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GNALL v. ILLINOIS WATER TREATMENT CO.

July 11, 1986

Joseph J. Gnall, Jr., and Susan E. Gnall, his wife, Plaintiffs
v.
Illinois Water Treatment Company and Stover Tanks, as purchased by Bell & Gossett, a division of International Telephone & Telegraph Corporation, Defendants v. Robert J. Sigel, Inc., Turner Construction Company and Corbit's Inc., Third Party Defendant


Richard P. Conaboy, United States District Judge.


The opinion of the court was delivered by: CONABOY

Richard P. Conaboy, United States District Judge

 On May 28, 1986 this Court conducted a non-jury trial the object of which was to determine whether the Statute of Repose, 42 Pa. C.S.A. § 5536, may serve as a valid defense to any or all Defendants in this products liability lawsuit initiated on April 8, 1985. The theory of recovery is that Plaintiff slipped and fell from a tank which was an inherently dangerous product by reason of its lack of a non-slip surface and/or "grab bars". That Plaintiff suffered serious injuries is not in dispute and the question we must now resolve is whether said tank is properly viewed as a mere product in terms of Section 402(a) of the Restatement (Second) of Torts or, rather, is more properly viewed as an "improvement to real property" in terms of the Pennsylvania Statute of Repose.

 The tank from which Plaintiff fell is one of a series of tanks which, together with much piping and many valves and gauges, comprise an elaborate water treatment system at the RCA manufacturing facility in Dunmore, Pennsylvania. If we are to find that Plaintiff's action survives, we must first find that one or more of the Defendants are persons or entities which the Pennsylvania Legislature did not wish to afford protection when it enacted the Statute of Repose.

 The Statute of Repose states 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 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.

 The above-quoted language makes it plain that to be afforded the protection of the statute a Defendant must demonstrate that: (a) more than 12 years have elapsed between the completion of the improvement and the injury complained of; (b) the allegedly defective product or structure which caused the injury constitutes an "improvement to real property"; and (c) it is one of the class of persons "lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction" of the object in question.

 In the instant case there can be no argument that the 12 year provision of the statute is met by all Defendants. Indeed, the parties have stipulated that work on the water treatment system was concluded in 1969 and Plaintiffs' mishap occurred in 1983. Thus, sufficient time elapsed between installation and injury to enable all Defendants to meet the 12 year provision of the Statute of Repose.

 Similarly, we find that the water treatment system at RCA is an "improvement to real property" in terms of Pennsylvania case law. In the case of Mitchell v. United Elevator Co., 290 Pa. Super. 476, 434 A.2d 1243 (1981), the Superior Court of Pennsylvania relied upon the definition of "improvement" found in Black's Law Dictionary in considering a case which featured an argument on the Statute of Repose. Said definition is:

 
A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purpose. . . .

 After hearing the testimony of Michael Howell, an employee of Defendant Illinois Water Treatment Company, to the effect that, as a unit, the water treatment system at RCA would not have utility elsewhere because it was designed specifically to treat the water available at that site *fn1" and bring it to the exact quality demanded for RCA's particular industrial application, we were inclined to find that the system is an "improvement to real property". We were so inclined because it seemed clear that RCA could not conduct its operations in Dunmore without the system. Hence, the water treatment system is not merely an improvement but, rather, is a virtual necessity. *fn2" Our inclination was further bolstered by our inspection of the system on the afternoon of May 28, 1986. It is a huge installation, obviously designed with the specific building in mind. Moreover, it is installed in such a manner that it is virtually permanent and obviously could not be taken off the site except with enormous expense and potential for damaging the building itself. *fn3" In light of the testimony and our visual inspection of the water treatment system, we have absolutely no reservation in finding as a matter of law that it constitutes an "improvement to real property" as conceptualized in Mitchell, supra. Therefore, all Defendants played a part in designing or constructing such an improvement and all Defendants satisfy the second criterion for protection under the Statute of Repose.

 It is the third criterion -- the determination as to whether all Defendants herein are among the class the legislature sought to protect in enacting the Statute of Repose -- which is the thorny question. It is eminently plain that Defendants Illinois Water Treatment Company (designer of the system), Robert J. Sigel, Inc. (the firm which supervised the installation), and Turner Construction Company and Corbit's, Inc. (the firms which performed the tasks incident to the installation) are among that class of persons "furnishing the design, planning, supervision or observation of construction, or construction" and are, thus, not appropriate targets of this complaint.

 It is, however, less clear whether Stover Tanks (now owned by Bell and Gossett, a division of ITT) is among the class the legislature sought to protect when it enacted the statute. Stover's role was to manufacture the various tanks which are a prominent part of the water treatment system. Plaintiff would have us consider these tanks in isolation as mere products rather than as integral portions of an "improvement to real estate". Plaintiff argues that to do otherwise would emasculate § 402(a) of the Restatement (Second) of Torts and would ...


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