The Evangelical Lutheran Church v. Horst Const. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE EVANGELICAL LUTHERAN : IN THE SUPERIOR COURT OF
CHURCH OF THE ATONEMENT AT : PENNSYLVANIA
WYOMISSING, PA :
:
Appellant :
:
v. :
:
HORST CONSTRUCTION, HORST :
CONSTRUCTION COMPANY AND :
HORST CONSTRUCTION :
MANAGEMENT COMPANY :
:
v. :
:
WEAVER MASONRY, INC., PROTECH :
MECHANICAL CONTRACTORS, INC, :
M&M DRYWALL CO., HURST :
ELECTRIC, LLC, J. RICHARD :
BURKHOLDER, INC., AND WEAVER : No. 602 MDA 2020
COMPANIES
Appeal from the Judgment Entered March 6, 2020
In the Court of Common Pleas of Berks County
Civil Division at No(s): 19-15109
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED MARCH 09, 2021
Appellant, the Evangelical Lutheran Church of the Atonement at
Wyomissing, PA,1 appeals from the judgement entered in the Berks County
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1Generally, the Commonwealth Court is vested with exclusive jurisdiction over
appeals involving not-for-profit corporations. See 42 Pa.C.S.A. § 762(a)(5).
Here, Appellant is a not-for-profit corporation. (See Complaint, filed 10/9/19,
at ¶1). Nevertheless, we exercise jurisdiction over this case, where Appellees
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Court of Common Pleas in favor of Appellees, Horst Construction, Horst
Construction Company, and Horst Construction Management Company, in this
breach of contract action.2 We affirm.
The trial court opinion set forth the relevant facts and procedural history
of this appeal as follows:
On April 28, 1994, [Appellant], and [Appellees], entered
into a written contract for the construction of a new addition
to [the church] (hereinafter, Project). According to the
complaint, work began on Project on May 19, 1994 and
ended in December 1995.
An occupancy permit issued on May 22, 1995 allowed the
public to occupy and use the addition. The permit also
confirmed that work had been performed in accordance with
the applicable codes and the plans.
The complaint alleges that immediately after the completion
of the construction in 1995, water infiltrated the masonry
walls of the new addition and continued to do so indefinitely.
[Appellees] investigated the water infiltration and failed to
stop it. [Appellant] engaged contractors in 2019 to
investigate and address the continuing water infiltration
problem. The contractors found numerous defects, and
[Appellant] concluded that during the initial construction
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have not objected to this Court’s jurisdiction. See Flaxman v. Burnett, 574
A.2d 1061 (Pa.Super. 1990) (declining to transfer cause of action to
Commonwealth Court where parties did not raise objection to Superior Court’s
assumption of jurisdiction, as required by Pa.R.A.P. 741(a)).
2 On December 9, 2019, Appellees filed a joinder complaint against its
subcontractors, Weaver Masonry, Inc., Protech Mechanical Contractors, Inc.,
M&M Drywall Co., Hurst Electric, LLC, J. Richard Burkholder, Inc., and Weaver
Companies. On March 6, 2020, the trial court dismissed the joinder complaint
as moot. While several of these entities have now filed notices of non-
participation in this Court, Protech Mechanical Contractors, Inc. has filed a
joinder brief that adopts Appellees’ arguments, pursuant to Pa.R.A.P. 2137.
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[Appellees] violated various building codes and local
ordinances.
After the passage of almost twenty-five years, [Appellant]
filed its [praecipe for writ of summons] on July 30, 2019,
alleging that [Appellees] constructed Project defectively.
The complaint contains causes of action for breach of
contract, unjust enrichment and violation of the Unfair Trade
Practices and Consumer Protection Law (UTPCPL).[3]
(Trial Court Opinion, filed May 11, 2020, at 1).
On January 8, 2020, Appellees filed a motion for judgment on the
pleadings, alleging the relevant statute of repose, 42 Pa.C.S.A § 5536, barred
Appellant’s lawsuit. Appellees also contended that Appellant’s UTPCPL claim
failed as a matter of law, because the statute “only applies to consumer goods
and services that are used primarily for ‘household purposes’ and the
[c]omplaint makes it clear that the Project was for religious and civic
purposes….” (Motion for Judgment on the Pleadings, filed 1/8/20, at 4). By
order entered March 6, 2020, the trial court granted Appellees’ motion and
entered judgment in favor of Appellees and against Appellant. The court also
dismissed Appellant’s complaint with prejudice and dismissed Appellees’
joinder complaint as moot.
Appellant timely filed a notice of appeal on Monday, April 6, 2020. On
April 8, 2020, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained on appeal. Appellant timely filed its Rule
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3 73 P.S. §§ 201-1 to 201-9.3.
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1925(b) statement on April 28, 2020.
Appellant raises one issue for our review:
Whether the trial court erred as a matter of law in granting
[Appellees’] motion for judgment on the pleadings when
[Appellant’s] complaint alleged facts which, if proven true,
would render [Appellees’] construction unlawful and not
protected by 42 Pa.C.S.A § 5536.
(Appellant’s Brief at 4).
