Noll v. Paddock Pool Builders, Inc.

• Decision Date: 14 August 1992
• Docket Number: STA-RITE
• Parties: Christopher M. NOLL, Timothy L. Noll and Darlene M. Noll, His Wife, Appellees, v. PADDOCK POOL BUILDERS, INC.; Paddock Pool Equipment Co., Inc.; Paddock Aquatic Facilities; Frost Company; Sta-Rite Industries, Inc.; and YMCA of the USA. Appeal ofINDUSTRIES, INC.
• Court: Pennsylvania Superior Court

Page 219

611 A.2d 219

416 Pa.Super. 284

Christopher M. NOLL, Timothy L. Noll and Darlene M. Noll, His Wife, Appellees, v. PADDOCK POOL BUILDERS, INC.; Paddock Pool Equipment Co.,

Inc.; Paddock Aquatic Facilities; Frost Company;

Sta-Rite Industries, Inc.; and YMCA of

the USA.

Appeal of STA-RITE INDUSTRIES, INC.

Superior Court of Pennsylvania.

Argued March 11, 1992.

Filed June 3, 1992.

Reargument Denied Aug. 14, 1992.

James B. Young, Harrisburg, for appellant.

Anthony Stefanon, Harrisburg, for appellee Noll.

Before POPOVICH, HUDOCK and HESTER, JJ.

HUDOCK, Judge.

This appeal follows the grant of Plaintiffs'/Appellees' (the Nolls') motion to amend their complaint and the denial of Defendant's/Appellant's (Sta-Rite's) motion to amend its answer and new matter. We quash in part and remand in part.

This action arose out of an accident in which the plaintiff/appellee, Christopher Noll, was rendered a quadraplegic as a result of diving into a swimming pool from starting blocks anchored to the pool by bolts. The pool was located at the Westshore branch of the YMCA. The accident took place on May 17, 1987, and the complaint in this action was filed on September 8, 1988. Sta-Rite filed an answer and new matter. The Nolls' filed a motion to amend their complaint and Sta-Rite filed a motion to amend their answer and new matter to allege the statute of repose as a defense, claiming that the starting blocks were improvements to real property. The trial court, on June 5, 1991, granted the Nolls' motion to amend their complaint but denied Sta-Rite's motion to amend their answer stating that the starting blocks were not improvements but rather personal property, finding, therefore, that the statute of repose defense was not available to Sta-Rite. Sta-Rite has appealed this order.

Sta-Rite raises the following issues in their appeal:

1. Did not the trial court err by granting plaintiffs' Motion for Leave To Amend The Complaint to assert a theory of defective design after the expiration of the Statute of Limitations?

2. Did not the trial court err in denying Sta-Rite Industries, Inc.'s Motion for Leave To Amend New Matter to plead the Statute of Repose?

Appellant's Brief at 4.

Initially, we raise the issue of the appealability of the trial court's order. The Nolls' complaint was not dismissed, rather the court permitted it to be amended. Generally, an order granting leave to amend pleadings is interlocutory and, therefore, not immediately appealable. Tate v. MacFarland, 303 Pa.Super. 182, 449 A.2d 639 (1982). Unless a right to appeal is expressly granted by statute or rule of court, an appeal to this Court must be quashed if it is from an interlocutory order. See Pa.R.A.P. 311, 1311, 42 Pa.C.S.A. No one has been put out of court as the result of the order granting leave to amend the complaint and we, therefore, find that the part of the order allowing amendment of the complaint is interlocutory and quash that part of the appeal.

The second part of the order, denying Sta-Rite's motion to amend their answer and new matter, would appear to be interlocutory since Sta-Rite still has other valid defenses. Our decision in Schaffer v. Litton Systems, Inc., 372 Pa.Super. 123, 539 A.2d 360 (1988), alloc. den., 520 Pa. 583, 549 A.2d 916, however, holds that an order denying amendment to plead the statute of repose defense is a final appealable order. We will, therefore, address Sta-Rite's claim as to this issue.

Pa.R.C.P. 1033, 42 Pa.C.S.A., states:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Although liberal amendment of pleadings is permitted in Pennsylvania, it will not be permitted where it is against a positive rule of law. General Machine Corp. v. Feldman, 352 Pa.Super. 180, 507 A.2d 831 (1986). The decision to permit amendment of pleadings rests in the sound discretion of the trial court. Id.

