PITTSBURGH – A construction firm has answered litigation by denying claims brought by a Western Pennsylvania school district, one seeking compensation from the construction firm who built an entrance bus canopy at one of its elementary schools, which failed after nearly 15 years of use.
Belle Vernon Area School District of Belle Vernon first filed suit in the Fayette County Court of Common Pleas on April 4 versus Tremco, Inc. of Beachwood, Ohio.
“Plaintiff owns a building located at 500 Perry Avenue, Fayette County, Pennsylvania, known as ‘Marion Elementary School.’ Defendant provided a quote for certain work dated Oct. 19, 2005, related to the construction and installation of the entrance bus canopy at Marion Elementary School. This quotation included a specified scope of work for the sum of $75,000,” the suit said.
“Plaintiff accepted that quote on the same date, at which time the quote was returned to defendant by facsimile. Under the scope of work in the proposal, defendant was to design, install and properly secure a bus canopy at the entrance to the Marion Elementary School. Included in the proposal is a ‘Tremco Performance Warranty.”
The suit added that the plaintiff does not have a physical copy of the “Tremco Performance Warranty.”
“Defendant created and provided the design of the bus canopy system that was installed at Marion Elementary School. At some time after Oct. 19, 2005, the bus canopy system was installed at plaintiff’s Marion Elementary School. On or about Sept. 19, 2019, the canopy system partially failed, causing roof damage to the main structure. After that partial failure, defendant was advised of that partial failure and issued plaintiff a quote for a scope of work for replacement in the amount of $76,600. On or about July 22, 2020, the canopy system completely failed. The canopy system collapsed and unattached from its moorings into the structure of the building,” the suit stated.
“Specifically, the canopy’s right front column was completely sheared, the left front column was partially sheared, the decking and joists had separated from the back half of the canopy, and the edge support beams had pulled away from the columns. The District believes and therefore avers that the canopy was not designed properly, was not installed properly, and was not anchored properly. Defendant’s accepted quote included the design, installation and anchoring of the canopy. At all times relevant hereto, the design, installation and anchoring of the canopy was in the sole control of the defendant. The canopy system has failed, was improperly designed, constructed and/or installed, and will require full replacement.”
The defendants then removed the case to the U.S. District Court for the Western District of Pennsylvania on April 28, pointing to diversity of citizenship between the parties and the amount of damages in question, which exceed $75,000.
On May 5, Tremco motioned to dismiss the case, pointing to Pennsylvania’s 12-year statute of repose on construction projects.
“This case arises out of the alleged failure of a bus canopy at Marion Elementary School in July 2020. Plaintiff seeks to recover damages and a replacement bus canopy from Tremco, who originally installed the bus canopy in 2005. However, plaintiff’s claim fails due to the application of Pennsylvania’s explicit 12-year statute of repose related to construction projects. This statute operates as an absolute time bar to any claims related to the construction of the bus canopy and took effect several years before the alleged failure of the canopy in 2020. Plaintiff cannot maintain this claim against Tremco and this Court should dismiss plaintiff’s complaint,” the dismissal motion stated.
“Pennsylvania courts applying 42 Pa.C.S. Section 5536(a) indicate that it operates as an absolute bar to claims when the appropriate elements are met. In order for Section 5536 to bar a plaintiff’s claims, three elements must be met: “(1) What is supplied [by defendant] is an improvement to real property; (2) More than 12 years have elapsed between the completion of the improvements to the real estate and the injury; and (3) The activity of the moving party must be within the class which is protected by the statute.”
Tremco argued that all three of those statutory conditions were met in this case.
“In this case, all three elements exist for the application of the statute of repose to bar plaintiff’s claim. First, the bus canopy constitutes an ‘improvement’ to real property. The complaint indicates the bus canopy was to be built and attached to the existing elementary school structure. Further, the complaint alleges the failure of the canopy damaged not only the canopy itself, but the connected school building and its roof. Plaintiff also alleges that the failure deprived it of the use of the canopy to shelter students and faculty during student arrivals and departures. The bus canopy was installed outside of the school and anchored using concrete holes at least 32 inches deep, anchoring 6” x 6” posts to hold up the canopy. The installation of a structure such as this constitutes a valuable addition to the property and was intended to enhance the value and utility of the property for the school district,” the dismissal motion added.
“The second element is also met, as the canopy was constructed in 2005. Plaintiff then alleges the canopy failed on July 22, 2020, after suffering partial damage on Sept. 19, 2019. Plaintiff then filed this action by Writ of Summons on Nov. 4, 2021. Even taking the earliest possible date of injury, Sept. 19, 2021, the earliest any injury occurred to the canopy was over 14 years after it was originally constructed. Consequently, more than 12 years have elapsed since the completion of the improvements and the alleged injury. Finally, Tremco is also within the class of individuals the statute of repose was designed to protect. Based on the allegations in the complaint, Tremco was involved, at a minimum, in the design, planning, supervision and construction of the bus canopy. In fact, the failures plaintiff alleges against Tremco all go to failures related to the design and construction of the canopy.”
The plaintiff filed a brief in opposition to the dismissal motion on May 23, arguing that its claims stand as an exception to the aforementioned 12-year statute of repose.
