J.E. Rupert v. Campus Crafts, Inc. and Bradco Supply Co., Inc. v. V. Comly

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James E. Rupert, :
:
Appellant :
:
v. : No. 90 C.D. 2020
: Argued: September 23, 2021
Campus Crafts, Inc. and Bradco :
Supply Co., Inc. :
:
v. :
:
Velvet Comly, William D. Comly, Jr., :
Pennsylvania Department of :
Transportation of the Commonwealth :
of Pennsylvania, Spring Township, :
West Penn Power Company, :
FirstEnergy Corp., FirstEnergy :
Solutions Corp. f/k/a FirstEnergy :
Services Corp., U.S. Municipal :
Supply, Inc. and Vision Metalizers, :
Inc. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: October 27, 2021
James E. Rupert (Plaintiff) appeals the order of the Centre County
Court of Common Pleas (trial court) sustaining the Motions for Judgment on the
Pleadings filed by the Pennsylvania Department of Transportation (PennDOT) and
Campus Crafts, Inc. (Campus), and in which Bradco Supply Co., Inc. (Bradco),
Velvet Comly and William Comly, Jr. (collectively, Comly), Spring Township
(Township), West Penn Power Company, FirstEnergy Corp., formerly known as
FirstEnergy Services Corp. (collectively, FirstEnergy), U.S. Municipal Supply, Inc.
(U.S. Municipal), and Vision Metalizers (Vision) joined. We affirm.
The extensive and complex factual and procedural history of this case
may be summarized, in relevant part, as follows. On July 3, 2014, Velvet Comly
traveled in a motor vehicle in the northbound lane of Township Route 567 to its
intersection with State Route 550 in Centre County. Reproduced Record (R.R.) at
323a. At the same time, Plaintiff traveled east on a motorcycle on State Route 550
toward the intersection. Id. In turning left onto State Route 550, Velvet Comly
relied on a convex mirror at the intersection. Id. at 19a, 82a, 326a. Seeing no traffic
approaching the intersection in the mirror, Velvet Comly pulled out into the
intersection to make the turn, where her vehicle collided with Plaintiff’s motorcycle.
Id. at 324a. Plaintiff sustained serious injuries from the collision. Id. at 19a-22a. A
passenger on a motorcycle following Plaintiff also sustained injuries from the
accident, but his injuries were not as severe.
At the time of the collision, the sight distance approaching the
intersection is limited because Township Route 567 slopes downward to the
intersection while State Route 550 crests upward along a curve. R.R. at 603a, 604a,
609a, 610a. PennDOT permitted the Township to place the mirror at the intersection
at the Township’s request so that drivers on Township Route 567 would have
increased sight distance of traffic traveling east on State Route 550. Id. at 604a.
There was a yellow sign posted below the mirror, which stated “VEHICLES ARE
CLOSER THAN THEY APPEAR.” Id. at 604a, 613a.
2
A month after the accident, two of Plaintiff’s engineering experts,
Justin Schorr and Steven Schorr, inspected the accident scene and ultimately
concluded that deficiencies in the curvature of the mirror, including the shortness of
the mirror’s radius, did not provide Velvet Comly with additional sight distance of
State Route 550. R.R. at 326a-328a. Specifically, the experts noted that PennDOT
“specifies that traffic mirrors are required to have a minimum radius of curvature of
80 inches,” and that “[m]easurements of the convex mirror at the intersection of
[Township Route 567] and [State Roue 550] demonstrate that the radius of curvature
(at the time of the collision) was 52.8 inches, indicating that the mirror failed to meet
the required specifications.” Id. at 328a.1 As a result, the mirror provided Velvet
1
In relevant part, PennDOT Publication 46, Chapter 11.10 states:
Flat mirrors are unacceptable for use at highway intersections
because they provide a very small field of vision and require every
observer’s eyes to be at the proper location to effectively use the
mirror. On the other hand, convex mirrors overcome the alignment
issue and have been used along highways with some success despite
the following inherent problems:
1. The image is distorted and reversed.
2. Vehicles appear to be much farther away than they actually are.
For example, the image of an approaching car when it is 100 feet
away from the mirror will be only about 2 to 2.5 inches wide on a
standard convex mirror.
3. Mirrors require routine cleaning and are subject to vandalism.
4. Mirrors are fairly expensive (approximately $250).
5. Unfamiliar drivers require time to become oriented when
attempting to use a mirror.
***
(Footnote continued on next page…)
3
Comly with less than 100 feet of sight distance while her unaided vision would have
had 125 feet of sight distance. Id. at 327a. The experts made the following relevant
conclusions:
8. The 52.8-inch radius convex mirror present at the time
of the collision did not add any additional sight distance
compared to what is visible to the naked eye when simply
looking to the left at the edge of the roadway. By using a
deficient mirror at this intersection, a more hazardous
situation was created than if the correct mirror had been
installed or if no mirror had been installed at all.
9. There were other applicable counter measures available
to correct the problems created by the insufficient sight
distance at the intersection. One such countermeasure
includes restricting multi-direction travel on [Township
Route 567] by making it one-way (southbound) from
[State Route 550] to Green Street. The available data is
consistent with the impacts of this change being minimal
in terms of additional delays for local operators.
Convex mirrors are normally available at local glass dealers. As a
minimum, they shall:
1. be designed for exterior use;
2. be made of “Plexiglas” or shatterproof glass;
3. have a minimum diameter of 36 inches; and
4. have a minimum radius of curvature of 80 inches.
If possible, position convex mirrors directly ahead of the intended
user on the far side of the roadway, but it is best to experiment at
other locations prior to permanently installing it. The angle formed
between the observer, the mirror and the approaching vehicles
should be 90 degrees or less. Typically, mount convex mirrors 10
to 15 feet above the roadway surface and brace it to reduce the
chances of it becoming misaligned.
R.R. at 645a-646a.
4
10. The intersection of [Township Route 567] and [State
Route 550] is hazardous in that the sight distance does not
meet PennDOT’s minimum requirements. This hazard
was not alleviated by placing the traffic mirror in question
which (like the intersection sight distance) failed to meet
PennDOT’s minimum requirements.
