Med-Mar, Inc. v. Dilworth

• Decision Date: 12 June 1969
• Citation: 257 A.2d 910,214 Pa.Super. 402
• Parties: MED-MAR, INC., Appellee, v. Erwin E. DILWORTH, individually and trading as Wm. Powell Dilworth & Sons and Joseph K. Seidle, Jr. Appeal of Joseph K. SEIDLE, Jr.
• Court: Pennsylvania Superior Court

257 A.2d 910

214 Pa.Super. 402

MED-MAR, INC., Appellee, v. Erwin E. DILWORTH, individually and trading as Wm. Powell

Dilworth & Sons and Joseph K. Seidle, Jr. Appeal of Joseph K. SEIDLE, Jr.

Superior Court of Pennsylvania.

June 12, 1969.

Rehearing Denied July 3, 1969.

Petition for Allowance of Appeal Denied Sept. 11, 1969.

Roland J. Christy, Melrose Park, for appellant.

Paul W. Callahan, Fox, Differ & DiGiacomo, Norristown, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY JACOBS, HOFFMAN, and CERCONE, JJ.,

CERCONE, Judge.

The plaintiff, Med-Mar Corporation, filed suit in assumpsit February 10, 1964, seeking recovery of damages from its architect for defective construction of the roof of a building erected to house medical offices at Drexel Hill Pennsylvania. At trial, defendant contractor Dilworth was removed from the case on motions and trial proceeded against defendant architect Seidle alone.

The agreement with architect Seidle was oral and concerned, inter alia, the supervision of construction of the building in accordance with plans and specifications. Twenty-five (25%) percent of Seidle's fee was allotted as payment for this phase of his work, and upon completion of the building in December of 1954, he was paid in full for all his work. The total cost of the construction of the building was twenty-five thousand eight hundred and fifty ($25,850.00) dollars.

In the Spring of 1963, the owners and occupants of the building noticed a strong, pungent odor permeating the interior of the building and called in Seidle, and later others, to inspect and locate, if possible, the source of the malodor. Upon investigation, the stench was discovered to be coming from the roof where moisture penetration had deteriorated or rotted certain parts of the roof. According to the plans and specifications, a 3/8 layer of fir plywood covering was to have been placed over the roof joists and in turn to be covered by a 2 thickness of Celotex. It was discovered that the plywood sheathing had not been installed and that, without the plywood support, the Celotex softened and sagged between the roof joists. This sagging caused the outer four-ply composition type roof covering to also buckle and open in some sections causing moisture to enter the entire roof area. As a result, the moisturized Celotex emitted the acrid smell complained of by plaintiff. The damage was so extensive that a new roof became the only solution to the problem and, after due notice to Seidle, and after his refusal to remedy the situation, the plaintiff installed a new roof at the cost of six thousand four hundred and seventy-six ($6,476.82) dollars for the recovery of which this action was brought. At trial, the jury returned a verdict of six thousand ($6,000.00) dollars against defendant-architect and this appeal follows from the denial of defendant's motion for judgment n.o.v. and motion for a new trial.

Defendant's first contention is that the six-year Statute of Limitations under the Act of 1713, March 27, 1 Am.L. 76, Section 1, began to run from the time of the completion of the building in December 1954, and therefore, precluded the present cause of action which was begun on February 10, 1964, some nine years later.

The evocative question, therefore, is whether the six-year period began to run upon completion of the building in December of 1954 or at the time the defect became known to the plaintiff in the Spring of 1963.

The general rule is that the Statute begins to run from the time the act is done, but this is not of universal application. The mischief the Statute intends to remedy is the delay in the assertion of a legal right which it is practical to assert. The limitation of action prevents the starting of a lawsuit at a time when it is impractical or impossible for the parties to present themselves in court with the necessary factual and legal implementations which were at one time available to them. In other words, it is intended to preclude one who has slumbered for six years during which time legal process was within his reach.

