filed: March 8, 1985.
DANIEL CATANZARO AND FOX CHAPEL SCHOOL DISTRICT, A MUNICIPAL CORPORATION,
WASCO PRODUCTS, INC., A CORPORATION V. AMERICAN CYANAMID COMPANY. APPEAL OF, DANIEL CATANZARO
No. 00922 Pittsburgh 1983, Appeal from the Judgment entered June 28, 1983 in the Court of Common Pleas of Allegheny County, Civil No. GD 81-20145.
Theodore Goldberg, Pittsburgh, for appellant.
Terry L.M. Bashline, Pittsburgh, for Wasco, appellee.
Eric P. Reif, Pittsburgh, for American Cyanamid, appellee.
Rowley, Olszewski and Popovich, JJ.
[ 339 Pa. Super. Page 483]
This is an appeal from an order granting summary judgment in a personal injury action. The lower court held that appellant's personal injury claim was barred by 42 Pa.C.S. Sec. 5536, a twelve year statute of repose relating to real estate construction. Appellant contests the applicability of this statute to his claim.
The facts of this case may be quickly summarized. On or about June 30, 1980, appellant, Daniel Catanzaro, was injured when he fell through an acrylic skylight/skydome located on the roof of Fox Chapel High School. At the time of the accident, appellant was employed by the school as a laborer. Appellant filed suit against appellee, Wasco Products, Inc., alleging, inter alia, that (1) Wasco had manufactured and sold the skydome; and (2) the skydome was defectively designed and improperly constructed. On December 15, 1981, Wasco joined American Cyanamid Company as an additional defendant.*fn1 Both Wasco and American
[ 339 Pa. Super. Page 484]
Cyanamid filed motions for summary judgment based primarily on 42 Pa.C.S. Sec. 5536. The lower court granted these motions and this appeal followed.
The statute at issue in this case is 42 Pa.C.S. Sec. 5536.*fn2 This act disallows any action seeking recovery for personal injuries arising out of an alleged deficiency in design, planning or construction of an improvement to real property brought more than 12 years after completion of the improvement. In Mitchell v. United Elevator Co., Inc., 290 Pa. Super. 476, 434 A.2d 1243 (1981), this Court characterized Sec. 5536 as not merely a statute of limitations, but instead as a statute of repose which effectively abolishes any cause of action which might have existed against a person within the purview of the act.
The threshold question in determining the applicability of Sec. 5536 is whether the action arises from alleged deficiencies in an "improvement to real property." The legislature did not define "improvement to real property" in the act and case law has yet to adopt a general definition of the term. However, Pennsylvania courts, in keeping with the statutory presumption favoring liberal construction of statutes,*fn3
[ 339 Pa. Super. Page 485]
have construed the term broadly thereby maximizing the coverage of the statute. See e.g. Keeler v. Commonwealth Department of Transportation, 56 Pa. Commw. 236, 239, 424 A.2d 614, 616 (1981). (Highway guard rails, lights, signs and directional signals constitute improvements to real property); Mitchell v. United Elevator Co., Inc., supra. (Elevator is an improvement to real property.) Furthermore, Pennsylvania courts agree that fixtures*fn4 are included within the category of "improvements to real property." For example, in Keeler, supra, the Commonwealth Court concluded that "a fixture is by definition, an improvement to real property." 56 Pa. Commw. at 239, 424 A.2d at 616.
No Pennsylvania decision directly addresses the issue of whether a skydome/skylight is a fixture. However, analogous authority strongly suggests that a skydome should be considered a fixture. For example, windows have historically been held to be fixtures. 35 Am.Jur.2d Fixtures Sec. 93 (1967); Kratovil, Fixtures and the Real Estate Mortgagee, 97 U.Pa.L.Rev. 180, 186 (1948). In function and appearance, a skydome or skylight is virtually identical to a window.*fn5 Moreover, a skydome, like a window, is physically annexed to a building and made a part thereof. Therefore, we do not hesitate in holding that a skydome is a fixture and as such, is an "improvement to real property" within the meaning of 42 Pa.C.S. Sec. 5536.
[ 339 Pa. Super. Page 486]
The gravamen of appellant's argument is that Sec. 5536 does not shield appellees because they are mere manufacturers of a product. Appellant contends that the statute's application is restricted to persons who not only design or construct real property improvements, but who also "customize" the improvement to the real estate and assist in its installation. We do not agree.
The statute applies to civil actions brought against "any person lawfully performing or furnishing the design, planning, supervision, or observation of construction, or construction of any improvement to real property." In Leach v. Philadelphia Savings Fund Society, 234 Pa. Super. 486, 340 A.2d 491 (1975), this Court held that the statute should be construed liberally to include all persons engaged in the statutorily listed activities.
The Pennsylvania statute identifies its class not by the status or occupation of its members but rather by the contribution or acts done in relation to the improvements to the real property. Thus, the statute immunizes from liability after 12 years "any" person lawfully performing or furnishing such activities. The word "any" is generally used in the sense of "all" or "every" and its meaning is most comprehensive.
234 Pa. Super. at 490-491, 340 A.2d at 493.
Leach clearly establishes that any civil defendant who performed one of the activities listed in the act can use the twelve year limitations period as a defense. Furthermore, following the decision in Leach, the act's protection was judicially extended to include defendant manufacturers who had designed, planned or constructed improvements to real property. Mitchell v. United Elevator Co., Inc., supra*fn6 (elevator manufacturer immunized from liability by virtue of Sec. 5536).
[ 339 Pa. Super. Page 487]
Despite this Court's holding that the act applies to "any" person engaged in one of the statutorily enumerated activities and despite decisions holding that manufacturers of real property improvements fall within the act, appellant argues for a more restrictive reading of the statutory language. Appellant maintains that the correct test is whether the supplier of the product had to customize the product to the real estate and had to assist in its installation.
Appellant cites no authority for such a restrictive reading of the statute. In fact, this Court in Mitchell rejected an interpretation of Sec. 5536 very similar to that espoused by appellant. In Mitchell, the trial court held that an elevator manufacturer was not protected by the act, because construction of an elevator was "like supplying a ready made item that was merely incorporated into the building." 290 Pa. Super. at 488, 434 A.2d at 1249. This Court rejected that narrow view of the act's scope and stated that "the fact that the basic design of the elevator may be identical in different buildings does not render the elevator any less an improvement to real estate." 290 Pa. Super. at 488, 434 A.2d at 1249.
Appellant's argument advocating a restrictive reading of the act's coverage is not supported by either the statutory language or the case law. This Court concludes that the appellees, as alleged manufacturers of the skydome, necessarily planned, designed and built the skydome, and are, therefore, persons within the class afforded protection by the act.
Thus far this Court has decided that (1) a skydome is an improvement to real property within the meaning of Sec. 5536; and (2) that appellees are protected defendants under the act. The only question remaining is whether the lower court properly granted summary judgment in favor of appellees.
Rule 1035(b) of the Pennsylvania Rules of Civil Procedure states that a court shall enter summary judgment "if the pleadings, depositions, answers to interrogatories
[ 339 Pa. Super. Page 488]
and admissions on file, together with affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In the instant case, the skydome involved in the accident was part of the roof erected during the construction of the high school. The high school's answers to interrogatories reveal that the construction was completed in 1961 and that the skydomes were installed in that year. The twelve year statutory period, therefore, began to run in 1961 and expired in 1973.*fn7 Since appellant's personal injury claim was not filed until July of 1981, we hold that the claims against appellees are time barred and that the lower court properly granted appellees' motions for summary judgment.
Accordingly, the judgment of the lower court is affirmed.