Id. at 329a (emphasis in original).
On May 28, 2015, Plaintiff filed a Complaint in the trial court against
PennDOT, the Township, Comly, and Nationwide Insurance. R.R. at 266a-292a. In
the Complaint, Plaintiff alleged, inter alia, that PennDOT was negligent for “failing
to provide adequate . . . mirrors, . . . which would warn and/or permit motorists, and
in particular motorcyclists, to safely traverse the . . . intersection between [State
Route 550] and [Township Route 567], or to safely detour around same or in the
alternative, improperly placing said . . . mirrors[,]” and for “failing to install an
appropriate mirror at the . . . intersection of [State Route 550] and [Township Route
567], . . . so that traffic entering the intersection from [Township Route 567 has]
adequate sight distance.” R.R. at 273a, 274a-275a. Appended to the Complaint is a
Verification executed by Plaintiff in which he states, in relevant part, that the
Complaint “is based upon information, which [he has] furnished to my counsel and
information, which has been gathered by [his] counsel in preparation for the
prosecution of this lawsuit,” “and to the extent [that] it is based upon information
which [he has] given to [his] counsel, it is true and correct to the best of [his]
knowledge, information, and belief.” Id. at 291a.
On August 31, 2015, Plaintiff filed a filed a First Amended Complaint
(2015 Complaint) in the trial court against PennDOT, the Township, Comly, and
Nationwide Insurance. R.R. at 294a-321a. In the First Amended Complaint,
Plaintiff alleged, inter alia, that PennDOT was negligent in the following respects:
5
a. allowing a dangerous, defective, hazardous,
inadequate mirror to exist at the intersection of [State
Route 550] and [Township Route 567] . . . for motorists’
use in aiding visibility of other traffic approaching the
aforesaid intersection that created a reasonabl[y]
foreseeable risk of the kind of injury suffered by Plaintiff[]
at the intersection of [State Route 550] and [Township
Route 567];
***
c. failing to correct the inadequate mirror existing at
the intersection of [State Route 550] and [Township Route
576], . . . for motorists’ use in aiding visibility of other
traffic approaching the aforesaid intersection that created
a reasonabl[y] foreseeable risk of the kind of injury
suffered by Plaintiff[];
d. the creation and maintenance of a defective,
hazardous, inadequate, and dangerous mirror for
motorists’ use in aiding visibility of other traffic at the
intersection of [State Route 550] and [Township Route
567], . . . as it applies to motorists’ and motorcyclists’
safety, that created a reasonabl[y] foreseeable risk of the
kind of injury suffered by Plaintiff[] at the intersection of
[State Route 550] and [Township Route 567];
***
g. failing to provide adequate . . . mirrors, . . . which
would warn and/or permit motorists, and in particular
motorcyclists, to safely traverse the . . . intersection
between [State Route 550] and [Township Route 567], or
to safely detour around same or in the alternative,
improperly placing said . . . mirrors[;]
h. failing to correct the inadequate mirror existing at
the intersection of [State Route 550] and [Township Route
567] . . . for motorists’ use in aiding visibility of other
traffic approaching the aforesaid intersection that created
a reasonabl[y] foreseeable risk of the kind of injury
suffered by Plaintiff[] at the intersection of [State Route
550] and [Township Route 567];
6
***
j. negligence in the creation and/or maintenance of [a]
defective, hazardous and/or dangerous[ly] inadequate
mirror existing at the intersection of [State Route 550] and
[Township Route 567] . . . for motorists’ use in aiding
visibility of other traffic approaching the aforesaid
intersection that created a reasonabl[y] foreseeable risk of
the kind of injury suffered by Plaintiff[] at the intersection
of [State Route 550] and [Township Route 567];
k. failing to properly and adequately hire and/or
instruct the agents, . . . workmen, . . . and/or
representatives of [PennDOT] and/or [the] Township as to
the safe and proper procedures for inspecting, . . .
correcting and repairing an inadequate mirror . . . at the
aforesaid intersection of [State Route 550] and [Township
Route 567];
***
o. failing to install an appropriate mirror at the
aforesaid intersection of [State Route 550] and [Township
Route 567], . . . so that traffic entering the intersection
from [Township Route 567] have adequate sight distance.
R.R. at 306a-310a. Appended to the 2015 Complaint is a Verification executed by
Plaintiff in which he states, in relevant part, that the Complaint “is based upon
information , which [he has] furnished to [his] counsel and information, which has
been gathered by [his] counsel in preparation for the prosecution of this lawsuit,”
“and to the extent [that] it is based upon information which [he has] given to [his]
counsel, it is true and correct to the best of [his] knowledge, information, and belief.”
Id. at 317a.
On September 8, 2015, Plaintiff served the Township with a request to
produce the following documents:
52. Any and all documents prior to the accident
described in Plaintiff[’s] Complaint and up until the
7
present date pertaining [to or] regarding [the Township’s]
decision to install a mirror at the intersection in question,
[State Route 550] and/or [Township Route 567] . . . at the
area of the accident described in Plaintiff[’s] Complaint.
R.R. at 569a. In response to the request, “[f]ollowing the exchange of written
discovery, it was not until January 17, 2017, that the deposition of Gary Royer from
the [Township] was taken,” and “[d]uring that deposition, it was learned for the first
time where the mirror was obtained by [the] Township and then it was on January
25, 2017, that [the] Township provided ‘supplemental discovery responses’ with
information concerning the mirror itself.” Id. at 504a-505a (emphasis in original
and citations omitted). Although “[i]t is not clear to Plaintiff why these documents
were not turned over in response to [his] September 8, 2015 request,” id. at 505a,
there is no indication in the record that he filed a motion in the trial court to compel
the production of any additional documents from the Township at any time.
Ultimately, that matter was “resolved and discontinued” with respect to all claims
and all parties. Id. at 501a.2
On December 27, 2016, Plaintiff hired James Sobek, P.E., to prepare
another expert report, which was issued on February 17, 2017. R.R. at 602a-622a.
