injury. This argument is buttressed by defendant's position that the date of installation at Trenwyth is irrelevant, and that the statute begins to run at the latest from the date of installation at Peninsula.
Third, Besser contends that its activity in regard to the skip loader is within the class of activity protected by the statute because it designed and manufactured the skip loader by adapting it to the general layout of the Peninsula plant.
We will not detail the plaintiff's opposition to the defendant's motion. For the reasons set forth below, some of them advanced by the plaintiffs, we deny the defendant's motion.
To begin with, the defendant has failed to satisfy the second requirement. First, the defendant's contention that the time begins to run from the date the skip loader was built is contrary to Pennsylvania law. In another context, the Pennsylvania Supreme Court has decided that the statutory twelve-year period starts "when the entire construction project is so completed that it can be used by the general public." Noll, supra, 537 Pa. at 281, 643 A.2d at 84. For our purposes, this means the period started when the skip loader was made part of the real property. Thus, the date of manufacture of the skip loader is irrelevant. See also Beaver v. Dansk Industri Syndicat A/S, 838 F. Supp. 206, 213-14 (E.D. Pa. 1993).
Second, the defendant's reliance on the date of installation at the Peninsula plant is also wrong. The statutory language covers improvements to real property where the injury occurred. Assuming that the statute otherwise applies, the plaintiff is not claiming injury from a deficiency in an improvement to the Peninsula plant; he is claiming injury from a deficiency in an improvement to the Trenwyth plant. That improvement occurred sometime in 1988, well within the twelve-year period.
The defendant's argument that the Peninsula period must be added to the Trenwyth period might have force in other circumstances, but we can safely reject it here. It was Besser that sold the skip loader to Trenwyth after reacquiring it from Peninsula. Besser's involvement in the resale certainly renders the statute inapplicable in light of one of the major goals of the statute of repose. The statute is supposed to protect participants in the installation of an improvement from an extended period of liability. See Noll, supra, 537 Pa. at 283, 643 A.2d at 85-86 (citing cases and treatises). However, if one of those participants at a later date reacquires the improvement for installation elsewhere (presumably with knowledge of contemporaneous safety standards), this purpose is not frustrated by running the time period from the date of the later installation.
We therefore conclude that the defendant has failed to establish that twelve years elapsed between completion of the improvement and the injury.
Finally, the defendant has not satisfied the third requirement concerning activity protected by the statute. Contrary to the plaintiffs' position, a manufacturer is not excluded under this requirement as a matter of law, id. at 284, 643 A.2d at 86, but its activity must have been conducted in relation to the real property. Id. at 285, 643 A.2d at 86-87. We have already decided that the real property relevant to this case is the Trenwyth plant. Besser has presented no evidence that it undertook any activity in relation to the design of that plant. All it did was sell the skip loader to Trenwyth, activity the statute was not intended to protect. Besser's evidence that its construction of the skip loader took into account the layout of the Peninsula plant is immaterial.
Accordingly, this 11th day of April, 1995, upon consideration of the defendant, Besser Company's, motion for summary judgment, it is ordered that the motion is denied.
William W. Caldwell
United States District Judge
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