Biela v. Carney Plumbing

1

DOROTHY BIELA v. CARNEY PLUMBING, HEATING AND COOLING, INC. AND MOYER AND SON, INC. D/B/A MOYER INDOOR OUTDOOR

APPEAL OF: CARNEY PLUMBING, HEATING AND COOLING, INC.

No. 727 EDA 2023

No. J-S38032-23

Superior Court of Pennsylvania

November 1, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment Entered April 27, 2023 In the Court of Common Pleas of Bucks County Civil Division at No(s) 2019-08021

BEFORE: LAZARUS, J., KUNSELMAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Carney Plumbing, Heating and Cooling, Inc. (Carney) appeals from the judgment entered in the Court of Common Pleas of Bucks County (trial court) after the jury found in favor of Dorothy Biela (Biela) and awarded her $255,000 in damages in her breach of contract/negligence action against Carney. Carney argues that Biela's action was precluded by the Statute of Repose,^[1] that the court erred in precluding Carney from cross-examining Biela's expert about the settled party, Moyer and Son, Inc. D/B/A Moyer Indoor Outdoor (Moyer), the court erred in failing to include Moyer on the verdict slip, and that the damage amount should be reduced to the actual damages sustained. After our careful review, we affirm.

I.

On August 25, 2004, Biela hired Carney to install an outdoor above-ground oil tank to replace an old one in her basement at the suggestion of Carney's employee, Robert Obermeier. Biela signed a maintenance agreement with Carney to perform yearly maintenance services through 2019 on her heating system, which included inspection of the outdoor oil tank and making recommendations of items that needed replacement.

On January 24, 2019, after Moyer had filled the 275-gallon oil tank with approximately 190.4 gallons of oil, the outdoor oil tank burst, causing oil to leak and damage Biela's property. On November 19, 2019, Biela filed the complaint against Carney and Moyer. The complaint alleged negligence against Carney for failure to install the outdoor oil tank properly and breach of contract for Carney's failure to inspect, evaluate and remedy any issue with Biela's heating system. The complaint alleged negligence against Moyer for failure or refusal to inspect the oil tank and/or alert Biela as to its condition.

After the pleadings were closed, Carney filed a motion for judgment on the pleadings as well as a motion for summary judgment arguing that Biela's claims were barred by the Statute of Repose because the oil tank was installed in 2004, 15 years before Biela filed her complaint. The trial court denied both motions.

Before trial, Biela and Moyer reached a settlement in which Moyer agreed to pay Biela $75,000 in exchange for Biela executing a joint tortfeasor pro rata release.

At trial, Carney filed a motion in support of the Statute of Repose again contending that the outdoor above-ground oil tank was a fixture. The court denied the motion finding that based on the evidence presented, the above- ground oil tank was not a "fixture" because it merely sat on top of cement lintels.

Biela presented her expert forensic mechanical engineer, Colin J. Seybold, P.E., via videotape of his trial deposition. Prior to the video's presentation, Biela discussed her objection to portions of Carney's cross-examination of Seybold regarding Moyer's actions or inactions. Biela's attorney told the court that at a pre-trial conference, Carney's counsel had "agreed that they would not be pointing the finger at Defendant Moyer," a representation that Biela's counsel relied on in preparation for trial and, therefore, allowing the line of questions regarding Moyer's alleged negligence would cause unfair surprise. (N.T. Trial, 8/30/22, at 5). Biela's counsel argued that Carney elected not to retain their own expert to testify against Moyer as a potential other cause of the damages and Carney could not force Biela's expert to testify on Carney's behalf. (See id. at 5-6). Finally, counsel explained that the cross-examination about Seybold's opinion regarding Moyer was outside the scope of direct since Seybold had not testified about Moyer. (See id. at 5).

Carney's counsel agreed that he stated he would not present evidence against Moyer. (See id. at 8). However, he argued that Seybold's reports contained his opinion that Moyer's negligence in failing to inspect the oil tank at the time of filling it could have also caused the damages.^[2] Because he was going to testify as to the cause of the incident, he was not going to question Seybold about his opinion about Moyer's possible negligence, but impeach Seybold and prevent the false impression that he believed that Carney was solely responsible, when his reports reflected that he had multiple theories, "which could have exonerated his client." (Id. at 9); (see id. at 11-14).