In the report, the expert concluded, in relevant part:
The actual 52.8 inch radius of curvature mirror that is
currently in place, the effective sight distance as viewed in
the mirror is only 187 feet for drivers with 20/20 vision
and 94 feet for drivers with 20/40 vision, substantially less
than is required by PennDOT standards and not sufficient
2
On July 18, 2016, Plaintiff filed a Complaint against FirstEnergy alleging negligence with
respect to the dangerous and/or hazardous conditions of the premises owned or maintained by it at
and/or near the intersection of State Route 550 and Township Route 567. See R.R. at 481a-491a.
On August 12, 2017, Plaintiff executed a Pro Rata Joint Tortfeasor Release and Settlement
Agreement resolving the claims against FirstEnergy in that case and in the proceedings on
Plaintiff’s First Amended Complaint. See Original Record (O.R.) Docket Entry No. 27, Exhibit
A at 1-9.
8
for human recognition and response to approaching
vehicles on [State Route 550] heading eastbound.
It [is] our opinion that [the] Township, by selecting and
installing that mirror, made the situation worse than if
there was no mirror present at all and motorists are safer if
they ignore the presentation in the mirror and depend upon
what they see directly. Making this bad situation even
worse and more dangerous was the placement of a mirror
with the incorrect radius of curvature.
Id. at 606a-607a.
As a result, the expert opined:
With a required 390 feet sight distance for left turning
vehicles, even a mirror with an 80 inch radius of curvature
will only produce an image that is 0.41 inches wide and
subtends 2.41 arc minutes, nowhere close to what will be
required to make a decision as to whether or not there is a
vehicle coming that is so close [as] to be a problem. Thus,
PennDOT’s policy is inadequate and does not make the
intersection safer, and, in fact, even using a convex mirror
that complies with their guidelines does not increase the
sight distance sufficiently and makes the intersection more
dangerous.
***
[There are] several alternatives [that] exist to remedy the
poor visibility circumstances at this intersection. We defer
to an appropriate engineer for any additional details,
however. An obvious one (and probably the lowest
financial cost) would be to make [Township Route 567]
one-way only to the south thereby avoiding anyone having
to deal with the limited sight distances to east and west.
A tri-color traffic signal with a demand circuit arranged
such that the east-west traffic always has a green light until
a vehicle arrives northbound. Given the limited sight
distance to the west, it would seem that a NO TURN ON
RED prohibition would also be in order.
9
It is not likely feasible to improve the sight distance by
excavating enough terrain at each cut slope. And the costs
of moving all or even part of the power substation are
certainly prohibitive.
It is clear to me that until some change is made to this
intersection, collisions will continue to occur, some of
them serious. Clearly though, putting in a mirror with a
longer radius of curvature is in order first and should be
do[ne] immediately until such other more appropriate and
adequate changes can be implemented with more
planning. In order to provide an adequate view to drivers
with 20/40 vision, a mirror with curvature radius of 263
inches will create an image that subtends 5 arc minutes at
a vehicle-mirror distance of 390 feet. But, because traffic
on eastbound [State Route] 550 approaching [Township
Route 567] is traveling along a right-hand curve and thus
more or less directly at the mirror, a physically larger
mirror might not be required. Most drivers within their
vehicles come to a stop with their eyes well within the
projected field of view that the mirror now provides. They
don’t have to move left or right or farther forward or back
to see into the mirror. But the image that the mirror
currently provides is far too small.
However, even with the correct radius mirror in place, the
left-right reversal produced by convex and plane mirrors
will continue to be a problem. It is confusing to see a
vehicle coming at you “in the wrong lane” in the mirror
image. It is worse to see a vehicle in the mirror,
misinterpret the lane that [it] is in (right versus left) and
then to incorrectly conclude after a momentary view that
the vehicle is moving away from you. Even with over 50
years’ experience in the field of optics, we found the
appearance of vehicles coming and going in that mirror’s
presentation to be unexpected and initially very confusing.
It was only after applying our optical experience that we
began to understand what was actually in the image and
the degree to which objects have been reduced in size.
R.R. at 618a, 620a.
10
On January 17, 2017, Gary Royer, the Township’s Road Manager,
testified during a deposition regarding the maintenance of the mirror at the
intersection of State Route 550 and Township Route 567 in 2013. See R.R. at 572a-
573a. He stated that a new mirror was installed at the intersection in 2013, and that
it had been purchased from Bradco. See id. at 573a-574a. On January 25, 2017, in
a supplemental discovery response, the Township provided Plaintiff with a copy of
the invoice for the purchase of the mirror from Bradco and a copy of the mirror’s
installation instructions. See id. at 576a-581a. On March 2, 2017, Bradco sent
Plaintiff a copy of the sales invoice for the mirror and its installation instructions in
response to a subpoena. See id. at 582a-599a.
On November 27, 2017, Plaintiff filed a new Complaint against
Campus and Bradco alleging in Count I, inter alia, negligence with respect to the
design, construction, manufacture, and testing of the mirror, and that they placed the
mirror into the stream of commerce for purchase by the Township in this defective
state, which resulted in Plaintiff’s serious and permanent injuries. R.R. at 366a-
367a, 370a-372a. In Count II, Plaintiff alleged, inter alia, strict liability due to
placement of the mirror into the stream of commerce for purchase by the Township
in its unreasonably dangerous and defective condition based on its improper and
inadequate design and manufacture, and based on their failure to warn of the mirror’s
dangerous condition resulting in Plaintiff’s serious and permanent injuries. Id. at
372a-373a. Finally, in Count III, Plaintiff alleged a breach of express or implied
warranty by Campus and Bradco’s provision of the dangerous and defective mirror
that was neither adequate nor suitable for its intended uses resulting in Plaintiff’s
serious and permanent injuries. Id. at 373a-374a.
11
On January 31, 2018, Campus filed a Joinder Complaint against
Additional Defendants the Comlys, PennDOT, the Township, FirstEnergy, U.S.
