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Morgan v. Petroleum Products Equipment Co.

Superior Court of Pennsylvania

May 13, 2014

LISA M. MORGAN, TRUSTEE, ON BEHALF OF THE MARITAL TRUST OF ROBERT M. MUMMA, Appellant
v.
PETROLEUM PRODUCTS EQUIPMENT COMPANY, CARLOS R. LEFFLER, INC., AND MCCLURE COMPANY, T/A MCCLURE MECHANICAL SERVICES, Appellees

Appeal from the Order dated June 30, 2004. In the Court of Common Pleas of Cumberland County, Civil Division at No: 1994-05926. Before HESS, J.

Andrew L. Swope, Harrisburg, for appellant.

Adam L. Seiferth, Lemoyne, for McClure Company, for appellee.

BEFORE: GANTMAN, P.J., DONOHUE, and STABILE, JJ. OPINION BY STABILE, J.

OPINION

Page 824

STABILE, J.:

Appellant/plaintiff Lisa M. Morgan, Trustee, on behalf of the Marital Trust of Robert M. Mumma, appeals from an order of the Court of Common Pleas of Cumberland County (trial court), which granted summary judgment in favor of Appellee/defendant McClure Company, T/A McClure Mechanical Services (McClure). We affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

As recounted by the trial court in its 2004 opinion relating to its grant of summary judgment in favor of McClure:

[Appellant] own[s] real estate located at 1041 Mumma Road, Wormleysburg, Cumberland County, Pennsylvania. A commercial complex known as Pennsboro Center is located on this property. [Appellant] allege[s] that fuel oil for the boilers was provided by an underground storage tank and associated underground product lines. On . . . March 1, 1990, [Appellant] contacted [McClure] regarding an odor of fuel oil in the base of an elevator shaft at Pennsboro Center.
On March 1, 1990, McClure sent an employee to Pennsboro Center . . . to assess the problem. McClure's employee discovered fuel oil in the elevator shaft, and on March 16, 1990, began work on a leak found in the underground product lines in the parking lot. On March 27, 1990, McClure replaced the underground product lines. The new underground product lines were reconnected to the existing product lines at a point before they entered the building. [Appellant] allege[s] McClure did not perform a pressure tightness test on the underground product lines. [Appellant] also allege[s] that McClure reported that it had repaired the underground product lines and certified that the underground

Page 825

storage tank was tight and not leaking. It is undisputed that McClure performed no other work for [Appellant] after March 27, 1990, which relates to, or is part of this action.
In October 1990, the Pennsylvania Department of Environmental Resources (hereinafter " PaDER" ) [now Department of Environmental Protection] discovered fuel oil in the storm water culvert located underneath Mumma Road. [Appellants] retained Petroleum Products Equipment Company (hereinafter " Petroleum Products" ) to perform a series of tightness tests of the underground storage tank and the underground product lines. These tests revealed a leak in the underground storage tank system. Thereafter, Petroleum Products performed repair work on the storage tank and/or product lines.
In March 1991, Petroleum Products completed the installation of a new underground storage tank. An examination of the removed underground storage tank revealed that there was no leak. An examination of the tank pit after removal of the storage tank did not reveal petroleum hydrocarbon contamination.
On . . . March 27, 1991, PaDER discovered fuel oil was entering the storm water culvert in the vicinity of the Pennsboro Center. In 1992, PaDER contacted [Appellant] to perform a site assessment at Pennsboro Center. As a result, [Appellant] retained Tethys Consultants, Inc. . . . to perform the tightness test on the underground storage tank and product lines at Pennsboro Center. On July 6, 1992, Tethys proceeded to excavate the product lines. Numerous perforations in the supply and return lines were discovered at the point where the product lines entered the building.
. . . .
[Appellant] commenced this action on October 14, 1994 by filing a [p]raecipe for [w]rit of [s]ummons against [defendants] Petroleum Products and Carlos R. Leffler, Inc. On May 11, 1995, [Appellant] added [McClure] as a defendant by filing a [p]raecipe for [w]rit of [s]ummons. [Thereafter, Appellant] filed a complaint against all of the defendants in the suit. After preliminary objections were disposed of, [Appellant] filed [its] [f]irst [a]mended [c]omplaint.[1] McClure filed its [a]nswer and [n]ew [m]atter in the [n]ature of a [c]rossclaim against Petroleum and Leffler.[2]
On November 16, 2000, McClure filed its initial [m]otion for [s]ummary [j]udgment. [The trial court] denied McClure's [m]otion[,] because the facts were 'unclear' with regard to when [Appellant] should have discovered the alleged injury.
Following the denial of summary judgment, the parties performed additional discovery. On January 28, 2003, the defendants [deposed Appellant's representative] Lisa M. Morgan. Because of the admissions of Ms. Morgan in her deposition, McClure filed its [r]enewed

Page 826

[m]otion for [s]ummary [j]udgment on January 1, 2004, asserting that all of [Appellant's] claims against McClure are barred by the statute of limitations.

Trial Court Opinion, 6/30/04, at 1-4. On June 30, 2004, the trial court granted McClure's renewed motion for summary judgment against Appellant.[3] In so doing, it concluded:

Ms. Morgan's deposition testimony clearly establishes that [Appellant] discovered the existence of a cause of action against McClure not later than July 6, 1992. In light of this new evidence, the statute of limitations bars the present claims for negligence, which was not filed by [Appellant] until May 11, 1995. By the same token, [Appellant's] cause of action under the STSPA is also barred by the statute of limitations. Furthermore, the breach of contract claim is also time barred because [Appellant] discovered the claim within the four-year statute of limitations, which began from possible date of breach of contract, but [Appellant] did not file the claim until the period ended.[FN]
FN: The latest possible date of a breach of contract is March 27, 1990, which is the last day McClure worked for [Appellant].

Id. at 11-12. On June 14, 2013, Appellant filed a praecipe to discontinue the suit with prejudice as to defendants Petroleum Products and Carlos R. Leffler under Pa.R.C.P.No. 229. Following its filing of the praecipe to discontinue, Appellant filed this appeal from the trial court's June 30, 2004, order granting summary judgment in favor of McClure.[4]

On appeal,[5] Appellant raises four issues for our review. First, it argues that the trial court erred in reconsidering its prior ruling that denied McClure's initial summary judgment motion.[6] Second, Appellant argues that the trial court erred in granting McClure's renewed summary judgment motion because, in so doing, it invaded the province of a jury by weighing material facts to determine the date by which Appellant should have discovered its cause of action against McClure. Third, Appellant argues that the trial court erred in failing to give Appellant the full benefit of the four-year limitations period on its breach of contract claim against McClure. Finally, Appellant argues that the trial court erred in applying a two-year limitations

Page 827

period to its STSPA ...


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