Noll by Noll v. Harrisburg Area YMCA
643 A.2d 81
Pa.
1994
Check Treatment

*1 643 A.2d 81 Christopher NOLL, Minor, by M. His Parent and Natural Timothy NOLL; Timothy L. Noll and Darlene

Guardian Noll, wife, Appellants M. his at No.

v. Newport AREA YMCA and Area HARRISBURG School Boles, District, Marshall, Deanna Thomas R. Jr. BUILDERS, INC., Equipment PADDOCK POOL Paddock Pool Inc., Acquatic Facilities, Company, Paddock Frost Industries, Inc. and YMCA of the USA. Appeal INDUSTRIES, of: STA-RITE INC. at No. 26.

Supreme Pennsylvania. Court of

Argued Jan. 1994. Decided June *3 Jacobsen, L. Penders, Audrey Philadelphia, John P. Sta- Rite. Stefanon, for Nolls.

Anthony Harrisburg, NIX, C.J., FLAHERTY, ZAPPALA, and Before CAPPY, MONTEMURO, PAPADAKOS, CASTILLE and JJ.

OPINION MONTEMURO, Justice. appeal Superior

This is an from a decision of the Court (Hudock JJ., Hester, J., Popovich, concurring and dissent- ing) reversing an Order of the Court of Common Pleas of J.) (Natale, Dauphin County remanding the case for a hearing. factual

Cross-petitioner, Industries made a motion for plead leave to amend its answer and new matter to the statute found at 42 repose Pa.C.S.A. The trial court grant refused to leave to finding amend Sta-Rite could plead repose the statute of as a matter law. The Superior Court held that ability plead Sta-Rite’s the statute co-defendant, of repose as a defense turned on the intent of YMCA, in Harrisburg installing diving Area blocks which subject are Superior matter of the instant lawsuit. The *4 Court remanded the case a factual determination of the § provides pertinent part: 1. 42 Pa.C.S.A. in Projects 5536. Construction (a) proceeding brought against General ... a Rule— civil action or any person lawfully performing furnishing design, planning, construction, supervision, any or observation of or construction of improvement years to real must be within 12 commenced completion after the of construction of such to recover damages for: (3) Injury person wrongful arising to the or for death out of such deficiency. trial court was to determine after which the intent YMCA allowed. pleading should be anew whether Sta-Rite’s (1) whether in for our review are: presented The issues Compo- in McConnaughey Building of our decision light (1994) Inc., nents, 95, (Papadakos, A.2d 1331 J. 536 Pa. result), joining concurring and three with two Justices by the statute as a protected is within the class Sta-Rite (2) manufacturer; starting question whether the blocks For the meaning within the of the statute. improvements are follow, Superior that we reverse the order reasons Court, 219 and affirm the trial to amend its answer. refusing court’s order Sta-Rite leave May facts follows. On pertinent are as Noll, years age, dove from a Christopher Plaintiff then Branch swimming pool into a the West Shore starting block Noll into 3 and feet of water and of the YMCA. dove % injuries. starting This block was manu- quadriplegic suffered Plaintiffs com- factured and sold co-defendant Sta-Rite. against menced this action Sta-Rite and co-defendant Harris- by Complaint September filed on 1988. Sta- burg YMCA on February Rite filed its answer with new matter risk, comparative negli- raising assumption the defenses of the change product, of the and misuse gence, substantial repose It the statute of as a defense. product. plead did later, years March three Sta-Rite filed Motion On plead the statute of for Leave Amend New Matter were not repose. starting The trial court held blocks therefore, estate, and, could improvements repose. not assert the affirmative defense the statute of held that appealed Superior The case was Court which improvement depended status as an on the starting block’s installing Superior the blocks. The intent YMCA evidentiary hearing for an to deter- Court remanded the case mine the intent of the YMCA. Plaintiff and co-defendant Sta- appeal this court for an allowance of petitioned Rite both granted. which we

