Calabretta v. Guidi Homes, Inc.

241 A.3d 436

Christopher A. CALABRETTA, Louise Joy Calabretta, Scott Hornbaker, Karen Hornbaker, James Jolinger, Robin Lerner, Beth Ann Marcin, Marc D. Zlotnikoff and Lisa D. Zlotnikoff

v.GUIDI HOMES, INC., and Spring House Farm Inc., and McIntyre Capron & Associates, P.C.

v.Kelly Plastering, Inc., Exteriors, Inc. d/b/a Exteriors Associates, Hickory Hill Builders, Inc., and J. Smith Construction, LLC d/b/a John Smith Construction

Appeal of: Guidi Homes, Inc. and Spring House Farm, Inc.

No. 2001 EDA 2019

Superior Court of Pennsylvania.

Argued June 10, 2020

Filed October 19, 2020

Shane Haselbarth, Philadelphia, for appellant.

Jennifer Maude Horn, Philadelphia, for appellee.

BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

Guidi Homes, Inc. (Guidi Homes) and Spring House Farm, Inc. (Spring House Farm) (collectively, Appellants) appeal from the order entered June 3, 2019, which granted in part and denied in part their motion for summary judgment. Upon review, we quash this appeal.

Due to our disposition, a detailed recitation of the facts and procedural history of this case is unnecessary. Briefly, Scott Hornbaker, Karen Hornbaker, James Jolinger, Robin Lerner (collectively, the Homeowners), and several others filed suit on February 13, 2017, alleging home construction defects in the new-construction homes that they had purchased from Spring Hill and were built by Guidi Homes.¹ Additional parties were joined, an amended complaint was filed, and Appellants filed preliminary objections, which the trial court overruled on October 13, 2017.

Relevant to this appeal, on January 18, 2019, Appellants filed a motion for summary judgment seeking dismissal of the Homeowners' claims against Appellants on the basis that, inter alia , the claims were barred by the statute of repose.² After hearing argument, the trial court entered an order on June 3, 2019, granting in part and denying in part the motion for summary judgment. Specifically, the trial court granted the motion for summary judgment as to count IV (negligence claims dismissed under the gist of the action doctrine³ ), and denied it in all other respects.

In its order denying Appellants' motion for summary judgment based on the statute of repose barring the Homeowners' claims, the trial court stated that the "current state of the law on the statute of repose is somewhat unclear." Order, 6/3/2019, at 2 n.3. As noted supra , section 5336 states, subject to exceptions, "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 certain damages. 42 Pa.C.S. § 5336(a) (emphasis added). The trial court noted the term "lawfully" in the statute is unclear as to whether it "requires compliance with[ ] (1) all prerequisites necessary to obtain municipal permission to engage in the various activities mentioned in the statute; or (2) all local and state ordinances, regulations[,] and statutes." Order, 6/3/2019, at 2 n.3. After discussing two unpublished memoranda from this Court, the trial court found "that a genuine issue of material fact exists as to whether the homes were lawfully constructed, under either aforementioned interpretation of ‘lawfully’ " and therefore, summary judgment could not be entered on the issue of whether the statute of repose applies to Appellants. Id.

This appeal followed.^{4 ,5} On July 22, 2019, the Homeowners filed an application to quash the appeal and brief in support thereof with this Court. They maintained that the June 3, 2019 order is not a final order under Pa.R.A.P. 341(b)(1) because it did not dispose of all claims and all parties. Application to Quash, 7/22/2019, at 5. The Homeowners further argued the order is not a collateral order under Pa.R.A.P. 313 because it addressed underlying claims and is not separable from and collateral to the main cause of action, Appellants' interests will not go unprotected because they can defend this action at trial, and Appellants' claims will not be irreparably lost if review is postponed until final judgment. Id. at 5-6. On August 2, 2019, Appellants filed a response, wherein they agreed the order is not final, but argued that it is immediately appealable as a collateral order. Answer to Application to Quash, 8/2/2019, at 2. Appellants contended that a determination of whether the statute of repose bars the Homeowners' claims is separable from the main cause of action, i.e. , whether the homes have defects. Id. at 2-3. They further argued that the interest in "immunity from suit [under the statute of repose] for a specific class of persons and companies, rather than one company's mere hope to escape liability," as well as an interest in finality, are sufficiently important interests to warrant immediate review. Id. at 4. Finally, Appellants argued that their immunity from suit under the statute of repose is irreparably lost if this case is erroneously permitted to go to trial. Id. at 10-11. On November 21, 2019, this Court denied the application to quash without prejudice to the Homeowners' right to "raise the issue in their brief or, after the appeal has been assigned to the panel of this Court that will decide the merits of the appeal, in a properly filed application." Order, 11/21/2019. The Homeowners declined to argue the issue of appealability in their brief or file a subsequent application to quash.