Municipal, and Vision. See R.R. at 95a-141a. The Joinder Complaint alleged, in
pertinent part, that William Comly owned the car that was operated by Velvet Comly
and involved in the collision. Id. at 104a. The Joinder Complaint also alleged that
PennDOT and/or the Township owned, controlled, repaired, or maintained State
Route 550 and Township Route 567, acted as each other’s agent in this regard, and
knew or should have known of the dangerous condition of these roadways. Id. at
104a-105a. The Joinder Complaint also alleged that FirstEnergy owned, controlled,
and maintained property at or near the intersection of State Route 550 and Township
Route 567, including the maintenance of vegetation, acted as each other’s agent in
these respects, and knew or should have known of the dangerous condition of these
premises that created an unreasonable hazard to people traveling on these roadways.
Id. at 105a-106a. The Joinder Complaint also alleged that, in the ordinary course of
its business, U.S. Municipal manufactured, designed, labeled, marketed, distributed,
supplied, sold, or placed into the stream of commerce the alleged Sentinel Convex
Mirror, which was purchased by the Township in a new and unused condition for
use at the intersection of the roadways. Id. at 106a-107a. The Joinder Complaint
also alleged that, in the ordinary course of its business, Vision manufactured,
designed, labeled, marketed, distributed, supplied, sold, or placed into the stream of
commerce the alleged Sentinel Convex Mirror, which was purchased by the
Township in a new and unused condition for use at the intersection of the roadways.
Id. at 110. The Joinder Complaint asserted claims of: (1) negligence against Velvet
Comly, PennDOT, the Township, FirstEnergy, and Vision; (2) negligent entrustment
12
against William Comly; (3) strict liability against U.S. Municipal and Vision; and
(4) breach of express and implied warranties against Vision. Id. at 108a-141a.
On March 5, 2018, Plaintiff filed a three-count Second Amended
Complaint (2017 Complaint) against Campus and Bradco again alleging negligence,
strict liability, and breach of express or implied warranty resulting in his serious and
permanent injuries. R.R. at 16a-30a.3 In relevant part, the 2017 Complaint also
alleged:
8. Plaintiff did not learn until after January 8, 2017,
following an inspection of the mirror by [Sobek,] a
professional engineer with particular expertise in optics
and mirrors[,] that a cause of his injuries was a dangerous
and defective mirror, said properties of the mirror that
rendered it dangerous and defective and not proper for its
intended purpose not being within the general knowledge
of lay persons.
9. This accident resulted solely from the negligence
and/or breach of warranties of [Campus and/or Bradco]
herein, and was due in no manner whatsoever to any act,
failure to act or misuse on the part of [] Plaintiff.
10. At no time did [] Plaintiff, or any other person or
entity, abuse or misuse the aforesaid Sentinel Convex
Mirror or utilize it in a[] manner for which it was not
designed and intended nor fail to follow any instructions
or warning sold with or affixed to said Sentinel Convex
Mirror.
Id. at 19a.
On March 12, 2018, the Township filed an Answer with New Matter to
Campus’s Joinder Complaint in which it asserted in New Matter:
3
In the interim, Plaintiff filed a three-count First Amended Complaint asserting the same
causes of action against Campus and Bradco. See O.R. Docket Entry No. 15.
13
83. Plaintiff’s and [Campus’s] claims are barred by the
statute of limitations.
84. Plaintiff was aware of the alleged defective radial
curvature of the mirror on August 8, 2014, when his
expert, DJS Associates, performed a site inspection,
including high definition surveying, laser scans and three
dimensional measurements.
O.R. Docket Entry No. 31 at 13, ¶¶83, 84.
On March 14, 2018, Bradco also filed a Joinder Complaint against
Additional Defendants the Comlys, PennDOT, the Township, FirstEnergy, U.S.
Municipal, and Vision. See R.R. at 181a-226a. The Joinder Complaint asserted
claims of: (1) negligence against Velvet Comly, PennDOT, the Township,
FirstEnergy, U.S. Municipal, and Vision; (2) negligent entrustment against William
Comly; (3) strict liability against U.S. Municipal and Vision; and (4) breach of
express and implied warranties against Vision. Id. at 194a-226a.
On March 16, 2018, Campus filed an Answer and New Matter to
Plaintiff’s 2017 Complaint, which stated in New Matter: “Plaintiff’s claims are, or
may be, barred by the applicable Statute of Limitations.” O.R. Docket Entry No. 36
at 10, ¶22.
On March 31, 2018, FirstEnergy filed a voluntary petition for
bankruptcy in the United States Bankruptcy Court for the Northern District of Ohio
(bankruptcy court). R.R. at 33a-34a. On April 17, 2018, FirstEnergy filed a Notice
of Suggestion of Pendency of Bankruptcy and Automatic Stay of Proceedings in the
trial court, which resulted in the trial court staying the instant proceedings on the
2017 Complaint. See id. at 31a-38a, 40a. On Plaintiff’s motion, on October 24,
2018, the bankruptcy court issued an order continuing the stay as to all claims against
FirstEnergy, but lifted the stay as to all remaining parties in the instant action thereby
granting the trial court discretion to sever FirstEnergy from the instant proceedings.
14
See id. at 41a-45a. On March 18, 2019, the trial court issued an order granting
Plaintiff’s motion to lift the stay as to all parties in the proceedings on the 2017
Complaint except FirstEnergy. Id. at 47a-48a.
On March 29, 2019, PennDOT filed a Motion for Judgment on the
Pleadings, which alleged, in relevant part:
17. Plaintiff filed [the 2015 Complaint] on August 31,
2015, which alleged that PennDOT was negligent for
allowing a dangerous and defective mirror to exist at the
intersection. . . .
18. During the litigation of the case[,] Plaintiff’s experts
Justin Schorr, Ph.D. and Steven Schorr, P.E., conducted a
site inspection on August 8, 2014, which included
examination of the mirror at issue. . . .
19. This matter is barred by the two-year statute of
limitations which expired on July 3, 2016, and the
[“discovery rule”] does not apply. 42 Pa. C.S. §5524(2).[4]
20. It is the duty of the party asserting a cause of action
to use all reasonable diligence to properly be informed of
the facts and circumstances upon which the right of
recovery is based; and to institute a lawsuit within the
applicable statute of limitations.