279 this case comes to us from a denial of Procedurally, procedural motion to its answer. The first Sta-Rite’s amend must in this case is the denial of issue we address whether to a final pleading appealable Sta-Rite’s motion amend its is only may appeal order. It is well settled that final orders be 3412; Cox, 331, v. Realty, ed. Pa.R.A.P. T.C.R. Inc. Pa. (1977). 337, 721, 724 v. Litton 372 A.2d See also Schaffer Inc., 123, 125, 360, 361, 539 A.2d Systems Pa.Super. denied, (1988) 583, 520 Pa. 549 A.2d 916 appeal (quoting final, An if it Realty). interlocutory, T.C.R. order and claim in prevents party presenting a from the merits its 411, v. Corp., trial court. Stevenson General Motors Pa. 413, (1987); 337, Realty, 472 Pa. at T.C.R. 372 A.2d at 724. that motion Sta-Rite asserts the denial of its puts it out of court as to the defense of the Of Repose, Statute making a final In appealable the order order. Posternack v. Casualty Casualty American American Read Company of (1966), ing, Pa. 218 A.2d 350 that an we held order denying leave to amend to judicata include the defense of res defense, trial precluded proof might complete of what be a effectively put out of defendant court as to that defense. In Schaffer, Superior very Court considered this issue and held that refusal to allow a defendant his to amend answer to include the defense of the of repose statute was a final appealable agree order. thus with Superior We Court below that the denial of motion to Sta-Rite’s amend its complaint appealable is a final order. RULE 341. FINAL ORDERS GENERALLY (a) (b) prescribed Except [relating General Rule. as in Subdivisions (c) appeals right to [relating as from the Court] Commonwealth rule, appeals] appeal may to criminal right of this an be taken as any agency from final order of an administrative or of a lower court. July On 1992 Rule 341 was amended so as define final order "disposes parties.” as order of all claims or of all this Under rule, amended formulation of the the order in the instant case would Sta-Right put not be final as has not been out of court as to all its defenses, only repose. but as to the defense of the statute of See Associates, McKinney Robert H. 632 A.2d 937 (1993). However, applies only proceedings the amended rule July proceeding brought after commenced 1992. The instant was September on pre-1992 and thus the Rule 341 and the cases defining apply it in this situation. See id. consider whether Sta-Rite should be must now

We *6 repose to include the statute of complaint allowed to amend its is that a of law. The rule this Commonwealth as matter liberally to should be allowed. Poster pleadings amendments nack, 24, 351; 421 at A.2d at Tanner v. Allstate Ins. Pa. 218 (1983). However, Co., 132, 1164 Pa.Super. 321 467 A.2d proposed allowed where the amend amendment will be Posternack, 421 a rule of law. Pa. at against positive ment is Betz, 614, 618, 24, 351-52; Pa.Super. 372 218 A.2d at Grim Tanner, 137, 1365, (1988); at 467 Pa.Super. A.2d 1367 321 539 a against Allowance of an amendment that is A.2d at 1167. delay “cause and rule of law would be futile and would positive court opposing party waste the resources of the and Tanner, having against proposed to defend amendment.” Thus, 138-39, at if Pa.Super. 321 at 467 A.2d Sta-Rite of the statute of the motion to repose is entitled to the defense However, if is not granted. amend should be enti defense, futile and the tled to the the amendment would be therefore, must, motion should be denied. determine We may repose assert the statute of as a whether Sta-Rite claim as a matter of law. plaintiff’s defense 42 Pa. Pennsylvania repose statute of is codified at provides pertinent part: C.S.A. 5536 and rule____ (a) proceeding brought a civil action or General lawfully furnishing against any person performing construction, planning, supervision or observation design, any improvement or construction of must years completion within 12 after the be commenced damages to recover for: improvement construction of such (3) arising to or for death out of Injury person wrongful ... deficiency such repose, 5536 is a statute of rather than a statute Section 127, 372 at Systems, Pa.Super. limitation. v. Litton Schaffer Co., Inc., (quoting 539 A.2d at 362 Mitchell v. United Elevator 1243, 1248-49)). 434 A.2d As a statute Pa.Super. 290 a repose, merely party’s right 5536 does not bar Section does, completely a of limitations but it remedy as statute Schmoyer by and eliminates the cause of action. abolishes Inc., 593, 596, 621 Forge, Pa.Super. v. Mexico Schmoyer (1993) Mitchell, (quoting Pa.Super. at A.2d 1248). at 434 A.2d party moving protection