The following scope and standard of review apply to this Court’s review
of orders granting a motion for judgment on the pleadings:
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 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.
Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91
(Pa.Super. 2015) (quoting Southwestern Energy Production Co. v. Forest
Resources, LLC, 83 A.3d 177, 185 (Pa.Super. 2013)). “On appeal, our task
is to determine whether the trial court’s ruling was based on a clear error of
law or whether there were facts disclosed by the pleadings which should
properly be tried before a jury or by a judge siting without a jury.” Rubin v.
CBS Broadcasting Inc., 170 A.3d 560, 564 (Pa.Super. 2017).
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On appeal, Appellant argues that Section 5536 does not bar civil actions
against entities that unlawfully perform construction services. Appellant
claims that the factual allegations in its complaint, “if proven, show
[Appellees] violated the local building code.” (Appellant’s Brief at 14).
Although the Pennsylvania Department of Labor and Industry issued an
occupancy permit upon completion of the construction project, Appellant
insists this fact is not determinative of whether the construction was lawful.
Appellant also insists its “complaint advanced more than just mere
speculation. It averred specific property damage that [Appellant] believed to
be caused by [Appellees’] deficient and defective construction.” (Id. at 17).
Regarding the UTPCPL, Appellant acknowledges that the statute
specifically applies to purchases of goods and services primarily for personal,
family, or household needs. Appellant contends, however, that a construction
project for “a place of religious worship” amounts to a “personal” purpose.
(Id. at 20). Regardless of whether the construction project is ultimately
proven to be for a personal purpose, Appellant maintains, “at this time and
stage in litigation, [its] contention that the project’s purpose is for personal …
purposes must be taken as true….” (Id.) Appellant concludes the trial court
erred in granting Appellees’ motion for judgment on the pleadings.4 We
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4 Appellant also claims the trial court erred “by barring [its] claims under the
statute of limitation for actions in contract and negligence.” (Appellant’s Brief
at 17). However, Appellant failed to include this argument in its Rule 1925(b)
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disagree.
Section 5536 provides, in pertinent part, as follows:
§ 5536. Construction projects
(a) General Rule.─Except as provided in subsection
(b), a civil action or proceeding brought against any person
lawfully performing or furnishing the design, planning,
supervision or observation of construction, or construction
of any improvement to real property must be commenced
within 12 years after completion of construction of such
improvement to recover damages for:
(1) Any deficiency in the design, planning,
supervision or observation of construction or
construction of the improvement.
(2) Injury to property, real or personal, arising
out of any such deficiency.
(3) Injury to the person or for wrongful death
arising out of any such deficiency.
(4) Contribution or indemnity for damages
sustained on account of any injury mentioned in
paragraph (2) or (3).
42 Pa.C.S.A. § 5536(a) (emphasis added).
“[B]oth Pennsylvania and federal courts have consistently held that
[Section] 5536 is a statute of repose.” Vargo v. Koppers Co., Inc.,
Engineering and Const. Div., 552 Pa. 371, 376, 715 A.2d 423, 425 (1998).
“Statutes of repose differ from statutes of limitation in that statutes of repose
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statement, so it is waived. See U.S. Bank, N.A. for Certificateholders of
LXS 2007-7N Trust Fund v. Hua, 193 A.3d 994 (Pa.Super. 2018)
(reiterating that issues not raised in concise statement are waived).
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potentially bar a plaintiff’s suit before the cause of action arises, whereas
statutes of limitation limit the time in which a plaintiff may bring suit after the
cause of action accrues.” McConnaughey v. Building Components, Inc.,
536 Pa. 95, 97, 637 A.2d 1331, 1332 (1994). Generally, statutes of repose
are jurisdictional and their scope is a question of law for courts to determine.
Gilbert v. Synagro Cent., LLC, 634 Pa. 651, 131 A.3d 1 (2015).
“[S]tatutory interpretation of the term ‘lawfully’ as used in [S]ection
5536 raises a legal question[.]” Calabretta v. Guidi Homes, Inc., 241 A.3d
436, 442 (Pa.Super. 2020).
When interpreting a statute, this Court is guided by the
Statutory Construction Act…of 1972, 1 Pa.C.S.A. §§ 1501–
1991. Our paramount interpretative task is to give effect to
the intent of our General Assembly in enacting the particular
legislation under review. [T]he best indication of the
General Assembly’s intent in enacting a statute may be
found in its plain language[.] We must construe words and
phrases in statutes according to rules of grammar and
according to their common and approved usage[.] One way
to ascertain the plain meaning and ordinary usage of terms
is by reference to a dictionary definition.
When the plain language of a statute is ambiguous, we may
consider, inter alia, the object to be obtained and the
consequences of a particular interpretation. Moreover,
when interpreting a statute we must presume [t]hat the
General Assembly [did] not intend a result that is absurd,
impossible of execution or unreasonable. We must also
presume [t]hat the General Assembly intends to favor the
public interest as against any private interest.
Branton v. Nicholas Meat, LLC, 159 A.3d 540, 548 (Pa.Super. 2017)
(internal citations and quotation marks omitted).