21. The discovery rule is a limited exception to the
prescribed statute of limitations when the facts and
circumstances of the cause of action could not have been
discovered despite the exercise of reasonable diligence.
***
4
Section 5524(2) of the Judicial Code states, in pertinent part, that “[t]he following actions
and proceedings must be commenced within two years: . . . An action to recover damages for
injuries to the person . . . caused by the wrongful act or neglect or unlawful violence or negligence
of another.”
15
23. The discovery rule is inapplicable if a plaintiff has
the reasonable ability to discover the facts necessary,
regardless of whether the party actually ascertained the
information.
24. Plaintiff pled in [the] verified [2015 Complaint]
that he believed the mirror at issue was dangerous and
defective and contributed to the happening of his July 3,
2014 crash.
25. [Pa.R.Civ.P.] 1024 provides that “every pleading
containing an averment of fact not appearing of record in
the action or containing a denial of fact shall state that the
averment or denial is true upon the signer’s personal
knowledge or information and belief. ([E]mphasis
added).
26. Thus, by at least August 31, 2015, at the latest,
Plaintiff swore that he had personal knowledge,
information, and a belief that the mirror at the intersection
was dangerous and/or defective and contributed to the
accident and his injuries.
27. Plaintiff had the duty to use reasonable diligence to
research the facts and circumstances of his case, including
but not limited to, his belief that the dimensions and
specifications of the mirror allegedly contributed to the
crash.
28. The mirror is out in the open, and was examined by
a civil engineer at the direction of Plaintiff in 2014,
including taking measurements and researching standards.
29. Reasonable minds could not differ that Plaintiff had
the ability to investigate and pursue his claim regarding
the mirror within the two-year statute of limitations as a
matter of law.
30. Therefore, Plaintiff’s case filed on November 27,
2017[,] is untimely, because the statute of limitations
expired and the discovery rule does not apply.
16
R.R. at 74a-76a (citations omitted and emphasis in original). Accordingly,
PennDOT asked the trial court to grant judgment in its favor on the pleadings, and
dismiss Plaintiff’s 2017 Complaint as untimely. Id. at 77a.
On April 2, 2019, U.S. Municipal filed an Answer with New Matter to
Campus’s Joinder Complaint in which it asserted in New Matter:
83. The instant matter is time barred by the applicable
statute of limitations. This matter arose on July 3, 2014,
though it was not filed until November 27, 2017.
Although U.S. Municipal anticipates that Plaintiff will
likely contend that he was not aware of the potential
lawsuit until retention of an expert witness and the expert’s
subsequent inspection in 2017, the same was an
investigation that could have been conducted at any time
after the accident, and thus, is time barred.
O.R. Docket Entry No. 72 at 13, ¶83.
On April 8, 2019, Campus filed a reply and joinder in PennDOT’s
Motion for Judgment on the Pleadings. See O.R. Docket Entry No. 74. That same
day, Campus also filed a Motion for Judgment on the Pleadings alleging, in relevant
part, that the 2017 Complaint is time barred because the statute of limitations in
Section 5524(2) had run before it was filed, and that the discovery rule does not
apply. See R.R. at 342a-348a. Specifically, Campus asserted that “at the very least
by August 31, 2015, Plaintiff swore he had personal knowledge, information and
belief that the mirror at the intersection was dangerous and/or defective and
contributed to the accident and his injuries,” and that “[r]easonable minds cannot
differ that this case filed by Plaintiff on November 27, 2017, as the accident
occurred on July 3, 2014, and therefore, is untimely because the statute of limitations
has expired and the discovery rule does not apply.” Id. at 347a-348a.
17
On April 15, 2019, Vision filed an Answer with New Matter to
Campus’s Joinder Complaint, which alleged, in pertinent part, that “[t]he averments
in the [2015 Complaint] were verified by [Plaintiff] on August 26, 2015,” so that “as
of at least August 26, 2016, [Plaintiff] reasonably believed, and averred in a verified
pleading that there existed a condition with the mirror at the intersection at issues in
this matter,” and that “[t]his lawsuit was initiated on November 27, 2017, in which
Plaintiff alleges the same mirror is dangerous and defective,” so, “[t]herefore, the
current action is barred by the statute of limitations.” Docket Entry No. 82 ¶¶58-61.
Ultimately, with the exception of Vision,5 all of the remaining Defendants and
Additional Defendants filed or joined in the Motions for Judgment on the Pleadings
filed by PennDOT and Campus. See, e.g., O.R. Docket Entry Nos. 84, 95, 104, 117.
On April 29, 2019, Plaintiff filed a Response in Opposition to both
PennDOT’s and Campus’s Motions for Judgment on the Pleadings admitting the
relevant allegations raised therein. See R.R. at 496a-824a. Nevertheless, in a
memorandum of law filed in opposition to PennDOT’s Motion, Plaintiff asserted, in
relevant part:
It was during the December 27, 2016, through
February 17, 2017 (the date of Mr. Sobek’s report)[,]
timeframe that Plaintiff learned the mirror was a defective
product for its intended/foreseeable purpose (traffic
control device). In fact, no other engineering expert,
including the defendants’ own experts, knew or should
have known of this fact as they were not trained in physics
with expertise in optics. In fact, defense expert Joseph M.
Fiocco, P.E., studied engineering and was a traffic
5
As noted by Vision in its appellate brief, although Vision did not file a motion for
judgment on the pleadings or join in the other motions, “this Court’s order affirming [the trial
court’s] order will establish law of the case on the controlling issue [of] whether [Plaintiff] filed
[h]is complaint after the statute of limitations. Farber v. Engle, [525 A.2d 864, 866 n.5 (Pa.
Cmwlth. 1987)].” Brief for Appellee Vision at 2.
18
engineer. Defense expert Joseph P. Tarris, P.E., studied
Civil Engineering and was a traffic engineer. Neither of
these experts with extensive training and skill in
engineering and traffic formed an opinion that the mirror
was defective as a defense nor did counsel who employed
them seek to join the manufacturer of the mirror.