Sta-Rite argues that they should be permitted to amend their answer and new matter to plead the statute of repose, because the statute of repose is a non-waivable defense. Sta-Rite's Brief at 10. The Nolls', on the other hand, argue that the statute of repose is not available to Sta-Rite and, therefore, to permit them to amend their answer and new matter would be against a positive rule of law. The Nolls' Brief at 11. We must, therefore, examine whether the statute of repose is available to Sta-Rite before we can determine whether the trial court abused its discretion in denying Sta-Rite's motion to amend their answer and new matter.

42 Pa.C.S.A. § 5536 (the statute of repose) reads in part:

(a) General rule.--Except as provided in subsection (b), 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:

(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.

(2) Injury to property, real or personal, arising out of any such deficiency.

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

(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).

We have long held that the statute of repose does more than merely limit the remedy of a party against another, as does a statute of limitations. Schaffer v. Litton Systems, supra. Rather, the statute of repose "eliminates all causes of action arising out of the negligence in construction or design of an improvement to real property which occurred more than twelve (12) years before the accident." Id., 372 Pa.Super. at 125, 539 A.2d at 361. This defense is properly raised at any time and is, therefore, non-waivable. Id. Consequently, Sta-Rite is permitted to raise the statute of repose as a defense in their new matter. This, however, does not end our inquiry. Although it is a non-waivable defense, if the defendant is not entitled to protection under the statute, then the trial court may refuse to permit amendment because it would be against a positive rule of law.

The trial court stated in its opinion: "Sta-Rite argues its starting blocks were an 'improvement to real property', but it is clear they were not. The blocks were removable and attached to the pool by bolts. Sta-Rite cannot successfully assert an affirmative defense under the Statute of Repose. Therefore, the Court denied the amendment." Trial Court Opinion at 4. The issue before us then is whether or not the starting blocks in question are an "improvement to real property" under the statute of repose. The Nolls' argue that the trial court

relied upon facts of record developed over the course of more than three (3) years of litigation. The factual basis for this decision was summarized in [the Nolls'] Memorandum of Law in Opposition to Motion of [Sta-Rite] For Leave to Amend New Matter and the exhibits thereto.

The Nolls' Brief at 5.

The Memorandum of Law to which the Nolls' refer lists (1) an answer of Sta-Rite to the Nolls' Interrogatories First Set # 14, ¹ (2) the original invoice from Sta-Rite to Paddock Pool Equipment Co., Inc. listing the starting platforms, and (3) promotional literature and installation instructions, which were attached as exhibits. These are the items which we find the trial court could reasonably have relied upon in making its determination that the starting blocks were not improvements to real property. ²

The parties turn next to their examination of the cases in Pennsylvania which have construed the statute of repose. Although there are cases which determine items as either improvements to real property or as personal property, our courts have not defined the term improvement to real property, and the statute does not provide a definition. Therefore, the determination of what constitutes an improvement to real property is made on a case-by-case basis. The parties cite the following cases in support of their positions which we find to be inapplicable because the issue of the definition of an improvement to real property was not in issue: Misitis v. Steel City Piping Company, 441 Pa. 339, 272 A.2d 883 (1971); Leach v. Philadelphia Savings Fund Society, 234 Pa.Super. 486, 340 A.2d 491 (1975); Freezer Storage, Inc. v. Armstrong Cork Company, 476 Pa. 270, 382 A.2d 715 (1978); Fetterhoff v. Fetterhoff, 354 Pa.Super. 438, 512 A.2d 30 (1986), alloc. den., 514 Pa. 624, 522 A.2d 50 (1987); McCormick v. Columbus Conveyor Company, 522 Pa. 520, 564 A.2d 907 (1989); McConnaughey v. Building Components, 401 Pa.Super. 329, 585 A.2d 485 (1990), alloc. granted, 527 Pa. 667, 593 A.2d 842 (1991).

The following four cases which the parties cite have dealt with interpreting the term "improvement to real property". First, we examine Mitchell v. United Elevator Company, Inc., 290 Pa.Super. 476, 434 A.2d 1243 (1981). In Mitchell, we held that an elevator system in an apartment building was an improvement to real property. The trial court erroneously focused on the uniformity of elevators from building to building in finding that it was not an improvement to real property. We reversed the trial court there saying that the trial court likened the installation of an elevator system, with its myriad components, motors, cables, wiring and machinery, to uncrating a television set and plugging it in. We were guided by Black's Law Dictionary's definition of the general term improvement:

A valuable addition made...