Bobbett, C. v. Fosco, A. ( 2014 )

J-A29024-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
CAMERON BOBBETT AND DENA : IN THE SUPERIOR COURT OF
BOBBETT, : PENNSYLVANIA
:
Appellants :
:
v. :
:
ALFONSO A. FOSCO AND JUDITH L. :
FOSCO, :
:
Appellees : No. 320 WDA 2014
Appeal from the Order Entered January 23, 2014,
in the Court of Common Pleas of Allegheny County,
Civil Division at No(s): GD 12-02-021868
BEFORE: FORD ELLIOTT, P.J.E., ALLEN and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.: DECEMBER 03, 2014
I respectfully dissent.
In my view, Appellants’ multiple causes of action are based upon one
basic allegation, namely, Sellers misrepresented in the Seller Disclosure
Statement that they were unaware of any leaks, backups or other problems
relating to any of the plumbing, water, and sewage-related items. Stated
succinctly, Appellants maintain that Sellers’ misrepresentation injured them
by causing them unknowingly to purchase a home with significant sewage
issues.
In terms of the timeliness of their various causes of action, Appellants
invoke the discovery rule. Regarding the discovery rule, our Supreme Court
has explained that
* Retired Senior Judge assigned to the Superior Court.
J-A29024-14
when a court is presented with the assertion of the discovery
rules application, it must address the ability of the damaged
party, exercising reasonable diligence, to ascertain that he has
been injured and by what cause. Since this question involves a
factual determination as to whether a party was able, in the
exercise of reasonable diligence, to know of his injury and its
cause, ordinarily, a jury is to decide it. Where, however,
reasonable minds would not differ in finding that a party knew or
should have known on the exercise of reasonable diligence of his
injury and its cause, the court determines that the discovery rule
does not apply as a matter of law.
When the discovery rule applies, the statute of limitations
does not commence to run at the instant that the right to
institute suit arises, i.e., when the injury occurs. Rather, the
statute is tolled, and does not begin to run until the injured party
discovers or reasonably should discover that he has been injured
and that his injury has been caused by another party’s conduct.
Whether the statute of limitations has run on a claim is a
question of law for the trial court to determine; but the question
as to when a party's injury and its cause were discovered or
discoverable is for the jury.
Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations omitted).
Furthermore, when we review an order granting a motion for judgment on
the pleadings, “[w]e will affirm the grant of such a motion only when the
moving party’s right to succeed is certain and the case is so free from doubt
that the trial would clearly be a fruitless exercise.” Erie Ins. Exchange v.
Conley, 29 A.3d 389, 391-92 (Pa. Super. 2011) (citation omitted).
Appellants and Sellers closed on the home on July 11, 2005.
Appellants pled in their complaint that they experienced sewage backups in
December of 2005 and July of 2009. They also plad that, in September of
2011, a plumber informed that, during the period of July of 2004 and March
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of 2005, he had been to the property many times to snake out the sewer
line.
A fact-finder could determine, as Sellers argue, that Appellants should
have known through the exercise of due diligence of their injury and its
cause when they experienced sewage backups in 2005 and 2009. I also
believe that a fact-finder reasonably could conclude, as Appellants contend,
that Appellants could not have known of Sellers alleged misrepresentations
until the plumber informed them in September of 2011 that he had been to
the home several times to address sewage-backup issues when Sellers lived
at the property. If a fact-finder would agree with Sellers’ argument, then
the statute of limitations would bar Appellants’ causes of action. If,
however, a fact-finder would agree with Appellants’ contention, then the
statute of limitations would not time bar those causes of action.
In my view, reasonable minds could differ in finding when Appellants
knew or should have known through the exercise of due diligence that
Sellers allegedly misrepresented themselves in the Seller Disclosure
Statement and that the misrepresentation injured Appellants. Because
Sellers’ right to succeed in this case is uncertain and the case is not free
from doubt, I would reverse the order granting Sellers’ motion for judgment
on the pleadings.
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