Moreover, PennDOT with teams of engineers did not
conclude that convex mirror[s] are dangerous products for
use in controlling traffic, even to the extent of having
policies in place for their use. Thus, simply stated,
defendants seek to hold Plaintiff, who attended
schooling to the 11th grade, “knew” or “should have
known” what 4 engineers were unable to conclude, and
that he should have imputed to him the knowledge and
skill of a physicist with training in optics. If defendants
wish to make such an argument, it is a jury question, and
not a matter of law.
R.R. at 505a-506a (citations omitted and emphasis in original).
By Opinion and Order dated September 27, 2019, the trial court granted
the Motions for Judgment on the Pleadings. See R.R. at 832a-837a. In relevant part,
the trial court explained:
In the present matter, Plaintiff’s cause of action lies in
negligence, thus invoking the two-year statute of
limitations. Therefore, from the time of the accident on
July 3, 2014, Plaintiff generally had a two-year period of
time to file his complaint. However, the complaint, as
already stated, was not initiated until November 27, 2017.
Despite the fact that Plaintiff had previously hired experts
to conduct an inspection of the allegedly defective mirror
in 2014, thus invoking Plaintiff’s claim of defective
condition and breach of warranty, he claims that it was not
until January of 2017 that he learned that the cause of his
injuries was the dangerous and defective mirror. This
claim by Plaintiff was following a second inspection
conducted by a professional engineer with expertise in
optics, which clearly could have been done earlier.
. . . The burden is on [] Plaintiff to reasonably investigate
the cause of injury in order to gain an understanding of the
19
facts concerning that injury. Plaintiff and his experts had
access to the mirror, which existed out in the open and
therefore, in any of the several complaints filed by
Plaintiff, he certainly knew or should have known of the
mirror’s allegedly defective condition. . . . In the case sub
judice, Plaintiff’s injury occurred on July 3, 2014. In 2015
following site inspections by experts, Plaintiff pled and
verified that the mirror was defective. As PennDOT
correctly points out in its supporting brief, “[Plaintiff] was
either untruthful in his original Complaint in [2015] when
he signed a verification swearing that he had ‘personal
knowledge or information and belief’ that the mirror
allegedly contributed to the crash, or Plaintiff must admit
that he actually held that ‘personal knowledge or
information and belief’ before the tolling of the statute of
limitations. Pa.R.[Civ.]P. 1024(a).[6]” Thus, reasonable
minds cannot differ that this case filed on November 27,
2017, is untimely, as the statute of limitations has expired
and the discovery rule does not apply.
Id. at 836a-837a (footnotes omitted and emphasis in original).
On September 30, 2019, the trial court issued an order stating, in
pertinent part: “[B]ased upon the Court’s recent rulings on Motions for Judgment
on the Pleadings in this matter and the only remaining [Additional] Defendant[]
being [FirstEnergy,] which [is] in bankruptcy, this matter is stayed until th[at
Additional] Defendant [is] out of bankruptcy.” R.R. at 838a.
As a result, on October 15, 2019, Plaintiff filed an Application for a
Determination of Finality pursuant to Pa. R.A.P. 341(c),7 asking the trial court to file
6
Pa.R.Civ.P. 1024(a) states, in relevant part, that “[e]very pleading containing an averment
of fact not appearing of record in the action . . . shall state that the averment . . . is true upon the
signer’s personal knowledge or information and belief and shall be verified.”
7
Pa.R.A.P. 341(c) states, in pertinent part:
When more than one claim for relief is presented in an action . . . or
when multiple parties are involved, the trial court . . . may enter a
(Footnote continued on next page…)
20
an amended final appealable order. R.R. at 840a-862a. On October 24, 2019, the
trial court filed an order in which it “determined that an immediate appeal in th[is]
matter would facilitate resolution of the case in its entirety,” and “expressly entered
as a final Order” its September 27, 2019 order granting the Motions for Judgment
on the Pleadings. Id. at 864a-865a. Plaintiff then filed the instant appeal to the
Pennsylvania Superior Court; however, upon PennDOT’s motion, the matter was
transferred to this Court. R.R. at 866a-878a, 890a.8
final order as to one or more but fewer than all of the claims and
parties only upon an express determination that an immediate appeal
would facilitate resolution of the entire case. Such an order becomes
appealable when entered.
8
Following the transfer, by February 6, 2020 order, we directed the parties “to address in
their principal briefs on the merits . . . whether this Court may proceed with the appeal where
[FirstEnergy is] in bankruptcy and where the trial court stayed the matter.” R.R. at 892a. The
parties have complied with our direction, and have demonstrated that we may proceed with this
appeal. As indicated, the automatic stay under Section 362(a)(1) of the federal Bankruptcy Code,
11 U.S.C. §362(a)(1), only provides protection to the bankruptcy debtor and not to a non-debtor
third party absent extraordinary circumstances. Bankers Trust Company v. Tax Claim Bureau of
Delaware County, 723 A.2d 1092, 1093-94 (Pa. Cmwlth. 1999). No extraordinary circumstances
are alleged to exist herein. Additionally, the automatic stay is “not intended to stay actions which
assert that a non-debtor is ‘independently liable as, for example, where the debtor and another are
joint tortfeasors or where the non-debtor’s liability rests upon his own breach of duty.’” In re
Phar-Mor, Inc. Securities Litigation, 166 B.R. 57, 62 (W.D. Pa. 1994) (citation omitted).