The legal principles in this field, both general and particular, are succinctly stated in the case of Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963):

'Under the law of Pennsylvania, it is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts * * * and to institute the suit within the prescribed statutory period: Patton v. Commonwealth Trust Co., Executor, 276 Pa. 95, 119 A. 819 (1923); Turtzo v. Boyer, 370 Pa. 526, 88 A.2d 884 (1952). Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute: Ridgway's Account, 206 Pa. 587, 56 A. 25 (1903): McEnery v. Metropolitan Life Ins. Co., 50 Pa.Dist. & Co. 395 (1944). If, however, through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the limitation of the action: Plazak v. Allegheny Steel Company, 324 Pa. 422, 188 A. 130 (1936) and Deemer v. Weaver, 324 Pa. 85, 187 A. 215 (1936). Likewise, if the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitation does not begin to run until discovery of the injury is reasonably possible. See, Gotshall v. Langdon & Co., 16 Pa.Super. 158 (1901); Lewey v. H. C. Frick Coke Co., 166 Pa. 536, 31 A.2d 261, 28 L.R.A. 283 (1895); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 153 A.2d 477 (1959).'

Or as stated by this court in Scranton Gas & Water Co. v. Iron & Coal Company, 167 Pa. 136, 31 A. 484 (1895) quoted with approval in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959):

'The question in any given case is not, what did the plaintiff know of the injury done him? but, what he might have known, by the use of the means and information within his reach, with the vigilance, which the law requires of him?'

Therefore, where knowledge is impossible because of the laws of nature, or because of the actual fraud or concealment of the wrongdoer, or where it is impractical to impose on one who has been wronged the duty to explore and ferret out the undetectable act of the wrongdoer, the statute should begin to run from the time discovery of the injury is made. The law does not intend to bring about an unreasonable result. We travel at a rapid pace in today's world, and the realm of home and commercial building construction is no exception. The magnitude of operation in this field is altogether breathtaking in its scope and rapid range of activity. As a consequence it becomes, at times, an enervating and frustrating experience to attempt to get defective workmanship corrected. This may be understandable when one considers the ratio between the limited supply of and the great demand for labor. However, if faulty work is performed and it is of the nature that is ordinarily undetectable, the burden nevertheless should fall on him who has improperly performed and the statute should begin to run when his faulty work was or should have been discovered and not when it was completed.

The reasoning applied by the Supreme Court of Illinois in the case of VanBuskirk v. Murden, 22 Ill. 446 is strikingly pertinent here. In that case the trial court had changed the jury as follows:

'The jury are instructed by the court that an acceptance of the work, without objection and in satisfaction of the contract by the plaintiff, was a waiver in law of all defects that may have been in the plastering of plaintiff's house, unless it has been shown that fraud and circumvention was used by defendant to induce the plaintiff to accept the same.' Commenting on this instruction on appeal, the said supreme court said:

'Everyone can see that this is too broad altogether, and well canculated to do great injustice, and is not the law. Had the court restricted it to visible defects, it would have been well. It is monstrous to say, in reference to plasterer's work, that all defects are waived when such work is accepted without objection and in satisfaction of the contract--all visible defects, or such as could be ascertained by inspection and examination, would be waived, but how can the employer tell by looking at a smooth coat of plastering, everything fair to the eye, whether the lathing has been done properly, or the mortar well made with due proportions of lime, sand and hair, to give it adhesion, hardness and durability. No man can tell, and therefore it is that the party should not be bound by an acceptance, or acceptance considered as a waiver of latent defects, which too often lurk in plastering, which to the eye appears very fine and unexceptionable.'

Furthermore, it is unreasonable to require an owner--who has depended on and paid for his architect's supervision of the use and placement of the proper materials--to look for a hidden or latent defect, or to place upon him under such circumstances the burden of knowing of such defective workmanship at the time it was done rather than at the time it was discovered. There is little question that the trouble which developed in the roof in this case was the result of a latent defect. A 'latent defect' is a hidden defect and generally involves the material out of which the thing is constructed: 24 Words and Phrases, p. 553. In this case the latent defect was the inherent structural weakness of Celotex, which prevented it from performing the function intended without the plywood support.

In Bloomburg Mills, Inc., v. Sardoni Construction Company, 401 Pa. 358, 164 A.2d 201 (1960), a case similar...