Noll by Noll v. Harrisburg Area YMCA

• Decision Date: 14 June 1994
• Docket Number: No. 25,No. 26,STA-RITE,25,26
• Citation: 643 A.2d 81,537 Pa. 274
• Parties: , Prod.Liab.Rep. (CCH) P 13,939 Christopher M. NOLL, a Minor, by His Parent and Natural Guardian Timothy NOLL; Timothy L. Noll and Darlene M. Noll, his wife, Appellants at, v. HARRISBURG AREA YMCA and Newport Area School District, Deanna Boles, Thomas R. Marshall, Jr. v. PADDOCK POOL BUILDERS, INC., Paddock Pool Equipment Co., Inc., Paddock Acquatic Facilities, Frost Company, Sta-Rite Industries, Inc. and YMCA of the USA. Appeal of:INDUSTRIES, INC. at
• Court: Pennsylvania Supreme Court

Page 81

643 A.2d 81

537 Pa. 274, Prod.Liab.Rep. (CCH) P 13,939

Christopher M. NOLL, a Minor, by His Parent and Natural Guardian Timothy NOLL; Timothy L. Noll and Darlene M. Noll, his wife, Appellants at No. 25, v. HARRISBURG AREA YMCA and Newport Area School District, Deanna Boles, Thomas R. Marshall, Jr. v. PADDOCK POOL BUILDERS, INC., Paddock Pool Equipment Co.,

Inc., Paddock Acquatic Facilities, Frost Company,

Sta-Rite Industries, Inc. and YMCA of the USA.

Appeal of: STA-RITE INDUSTRIES, INC. at No. 26.

Supreme Court of Pennsylvania.

Argued Jan. 27, 1994.

Decided June 14, 1994.

[537 Pa. 277] John P. Penders, Audrey L. Jacobsen, Philadelphia, for Sta-Rite.

Anthony Stefanon, Harrisburg, for Nolls.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

This is an appeal from a decision of the Superior Court (Hudock and Hester, JJ., Popovich, J., concurring and dissenting) reversing an Order of the Court of Common Pleas of Dauphin County (Natale, J.) and remanding the case for a factual hearing.

Cross-petitioner, Sta-Rite Industries made a motion for leave to amend its answer and new matter to plead the statute of repose found at 42 Pa.C.S.A. § 5536 ¹. The trial court refused to grant leave to amend finding that Sta-Rite could not plead the statute of repose as a matter of law. The Superior Court held that Sta-Rite's ability to plead the statute of repose as a defense turned on the intent of co-defendant, Harrisburg Area YMCA, in installing the diving blocks which are the subject matter of the instant lawsuit. The Superior Court remanded the case for a factual determination of the intent of YMCA after which the trial court was to determine anew whether Sta-Rite's pleading should be allowed.

The issues presented for our review are: (1) whether in light of our decision in McConnaughey v. Building Components, Inc., 536 Pa. 95, 637 A.2d 1331 (1994) (Papadakos, J. with two Justices joining and three concurring in the result), Sta-Rite is within the class protected by the statute as a manufacturer; and (2) whether the starting blocks in question are improvements within the meaning of the statute. For the reasons that follow, we reverse the order of the Superior Court, 416 Pa.Super. 284, 611 A.2d 219 and affirm the trial court's order refusing Sta-Rite leave to amend its answer.

The pertinent facts are as follows. On May 17, 1987, Plaintiff Christopher Noll, then 17 years of age, dove from a starting block into a swimming pool at the West Shore Branch of the YMCA. Noll dove into 3 and 1/2 feet of water and suffered quadriplegic injuries. This starting block was manufactured and sold by co-defendant Sta-Rite. Plaintiffs commenced this action against Sta-Rite and co-defendant Harrisburg YMCA by Complaint filed on September 8, 1988. Sta-Rite filed its answer with new matter on February 16, 1989 raising the defenses of assumption of risk, comparative negligence, substantial change of the product, and misuse of the product. It did not plead the statute of repose as a defense. On March 19, 1991, three years later, Sta-Rite filed a Motion for Leave to Amend New Matter to plead the statute of repose. The trial court held that starting blocks were not improvements to real estate, and, therefore, Sta-Rite could not assert the affirmative defense of the statute of repose. The case was appealed to the Superior Court which held that the starting block's status as an improvement depended on the intent of the YMCA in installing the blocks. The Superior Court remanded the case for an evidentiary hearing to determine the intent of the YMCA. Plaintiff and co-defendant Sta-Rite both petitioned this court for an allowance of appeal which we granted.

