J-A20010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FREDERICK J. HELLER                      :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    Appellant            :
                                         :
             v.                          :
                                         :
CENTURY 21 SMITH HOURIGAN                :
GROUP; DAVID HOURIGAN, AND               :
TONY DESIDERIO                           :
                                         :
                    Appellees            :           No. 1626 MDA 2016

               Appeal from the Order Entered August 29, 2016
              In the Court of Common Pleas of Luzerne County
                   Civil Division at No(s): 13764 of 2015


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                             FILED JULY 03, 2019

     Appellant, Fredrick J. Heller, appeals pro se from the order entered in

the Luzerne County Court of Common Pleas that granted judgment on the

pleadings in favor of Appellees, Century 21 Smith Hourigan Group, David

Hourigan, and Tony Desiderio, and dismissed Appellant’s complaint with

prejudice. For the following reasons, we affirm.

     The relevant facts and procedural history of this appeal are as follows.

On   March    7,   2005,   Appellant   bought    a   property   in   Mountaintop,

Pennsylvania. Appellees are (1) the real estate company that brokered the

sale on behalf of the sellers, (2) the principal of the real estate company,

and (3) a real estate agent of the company. The sellers were John Burick,

Elaine Burick, and Patricia Sledziewski.     At the time of the sale/purchase
J-A20010-17


transaction in 2005, Sledziewski Excavating, Inc. operated a business in an

area adjacent to the property sold to Appellant. Sledziewski Excavating, Inc.

also parked and stored vehicles and construction equipment in a space

behind Appellant’s garage.

      The sales documents included a standard real estate sales agreement

which stated, in relevant part:

           25. Release (1-02)
           Buyer hereby releases, quit claims and forever discharges
           SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and
           any OFFICER or PARTNER of any one of them and any
           other PERSON, FIRM, or CORPORATION who may be liable
           by or through them, from any and all claims, losses or
           demands, including, but not limited to…environmental
           hazards….

                                  *      *      *

           26.   Representations (1-02)

                                  *      *      *

           (B) It is understood that Buyer has inspected the
           Property before signing this Agreement…or has waived the
           right to do so, and has agreed to purchase the Property in
           its present condition unless otherwise stated in this
           Agreement.      Buyer acknowledges that Brokers, their
           licensees, employees, officers or partners have not made
           an     independent      examination    or   determination
           of…environmental conditions…existing in the locale where
           the Property is situated….

(See Standard Agreement for the Sale of Real Estate (signed and initialed),

dated 1/24/05, at 10-11; R.R. at 114A-115A.)

      In    spring   2006,   Appellant       began   to   question   the   apparent

encroachment of Sledziewski Excavating, Inc.’s vehicles and construction

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equipment on a corner behind the garage near the rear of his property.

After a heavy rainfall, Appellant also began to suspect that a portion of his

property might be contaminated, because he noticed a shiny film on top of

storm water he observed in that area. On October 20, 2008, Appellant sent

a counseled letter to Sledziewski Excavating, Inc. about the “encroachment”

and the company’s potential responsibility for a petroleum spill from their

trucks on Appellant’s property prior to his ownership.

        In June 2009, Appellant hired RK Environmental Services to perform a

Phase II Environmental Assessment on his property. The assessment, dated

June 30, 2009, noted the potential presence of petroleum products in the

area evaluated and recommended further investigation with equipment that

could    penetrate   the   surface   to   a     greater   depth.   (See   Phase   II

Environmental Assessment of RK Environmental Services, 6/30/09, at 1-2;

R.R. at 144A-145A.)        Appellant also received a letter dated February 16,

2010, from the Pennsylvania Department of Environmental Protection

(“DEP”), which enclosed the analytical results of the soil collected from

Appellant’s property on November 17, 2009. (See DEP letter, 2/16/10; R.R.

at 147A.)

