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CINTRON v. BESSER CO.

April 11, 1995

DOMINGO CINTRON, THEDA CINTRON, Plaintiffs
v.
BESSER COMPANY, Defendant



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

 The defendant, Besser Company, has filed a motion for summary judgment based on 42 Pa. C.S. § 5536, a Pennsylvania statute of repose prohibiting suits for injuries inflicted by an improvement to real property more than twelve years after construction of the improvement. The plaintiffs, Domingo Cintron (Cintron), and his wife, Theda Cintron, filed this products liability action to recover for severe injuries to Cintron's hands when he became caught in a skip loader the defendant manufactured and sold. We will evaluate the defendant's motion under the well established standard. See Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n. 3 (3d Cir. 1994).

 Based on the record submitted, the following is the undisputed background for summary judgment purposes. On February 14, 1980, Besser sold a model SL-56 skip loader to Peninsula Asphalt Company (Peninsula) in Traverse City, Michigan. Installation was completed in May 1980. After Peninsula went bankrupt, Besser reacquired the skip loader and, on August 27, 1987, sold it to Trenwyth Industries, Inc. (Trenwyth), in Emigsville, Pennsylvania, the plaintiff's employer. Sometime in 1988 and without Besser's participation, Trenwyth dismantled the skip loader, transported it to Pennsylvania, and reassembled it in its own plant. Cintron was injured on October 13, 1992, and the plaintiffs filed their complaint on September 27, 1993.

 Section 5536 provides as follows, 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:
 
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
 
. . . .
 
(3) Injury to the person . . . arising out of any such deficiency.
 
. . . .

 "As a statute of repose, Section 5536 does not merely bar a party's right to a remedy as a statute of limitations does, but it completely abolishes and eliminates the cause of action." Noll v. Harrisburg Area YMCA, 537 Pa. 274, 280, 643 A.2d 81, 84 (1994); Luzadder v. Despatch Oven Co., 834 F.2d 355 (3d Cir. 1987). In accord with the statutory language:

 
A party moving for protection under the statute of repose must show: (1) what is supplied is an improvement to real property; (2) more than twelve years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party must be within the class which is protected by the statute. McConnaughey, Pa. at , 637 A.2d at 1333; Schmoyer, 423 Pa.Super. at 596, 621 A.2d at 694. See also Gnall v. Illinois Water Treatment Co., 640 F. Supp. 815, 817 (M.D. Pa. 1986).

 Noll, 537 Pa. at 281, 643 A.2d at 84.

 The defendant argues that it meets all three of these requirements. First, it contends (for reasons we need not detail) that the skip loader is an improvement to real property because it qualifies as a fixture under Pennsylvania law. Second, it contends that more than twelve years have elapsed between the completion of the skip loader and the plaintiff's injury. In support of this position, the defendant maintains that the time period begins to run from the date the skip loader was manufactured, not from the date it was installed in the real property. This would have been sometime before February 14, 1980, the date of sale to Peninsula. Alternatively, the defendant asserts that the time began to run from May 1980, the date of installation at Peninsula. Both of these dates are more than twelve years before October 13, 1992, the date of the ...


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