767. See N.T. at 26-27, 31 & 81, R.R. at 89a-90a, 94a & 144a. Despite Port Vue's assertions to the contrary, Glenn testified that he never had a conversation with anyone at Port Vue, including owner Richard Perkoski (Perkoski), about doing other work instead of replacing the sewer line between manhole 764 and manhole 767. N.T. at 33, R.R. at 96a.

Glenn testified that under the contract, Port Vue was to furnish as-built drawings. N.T. at 32, R.R. at 95a. He stated he did not personally request that Port Vue submit as-built drawings after the contract was completed but that the request "would have come from one of my other people at the office." Id. Glenn testified that, to his knowledge, Port Vue did not supply Glenn Engineering or the Authority with as-built drawings. N.T. at 32-33, R.R. at 95a-96a.

Glenn also testified that after it was determined the terra cotta pipe collapsed, he told Port Vue it had to complete the project, but it refused, so the Authority contracted with, and paid, State Pipe Services to complete the work. N.T. at 29 & 32, R.R. at 92a & 95a.

On cross-examination, Glenn stated that the contract defines the scope of the work to be performed. N.T. at 36, R.R. at 99a. Glenn also acknowledged that the terms of the contract provided that the engineer could inspect the contractor's work at any time. N.T. at 38, R.R. at 101a. Glenn also testified that Glenn Engineering had assigned an inspector to the project, although not a full-time inspector, and that

216 A.3d 570

Gaffney, who worked for the Authority, was also an inspector. Id. Glenn acknowledged that the contract provided that the Authority's engineer was to perform a final inspection to determine whether the job was completed. Id. Glenn acknowledged that he certified that the work had been completed even though neither he nor anyone from his office did any type of inspection. N.T. at 53, R.R. at 116a. Glenn also reconfirmed that the Authority had determined that a portion of the line was not bursted when the Authority looked into manhole 767. N.T. at 56a, R.R. at 119a. Glenn also conceded that the work could have been visually inspected at any time without the aid of any type of camera, although he stated "[i]t would take of lot of effort to do that," explaining that "[y]ou would have to climb down, get a flashlight, [and] shine it[.]" Id. Glenn stated he "had no idea" whether that was done at any time between Port Vue completing its work in 2003 and when the backup incident occurred in 2012, "but obviously not." Id.

The Authority also presented Dursa's testimony; Dursa was...

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4 practice notes
  • Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP (In re Tronox Inc.), Case No. 09-10156 (MEW)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • February 21, 2020
    ...quasi contractual actions such as unjust enrichment and promissory estoppel. See cases cited in Carulli v. North Versailles TP. Sanitary , 216 A.3d 564, 579-80 (Pa. Cmwlth. 2019). However, there is a split of authority as to whether the doctrine should be extended to cases involving an expr......
  • Pa. Pub. Util. Comm'n v. Del. Valley Reg'l Econ. Dev. Fund, 491 M.D. 2018
    • United States
    • Commonwealth Court of Pennsylvania
    • May 5, 2021
    ...not apply to a claim for breach of a written contract. Id. at 35 (discussing Carulli v. North Versailles Township Sanitary Authority , 216 A.3d 564 (Pa. Cmwlth. 2019) (en banc )).10 Even absent the holding of Carulli , however, the Fund emphasizes that the discovery rule requires the exerci......
  • Smith v. Pruco Life Ins. Co., CIVIL ACTION No. 20-04098
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 7, 2021
    ...rule to contract actions based on an express written negotiated contract. See Carulli v. North Versailles Township Sanitary Authority, 216 A.3d 564, 583 (Pa. Commw. Ct. 2019). For purposes of this motion I will assume the discovery rule applies. 3. It should be noted that Pruco has acknowle......
  • Pa. Pub. Util. Comm'n v. Del. Valley Reg'l Econ. Dev. Fund, No. 491 M.D. 2018
    • United States
    • Commonwealth Court of Pennsylvania
    • May 5, 2021
    ...does not apply to a claim for breach of a written contract. Id. at 35 (discussing Carulli v. North Versailles Township Sanitary Authority, 216 A.3d 564 (Pa. Cmwlth. 2019) (en banc)).10 Even absent the holding of Carulli, however, the Fund emphasizes that the discovery rule requires the exer......
4 cases
  • Waleski v. Montgomery, McCracken, Walker & Rhoads, LLP (In re Tronox Inc.), Case No. 09-10156 (MEW)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York
    • February 21, 2020
    ...quasi contractual actions such as unjust enrichment and promissory estoppel. See cases cited in Carulli v. North Versailles TP. Sanitary , 216 A.3d 564, 579-80 (Pa. Cmwlth. 2019). However, there is a split of authority as to whether the doctrine should be extended to cases involving an expr......
  • Pa. Pub. Util. Comm'n v. Del. Valley Reg'l Econ. Dev. Fund, 491 M.D. 2018
    • United States
    • Commonwealth Court of Pennsylvania
    • May 5, 2021
    ...not apply to a claim for breach of a written contract. Id. at 35 (discussing Carulli v. North Versailles Township Sanitary Authority , 216 A.3d 564 (Pa. Cmwlth. 2019) (en banc )).10 Even absent the holding of Carulli , however, the Fund emphasizes that the discovery rule requires the exerci......
  • Smith v. Pruco Life Ins. Co., CIVIL ACTION No. 20-04098
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 7, 2021
    ...rule to contract actions based on an express written negotiated contract. See Carulli v. North Versailles Township Sanitary Authority, 216 A.3d 564, 583 (Pa. Commw. Ct. 2019). For purposes of this motion I will assume the discovery rule applies. 3. It should be noted that Pruco has acknowle......
  • Pa. Pub. Util. Comm'n v. Del. Valley Reg'l Econ. Dev. Fund, No. 491 M.D. 2018
    • United States
    • Commonwealth Court of Pennsylvania
    • May 5, 2021
    ...does not apply to a claim for breach of a written contract. Id. at 35 (discussing Carulli v. North Versailles Township Sanitary Authority, 216 A.3d 564 (Pa. Cmwlth. 2019) (en banc)).10 Even absent the holding of Carulli, however, the Fund emphasizes that the discovery rule requires the exer......

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