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A. J. ABERMAN v. FUNK BUILDING CORPORATION (06/06/80)

filed: June 6, 1980.

A. J. ABERMAN, INC., CRESCENT REALTY & INVESTMENT COMPANY, AND GARBER INC., APPELLANTS,
v.
FUNK BUILDING CORPORATION, V. GENERAL ROOFING COMPANY AND KOPPERS COMPANY, INC.



No. 39 April Term 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. 3166 January Term, 1974.

COUNSEL

David R. Levin, Pittsburgh, for appellants.

Charles Means, Pittsburgh, for Funk Bldg. Corp., appellee.

Loyal H. Gregg, Pittsburgh, for General Roofing Co., appellee.

Gerald Hutton, Pittsburgh, for Koppers Co., Inc., appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 278 Pa. Super. Page 388]

This is an appeal from an order refusing to take off a compulsory non-suit. The issue is whether the lower court correctly ruled that appellants' action was barred by the statute of limitations.

In 1964, appellee Funk Building Corporation entered into a written contract with appellants for the construction of a shopping center. The contract provided for the installation of a twenty year bonded roof.*fn1 Funk subcontracted the roofing work to appellee General Roofing Company, and appellee Koppers Company provided the bond. The roof was installed and the building was completed by June 1965. The roof began to leak in 1965 and continued to leak thereafter. Funk originally repaired the leaks, but in September 1967 refused to undertake any further repairs and informed appellants to look elsewhere for relief. Thereafter, appellants hired Jack Josowitz, a local roofer, to repair the leaks. Josowitz repaired leaks from November 1967 until May 1973. All attempts at repair ultimately proved futile, however, and in June 1973 appellants had a new roof installed. They filed their complaint in the present action against Funk on December 21, 1973. General Roofing and Koppers were joined as additional defendants on February 24, 1974.

After appellants had finished presenting their evidence, appellees moved for and were granted a compulsory non-suit on the ground that the action was barred by the six year statute of limitations applicable to actions on contracts. Appellants first argue that this statute was not applicable. Appellants next argue that even if the six year statute was

[ 278 Pa. Super. Page 389]

    applicable, a non-suit should not have been entered, for the jury might have found that the statute had been tolled.

-1-

In ruling that appellants' action was barred, the lower court applied the six year statute of limitations set forth in the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31 (Purdon's 1953) (Act of 1713),*fn2 which provides in pertinent part that "[a]ll actions . . . shall be commenced and sued . . . within six years next after the cause of such actions or suit and not after." Appellants argue that the lower court should have applied the twelve year provision contained in the Act of December 22, 1965, P.L. 1183, § 1, 12 P.S. § 65.1 (Purdon's Supp.1977) (Act of 1965).*fn3 The Act of 1965 provides:

"§ 65.1 Twelve years

No action (including proceedings) whether in contract, in tort or otherwise, to recover damages:

(1) For any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,

(2) For injury to property, real or personal, arising out of any such deficiency,

(3) For injury to the person or for wrongful death arising out of any such deficiency, or

(4) For contribution or indemnity for damages sustained on account of any injury mentioned in clauses (2) and (3) hereof, shall be brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of such improvement more than twelve years after completion of such an improvement.

§ 65.2 Injury, twelfth year after improvement completed

[ 278 Pa. Super. Page 390]

Notwithstanding the provisions of section [65.1], in the case of such an injury to property or the person, or such an injury causing wrongful death, which injury occurred during the twelfth year after such completion, an action in tort to recover damages for such an injury or wrongful death may be brought within two years after the date on which such injury occurred: Provided, That in the case of wrongful death, such action shall also be brought within one year of the date of death. In no event, ...


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