A under the statute (1) supplied must what is is an repose show: (2) years elapsed more than have be property; twelve completion tween the to the real estate improvements (3) injury; activity moving party must protected by be within the class which is the statute. McCon 1333; 536 Pa. 637 A.2d at naughey, Schmoyer, at Gnall at 694. See also v. Illinois (M.D.Pa.1986). F.Supp. Water Treatment It is undisputed by years that twelve parties have *7 elapsed swimming from the time the blocks were installed and the Plaintiffs injuries. year The twelve run period begins to when project completed the entire construction is so that it general can by public. be used the v. Fetterhoff, Fetterhoff 440-41, denied, Pa.Super. 438, 30, 31, 354 appeal (1986); Products, Pa. 522 A.2d 50 Catanzaro Wasco Inc., (1985). A.2d It is unclear from the record when the diving blocks manufactured by Sta-Rite were installed used by general and the public. (R.R. 83A). platforms The were purchased July of 1972. that they We assume were installed and used the public within a time purchase. reasonable after their The Plaintiff injured was in May years of will fifteen later. We thus assume for the of purposes analysis year our that the twelve requirement has been satisfied.

In of light our in McConnaughey, recent decision must we address the of issue whether Sta-Rite is within the class which protected by

is the In a McConnaughey, plurality statute.3 of Concurring Opinion suggests Majority 3. The that the should not have prong this the discussed of test out of order. We to this chose discuss prong the importance of test out of order due the to recentness and of McConnaughey only was which handed down weeks before our consid- Concurring Opinion eration of this case. The asserts our also disagree is McConnaughey, discussion dictum. We we as believe that pending during argument which was the of instant case the and was more nothing this held that a manufacturer who does Court is incorporated a which later supply product than defective is property by into an others not within to purview McConnaughey, the of the statute.4 Pa. at a McConnaughey at 1334. involved manufacturer A.2d into roof who the plates incorporated metal trusses asserted plates allegedly statute as a defense the repose when to that the collapse. cracked and caused the trusses We found activity per the statute was the proper interpreting focus formed, protection the of the party claiming i.e. whether design, involved planning, supervision, statute was in the of an improve- construction or observation of construction it, during inextricably handed consideration is tied to the down our argued present controversy. parties consistently princi- have ples underlying McConnaughey without of that Fur- benefit decision. ther, original solely impulse it to decide this case on the was our principles McConnaughey prior complete understanding our to of the similarity McConnaughey, with believe that instant facts. Due we utterly the bar would have been confused if we had failed to address why opinion apply principles set in that did not here. McCon- forth naughey plurality opinion itself was which left this area of the law Concurring Opinion philosophy tends to unsettled. While promote judicial economy, we believe that our consideration of McCon- vintage, naughey, only parties. its In in view of recent fair addition, provide decision case we believe that our in the instant will guidance question on the bar a maximum of this resolves it with majority approach accord with a courts and commentators. The would issue for a the concurrence unsettled would wait leave finally managed third case to an issue most courts have resolve attempt. we feel is resolve in one This unwise and would leave *8 Also, unnecessary lower and the in a state of confusion. courts bar Concurring Opinion suggests this footnote 1 of the that issue was not parties properly this review the consistent- before court. Our finds that ly argued principles underlying McConnaughey throughout the these proceedings. Concurring Opinion implies 4. The that we did not make such holding agree McConnaughey. We we did not whether in that decide defendant, Building by Components, protected the the statute of was only genuine repose. agree a of We also that we decided that issue Building Component’s fact existed as the extent of involve- material to trusses, and, therefore, that was ment in the installation of roof the case However, undeniably ripe summary judgement. underlying for holding principle which this was was our that on decision founded repose. of To protected manufacturers are not under the statute suggest interpretation simply an incorrect McConnau- otherwise of ghey.

