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David and Leslie Gleason, Individually and As Parents of Lacie L. v. Borough of Moosic

April 4, 2011


Appeal from the Order of the Superior Court dated 5-1-2009, at No. 943 MDA 2008 affirming the Order of the Lackawanna County Court of Common Pleas dated 4-23-2008 at No. 01-CV-5218

The opinion of the court was delivered by: Mr. Justice McCAFFERY


ARGUED: October 20, 2010


We review here the Superior Court's affirmance of the trial court's order granting Appellees' motions for summary judgment and dismissing Appellants' negligence action on the basis that their lawsuit was filed outside the applicable statute of limitations. Specifically, we consider whether the lower courts erred in determining that the discovery rule exception did not toll the limitations period. Because, under the specific factual scenario presented here, a jury question existed as to whether the exercise of reasonable diligence could have permitted Appellants to discover their injury and its cause, we determine that summary judgment was improperly granted and, accordingly, we reverse.

This case concerns so-called "toxic mold" contamination. In 1993, a public sewer system was constructed in Moosic, Pennsylvania, by the Borough of Moosic ("the Borough"), pursuant to a written contract it executed with a construction company, M.F. Ronca & Sons ("Ronca") and an engineering firm, Michael J. Pasonick, Jr. & Associates ("Pasonick") (collectively "Appellees"). Construction of the sewer system required the demolition and rebuilding of Gleason Drive in Moosic, including that portion of the roadway adjacent to the home of Appellants, David and Leslie Gleason, and their children, Laura, Derek, and Lacie. Shortly after the roadway had been rebuilt, during a one-week period of repeated, heavy rains, Appellants' basement flooded three times. David Gleason believed the flooding occurred because the pitch of the rebuilt roadway drained excessive rainwater onto Appellants' property. He contacted the Borough, which installed a corrective swale that diverted most rainwater runoff away from Appellants' residence, and the incidents of flooding ceased.

Mrs. Gleason's mother, Lorraine Goeringer, who is not a party to this action, had lived in a finished, three-room apartment in the basement of Appellants' home since 1981. She moved out in 1996 or 1997 for undisclosed reasons. In the late summer of 1997, David and Derek Gleason began to renovate the basement with the intention of creating a single, open recreation room for the family. During this process, they removed all interior walls and all carpeting. Upon doing so, they noticed water-stained and moldy sheetrock along the exterior walls, discolored insulation and building studs, and black, green, and white discoloration on the underside of the wall-to-wall carpeting. Shortly after the removal of the interior walls and carpeting, David Gleason fell ill, and the renovation project was never completed.

Beginning in the fall of 1997, and over the course of the next several years, all members of the Gleason household were repeatedly stricken with a variety of physical ailments. Mr. Gleason experienced a chronic, hacking cough, shortness of breath, repeated vomiting, burning eyes, and fatigue. Mrs. Gleason developed uterine polyps, migraine headaches, and fungal infections on her fingernails and toenails. Derek Gleason experienced frequent, recurrent cold symptoms, and developed acne on his chest, face, and back, as well as sinus polyps that required surgical removal. Laura Gleason suffered recurrent nosebleeds and boils on her skin, and Lacie Gleason had frequent bouts of bronchitis and developed scaly, itchy skin. Each family member was treated by various physicians for their ailments during the years from 1997 to 2000.

In early 2000, Mr. Gleason watched a television program entitled "48 Hours: Is Your Home Making You Sick?" The program documented a case in Texas in which a residence contaminated with mold caused the family living in the residence to fall ill with symptoms that were similar to the ailments Appellants had been experiencing. Thereafter, suspecting that their home might be contaminated with mold, Appellants retained counsel, who engaged Indoor Air Solutions, Inc. ("IAS") to test the air quality in Appellants' home. The test was conducted in March 2000, and IAS prepared a report, dated April 10, 2000, detailing the results. The report showed that the air throughout the home, particularly the air in the basement, was populated by fungal and bacterial organisms in counts that vastly exceeded recommended safe levels. Moreover, the report noted that several of the species of organisms discovered were highly pathogenic and potentially life-threatening, and that immediate corrective action was required. Appellants abandoned the home and the majority of its contents, including all clothing and furniture, on June 1, 2000.

On October 17, 2001, Appellants filed a complaint against Appellees alleging negligence and breach of contract. Among other things, the complaint alleged that the negligent construction of the roadway and corrective swale had caused rainwater runoff to accumulate, which had resulted in permanent moisture around the foundation of Appellants' home that caused the formation of toxic mold. On November 27, 2007, after the pleadings had been closed and discovery was complete, the Borough filed a motion for summary judgment, alleging the following grounds for relief: 1) the Borough had no direct or vicarious liability because the roadway had been constructed by Ronca, and inspected by Pasonick, and both entities were independent contractors, not employees of the Borough; 2) the Borough had immunity under the Political Subdivisions Tort Claims Act, 42 Pa.C.S. §8541, et seq., and Appellants had not shown that any exceptions to immunity applied; and 3) Appellants' lawsuit was barred by the statute of limitations applicable to negligence actions.*fn1

Appellants did not file an answer to the Borough's motion for summary judgment. On December 21, 2007, Ronca filed a cross-motion for summary judgment claiming that (1) Appellants' action was barred by the statute of limitations applicable to negligence actions; and (2) Appellants' breach of contract action was barred as a matter of law because Appellants were not intended third-party beneficiaries of the contract between Ronca and the Borough. On February 11, 2008, Appellants filed an answer to Ronca's cross-motion for summary judgment, claiming that the discovery rule tolled the statute of limitations.*fn2

On March 31, 2008, Pasonick filed an answer opposing the Borough's motion for summary judgment, challenging the Borough's claim that no material issue of fact existed regarding its governmental immunity. That same date, Pasonick filed its own motion for summary judgment raising the same legal claims as contained in Ronca's cross-motion for summary judgment, and including the additional assertion that Pasonick had not performed any of the actual construction work at issue.

On April 23, 2008, the trial court granted Appellees' respective motions for summary judgment. The court determined that Appellants' cause of action was barred by the two-year statute of limitations applicable to negligence actions. Appellants appealed to the Superior Court and asserted that the entry of summary judgment was improper because they had been unable, through reasonable diligence, to discover their injury and its cause until early 2000, and therefore, the applicable statute of limitations had been tolled until that time.*fn3

In a divided memorandum decision, the Superior Court affirmed. The majority credited, and appeared to adopt, the trial court's reasoning that Appellants knew the basement initially had flooded in 1993, and should have known of their injury and its cause by 1997, when they saw mold and discoloration and began to experience symptoms of illness during and after the aborted basement renovation. Thus, the Superior Court majority reasoned that the two-year ...

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