The Judicial Code does not define the term “lawfully,” as used in Section
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5536(a). See 42 Pa.C.S.A. § 102 (defining words and phrases used in Judicial
Code, subject to additional definitions contained in subsequent provisions).5
Nevertheless, this Court has examined the plain meaning of this word in
conjunction with its analysis of other statutes.
Black’s Law Dictionary defines the term lawful as, “Legal;
warranted or authorized by the law; having the
qualifications prescribed by law; not contrary to nor
forbidden by the law.”
* * *
Specifically, the note to the term “lawful” states that:
The principal distinction between the terms “lawful”
and “legal” is that the former contemplates the
substance of law, the latter the form of law. To say
of an act that it is “lawful” implies that it is authorized,
sanctioned, or at any rate not forbidden, by law. To
say that it is “legal” implies that it is done or
performed in accordance with the forms and usages
of law, or in a technical manner. In this sense “illegal”
approaches the meaning of “invalid.” For example, a
contract or will, executed without the required
formalities, might be said to be invalid or illegal, but
could not be described as unlawful. Further, the word
“lawful” more clearly implies an ethical content than
does “legal.” The latter goes no further than to denote
compliance, with positive, technical, or formal rules;
while the former usually imports a moral substance or
ethical permissibility. A further distinction is that the
word “legal” is used as the synonym of “constructive,”
which “lawful” is not. ... But there are some
connections in which the two words are used as exact
equivalents.
Branton, supra at 549-50 (internal citations omitted).
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5 Chapter 55 of the Judicial Code does not include a “definitions” section.
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Further, the UTPCPL, provides, in pertinent part, as follows:
§ 201-9.2. Private actions
(a) Any person who purchases or leases goods or
services primarily for personal, family or household
purposes and thereby suffers any ascertainable loss of
money or property real or personal as a result of the use or
employment by any person of a method, act or practice
declared unlawful by section 3 of this act may bring a private
action to recover actual damages or one hundred dollars
($100), whichever is greater. The court may, in its
discretion, award up to three times the actual damages
sustained, but not less than one hundred dollars ($100), and
may provide such additional relief as it deems necessary or
proper. The court may award to the plaintiff, in addition to
other relief provided in this section, costs and reasonable
attorney fees.
73 P.S. § 201-9.2(a) (emphasis added). “The restriction included in the act
addresses itself solely to the purpose of the purchase, not the type of
product purchased.” Valley Forge Towers South Condominium v. Ron-
Ike Foam Insulators, Inc., 574 A.2d 641, 648 (Pa.Super. 1990), aff’d, 529
Pa. 512, 605 A.2d 798 (1992) (emphasis in original). See also Cumberland
Valley School Dist. v. Hall-Kimbrell Environmental Services, Inc., 639
A.2d 1199 (Pa.Super. 1994) (determining school district’s purchase of
asbestos abatement services was not primarily for personal, family, or
household purposes, and it could not maintain private cause of action under
UTPCPL against asbestos removal company).
Instantly, the trial court relied on Section 5536(a) to conclude that
Appellant needed to file its complaint within twelve (12) years after completion
of the construction project. (See Trial Court Opinion at 4). Regarding the
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question of whether Appellees “lawfully” performed the construction, the court
emphasized that Appellant obtained an occupancy permit from the
Commonwealth upon completion of the project. (See Motion for Judgment on
the Pleadings at Exhibit B). Moreover, the court noted that Appellant’s
complaint failed to identify the specific sections of the building code that
Appellees purportedly violated.6 (See Trial Court Opinion at 4). Regarding
Appellant’s UTPCPL claim, the court observed that Appellant admitted “that
this statute has never before been applied to a religious institution.” 7 (Trial
Court Opinion at 5). Absent more, the court determined Appellant “is neither
a household nor a person,” and it did not qualify for relief under the UTPCPL.
(Id.)
Here, we cannot say that the court erred in concluding that Appellant
failed to commence its civil action in accordance with Section 5536(a). The
occupancy permit constituted evidence of record to indicate that Appellees
lawfully performed the construction. See Branton, supra. Compare
Calabretta, supra (noting there were still unresolved factual issues relating
to whether appellants “lawfully” constructed homes where there was no record
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6 In its complaint, Appellant explained that it hired new contractors to perform
repairs and investigate Appellees’ work in July 2019. (See Complaint at ¶¶
21-22). Although the complaint lists various “construction defects” found
during the investigation, Appellant did not specifically aver how these defects
failed to comply with the relevant building codes and statutes. (Id. at ¶23(a)-
(q)).
7 Appellant reiterates this point on appeal. (See Appellant’s Brief at 19).
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evidence regarding whether appellants’ acted “lawfully” under statutory
interpretations advanced by parties). Additionally, the court correctly found
that Appellant is a nonprofit corporation that entered into a contract for
construction services to serve “religious purposes,” rather than “household
purposes.” See Valley Forge Towers, supra; 73 P.S. § 201-9.2(a).
Therefore, the court properly granted Appellees’ motion for judgment on the
pleadings. See Rubin, supra; Rourke, supra. Accordingly, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2021
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