Appellants present the following questions for our review.

1. Precedent to the main issue, below, the Court must first decide the preliminary question whether its appellate jurisdiction has been properly invoked, under the collateral order doctrine codified in Pa.R.A.P. 313.

2. The main issue presented for decision by this Court is whether the [s]tatute of [r]epose for construction projects bars the claims of [the Homeowners] here, where suit was filed more than twelve years from the completion of construction, liability is asserted against those having a role in the construction, the action claims deficiencies in construction leading to harm, and there is no evidence of any "unlawful" construction within the meaning of the [s]tatute.

Appellants' Brief at 4.

As Appellants recognize, before we may address the applicability of the statute of repose to Appellants, we must first determine whether the June 3, 2019 order is appealable, because appealability implicates our jurisdiction.⁶ Interest of J.M. , 219 A.3d at 650. "Jurisdiction is purely a question of law; the appellate standard of review is de novo and the scope of review plenary." Id. (citation and internal quotation marks omitted). To be appealable, the order must be a final order, an interlocutory order appealable by right or permission,⁷ or a collateral order. Pa.R.A.P. 341 - 42; 42 Pa.C.S. § 702(a) - (b) ; Pa.R.A.P. 311 - 13 ; In the Interest of J.M. , 219 A.3d 645, 650 (Pa. Super. 2019).

Generally, a final order is any order that disposes of all claims and all parties. Pa.R.A.P. 341(b). We agree with the parties that the June 3, 2019 order is not a final order because it does not dispose of all claims and all parties. Id. ; see also Melvin v. Doe , 575 Pa. 264, 836 A.2d 42, 44 n.4 (2003) ("[A]n order denying a motion for summary judgment does not terminate the litigation, and thus is not an appealable order.") (citations omitted). Instead, Appellants maintain that the order is a collateral order pursuant to Rule 313. Appellants' Brief at 1, 7-16, 45.

"Whether an order is appealable as a collateral order is a question of law; as such, our standard of review is de novo and our scope of review is plenary." Collier v. Nat'l Penn Bank , 128 A.3d 307, 312 (Pa. Super. 2015) (citation omitted). We have explained the collateral order doctrine as follows.

The "collateral order doctrine" exists as an exception to the finality rule and permits immediate appeal as of right from an otherwise interlocutory order where an appellant demonstrates that the order appealed from meets the following elements: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Pa.R.A.P. 313.

Our Supreme Court has directed that Rule 313 be interpreted narrowly so as not to swallow the general rule that only final orders are appealable as of right. To invoke the collateral order doctrine, each of the three prongs identified in the rule's definition must be clearly satisfied.

Interest of J.M. , 219 A.3d at 655, quoting In re W.H. , 25 A.3d 330, 335 (Pa. Super. 2011).

The trial court did not discuss the appealability of its order in its Rule 1925(a) opinion. Appellants argue in their brief that each of the three prongs of the collateral order test is met. See Appellants' Brief at 1, 7-16. Regarding the first prong, they contend that "the main issue appealed—whether the [Homeowners'] case should be dismissed as time-barred under the [s]tatute of [r]epose—is entirely collateral to the merits of their case—whether there are defects in their homes, caused by [Appellants], redressable in a civil action." Id. at 7.⁸ Next, Appellants claim their interests are too important to be denied immediate review. They argue that, because the statute of repose relating to construction projects "completely abolishes" the cause of action when suit is not commenced within 12 years of construction completion, their interests in statutory immunity and finality are important "system-wide" for both them and non-parties alike. Id. at 10-12. Appellants further reason that, because the trial court found the word "lawfully" in the statute of repose unclear, there is an "immediate, Commonwealth-wide interest in the resolution" of...