Procedurally, this case comes to us from a denial of Sta-Rite's motion to amend its answer. The first procedural issue we must address in this case is whether the denial of Sta-Rite's motion to amend its pleading is a final appealable order. It is well settled that only final orders may be appealed. Pa.R.A.P. 341 ²; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). See also Schaffer v. Litton Systems Inc., 372 Pa.Super. 123, 125, 539 A.2d 360, 361, appeal denied, 520 Pa. 583, 549 A.2d 916 (1988) (quoting T.C.R. Realty). An order is final, and not interlocutory, if it prevents a party from presenting the merits of its claim in the trial court. Stevenson v. General Motors Corp., 513 Pa. 411, 416, 521 A.2d 413, 417 (1987); T.C.R. Realty, 472 Pa. at 337, 372 A.2d at 724. Sta-Rite asserts that the denial of its motion puts it out of court as to the defense of the Statute Of Repose, making the order a final appealable order. In Posternack v. American Casualty v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966), we held that an order denying leave to amend to include the defense of res judicata precluded proof at trial of what might be a complete defense, and effectively put the defendant out of court as to that defense. In Schaffer, the Superior Court considered this very issue and held that refusal to allow a defendant to amend his answer to include the defense of the statute of repose was a final appealable order. We thus agree with the Superior Court below that the denial of Sta-Rite's motion to amend its complaint is a final appealable order.

We must now consider whether Sta-Rite should be allowed to amend its complaint to include the statute of repose as a matter of law. The rule in this Commonwealth is that amendments to pleadings should be liberally allowed. Posternack, 421 Pa. at 24, 218 A.2d at 351; Tanner v. Allstate Ins. Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983). However, amendment will not be allowed where the proposed amendment is against a positive rule of law. Posternack, 421 Pa. at 24, 218 A.2d at 351-52; Grim v. Betz, 372 Pa.Super. 614, 618, 539 A.2d 1365, 1367 (1988); Tanner, 321 Pa.Super. at 137, 467 A.2d at 1167. Allowance of an amendment that is against a positive rule of law would be futile and would "cause delay and waste the resources of the court and the opposing party in having to defend against the proposed amendment." Tanner, 321 Pa.Super. at 138-39, 467 A.2d at 1167. Thus, if Sta-Rite is entitled to the defense of the statute of repose the motion to amend should be granted. However, if Sta-Rite is not entitled to the defense, the amendment would be futile and the motion should be denied. We must, therefore, determine whether Sta-Rite may assert the statute of repose as a defense to the plaintiff's claim as a matter of law.

The Pennsylvania statute of repose is codified at 42 Pa.C.S.A. § 5536 and provides in pertinent part:

(a) General rule.... 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 the completion of construction of such improvement to recover damages for:

(3) Injury to the person or for wrongful death arising out of any such deficiency ...

Section 5536 is a statute of repose, rather than a statute of limitation. Schaffer v. Litton Systems, 372 Pa.Super. at 127, 539 A.2d at 362 (quoting Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 487, 434 A.2d 1243, 1248-49)). As a statute of repose, Section 5536 does not merely bar a party's right to a remedy as a statute of limitations does, but it completely abolishes and eliminates the cause of action. Schmoyer by Schmoyer v. Mexico Forge, Inc., 423 Pa.Super. 593, 596, 621 A.2d 692, 693 (1993) (quoting Mitchell, 290 Pa.Super. at 486, 434 A.2d at 1248).

A party moving for protection under the statute of repose must show: (1) what is supplied is an improvement to real property; (2) more than twelve years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party must be within the class which is protected by the statute. McConnaughey, 536 Pa. at 99, 637 A.2d at 1333; Schmoyer, 423 Pa.Super. at 596, 621 A.2d at 694. See also Gnall v. Illinois Water Treatment Co., 640 F.Supp. 815, 817 (M.D.Pa.1986).

It is undisputed by the parties that twelve years have elapsed from the time the swimming blocks were installed and the Plaintiff's injuries. The twelve year period begins to run when the entire construction project is so completed that it can be used by the general public. Fetterhoff v. Fetterhoff, 354 Pa.Super. 438, 440-41, 512 A.2d 30, 31, appeal denied, 514 Pa. 624, 522 A.2d 50 (1986); Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 488, 489 A.2d 262, 266 (1985). It is unclear from the record when the diving blocks manufactured by Sta-Rite were installed and used by the general public. The platforms were purchased in July of 1972. (R.R. at 83A). We assume that they were installed and used by the public within a reasonable time after their purchase. The Plaintiff was injured in May of 1987, fifteen years later. We thus will assume for the purposes of our analysis that the twelve year requirement has been satisfied.

In light of our recent decision in McConnaughey, we must address the issue of whether Sta-Rite is within the class which is protected by the statute. ³ In McConnaughey, a plurality of this Court held that a manufacturer who does nothing more than supply a defective product which later is incorporated into an improvement to real property by others is not within the purview of the statute. ⁴ McConnaughey, 536 Pa. at 101, 637 A.2d at 1334. McConnaughey involved a manufacturer of metal plates incorporated into roof trusses who asserted the statute of repose as a defense when the plates allegedly cracked and caused the trusses to collapse. We found that the proper focus in interpreting the statute was the activity performed, i.e. whether the party claiming the protection of the statute was involved in...