        The record additionally contains a seller’s disclosure form (signed on

4/13/10) in which Appellant answered “Yes” in response to the question,

“Are you aware of any past or present hazardous substances present on the

property (structure or soil) such as, but not limited to, asbestos or


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polychlorinated biphenyls (PCBs), etc?”     (See Seller’s Property Disclosing

Statement, dated 4/13/10, at 4; R.R. at 139A.) In answer to the question,

“Are you aware of…any other hazardous substances or environmental

concerns that might impact upon the property?” Appellant responded “Yes.”

(See id. at 5; R.R. at 140A.) Appellant further modified his answer stating,

“Have suspected contamination from previous owner—I was not made aware

at my purchase.” (Id.) Finally, Appellant answered “Unknown” in response

to the question, “Are you aware of any violations of federal, state, or local

laws or regulations relating to this property?” (Id.) On the form, Appellant

wrote, “I don’t know how much spillage was done by previous owner—

testing ongoing.” (Id.)

     On December 9, 2013, Appellant spoke to a representative of the DEP

concerning the contamination on Appellant’s property.        (See DEP Storage

System Report Form, Narrative Information, 12/9/13; R.R. at 154A.)           The

handwritten report of this conversation documented that Appellant knew of

the obvious petroleum impacts to the soil on his property as early as June

2009, and knew that the samples collected in November 2009, contained

lead and arsenic at levels which exceeded residential statewide health and

safety standards.

     On December 12, 2013, the DEP sent Appellant a formal letter

addressing    environmental   responsibilities   for   the   lead   and   arsenic

contamination on his property.    (See DEP Letter, 12/12/13; R.R. at 69A.)


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The DEP sent Appellant another letter on September 30, 2014, confirming its

receipt of a report documenting remediation activities of soil impacted by the

historical storage and maintenance of vehicles and equipment at the

referenced property and reporting that soil samples had been collected and

analyzed for various toxic compounds and the samples now met the

residential statewide health standard for soil.    The DEP letter encouraged

Appellant to report any future environmental problems if they arose. (See

DEP Letter, 9/30/14; R.R. at 71A.)

      Appellant filed a pro se writ of summons against Appellees on

December 11, 2015, and a pro se complaint against Appellees on January

25, 2016. On February 12, 2016, Appellees filed preliminary objections to

Appellant’s complaint, in the nature of a motion to strike “scandalous and

impertinent” material alleged in the complaint at ¶13, and to require

Appellant to attach a copy of the 2005 contract of sale for the property and a

copy of the “July 2007” letter referred to in Exhibit A, attached to Appellant’s

complaint.

      On March 3, 2016, Appellant filed a pro se amended complaint.

Appellees filed an answer with new matter to the amended complaint on

March 22, 2016, with exhibits which included: (1) the Standard Agreement

for the Sale of Real Estate; (2) an addendum/endorsement to the sales

agreement; (3) the handwritten February 23, 2009 letter from Appellant to

the Glen Summit Company; (4) a March 12, 2013 email from Appellant to


                                     -5-
J-A20010-17


Andrew Cornell; (5) a photo of a sign Appellant posted on his property in

April 2011, that said: “DICK, YOU FORGOT TO TELL ME YOU LEASED

CONTAMINATED LAND TO ME”; (6) another photo of the same sign Appellant

posted on his property in April 2011; (7) the Seller’s Property Disclosure

Statement;    (8)   RK   Environmental   Services’   Phase   II   Environmental

Assessment; (9) David Golebeck’s February 16, 2010 letter to Appellant;

(10) Gary Marshall’s March 18, 2013 letter; (11) Dennis Noonan, Jr.’s

January 23, 2013 letter; and (12) the DEP’s “Storage System Report From

Narrative Information,” dated December 9, 2013.           On April 11, 2016,

Appellant filed a reply to Appellees’ answer and new matter in which he

admitted the authenticity of Appellees’ exhibits but denied, as a conclusion

of law, Appellees’ affirmative defense that Appellant’s claims were barred by

the relevant two-year statute of limitations for negligence actions.