283 3, 536 Pa. at 101 n. property. McConnaughey, ment to real n. 3 v. (citing Convey- 637 A.2d at 1334 McCormick Columbus (1989)). Co., 520, er 564 907 concluded: 522 Pa. A.2d We nothing supply does more than “When manufacturer for an component products property, not protected manufacturer is the statute.” McConnau- 101, 637 at 1334. ghey, 536 Pa. at A.2d McConnaughey, Unlike in Sta-Rite is not the manufac Instead, part improvement. turer of a of an Sta- component diving improvements Rite asserts that the blocks are and of principles themselves. We believe that articulated There, are McConnaughey applicable in the instant case. we held, Pennsylvania of repose “[t]he statute was not intended to apply to products, only manufacturers and of but to suppliers perform kinds of economic actors who acts of ‘individual expertise’ akin to thought those to commonly performed by be 101, McConnaughey, builders.” Pa. at at 536 Indeed, history suggests of the statute it that was passed through the efforts of American of Institute Archi tects, the Society Engineers, National of Professional and the Association of General Contractors America protect to these professions long improvements complet from suit after were (3d 355, v. Despatch ed. See Luzadder Oven 834 F.2d 359 Cir.1987), nom., Luzadder, cert. Honeywell, denied sub Inc. v. (1988); 108 U.S. S.Ct. 99 L.Ed.2d 909 Spring America, man v. Machinery Wire Corp. F.Supp. (M.D.Pa.1987). Variety, See also The Policy and Constitu Product tionality Liability Statutes Repose, Am. (1981); U.L.Rev. Limitation Action Statutes for Non-Action, Builders-Blueprints 18 Cath. Architects for (1969). U.L.Rev. agree We with Third Circuit Court of which Appeals concluded our law interpreting have protection good manufacturers been excluded from reason. “Application 5536 manufacturers would cut Pennsylvania the heart out of product liability by immun law izing any manufacturing company enough fortunate have its product into an improvement turned to real property. Luzad der, 834 F.2d 359. See Vasquez Whitting Corp., also *9 (“These (E.D.Pa.1987) [underlying policies

F.Supp. (Second) be under- would Torts] the Restatement § 402a of that the statute of to claim if manufacturers were able mined merely products because their liability them of repose relieves ”) property.’ ‘improvements somehow become have not included rule, manufacturers are Thus, a general as by the statute. protected class However, remains on inquiry the focus of the exper “individual whether particularly activity performed, Pa. at 101 & McConnaughey, See supplied. tise” has been Thus, we do not exclude at 1334 & n. 3. n. as a matter protection from the statute’s manufacturers a manufacturer case is one which find the instant law. We design improve of an expertise” supplied “individual (cid:127) that the dimen in this case demonstrates ment. The record deck to water dimen included an “unusual” pool sions of this 75A). (R.R. contractor, Pad pool at The sion of 12 inches. Builders, from diving ordered blocks Sta-Rite dock Pool to the unusual pool which related drawings included (R.R. 79A). shipped at height. Sta-Rite deck water drawing.” their “per read Blocks with an invoice which Diving (R.R. 74a). shipped which was recognize that the block at We (R.R. 80A). However, Sta-Rite stock item was a standard the unusual drawings including to examine required was diving blocks. height prior shipping to water deck drawings examine the if did no more than Even Sta-Rite appropriate with product its standard was determine situation, modifications, in the instant as was the case appears and was involved expertise” “individual expended Thus, under the alleged improvement. design with case, is within conclude that Sta-Rite facts of this we unique by the statute.5 protected the class every may bring itself within the suggest that manufacturer 5. We do not specifications” by shipping goods "per protected the statute its class drawing.” unique facts of this case lead us to believe "per your expertise supplying its actually expended individual that Sta-Rite actually a manufacturer has product. Without facts that indicate improve- design of an supplied expertise in the or construction such *10 of our misperceives holding concurrence the focus here today. holding prong It our is incorrect this believes because just activity abstract, not on in performed “focuses the the but activity performed on the in relation real property.” to Con- However, curring original). at 3 Opinion (emphasis the this precisely. is our argument apparently The concurrence is impression today under the that our holding rests on belief expended that Sta-Rite “individual the manufac- expertise” turing product—the starting of its themselves. In- blocks stead, holding, our on “contri- properly interpreted, rests bution or acts in relation improvement done to the real property.” 536 Pa. at 101 n. A.2d at McConnaughey, 637 1334 n. 3. that today expended We find Sta-Rite “individual expertise” to commonly thought performed by akin that to be it builders when evaluated the dimensions unique pool Sta-Rite, and determined that its product appropriate. was believe, supply we did more starting than blocks. Our reading of the record that had into input is design the when it pool drawings pool reviewed the starting its appropriate concluded that blocks were concurrence, pool’s “unusual dimensions.” Unlike the we be- lieve a that when manufacturer is asked for its “individual expertise” in evaluating whether its is product appropriate as part larger improvement a to it expending real the type expertise contemplated under the statute.