As outlined above, the October 24, 2018 bankruptcy court order continued the stay as to
all claims against FirstEnergy, but lifted the stay as to all remaining parties in this case thereby
granting the trial court the discretion to sever FirstEnergy from the case. See R.R. at 41a-45a. The
March 18, 2019 trial court order granted Plaintiff’s motion to lift the stay as to all parties in the
case except FirstEnergy. Id. at 47a-48a. Thus, although FirstEnergy is not part of the trial court’s
ruling on the Motions for Judgment on the Pleadings, the court properly certified its order as final
and appealable under Pa. R.A.P. 314(c) with respect to the remaining parties because FirstEnergy
had already been severed from the case at that time. Moreover, our disposition of this appeal will
establish law of the case on the dispositive issue of whether Plaintiff filed his 2017 Complaint after
the statute of limitations had expired. See Farber, 525 A.2d at 866 n.5 (“The doctrine of ‘law of
the case’ provides that where an appellate court has considered and decided a question on appeal,
(Footnote continued on next page…)
21
On appeal,9 Plaintiff claims that the trial court erred in granting the
Motions for Judgment on the Pleadings because the discovery rule applies in this
case and the question of its application should be submitted to a jury. Plaintiff asserts
that he adduced multiple facts establishing that he acted with reasonable diligence
in investigating and prosecuting his claims, so that the trial court erred in
determining that the discovery rule was inapplicable herein as a matter of law.10
that court will not, in a subsequent appeal of another phase of the same case, reverse its previous
ruling, even though convinced it was erroneous.”) (citation omitted and emphasis in original).
9
As the Pennsylvania Supreme Court has recently observed:
When reviewing a trial court’s order sustaining judgment on the
pleadings, our standard of review is to determine whether, based on
the facts the plaintiffs pled, “the law makes recovery impossible.”
A judgment on the pleadings will be granted where, on the facts
averred, the law says with certainty that no recovery is possible. We
regard as true all well-pleaded allegations in [the plaintiff’s]
pleadings as []he is the non-moving party, and consider against
h[im] only those factual allegations in the [defendant’s] pleadings
that [the plaintiff] has admitted.
Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237, 244 (Pa. 2021) (citations omitted).
10
Specifically, in support of the invocation of the discovery rule, Plaintiff claims that: (1)
he had professional engineers perform a site inspection of the premises before any lawsuit was
filed; (2) his failure to recognize that the convex mirror was a dangerous and defective product is
reasonable because PennDOT and its engineers did not recognize the same; (3) he was diligent in
sending discovery requests that were not answered for more than a year; (4) his initial civil and
traffic engineers, and Defendants’ civil and traffic engineers, did not recognize that the convex
mirror was a dangerous and defective product; (5) PennDOT’s policies regarding the use of convex
mirrors leads one to conclude that a convex mirror is not a dangerous or defective product; (6) the
police report regarding the collision cited Velvet Comly as the cause of the accident in violation
of the Vehicle Code, 75 Pa. C.S. §§101-9805, and did not recognize that the mirror was defectively
designed; and (7) he was not provided with discovery regarding the mirror product until January
2017, and filed suit against Campus and Bradco within two years of that discovery. Brief of
Appellant at 64-65.
22
In Rice, the victim of sexual abuse by her parish priest between 1974
and 1981, filed a complaint against the priest, the Diocese of Altoona-Johnstown
(Diocese), and the Diocese’s bishops on June 20, 2016, alleging breach of fiduciary
duty, fraud, and conspiracy. The victim did not report the abuse to the authorities
until 2006. In 2014, the Cambria County District Attorney referred a number of
claims of sexual abuse by priests in the Diocese to the Pennsylvania Attorney
General. On March 1, 2016, the Thirty-Seventh Investigating Grand Jury issued a
report in which it determined, inter alia, that the Diocese’s bishops further
endangered children by returning known abusive priests to its parishes, and that
secret archives existed that were used to hide information regarding the sexual abuse.
The report also showed that the parish priest had abused other victims and that the
Diocese was made aware of the abuse. Rice, 255 A.3d at 241-42.
In her 2016 complaint, the victim alleged that she first learned from the
2016 Grand Jury report that the Diocese was aware of, and protected, the abusive
priests, and knew or should have known of the parish priest’s sexual attraction to
young children and his abuse of them. The Diocese filed an answer and new matter
to the complaint, raising a statute of limitations defense, and a motion for judgment
on the pleadings. Specifically, the Diocese asserted that the last sexual assault
occurred in 1981, and that the statute of limitations had run long before the complaint
was filed in 2016. The trial court granted the motion and dismissed the complaint,
and the Superior Court reversed. Id. at 242.
However, on further appeal, the Pennsylvania Supreme Court reversed
the Superior Court. With respect to the application of the statute of limitations
defense, the Supreme Court explained:
“Generally speaking, statutes of limitations are
rules of law that set time limits for bringing legal claims.”
23
Nicole B. v. Sch[ool] Dist[rict] of Phila[delphia], [237
A.3d 986, 993-94 (Pa. 2020)]. The time to file begins
running “from the time the cause of action accrued[.]” 42
Pa. C.S. §5502(a). Normally, a cause of action accrues
“when an injury is inflicted.” Wilson [v. El-Daief, 964
A.2d 354, 361 (Pa. 2009)]. Thus, the clock “begins to run
as soon as the right to institute and maintain a suit arises;
lack of knowledge, mistake or misunderstanding do not
toll the running of the statute of limitations[.]” Pocono
Int[ernationa]l Raceway, Inc. v. Pocono Produce, Inc.,
[468 A.2d 468, 471 (Pa. 1983)] (citations omitted). If the
plaintiff fails to file before the clock expires, the statute of
limitations bars the suit.
Various doctrines can save suits that would be
otherwise untimely. . . . [T]he discovery rule, “tolls the
statute of limitations when an injury or its cause is not
reasonably knowable.” In re Risperdal Litig[ation], [223
A.3d 633, 640 (Pa. 2019)]. The purpose of this rule is
clear: to “ensure that persons who are reasonably unaware
of an injury that is not immediately ascertainable have
essentially the same rights as those who suffer an
immediately ascertainable injury.” Nicolaou [v. Martin,
195 A.3d 880, 892 n.13 (Pa. 2018)]. The plaintiff’s
inability to know of the injury must be “despite the
exercise of reasonable diligence[.]” Fine [v. Checcio, 870
A.2d 850, 858 (Pa. 2005)]. This “is not an absolute
standard, but is what is expected from a party who has
been given reason to inform himself of the facts upon
which his right to recovery is premised.” Id.In Wilson, we explained that two competing
approaches have developed to the discovery rule. The
more liberal approach, favorable to plaintiffs, “key[s] the
commencement of the limitations period to such time as
the plaintiff has actual or constructive knowledge of her
cause of action.” Wilson, 964 A.2d at 363 (citation
omitted). In contrast, the stricter and less plaintiff
favorable “inquiry notice” approach “t[ies]
commencement of the limitations period to actual or
constructive knowledge of at least some form of
significant harm and of a factual cause linked to another’s
conduct, without the necessity of notice of the full extent
24
of the injury, the fact of actual negligence, or precise
cause.” Id. at 364. “Pennsylvania’s formulation of the
discovery rule reflects the narrower of the two overarching
approaches[.]” Id.