“As a matter of law, the statute of repose does not bar the District’s claims based upon the doctrine of nullum tempus. Further, the District’s complaint specifically raises the failure of the defendant to honor its 20-year warranty against the failure of the canopy. As the canopy failed and defendant similarly failed to repair and/or replace the canopy as it was required to under its warranty, defendant’s reliance on the statute of repose is misplaced. Nullum tempus occurrit regi permits a political subdivision to circumvent time limitations. It is well-settled that school district is a political subdivision of the Commonwealth. Provided that the right sought to be enforced is a strictly public right and imposed by law, the statute of repose does not apply,” per the brief.
“There is no question that the Belle Vernon Area School District is a public school district and is a political subdivision of the Commonwealth. The District contracted with defendant to create and install a protective canopy, attached to the District’s Marion Elementary School, which protected its students as they alighted from their buses at the start of the day and boarded their transportations at the end of the school day. The canopy system was part of the necessary and suitable school building that constituted Marion Elementary School and is without doubt a part of the District’s facilities. Therefore, the District is entitled to invoke the doctrine of nullum tempus. The statute of repose cannot be asserted as a bar to the District’s action. Because the doctrine of nullum tempus defeats the time limitations imposed by the statute of repose, defendant’s motion must be denied.”
U.S. Magistrate Judge Patricia L. Dodge partially granted the motion to dismiss, in a memorandum opinion issued on Aug. 18. Specifically, Dodge dismissed the breach of contract claim and retained the breach of warranty claim.
Furthermore, Dodge explained that “whether the statute of repose applies in this case is an issue of law to be resolved by the Court” and that no precedential standard existed as to the use of nullum tempus to overcome the statute of repose.
“Because no clear authority from a Pennsylvania court authorizes the use of nullum tempus to defeat a statute of repose defense under Section 5536, and the only case to explicitly address the issue rejects it, this Court predicts that the Supreme Court of Pennsylvania, if presented with this question, would not apply nullum tempus in this case. Therefore, because Tremco’s construction work for the District was performed was more than 12 years before the commencement of this action, the statute of repose bars the District’s breach of contract claim in Count I,” Dodge stated.
“The District alleges that the work which Tremco agreed to perform came with a 20-year warranty that extended to future performance. As the District argues, if a party such as Tremco could avoid liability after 12 years based on the statute of repose, a 20-year warranty would be wholly illusory. Assuming that the cause of action for breach of the performance warranty did not accrue until the canopy failed, the District had four years from the date of the alleged breach to bring suit. Based on the allegations of the complaint, the cause of action for breach of warranty accrued at the earliest when the canopy partially failed on Sept. 19, 2019. The District filed suit on April 4, 2023, within the four-year statute of limitations. At that time, the 20-year warranty allegedly provided on or about October 2005 was still in effect, and it was allegedly still in effect when the canopy completely failed on July 22, 2020. The District alleges that Tremco promised that its bus canopy would remain free from failure for 20 years from the date it was installed in 2005. Tremco has failed to establish that despite the existence of this warranty, the statute of repose bars the District’s breach of warranty claim. Therefore, with respect to Count II of the complaint, the motion to dismiss will be denied.”
UPDATE
Tremco answered the complaint on Aug. 31 and presented 17 affirmative defenses on its own behalf.
“The averments contained in plaintiff’s complaint failed to state a claim upon which relief may be granted. Tremco denies that it is liable for any damages claimed by plaintiff including, but not limited to, damage to the Marion Elementary roof, damage to the building structural integrity and damage to the building facade. Plaintiff’s claim is barred by the statute of frauds. Tremco did not breach any duty or contractual obligation owed to the plaintiff, or any other party. Plaintiff’s claims are barred by the applicable statute of limitations. At all times relevant hereto, Tremco acted in good faith and performed all of its necessary and contracted for obligations. Tremco did not breach any contractual obligations owed to the plaintiff and fulfilled all of its obligations under the agreement and warranties existing between the parties. Plaintiff’s claims are barred by statute of repose,” the answer provided.
“Plaintiff’s claims are barred or limited under the doctrine of estoppel. Plaintiff’s claims are barred or limited by the doctrine of waiver. Plaintiff’s claims are barred or limited by the doctrines of accord and satisfaction. Tremco raises the terms, if any, contained in the alleged twenty year performance remedy claimed by plaintiff as a complete or partial bar to any and all alleged liability and damages. Any damages suffered by plaintiff were caused or contributed to by the acts or omissions of plaintiff and/or plaintiff’s agents. Any injuries, damages, or losses suffered by plaintiff were proximately caused by and/or contributed to by the acts and/or omissions of other persons or entities over whom this defendant exercised no control or right to control and for whose acts, omissions, and breaches of duty it is not vicariously liable, and any recovery for them should be barred or reduced accordingly. The damages of which plaintiff complains were caused by an intervening and/or superseding act of God for which defendant cannot be held liable. Plaintiff’s claims are barred by their own negligence. Tremco reserves the right to further answer and to amend its answer and/or defenses as information is revealed through discovery.”
For a count of breach of warranty, the plaintiff is seeking damages in excess of arbitration limits.
The plaintiff is represented by Amy R. Schrempf and Joseph W. Cavrich of Andrews & Price, in Pittsburgh.
The defendant is represented by Michael P. Flynn and Paul A. Roman Jr. of Dickie McCamey & Chilcote, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00706
Fayette County Court of Common Pleas case 2058-2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com