The final required determination under the is wheth- statute er the blocks diving manufactured Sta-Rite and attached to swimming pool of co-defendant are improvements YMCA to property. real We have previously improvement defined an as: estate) valuable addition made to property (usually

[a] real condition, or an amounting amelioration its to more than mere or repairs replacement, costing labor or capital, value, or utility intended to enhance its it beauty adapt purposes new or further ... along product, ment with its is not manufacturer within class protected by the statute. 286

McCormick, Pa. at A.2d at 909 Black’s (quoting 564 Dictionary). Law case,

For of the instant and to end the purposes as Superior confusion in the cases of the Court as well found law, necessary we it interpreting in the federal courts our feel expound this definition. upon perma An everything includes See 41 Am.Jur.2d value of nently property. enhances the Farm v. (citing Kentucky & Cattle Co. Improvements Williams, Drennen & Co. (D.Ky.1956); F.Supp. D. (1896); Mercantile Trust & Ala. So. *11 799, Realty County, Bros. Co. v. Douglas Watson 149 Neb. 32 Jones, 562, Williamson v. (1948); 43 27 763 N.W.2d W.Va. (1894). Commonly, 411 include: erection improvements S.E. ones; building; buildings of a old with new substan replacing building necessary preserve building; tial to repairs to a or making changes existing additions to substantial fences; sidewalks; and buildings; construction of erection of sites. See 41 Am.Jur.2d building of land for preparation Improvements § 1. § that 5536 the appears purposes

It is or is at problematic personalty most area where chattel See, Elec. e.g., Radvan v. General to tached property. denied, 501, (1990), appeal 394 576 A.2d 396 527 Pa.Super. (1991) 602, (welding Pa. 589 A.2d 692 machine attached 593, factory); Schmoyer, 423 at 621 692 Pa.Super. A.2d at Catanzaro, (Spin Around ride attached to a playground); 339 481, at Pa.Super. (skydome 489 A.2d at 262 attached to a school). situation in the instant and requires case This.is us to delve into the law of fixtures. A fixture is definition by Catanzaro, property. Pa.Super. an 339 Dept. Transp., Keeler v. Com. 485, 262; at 489 A.2d at 56 239, (1981). also 614, 424 41 See Pa.Commw. A.2d 616 § Improvements Am.Jur.2d The in de general 1. test used termining an article of is a three personalty when fixture has (1) the relative components: permanence attachment (2) realty; necessary the extent to which the chattel is (3) essential to the use of the realty; the intention of the parties permanent realty. to make a addition to the See Gore Dist., v. Bethlehem Area Sch. Pa.Commw. A.2d (1988), denied, (1989); 519 Pa. appeal 546 A.2d 60 See § also 35 Am.Jur.2d Fixtures Superior

The Court considered law fixtures as set Bioni, forth in Canon-McMillan Sch. Dist. v. 127 Pa.Commw. (1989), concluded, 561 A.2d 853 must know “[W]e what the at YMCA intended the time the blocks were install- Builders, ed.” Noll Paddock Pool (1991). Superior Court then remanded the case to the trial court for a factual determination of the agree YMCA’s intent. with the Superior We Court that the intent of the an parties important consideration in determin- However, ing object whether an is a fixture. to the extent Superior that opinion suggests Court’s it is the subjective intent of the diving YMCA the time the blocks were installed that they controls whether are an improvement, disagree. we agree We with the Plaintiff that his rights under against depend subjective Sta-Rite should not on the intent of the years especially YMCA fifteen earlier. Courts look objective intent of parties determining when object when, here, whether an ais fixture as rights parties third are affected that determination. See Royal *12 Patten, 249, 255-56, Store Fixture Co. v. Pa.Super. 183 130 271, (1957); A.2d 274 § 35 Am.Jur.2d Fixtures 15. We find objective approach this particularly appropriate here where the YMCA is a in co-defendant the instant action. in We are accord suggestion with the of in Judge Popovich his dissent Majority the of the Superior Court invites the YMCA to simply respond that its diving intention at the time the blocks in put place were was to it permanent have become a improve- Noll, ment to circumvent accountability. Pa.Super. See 416 at 299, J., 611 (Popovich, A.2d at 226 dissenting). objective

We believe that the of parties intention the is the of type intent that should in determining be considered object whether an has purposes become fixture the 288 § actual state of 35 Am.Jur.2d Fixtures 15. The 55366 See