      On the same day, Appellees filed a motion for judgment on pleadings,

based on the expiration of the two-year statute of limitations.        Appellant

opposed the motion on May 11, 2016, claiming the statute of limitations was

tolled until December 12, 2013, when he received the final DEP report,

confirming his suspicions of soil contamination on his property.       The court

entered an order granting Appellees’ motion for judgment on the pleadings

on August 29, 2016, and dismissed the case with prejudice, based on

Appellant’s admissions in the pleadings.      Specifically, the court stated:

“…[Appellant] has by factual averments (Paragraphs 10−27) admitted his


                                     -6-
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complaint was time-barred by the controlling statute of limitations….” (See

Order, 8/29/16; R.R. at 201A.)

      Appellant filed a motion for reconsideration on September 8, 2016,

which the court denied on September 15, 2016. On September 19, 2016,

Appellant filed a second motion for reconsideration, which the court denied

on September 23, 2016. Appellant timely filed a pro se notice of appeal on

September 27, 2016.         The court did not order Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P 1925(b),

and Appellant filed none.

      Appellant raises one issue for our review:

         DID THE [TRIAL] COURT ERR OR ABUSE ITS DISCRETION
         IN GRANTING A MOTION FOR JUDGMENT ON THE
         PLEADINGS TERMINATING [APPELLANT]’S CASE AS BEING
         UNTIMELY FILED FOR FAILURE TO FILE WITHIN THE
         REQUIRED STATUTE OF LIMITATIONS?

(Appellant’s Brief at 4).

      Appellant concedes the relevant two-year statute of limitations

controls but argues the two-year statute of limitations was tolled in his case

against Appellees.     Even though he began to suspect the existence of

contamination on his property in early 2006, Appellant avers his case was

not “actionable” until the DEP informed him on December 12, 2013, that the

contamination was toxic and required remediation. Appellant contends the

statute of limitations did not begin to run until December 12, 2013, when he

received the DEP letter.         Appellant reasons his action, instituted on


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December 11, 2015, was timely because he sued within two years of

learning that his injury was actionable.

      Appellant further asserts the court erred in determining Appellant’s

suit was time-barred, based on admissions Appellant made in his responsive

pleadings. Appellant alleges these admissions show only that he suspected

contamination on his property; the admissions did not show that he had

actual knowledge of toxic contamination requiring remediation.       Appellant

avers the court failed to differentiate between spill contamination and toxic

contamination.     Appellant concludes the trial court erred in granting

Appellees’ motion for judgment on the pleadings, and we must reverse and

remand for trial. We disagree.

      Appellate review of an order entering judgment on the pleadings

implicates the following principles:

         Entry of judgment on the pleadings is permitted under
         Pennsylvania Rule of Civil Procedure 1034, which provides
         that after the pleadings are closed, but within such time as
         not to unreasonably delay trial, any party may move for
         judgment on the pleadings. Pa.R.C.P. 1034(a). A motion
         for judgment on the pleadings is similar to a demurrer. It
         may be entered when there are no disputed issues of fact
         and the moving party is entitled to judgment as a matter
         of law.

         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

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J-A20010-17


          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.

Southwestern Energy Production Co. v. Forest Resources, LLC, 83

A.3d 177, 185 (Pa.Super. 2013), appeal denied, 626 Pa. 691, 96 A.3d 1029

(2014).

     As a preliminary matter, “[a]verments in a pleading to which a

responsive pleading is required are admitted when not denied specifically, or

by necessary implication.” Pa.R.C.P. 1029(b).

