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MED-MAR v. DILWORTH ET AL. (06/12/69)

decided: June 12, 1969.

MED-MAR, INC.
v.
DILWORTH ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 64-1514, in case of Med-Mar, Inc. v. Erwin E. Dilworth, individually and trading as Wm. Powell Dilworth & Sons, et al.

COUNSEL

Roland J. Christy, for appellant.

Paul W. Callahan, with him Fox, Differ & DiGiacomo, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Cercone, J. Dissenting Opinion by Montgomery, J.

Author: Cercone

[ 214 Pa. Super. Page 404]

The plaintiff, Med-Mar, Inc., 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 the 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,

[ 214 Pa. Super. Page 405]

    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 $6,476.82, for the recovery of which this action was brought. At trial, the jury returned a verdict of $6,000.00 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 Sm. 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

[ 214 Pa. Super. Page 406]

    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 (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., 276 Pa. 95, 119 A. 834 (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. D. & C. 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. Superior Ct. 158 (1901); Lewey v. Fricke Coke Co., 166 Pa. 536, 31 A.

[ 214 Pa. Super. Page 407261]

(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 (1895), quoted with approval in Ayers v. Morgan, 397 Pa. 282 (1959): "The question in any given case is not what did the plaintiff know of the injury done him, but what might he have known by the use of the means of information within his reach with the vigilance 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 Van Buskirk v. Murden, 22 Ill. 446 is strikingly ...


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