The Wilson Court explained that adoption of the
stricter approach effectuates legislative intent. “Although
the discovery rule evolved out of the common law, it is
now appropriately regarded as an application of statutory
construction arising out of the interpretation of the concept
of the ‘accrual’ of causes of action.” Id. at 363 (footnote
omitted). Thus, the rule “is best justified as an exercise in
legislative interpretation rather than judicial innovation.”
Id. at 367. Accordingly, our ability to expand the
discovery rule beyond the boundaries of the inquiry notice
approach is circumscribed if not eliminated in the absence
of a constitutional claim. “Absent a constitutional claim,
we decline to question the legislative judgment.” Id. at
369. We adhere to our statutory interpretations because
“the legislative body is free to correct any errant
interpretation of its intention.” Shambach v. Bickhart,
[845 A.2d 793, 807 (Pa. 2004)] (Saylor, J., concurring).
Rice, 255 A.3d at 246-47 (footnote omitted); see also id. at 255 (“Statutes of
limitations exist ‘to expedite litigation and thus discourage delay and the
presentation of stale claims which may greatly prejudice the defense of such claims.’
Delay is discouraged, first and foremost, through the imposition of diligence
obligations that require the plaintiff to conduct investigations of potential lawsuits.”)
(citation omitted).
Applying the stricter “inquiry notice” approach to the discovery rule to
the facts herein demonstrates that the trial court did not err in granting the instant
Motions for Judgment on the Pleadings because the two-year statute of limitations
had run as a matter of law by the time that Plaintiff filed the 2017 Complaint. As
exhaustively outlined above, in the 2015 Complaint that Plaintiff verified, he
asserted causes of action for his legal injuries based upon the defective condition of
25
the mirror. Although Plaintiff may not have been aware of the particular defect
asserted in the 2017 Complaint at the time that the 2015 Complaint was filed, the
“‘inquiry notice’ approach ‘t[ies] commencement of the limitations period to actual
or constructive knowledge of at least some form of significant harm and of a factual
cause linked to another’s conduct, without the necessity of notice of the full extent
of the . . . precise cause.’ [Wilson, 964 A.2d] at 364.” Rice, 255 A.3d at 247.
Moreover, the cases cited by Plaintiff to support the application of the
discovery rule in this case are inapposite. In those cases, the discovery rule was
applied because the plaintiffs therein were unaware that they had suffered the legal
injury underlying the lawsuit in the first instance. In Rice, the Supreme Court noted:
It is obvious that there are no circumstances that are
remotely comparable to Nicolaou in the case before us.
The question in Nicolaou was when the plaintiff knew she
was injured. Here, tragically, [the plaintiff] knew of her
injury at the time of each alleged assault and she knew that
[the parish priest] caused the injury. “In Pennsylvania, a
cause of action accrues when the plaintiff could have first
maintained the action to a successful conclusion.” Fine,
870 A.2d at 857 (citation omitted). An action against [the
parish priest] could have been brought to a successful
conclusion against [him], at the latest, in 1983 or 1987.
She did not file suit against the [parish priest] and seek
discovery from the Diocese. Her complaint does not
allege that she made any formal or informal inquiries of
the Diocese regarding, among other things, what it knew
about [the parish priest], its efforts to supervise or monitor
him or its protocols, in general, for the placement of priests
in its parishes. [The victim] concedes that she did nothing
until the grand jury report was published in 2016.
Id. at 251 (footnote omitted). The Court added: “As [the Superior Court in] Meehan
[v. Archdiocese of Philadelphia, 870 A.2d 912, 920 (Pa. Super. 2005),] correctly
26
concluded, the real claim here is ignorance ‘of a secondary cause’ of the known legal
injury.” Id.Likewise, in this case, Plaintiff’s 2017 Complaint is based on a
secondary cause of the known legal injury resulting from the mirror’s defective
condition. Although Plaintiff may have diligently filed the 2017 Complaint shortly
after receiving Sobek’s February 17, 2017 expert report describing another theory
regarding the mirror’s defective condition, there is no indication that Plaintiff could
not have asserted such a claim within the relevant statute of limitations. Plaintiff’s
failure to timely discover a secondary basis upon which the mirror could be deemed
to have been defective is not a circumstance in which the discovery rule is applied
to toll the relevant statute of limitations. Rice. As a result, the trial court did not err
in determining that the discovery rule did not apply as a matter of law, or in granting
the Motions for Judgment on the Pleadings, because the applicable statute of
limitations had expired at the time that the 2017 Complaint was filed in this case.
Id.Accordingly, the trial court’s order granting the Motions for Judgment
on the Pleadings is affirmed.
MICHAEL H. WOJCIK, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James E. Rupert, :
:
Appellant :
:
v. : No. 90 C.D. 2020
:
Campus Crafts, Inc. and Bradco :
Supply Co., Inc. :
:
v. :
:
Velvet Comly, William D. Comly, Jr., :
Pennsylvania Department of :
Transportation of the Commonwealth :
of Pennsylvania, Spring Township, :
West Penn Power Company, :
FirstEnergy Corp., FirstEnergy :
Solutions Corp. f/k/a FirstEnergy :
Services Corp., U.S. Municipal :
Supply, Inc. and Vision Metalizers, :
Inc. :
ORDER
AND NOW, this 27th day of October, 2021, the order of the Centre
County Court of Common Pleas dated September 27, 2019, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge