Heller, F. v. Century 21 Smith Hourigan Group

J-A20010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FREDERICK J. HELLER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CENTURY 21 SMITH HOURIGAN :
GROUP; DAVID HOURIGAN, AND :
TONY DESIDERIO :
:
Appellees : No. 1626 MDA 2016
Appeal from the Order Entered August 29, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 13764 of 2015
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 03, 2019
Appellant, Fredrick J. Heller, appeals pro se from the order entered in
the Luzerne County Court of Common Pleas that granted judgment on the
pleadings in favor of Appellees, Century 21 Smith Hourigan Group, David
Hourigan, and Tony Desiderio, and dismissed Appellant’s complaint with
prejudice. For the following reasons, we affirm.
The relevant facts and procedural history of this appeal are as follows.
On March 7, 2005, Appellant bought a property in Mountaintop,
Pennsylvania. Appellees are (1) the real estate company that brokered the
sale on behalf of the sellers, (2) the principal of the real estate company,
and (3) a real estate agent of the company. The sellers were John Burick,
Elaine Burick, and Patricia Sledziewski. At the time of the sale/purchase
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transaction in 2005, Sledziewski Excavating, Inc. operated a business in an
area adjacent to the property sold to Appellant. Sledziewski Excavating, Inc.
also parked and stored vehicles and construction equipment in a space
behind Appellant’s garage.
The sales documents included a standard real estate sales agreement
which stated, in relevant part:
25. Release (1-02)
Buyer hereby releases, quit claims and forever discharges
SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and
any OFFICER or PARTNER of any one of them and any
other PERSON, FIRM, or CORPORATION who may be liable
by or through them, from any and all claims, losses or
demands, including, but not limited to…environmental
hazards….
* * *
26. Representations (1-02)
* * *
(B) It is understood that Buyer has inspected the
Property before signing this Agreement…or has waived the
right to do so, and has agreed to purchase the Property in
its present condition unless otherwise stated in this
Agreement. Buyer acknowledges that Brokers, their
licensees, employees, officers or partners have not made
an independent examination or determination
of…environmental conditions…existing in the locale where
the Property is situated….
(See Standard Agreement for the Sale of Real Estate (signed and initialed),
dated 1/24/05, at 10-11; R.R. at 114A-115A.)
In spring 2006, Appellant began to question the apparent
encroachment of Sledziewski Excavating, Inc.’s vehicles and construction
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equipment on a corner behind the garage near the rear of his property.
After a heavy rainfall, Appellant also began to suspect that a portion of his
property might be contaminated, because he noticed a shiny film on top of
storm water he observed in that area. On October 20, 2008, Appellant sent
a counseled letter to Sledziewski Excavating, Inc. about the “encroachment”
and the company’s potential responsibility for a petroleum spill from their
trucks on Appellant’s property prior to his ownership.
In June 2009, Appellant hired RK Environmental Services to perform a
Phase II Environmental Assessment on his property. The assessment, dated
June 30, 2009, noted the potential presence of petroleum products in the
area evaluated and recommended further investigation with equipment that
could penetrate the surface to a greater depth. (See Phase II
Environmental Assessment of RK Environmental Services, 6/30/09, at 1-2;
R.R. at 144A-145A.) Appellant also received a letter dated February 16,
2010, from the Pennsylvania Department of Environmental Protection
(“DEP”), which enclosed the analytical results of the soil collected from
Appellant’s property on November 17, 2009. (See DEP letter, 2/16/10; R.R.
at 147A.)
The record additionally contains a seller’s disclosure form (signed on
4/13/10) in which Appellant answered “Yes” in response to the question,
“Are you aware of any past or present hazardous substances present on the
property (structure or soil) such as, but not limited to, asbestos or
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polychlorinated biphenyls (PCBs), etc?” (See Seller’s Property Disclosing
Statement, dated 4/13/10, at 4; R.R. at 139A.) In answer to the question,
“Are you aware of…any other hazardous substances or environmental
concerns that might impact upon the property?” Appellant responded “Yes.”
(See id. at 5; R.R. at 140A.) Appellant further modified his answer stating,
“Have suspected contamination from previous owner—I was not made aware
at my purchase.” (Id.) Finally, Appellant answered “Unknown” in response
to the question, “Are you aware of any violations of federal, state, or local
laws or regulations relating to this property?” (Id.) On the form, Appellant
wrote, “I don’t know how much spillage was done by previous owner—
testing ongoing.” (Id.)
On December 9, 2013, Appellant spoke to a representative of the DEP
concerning the contamination on Appellant’s property. (See DEP Storage
System Report Form, Narrative Information, 12/9/13; R.R. at 154A.) The
handwritten report of this conversation documented that Appellant knew of
the obvious petroleum impacts to the soil on his property as early as June
2009, and knew that the samples collected in November 2009, contained
lead and arsenic at levels which exceeded residential statewide health and
safety standards.
On December 12, 2013, the DEP sent Appellant a formal letter
addressing environmental responsibilities for the lead and arsenic
contamination on his property. (See DEP Letter, 12/12/13; R.R. at 69A.)
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The DEP sent Appellant another letter on September 30, 2014, confirming its
receipt of a report documenting remediation activities of soil impacted by the
historical storage and maintenance of vehicles and equipment at the
referenced property and reporting that soil samples had been collected and
analyzed for various toxic compounds and the samples now met the
residential statewide health standard for soil. The DEP letter encouraged
Appellant to report any future environmental problems if they arose. (See
DEP Letter, 9/30/14; R.R. at 71A.)
Appellant filed a pro se writ of summons against Appellees on
December 11, 2015, and a pro se complaint against Appellees on January
25, 2016. On February 12, 2016, Appellees filed preliminary objections to
Appellant’s complaint, in the nature of a motion to strike “scandalous and
impertinent” material alleged in the complaint at ¶13, and to require
Appellant to attach a copy of the 2005 contract of sale for the property and a
copy of the “July 2007” letter referred to in Exhibit A, attached to Appellant’s
complaint.
On March 3, 2016, Appellant filed a pro se amended complaint.
Appellees filed an answer with new matter to the amended complaint on
March 22, 2016, with exhibits which included: (1) the Standard Agreement
for the Sale of Real Estate; (2) an addendum/endorsement to the sales
agreement; (3) the handwritten February 23, 2009 letter from Appellant to
the Glen Summit Company; (4) a March 12, 2013 email from Appellant to
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Andrew Cornell; (5) a photo of a sign Appellant posted on his property in
April 2011, that said: “DICK, YOU FORGOT TO TELL ME YOU LEASED
CONTAMINATED LAND TO ME”; (6) another photo of the same sign Appellant
posted on his property in April 2011; (7) the Seller’s Property Disclosure
Statement; (8) RK Environmental Services’ Phase II Environmental
Assessment; (9) David Golebeck’s February 16, 2010 letter to Appellant;
(10) Gary Marshall’s March 18, 2013 letter; (11) Dennis Noonan, Jr.’s
January 23, 2013 letter; and (12) the DEP’s “Storage System Report From
Narrative Information,” dated December 9, 2013. On April 11, 2016,
Appellant filed a reply to Appellees’ answer and new matter in which he
admitted the authenticity of Appellees’ exhibits but denied, as a conclusion
of law, Appellees’ affirmative defense that Appellant’s claims were barred by
the relevant two-year statute of limitations for negligence actions.
On the same day, Appellees filed a motion for judgment on pleadings,
based on the expiration of the two-year statute of limitations. Appellant
opposed the motion on May 11, 2016, claiming the statute of limitations was
tolled until December 12, 2013, when he received the final DEP report,
confirming his suspicions of soil contamination on his property. The court
entered an order granting Appellees’ motion for judgment on the pleadings
on August 29, 2016, and dismissed the case with prejudice, based on
Appellant’s admissions in the pleadings. Specifically, the court stated:
“…[Appellant] has by factual averments (Paragraphs 10−27) admitted his
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complaint was time-barred by the controlling statute of limitations….” (See
Order, 8/29/16; R.R. at 201A.)
Appellant filed a motion for reconsideration on September 8, 2016,
which the court denied on September 15, 2016. On September 19, 2016,
Appellant filed a second motion for reconsideration, which the court denied
on September 23, 2016. Appellant timely filed a pro se notice of appeal on
September 27, 2016. The court did not order Appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P 1925(b),
and Appellant filed none.
Appellant raises one issue for our review:
DID THE [TRIAL] COURT ERR OR ABUSE ITS DISCRETION
IN GRANTING A MOTION FOR JUDGMENT ON THE
PLEADINGS TERMINATING [APPELLANT]’S CASE AS BEING
UNTIMELY FILED FOR FAILURE TO FILE WITHIN THE
REQUIRED STATUTE OF LIMITATIONS?
(Appellant’s Brief at 4).
Appellant concedes the relevant two-year statute of limitations
controls but argues the two-year statute of limitations was tolled in his case
against Appellees. Even though he began to suspect the existence of
contamination on his property in early 2006, Appellant avers his case was
not “actionable” until the DEP informed him on December 12, 2013, that the
contamination was toxic and required remediation. Appellant contends the
statute of limitations did not begin to run until December 12, 2013, when he
received the DEP letter. Appellant reasons his action, instituted on
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December 11, 2015, was timely because he sued within two years of
learning that his injury was actionable.
Appellant further asserts the court erred in determining Appellant’s
suit was time-barred, based on admissions Appellant made in his responsive
pleadings. Appellant alleges these admissions show only that he suspected
contamination on his property; the admissions did not show that he had
actual knowledge of toxic contamination requiring remediation. Appellant
avers the court failed to differentiate between spill contamination and toxic
contamination. Appellant concludes the trial court erred in granting
Appellees’ motion for judgment on the pleadings, and we must reverse and
remand for trial. We disagree.
Appellate review of an order entering judgment on the pleadings
implicates the following principles:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides
that after the pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
judgment on the pleadings. Pa.R.C.P. 1034(a). A motion
for judgment on the pleadings is similar to a demurrer. It
may be entered when there are no disputed issues of fact
and the moving party is entitled to judgment as a matter
of law.
Appellate review of an order granting a motion for
judgment on the pleadings is plenary. The appellate court
will apply the same standard employed by the trial court.
A trial court must confine its consideration to the pleadings
and relevant documents. The court must accept as true all
well pleaded statements of fact, admissions, and any
documents properly attached to the pleadings presented
by the party against whom the motion is filed, considering
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only those facts which were specifically admitted.
We 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.
Southwestern Energy Production Co. v. Forest Resources, LLC, 83
A.3d 177, 185 (Pa.Super. 2013), appeal denied, 626 Pa. 691, 96 A.3d 1029(2014).
As a preliminary matter, “[a]verments in a pleading to which a
responsive pleading is required are admitted when not denied specifically, or
by necessary implication.” Pa.R.C.P. 1029(b).
In other words, a plaintiff is required to respond to
averments which set forth the factual basis in support of
an affirmative defense, but is not compelled to answer
conclusions of law; therefore, under the fact pleading
system in Pennsylvania, the general rule is that averments
of fact require denial and the failure to plead to factual
averments contained in new matter constitutes an
admission to those averments. A party waives all defenses
and objections which are not presented either by
preliminary objection, answer or reply, except a defense
which is not required to be pleaded under Rule 1030(b),
the defense of failure to state a claim upon which relief can
be granted, the defense of failure to join an indispensable
party, the objection of failure to state a legal defense to a
claim and any other nonwaiveable defense or objection.
Defenses to the statute of limitations, such as estoppel,
agreement, agency, apparent authority, fraud, or
concealment are waiveable defenses and must be raised in
a reply to new matter asserting the statute of limitations
as an affirmative defense.
Devine v. Hutt, 863 A.2d 1160, 1168-69 (Pa.Super 2004) (internal
citations and quotation marks omitted).
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“The statute of limitations requires aggrieved individuals to bring their
claims within a certain time of the injury, so that the passage of time does
not damage the defendant’s ability to adequately defend against claims
made….” Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 919
(Pa.Super. 2005), appeal denied, 584 Pa. 717, 885 A.2d 985 (2005)
(internal citation omitted). “Statutes of limitations are designed to
effectuate three purposes: (1) preservation of evidence; (2) the right of
potential defendants to repose; and (3) administrative efficiency and
convenience.” Kingston Coal Co. v. Felton Min. Co., Inc., 690 A.2d 284,
288 (Pa.Super. 1997), appeal denied, 549 Pa. 702, 700 A.2d 441 (1997).
As a general rule, the statute of limitations begins to run as soon as
the injury occurs; “lack of knowledge, mistake or misunderstanding [does]
not toll the running of the statute of limitations….” Pocono Intern.
Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468,
471 (1983). The right to institute a suit generally “arises when the injury is
inflicted.” Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (2005)
(internal citation omitted). “A party asserting a cause of action is under a
duty to use all reasonable diligence to be properly informed of the facts and
circumstances upon which a potential right of recovery is based and to
institute suit within the prescribed statutory period.” Pocono Intern.
Raceway, Inc., supra at 84, 468 A.2d at 471. “A plaintiff need not know
the precise extent of [his] injuries before the statutory period begins to run.”
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Sterling v. St. Michael’s School for Boys, 660 A.2d 64, 66 (Pa.Super.
1995), appeal denied, 543 Pa. 695, 670 A.2d 142 (1995).
“The discovery rule is an exception to the requirement that a
complaining party must file suit within the statutory period.” Meehan,
supra at 919. The discovery rule provides:
[W]here the existence of the injury is not known to the
complaining party and such knowledge cannot reasonably
be ascertained within the prescribed statutory period, the
limitations period does not begin to run until the discovery
of the injury is reasonably possible. The “discovery rule”
arises from the inability of the injured party, despite the
exercise of reasonable diligence, to know of the injury
or its cause. Its purpose is to exclude the period of time
during which the injured party is reasonably unaware
that an injury has been sustained so that people in that
class have essentially the same rights as those who suffer
an immediately ascertainable injury.
Kingston Coal Co., supra at 288-89 (emphasis in original) (internal
citation omitted). In other words, the discovery rule tolls the statute of
limitations “until the point where the complaining party knows or reasonably
should know that he has been injured and that his injury has been caused by
another party’s conduct.” Crouse v. Cyclops Industries, 560 Pa. 394,
404, 745 A.2d 606, 611 (2000). “The statute begins to run when the
injured party ‘possess[es] sufficient critical facts to put him on notice that a
wrong has been committed and that he need investigate to determine
whether he is entitled to redress.’” Haggart v. Cho, 703 A.2d 522, 526
(Pa.Super. 1997), appeal denied, 553 Pa. 698, 718 A.2d 785 (1998).
“The party seeking to invoke the discovery rule bears the burden of
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establishing the inability to know of the injury despite the exercise of
reasonable diligence.” Dalrymple v. Brown, 549 Pa. 217, 224, 701 A.2d
164, 167 (1997). The reasonable diligence standard “is not a standard of
reasonable diligence unique to a particular plaintiff, but instead a standard of
reasonable diligence as applied to a ‘reasonable person.’” Id. “[T]he point
at which the complaining party should reasonably be aware that he has
suffered an injury is generally an issue of fact to be determined by the jury;
only where the facts are so clear that reasonable minds cannot differ may
the commencement of the limitations period be determined as a matter of
law.” E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388, 1391
(Pa.Super. 1993) (internal citation omitted).
Actions sounding in negligence must be commenced within two years.