The court sustained Biela's objection and struck the line of questioning from Seybold's video deposition. As it explains in its opinion:

… [I]n her cross examination, counsel for Carney was attempting to force Biela's expert to testify on Moyer's alleged negligence on Carney's behalf because Carney did not procure their own expert opinion regarding Moyer. There was no testimony from Mr. Seybold on direct that Moyer did anything wrong. If Carney wanted to present expert testimony on Moyer's negligence, they were free to retain their own expert witness.

Carney argued that "[c]ross examination is ... permissible to prove the substantive liability of Moyer and does not violate the rule that one party may not compel an expert for the opposing party to offer an opinion against his will." However, counsel for Carney agreed not to attempt to prove the substantive liability of Moyer so therefore, it is not permissible. The court sustained Biela's objection that any testimony regarding Moyer's alleged negligence was irrelevant based on the parties' agreement that Carney would not be presenting evidence against Moyer.

(Trial Court Opinion, 6/30/23, at 6-7) (some capitalization omitted).

After Biela completed her case, Carney made a motion for directed verdict, again on the basis of the Statute of Repose, which the trial court denied. The trial court also entered a directed verdict in Moyer's favor because no evidence had been entered on the record against it, and because Moyer was no longer a party, it was not included on the verdict sheet.

The jury returned a verdict in favor of Biela and against Carney in the amount of $255,000, finding that Carney was both negligent and had breached the service agreement, resulting in Biela's injuries. (See Verdict Slip, 8/30/22, at 1-2). Carney moved to have the verdict molded, arguing that it improperly awarded damages in excess of those actually sustained and should be molded to reflect the $75,000 settlement received from Moyer. The court denied the motion, observing that Moyer is a joint tortfeasor who was not a part of the verdict, so the verdict amount could not be molded to include it. (See N.T. Trial, 8/31/22, at 110-11).

Carney filed a post-trial motion that included a judgment notwithstanding the verdict (j.n.o.v.) or alternatively, a motion for a new trial. Carney argued it was entitled to j.n.o.v. on the bases that (1) Biela's claims were barred by the Statute of Repose because the oil tank was not moveable and, therefore, was an improvement to realty, and (2) the verdict awarded damages beyond those actually sustained due to the $75,000 received as part of the settlement with Moyer. (See Carney's Motion for J.N.O.V., 9/08/22, at ¶¶ 1-2). Alternatively, Carney argued, in pertinent part, that it was entitled to a new trial because the court abused its discretion by (1) precluding its cross-examination of Biela's expert witness Seybold, and (2) by not including Moyer on the verdict sheet. (See Carney's Motion for a New Trial, 9/08/22, at ¶¶ 1-2). The trial court denied the motions. Carney timely appealed and filed a court-ordered statement of errors complained of on appeal.^[3] See Pa.R.A.P. 1925(b).

Carney raises four claims for our review: (1) Whether j.n.o.v. By directed verdict should be entered where Biela's claims are barred by the Statute of Repose; (2) Whether j.n.o.v. or a new trial is warranted where relevant evidence by Biela's liability expert was precluded; (3) Whether j.n.o.v. or a new trial is warranted where Moyer should have been included on the verdict slip; and (4) Whether the verdict should be reduced by $75,000 to reflect damages actually incurred. (See Carney's Brief, at 10).

II.

A.

Carney argues that the trial court erred in denying its motion for j.n.o.v. or directed verdict because Biela's claims were barred by the Statute of Repose where the oil tank is a fixture that was installed in 2004, which was more than 12 years before the 2019 damage.^[4] It claims that the trial court erred in denying its motions based on its finding that the tank was not a fixture where there was no evidence that it was movable or that moving it would not cause substantial property damage.^[5] "Statutes of repose differ from statutes of limitation in that statutes of repose 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." Varo v. Koppers Co., Inc. Engineering and Const. Div., 715 A.2d 423, 425 (Pa. 1998) (citation omitted). "Because it eliminates a plaintiff's cause of action '12 years after completion of construction of [an improvement to real property],' regardless of when the plaintiff's injury occurs, both Pennsylvania and federal courts have consistently held that 42 Pa.C.S. § 5536 is a statute of repose." Id. (citation omitted).

The party moving for protection under the Statute of Repose has...