§ object’s installation is of at time of the parties mind of the the Id. 5536. See § In purposes for the consequence little perma stead, objective parties intent we look by as evidenced property a chattel into real nently incorporate into circumstances entered surrounding proven facts Treadwell, 217 F.2d & Co. v. See Nelse Mortensen evidence. Butler, v. (9th 189, Cir.1954); 136 Me. 6 A.2d 46 Wedge 325 As McCurdy, Bastas v. (1939); (Mo.App.1954). 266 49 S.W.2d concluded, not so much what a has “it is one commentor be, legal rights his as it is what party intended particular the conduct of by was manifested property intended use of the Pennsylva The Law Fixtures Clothier, B. parties.” Cancm-McMiUan, (1960-61) nia, cited in 66, Pa.B.Q. 66-67 32 321, 561 A.2d at 854. 127 at Pa.Commw. objective an

Thus, that a court must make we conclude object pur- an is a fixture for the of whether determination a deter- making § considerations such 5536. The poses to which and manner degree include: may mination see Canon- property, object is attached which 855; Gore, McMillan, at 113 at 561 A.2d 127 Pa.Commw. Bank, 915; McCarthy 283 537 A.2d at Pa.Commw. at (1980); 35 Am.Jur.2d Pa.Super. Royal object, Fixtures removing § see the ease Store, (1957); 253-54, A.2d at 273-74 Fixtures object may be removed whether Am.Jur.2d v. Mesta see Kaczmarek property, the real damaging without Hess, In re (W.D.Pa.1971); Mach. F.Supp. required type of intent specifically decline to comment on 6. We Section 5536. In the absence of definition outside of the context of legislature, today attempt we to reconcile the "improvement” our purposes of Section 5536. We age-old tenants of law with objective determination of intent works best for determin- find that an object purposes of the statute of ing an is a fixture for the whether for the law of fixtures is the repose. The more traditional context grantee-grantor the tenant or context. In this situation tenant-landlord property. question to the real grantee attaches a betterment pass to this betterment is a fixture that should then becomes whether subjective grantor upon transfer of the land. A more the landlord or *13 context, analysis may required question this is a for be in this but day. another (W.D.Pa.1986); v. Koppelman, Pa.Super. B.R. 247 Brandt 236, 239, 666, (1951), object how has long 82 A.2d the been Schmoyer, Pa.Super. see at property, attached (children’s 593, permanently 621 A.2d at 694 ride attached for more than 17 Radvan v. Elec. years); General 549, (welding 576 A.2d at 397 machine attached and thirty years), object necessary never moved for whether the Gore, property, or essential to the real see 113 Pa.Commw. at 394, 913; 12, 537 A.2d at 35 Am.Jur.2d Fixtures and the party conduct of the and whether it evidences an intent to permanently object reality, attach the see Canon- McMillan, 854-55; 127 Pa.Commw. at 561 A.2d at Clothi er, supra.

In judge objective the instant case the trial made such an diving platforms review of the and concluded that they were not an improvement they because were pool by “removable and attached to the Noll v. bolts.” Builders, Inc., S1987, Paddock Pool slip op. No. 4719 at (Court 1991). Pleas, Dauphin County. Aug. Common The decision to permit pleadings refuse amendment is a matter committed to the discretion of the trial court. Posternack, 351; 421 Pa. at 218 A.2d at General Machine Feldman, Corp. 834; 352 Pa.Super. 507 A.2d Tanner, Pa.Super at Upon at 164. review of record, judge we cannot conclude that the trial his abused in finding discretion diving platforms improve were ments and thus denying Sta-Rite’s motion to amend. The record shows diving platforms permanently that the were not 86A-88A, attached to the pool. See R.R. at 90A-92A. The diving platforms by were attached to the two pool “T-handles” could be unscrewed without the tools. R.R. at use Removing diving platforms 86A. did not require any special by parents skill and was often done and coaches 88A, conducting swimming R.R. plat meets. 92A. The were, fact, forms swimming cleaning moved meets fact, frequent on occasions. R.R. at 91A-92A. In starting easily blocks were advertised Sta-Rite as removable. R.R. Thus, at 61A. supports finding degree record that the *14 such that the not and manner attachment were blocks were permanent improvement. diving made a The blocks were easily pool any removable and removal would not cause the damage. necessary The blocks were not or essential swimming pool pool use of the as a as the could be enjoyed competitive used and aside from meets. The conduct they of the YMCA evidences that did not intend for the blocks permanent to be a addition to the as YMCA pool employees parents detached and removed the blocks and allowed swim team coaches to detach and remove the blocks. thus find that the trial did not his judge

We abuse discretion in refusing Sta-Rite’s Motion to Amend its Answer and New Matter. order of the Superior We reverse the Court and Dauphin reinstate the order the Court of Common Pleas of County.