42 Pa.C.S.A. § 5524(7). Failure to disclose property defects is a tort. See
generally Bortz v. Noon, 556 Pa. 489, 729 A.2d 555 (1999). Therefore,
Appellant’s claim is subject to the two-year statute of limitations. See 42
Pa.C.S.A. § 5524(7) (stating: “The following actions and proceedings must
be commenced within two years: (7) Any other action or proceeding to
recover damages for injury to person or property which is founded on
negligent, intentional, or otherwise tortious conduct or any other action or
proceeding sounding in trespass, including deceit or fraud, except an action
or proceeding subject to another limitation specified in this subchapter”). In
any negligence action, the plaintiff must identify a duty owed by one party to
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another; courts have applied a negligence standard to actions involving
misrepresentations. See Bortz, supra.In the instant case, Appellant entered into a sales agreement to
acquire the subject property in 2005. The sales agreement included
provisions releasing all brokers and sellers from responsibility for any
environmental hazards found on the property, a waiver of the right to
inspect the property, and an agreement to buy the property in its present
condition, or “as is.” In spring 2006, Appellant began to question the
apparent encroachment of Sledziewski Excavating, Inc.’s vehicles and
construction equipment on a corner behind the garage at the rear of his
property. After a heavy rainfall, Appellant also began to suspect that a
portion of his property might be contaminated, because he noticed a shiny
film on a puddle of storm water he observed in that area. On October 20,
2008, Appellant sent a counseled letter to Sledziewski Excavating, Inc.
concerning the encroachment and possible contamination.
In June 2009, Appellant hired RK Environmental Services to test the
soil on his property. RK Environmental Services discovered the presence of
petroleum products in the soil and recommended further testing at a greater
depth. Appellant also received a letter dated February 16, 2010, from the
DEP, which enclosed the analytical results of the soil collected from
Appellant’s property on November 17, 2009. The record additionally
contains a seller’s disclosure form (signed on 4/13/10) in which Appellant
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answered “Yes” in response to the question, “Are you aware of any past or
present hazardous substances present on the property (structure or soil)
such as, but not limited to, asbestos or polychlorinated biphenyls (PCBs),
etc?” In answer to the question, “Are you aware of…any other hazardous
substances or environmental concerns that might impact upon the
property?” Appellant responded “Yes.” Appellant further modified his answer
stating he suspected contamination from previous owner, but Appellant
claimed he was not informed of the contamination at the time of his
purchase. Finally, Appellant answered “Unknown” in response to the
question, “Are you aware of any violations of federal, state, or local laws or
regulations relating to this property?” On the form, Appellant wrote, “I don’t
know how much spillage was done by previous owner—testing ongoing.”
On December 9, 2013, Appellant spoke to a representative of the DEP
concerning the contamination on Appellant’s property. The handwritten
report of this conversation documented that Appellant knew of the obvious
petroleum impacts to the soil as early as June 2009, and knew that the
samples collected in November 2009, contained lead and arsenic at levels
which exceeded residential statewide health and safety standards.
On December 12, 2013, the DEP sent Appellant a formal letter
addressing environmental responsibilities for the lead and arsenic
contamination on his property. The DEP sent Appellant another letter on
September 30, 2014, confirming its receipt of a report documenting
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remediation activities of soil impacted by the historical storage and
maintenance of vehicles and equipment at the referenced property and
reporting that soil samples had been collected and analyzed for various toxic
compounds and the samples now met the residential statewide health
standard for soil. The DEP letter encouraged Appellant to report any future
environmental problems if they arose.
Appellant filed a pro se writ of summons against Appellees on
December 11, 2015, and a pro se complaint against Appellees on January
25, 2016. In response to Appellees’ preliminary objections, Appellant filed a
pro se amended complaint on March 3, 2016, alleging Appellant did not have
his own broker during the 2005 purchase of the subject property so
Appellees acted as his agents throughout the purchasing process by
assisting Appellant in obtaining a mortgage and answering his questions
about the lease and condition of the property. Appellant further claimed
Appellees failed to inform him at the time of purchase of the presence of a
gravel driveway on the property, or of Sledziewski Excavating, Inc.’s use of
the driveway to park and store its vehicles and equipment. Appellant
contended Appellees had an obligation to inform Appellant of Sledziewski
Excavating, Inc.’s use of the driveway because it amounted to a latent
environmental defect on the property. Appellant averred he began to
suspect in 2008 that Sledziewski Excavating, Inc. caused environmental
contamination on his property, but maintained he had no more than an
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unconfirmed suspicion until he received the DEP’s letter on December 12,
2013, confirming the presence of lead and arsenic in the soil. Appellant
asserted Appellees’ failure to disclose the contamination on the property
prevented him from selling the property and caused Appellant to incur
considerable costs and attorney’s fees in his attempt to discover and correct
the alleged problem.
