Fetterhoff v. Fetterhoff

• Decision Date: 07 July 1986
• Citation: 512 A.2d 30,354 Pa.Super. 438
• Parties: Mary E. FETTERHOFF, Appellant, v. Mary S. FETTERHOFF and Inclinator Co. of America v. POLYCLINIC MEDICAL CENTER.
• Court: Pennsylvania Superior Court

Page 30

512 A.2d 30

354 Pa.Super. 438

Mary E. FETTERHOFF, Appellant, v. Mary S. FETTERHOFF and Inclinator Co. of America v. POLYCLINIC MEDICAL CENTER.

Superior Court of Pennsylvania.

Submitted May 20, 1986.

Filed July 7, 1986.

[354 Pa.Super. 439] Richard L. Kearns, Harrisburg, for appellant.

Thomas J. Williams, III, Carlisle, for Fetterhoff, appellee.

Steven D. Snyder, Harrisburg, for inclinator, appellee.

Charles W. Craven, Philadelphia, for Polyclinic, appellee.

Before CIRILLO, P.J., and TAMILIA and HESTER, JJ.

TAMILIA, Judge:

This is an appeal from the August 4, 1985 Order entered by the Court of Common Pleas of Dauphin County granting summary judgment in favor of defendant/appellee, Inclinator Company of America. Plaintiff/appellant filed suit against appellee after sustaining injuries when she fell into an elevator shaft at her family home on October 16, 1982. Appellant's case against appellee was premised on theories of negligence and strict liability. Appellee was the designer, manufacturer and installer of the elevator which was placed in the home during July of 1952.

Appellee filed a motion for summary judgment based upon 42 Pa.C.S.A. § 5536 which provides for a twelve-year statute of repose. The lower court denied the motion but subsequently granted appellee's petition for reconsideration. A hearing was held and appellee's motion for summary judgment was granted. This appeal followed.

Appellant now contends that a designer-manufacturer-installer, who maintains an improvement to real property and performs repair work thereon throughout the life of the improvement, does not fall within the scope of 42 Pa.C.S.A. § 5536(a). Appellant argues that since appellee was periodically called upon to maintain and repair the elevator, it cannot be afforded the protection of the statute of repose.

The statute in question, 42 Pa.C.S.A. § 5536(a), provides in pertinent part:

... a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision, or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:

* * *

(3) Injury to the person or for wrongful death arising out of any ... deficiency [in the design, planning, supervision or observation of construction or construction of the improvement].

We first note it is an undisputed fact that construction of the elevator shaft in appellant's home was completed in 1952. The twelve-year period begins to run when the entire construction project is so far completed that it can be used by the general public. Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985). Appellant was injured and filed suit nearly thirty years after construction was completed. Likewise, there is no doubt that an elevator shaft is an improvement to real property. Mitchell v. United Elevator Co., 290 Pa.Super. 476, 434 A.2d Appellant maintains that since appellee periodically made repairs to the elevator, it never relinquished control and thus section 5536(b)(2) is applicable.

1243 (1981). Appellant, however, argues that her cause of action is protected by section 5536(b)(2), which provides that the twelve-year limitation "shall not be asserted by way of defense by a person in actual possession or control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or wrongful death...."

We must disagree. Appellee never had "actual possession or control" of the elevator "as owner, tenant or otherwise" either at the time of the improvement or after installation, and only performed maintenance and repair work when summoned by appellant's family. Appellee had no contract to service or maintain the elevator; repair work could have been done by any company of appellant's choice. Therefore, appellee had no obligation whatsoever to inspect or repair the elevator in the absence of a request by the owners. While it is conceivable that a designer, manufacturer or installer could retain ample control over an improvement so as to trigger the section 5536(b)(2) exception (such as a manufacturer installing elevators in its own building), not even a scintilla of control has been demonstrated here.

It is without question that 42 Pa.C.S.A. § 5536(a) applies to the person who designs and constructs an improvement during the twelve year period in which liability can be imposed. Since this is a statute of repose, the liability is extinguished upon passage of the twelve years and it is a non-waivable right, contrary to a statute of limitations, which is waived, if not alleged, in a responsive pleading. Mitchell, supra.

The statute in section 5536(b)(2) goes on to carve out an exception to the extinguishing effect of section 5536(a) as to "a person in actual possession or control, as owner, tenant, or otherwise, of such an improvement" at the time it caused the harm complained of. Since Inclinator designed and constructed the improvement and was not in possession as owner or tenant at the time of the accident, it is insulated from liability unless it can be construed to be liable under the one remaining designation "or otherwise".

Applying the principles of statutory construction to section 5536(b)(2), it is clear that they do not come within the designated category. In interpreting the meaning of a general word following particular words, the general term is restricted by the preceding particular words; 1 Pa.C.S.A. § 1903(b) Words and phrases:

b) General words shall be construed to take their meaning and be restricted by preceding particular words.

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