CAPPY, J., concurs. Mr. sitting by Justice FRANK J. MONTEMURO is designation as pursuant Assignment Senior Justice to Judicial R1800, Docket No. 94 unavailability due to the of Mr. Justice LARSEN, ROLF see No. Judicial Administration Docket No. filed October 1993.

CAPPY, Justice, concurring. I concur in the conclusion that Majority’s the trial court did its discretion in denying abuse Sta-Rite’s Motion to Amend its Answer and New Matter plead the statute repose found at 42 I specifically, agree Pa.C.S. More repose that Sta-Rite is not entitled to assert the statute of starting because the it manufactured not improve- blocks are ments to real property. First,

I write for separately given two distinct reasons. its issue, I disposition improvement do not believe that the Majority should remaining require- have discussed the two ments for protection repose. under the statute of As the states, Majority correctly moving protection repose

A under the statute party (1) an supplied must show: what is (2) years elapsed more than twelve have between property; to the real estate and completion improvements (3) moving party must be injury; activity the statute. protected by within the class which is (citations omitted).) Opinion p. moving (Majority Therefore, satisfy prongs all three of this test. party must Majority’s starting improve conclusion that the are not blocks satisfy does not property—ie., ments *15 inquiry.1 of have the prong first the test—should ended to Majority’s necessary remainder of the discussion thus is not prongs the and must be viewed as dicta. Had the three result order, in the stated order—rather than out of been addressed superfluity the to them—the Majority as has chosen address prongs of the discussion of two and three would have been obvious.

Second, I substance of the respectfully disagree with the with whether Majority’s analysis respect prong: third within class the activity protected by Sta-Rite is the Majority’s addressing prong, statute. The insistence on this improve- its that the is not an despite finding product supplied ment, has it to analysis “activity” caused distort the result, prong by taking prong that out of context. As a Majority’s attempt clarify pronounce- to the Court’s recent Inc., ments in McConnaughey Building Components, (1994), only Pa. 637 A.2d 1331 serves to obfuscate the issue.

In that McConnaughey, explained the Court only protects persons the statute the acts those involved supervision, in the construction or obser- design, planning, prop- vation the construction an to real improvement nothing a manufacturer more than erty When does itself. Recognizing negative question answer this threshold dis to matter, only prong posed of the the trial court addressed the first Superior only prong. appeal, test. On Thus, Court also addressed the first questionable remaining prongs of the test are it is whether the appeal. properly are even before Court on issues that this supply component products improvement for an property, protected by the manufacturer is not the statute. The fact that a manufacturer designs plans compo- products incorporated nent which later are into an improve- ment to irrelevant under the statute. The Pennsylvania repose statute of was not intended to apply suppliers products, only manufacturers but perform kinds of economic actors who acts of “individual expertise” commonly thought performed akin to those to be by builders. (Opinion Announcing

Id. at 637 A.2d at 1334 the Judg Court) ment of the (emphasis original).2 Quoting an earlier Court, case of this the Court stated that the focus of the statute is on “the contribution or acts done in relation to the to the real property.” McConnaughey, supra, id. at 101 (quoting n. 637 A.2d at 1334 n. 3 McCormick v. Conveyor Columbus 522 Pa.

(1989) (quoting Leach v. Fund Philadelphia Savings Society, (1975)) 340 A.2d 491 (emphasis supplied McConnaughey)).