Appellees filed an answer with new matter to the amended complaint
on March 22, 2016, with exhibits which included: (1) the Standard
Agreement for the Sale of Real Estate; (2) an addendum/endorsement to
the sales agreement; (3) the handwritten 2/23/09 letter from Appellant to
the Glen Summit Company; (4) a 3/12/13 email from Appellant to Andrew
Cornell; (5) a photo of a sign Appellant posted on his property in 4/11, that
said: “DICK, YOU FORGOT TO TELL ME YOU LEASED CONTAMINATED LAND
TO ME”; (6) another photo of the same sign Appellant posted on his
property in 4/11; (7) the Seller’s Property Disclosure Statement; (8) RK
Environmental Services’ Phase II Environmental Assessment; (9) David
Golebeck’s 2/16/10 letter to Appellant; (10) Gary Marshall’s 3/18/13 letter;
(11) Dennis Noonan, Jr.’s 1/23/13 letter; and (12) the DEP’s “Storage
System Report From Narrative Information,” dated 12/9/13. Appellees also
specifically asserted the affirmative defense of the relevant statute of
limitations in paragraphs 10 through 27, referring to the various exhibits
attached, which revealed that Appellant knew or had reason to know of the
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soil contamination well before 2013. Based on these documents, Appellees
averred as follows:
28. The statute of limitations in Pennsylvania for
negligence actions is two years.
29. [Appellant’s] claims against [Appellees] are
barred by the two-year statute of limitations, because of
[Appellant’s] failure to commence this action within two
years of the time [Appellant] knew, or had reason to know,
that there was possible environmental contamination of his
property and that there was a possible encroachment on
his property.
(See Answer to Amended Complaint and New Matter, 3/3/16; R.R. at 100A-
102A.) On April 11, 2016, Appellant filed a reply to Appellees’ new matter in
which Appellant admitted the authenticity of all of Appellees’ exhibits
referenced in paragraphs 10 through 27; but Appellant then simply denied,
as a conclusion of law, Appellees’ affirmative defense based on expiration of
the relevant two-year statute of limitations.
Appellees filed a motion for judgment on the pleadings on April 11,
2016, which the court granted on August 29, 2016, reasoning that Appellant
had confessed through the admissions in his pleadings that his complaint
was time-barred The court denied Appellant’s motion for reconsideration,
again explaining: “[Appellant’s] Answer to New Matter in paragraphs 10
through 27 constitute judicial admission to factual averments which
substantiate dismissal of the action as time-barred by the applicable statute
of limitations. Those paragraphs refer to multiple exhibits which clearly
document a contamination issue [that] would have triggered the initial time
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frame to bring an action.” (See Order, 9/15/16; R.R. 208A.)
Preliminarily, Appellant’s reply to Appellees’ affirmative defense of the
two-year statute of limitations was inadequate. See Devine, supra. Here,
Appellant admitted the factual basis for Appellant’s affirmative defense but
then simply denied the defense as a conclusion of law. As a result, Appellant
has, in effect, admitted Appellees’ assertion that his suit is time-barred. See
id.; Pa.R.C.P. 1029(b).
Moreover, Appellant’s own pleadings revealed Appellant suspected
encroachment on his property in 2006, and knew of possible contamination
on his property in 2008, when he began to suspect environmental
contamination of his property due to Sledziewski Excavating, Inc.’s activities
upon and adjacent to his property. Appellant attached to his amended
complaint the counseled letter he had sent to Sledziewski Excavating, Inc.
on October 20, 2008, in which counsel addressed the company’s
encroachment and apparent spillage of petroleum products.
Further, in his reply to Appellees’ new matter, Appellant admitted the
authenticity of Appellees’ exhibits. These exhibits showed that Appellant
knew of the potential presence of petroleum products in the soil on his
property as early as June 2009, following RK Environmental Services’ Phase
II Environmental Assessment and recommendation for further soil testing.