Thus, just the final prong “activity,” focuses on the abstract, performed activity but on the performed in *16 relation to the property. provide admittedly real To an dressmaker, extreme illustration of a my point: while for example, might be said to an act of perform “individual in expertise” designing constructing garment, it would engage be ridiculous to in a discussion of whether his or her by activities fall within the class protected the statute of repose. The dressmaker’s acts simply performed are not “in relation to an improvement property.” By to real addressing, whether Sta-Rite “individual in provided expertise” supplying that, Majority implies McConnaughey, 2. The in this Court held that the Appellee component part improve- was "the manufacturer of a of an statute, protection ment” and therefore not entitled the of the 283.) However, repose. (Majority Opinion p. at the Court in McCon- naughey question Appellee did not decide the ultimate of whether Building Components, protected by repose. Inc. was the statute of Rather, genuine the Court held that a issue of material fact existed as to Appellee’s the extent of the involvement in the installation of the roof trusses, ripe summary judgment. and therefore that the case was not to real not an is item that it determines an that it discussion up a contrived Majority sets property, “unique by limiting application its qualify then must 5.) 284 n. (Majority Opinion p. at this case.” facts of that the of discussion first for the sake Majority pretends to them as referring “improvement,” are an starting blocks (Id. 284.) However, the at p. alleged improvement.” “the this discussion following can conclude Majority most that the expertise individual in actually expended is that “Sta-Rite added.) (Id. 5; p. emphasis at 284 n. product.” its supplying and an im- activity performed relationship No between is established. provement Furthermore, Majority’s applies only discussion one-half in activity that was set forth protected of the definition of the on whether Majority focuses Sta- McConnaughey. While McConnaughey what expended expertise,” Rite “individual “acts of ‘indi- is that the acts be actually requires performed commonly thought per- akin to those to be expertise’ vidual McConnaughey, 536 Pa. by formed builders.” added). further (emphasis McConnaughey A.2d at 1334 moving ... operative question [the that “the is whether states merely supplies’ ‘furnished construction’ or ‘furnished party] A.2d at 1334. Id. at to be used construction.” for the upon very are founded basis These statements explained, As this has the statute repose. statute of Court and builders: suppliers draws a rational distinction between thousands, items Suppliers, typically produce who standards easily high quality-control can maintain builder, A on factory. controlled environment hand, designs only his and construction pre-test other can years following in the construction ways—actual limited use Further, building unique every test. only is their parts. of its complex component and far more than subdivision, uniform-looking Even in the most suburban land; may lot separate plot on a each each house stands *17 conditions; may be near an soil one slightly have different stream; Legislature forth. The can and so underground that the conditions under which builders rationally conclude work are difficult sufficiently that hmitations should be placed liabilities, on their but not on the suppli- liabilities of ers.

Freezer Storage, Inc. v. Armstrong Cork 476 Pa. (1978) (upholding constitutionality of statute of repose). presented here,

Under the facts merely supplied a product, albeit one within its “individual expertise.” It did not provide the type activity “commonly thought per be by formed builders.” If we were to permit every manufactur who, in work, er performing its required was specifi to meet cations or to employ its “expertise,” we would be expanding the protection of the statute of repose beyond far its acknowl edged I limits. simply do not believe that this was the Court’s intention in McConnaughey.3

The Majority appears to believe that its discussion does limit statute, the reach of the for in footnote 5 it states: “We do not suggest that every manufacturer may bring itself within the protected by class by the statute shipping its goods ” ‘per specifications’ ‘per your drawing,’ and refers to the “unique facts of this justification case” as for extending However, statute here. the Majority has identified nothing all “unique” about the manufacturer’s activity in this case. unique What was in this case was pool; all the manufac- turer did was ship a “per standard item Pool [Paddock Build- (See drawing.” 284.) ers’] Majority Opinion at p. judice 3. The case markedly sub contrasts with McCormick v. Columbus Conveyor Company, (1989), 522 Pa. 564 A.2d 907 wherein the Court held protected that the statute delivery manufacturer of a coal McCormick, system. In (after this finding Court delivery that the coal system was an property) specifically found that the manufacturer did supply piece more than equipment, standard indistinguishable from mass-produced, other that it chance became affixed University’s property. Using specifications general and a layout provided by Engineering, Rust Columbus devised a coal deliv- ery system integrated to be into the power construction plant new uniquely that was suited to that site. added). Id. at (emphasis 564 A.2d at 910 *18 unneces- activity is prong discussion Majority’s same result believe, I reach the and, would I erroneous. sary inability solely on Sta-Rite’s by focusing Majority as the (“what an is supplied fulfill of the test prong the first property”). A.2d 91 COMPANY AMERICAN CASUALTY READING, Appellant, PA, OF of Penn- and Commonwealth COMPANY PHICO INSURANCE Fund, Liability Catastrophe Loss sylvania Medical Professional David Pulcini, Jr., Dirienzo and Joseph and Sharon Director Richard, and Natural as Parents Richard Suzanne h/w Christopher Richard and David Richard and Guardians right, Appellees. Richard, in their own Suzanne Pennsylvania. Supreme Court Argued April 1993. 16, 1994.

Decided June Aug. Denied Rearguments and Clarification