Appellees’ exhibits also revealed Appellant acted on his knowledge of the
contamination, where Appellant tested the soil on his property multiple times
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between 2009 and 2013. Essentially, these pleadings and exhibits
demonstrated that Appellant knew about the contamination for more than
two years before he initiated the action against Appellees on December 11,
2015. Given his admissions in the pleadings, Appellant cannot invoke the
discovery rule to toll the statute of limitations until December 12, 2013.
See Crouse, supra; Kingston Coal Co., supra.
Instead, the statute of limitations began to run once Appellant
possessed sufficient critical facts to put him on notice of the contamination
and his need to investigate whether he was entitled to redress. See
Haggart, supra. At the latest, the statute of limitations for a negligence
claim began to run in June 2009, when Appellant learned of the presence of
petroleum products in his soil and was advised to conduct further testing.
See id. Appellant’s subjective belief that he did not possess “enough”
information to file his claim, until he received the DEP’s December 12, 2013
letter, failed to toll the statute of limitations. See id.; Sterling, supra.Appellant did not need to know the precise extent of the contamination
before the statute of limitations began to run. See Sterling, supra.Rather, Appellant’s injury occurred, and the statute of limitations began to
run, as soon as Appellant had sufficient critical facts of the contamination.
See Crouse, supra; Haggart, supra. Based on Appellant’s admissions in
the pleadings, reasonable minds could not disagree that Appellant knew
about the soil contamination before December 12, 2013. See E.J.M.,
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supra. Therefore, the record supports the trial court’s decision that
Appellant’s negligence claim was time-barred. See id. Compare Nicolaou
v. Martin, ___ Pa. ___, 195 A.3d 880 (2018) (holding when appellant
reasonably knew or should have known of appellees’ misdiagnosis of
multiple sclerosis was question for jury, where appellees told appellant over
course of seven years that she had four negative tests for Lyme disease;
appellant was later able independently to confirm her Lyme disease
diagnosis); Gleason v. Borough of Moosic, 609 Pa. 353, 15 A.3d 479(2011) (holding when appellants reasonably knew or should have known
they had suffered injury from toxic mold was question for jury, where
basement flooding occurred in 1993, mold was discovered in 1997, and
appellants began to experience health problems in 1997, but appellants did
not connect their health problems to toxic mold until they saw television
program on topic that aired in 2000).
In any event, Appellant failed to identify the specific nature of his
negligence claim against Appellees, who brokered the sale of the property at
issue. Appellant conceded in his amended complaint that a two-year statute
of limitations applied to his case, but he did not aver the elements of a
negligence cause of action against Appellees. See Roche v. Ugly Duckling
Car Sales, Inc., 879 A.2d 785, 789 (Pa.Super. 2005), appeal denied, 587
Pa. 732, 901 A.2d 499 (2006) (stating “elements of a negligence-based
cause of action are a duty, a breach of that duty, a causal relationship
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between the breach and the resulting injury, and actual loss”). In his
amended complaint, Appellant alleged that Appellees’ failed to disclose the
contamination on the property, and the contamination prevented him from
selling the property and has caused him to incur considerable costs and
attorney’s fees in his attempt to discover and correct the problem.
Appellant, however, did not identify any duty Appellees owed to him in this
regard. See id. Appellees were not Appellant’s agents in the sale/purchase
transaction. Also, the sales agreement included provisions releasing all
brokers and sellers from responsibility for any environmental hazards found
on the property, Appellant’s waiver of his right to inspect the property, and
his agreement to buy the property in its present condition, or “as is.”
Further, Appellant identified the contamination as “known,” but he did not
aver how or if Appellees knew or had reason to know of the contamination.
Appellant simply averred that Appellee David Hourigan knew Sledziewski
Excavating, Inc. used a gravel driveway near Appellant’s garage. These
broad averments in Appellant’s amended complaint, however, did not create
a direct nexus between Appellees and the alleged contamination. Thus,
Appellant failed to make out a cause of action against Appellees for
negligence. Based upon the foregoing, we conclude Appellant’s negligence
claim is time-barred. Accordingly, we affirm.
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J-A20010-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2019
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