          In other words, a plaintiff is required to respond to
          averments which set forth the factual basis in support of
          an affirmative defense, but is not compelled to answer
          conclusions of law; therefore, under the fact pleading
          system in Pennsylvania, the general rule is that averments
          of fact require denial and the failure to plead to factual
          averments contained in new matter constitutes an
          admission to those averments. A party waives all defenses
          and objections which are not presented either by
          preliminary objection, answer or reply, except a defense
          which is not required to be pleaded under Rule 1030(b),
          the defense of failure to state a claim upon which relief can
          be granted, the defense of failure to join an indispensable
          party, the objection of failure to state a legal defense to a
          claim and any other nonwaiveable defense or objection.
          Defenses to the statute of limitations, such as estoppel,
          agreement, agency, apparent authority, fraud, or
          concealment are waiveable defenses and must be raised in
          a reply to new matter asserting the statute of limitations
          as an affirmative defense.

Devine v. Hutt, 863 A.2d 1160, 1168-69 (Pa.Super 2004) (internal

citations and quotation marks omitted).


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      “The statute of limitations requires aggrieved individuals to bring their

claims within a certain time of the injury, so that the passage of time does

not damage the defendant’s ability to adequately defend against claims

made….”    Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 919

(Pa.Super. 2005), appeal denied, 584 Pa. 717, 885 A.2d 985 (2005)

(internal citation omitted).     “Statutes of limitations are designed to

effectuate three purposes: (1) preservation of evidence; (2) the right of

potential defendants to repose; and (3) administrative efficiency and

convenience.” Kingston Coal Co. v. Felton Min. Co., Inc., 690 A.2d 284,

288 (Pa.Super. 1997), appeal denied, 549 Pa. 702, 700 A.2d 441 (1997).

      As a general rule, the statute of limitations begins to run as soon as

the injury occurs; “lack of knowledge, mistake or misunderstanding [does]

not toll the running of the statute of limitations….”        Pocono Intern.

Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468,

471 (1983). The right to institute a suit generally “arises when the injury is

inflicted.” Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (2005)

(internal citation omitted). “A party asserting a cause of action is under a

duty to use all reasonable diligence to be properly informed of the facts and

circumstances upon which a potential right of recovery is based and to

institute suit within the prescribed statutory period.”       Pocono Intern.

Raceway, Inc., supra at 84, 468 A.2d at 471. “A plaintiff need not know

the precise extent of [his] injuries before the statutory period begins to run.”


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Sterling v. St. Michael’s School for Boys, 660 A.2d 64, 66 (Pa.Super.

1995), appeal denied, 543 Pa. 695, 670 A.2d 142 (1995).

      “The discovery rule is an exception to the requirement that a

complaining party must file suit within the statutory period.”        Meehan,

supra at 919. The discovery rule provides:

         [W]here the existence of the injury is not known to the
         complaining party and such knowledge cannot reasonably
         be ascertained within the prescribed statutory period, the
         limitations period does not begin to run until the discovery
         of the injury is reasonably possible. The “discovery rule”
         arises from the inability of the injured party, despite the
         exercise of reasonable diligence, to know of the injury
         or its cause. Its purpose is to exclude the period of time
         during which the injured party is reasonably unaware
         that an injury has been sustained so that people in that
         class have essentially the same rights as those who suffer
         an immediately ascertainable injury.

Kingston Coal Co., supra at 288-89 (emphasis in original) (internal

citation omitted).   In other words, the discovery rule tolls the statute of

limitations “until the point where the complaining party knows or reasonably

should know that he has been injured and that his injury has been caused by

another party’s conduct.”    Crouse v. Cyclops Industries, 560 Pa. 394,

404, 745 A.2d 606, 611 (2000).         “The statute begins to run when the

injured party ‘possess[es] sufficient critical facts to put him on notice that a

wrong has been committed and that he need investigate to determine

whether he is entitled to redress.’”   Haggart v. Cho, 703 A.2d 522, 526

(Pa.Super. 1997), appeal denied, 553 Pa. 698, 718 A.2d 785 (1998).

      “The party seeking to invoke the discovery rule bears the burden of

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establishing the inability to know of the injury despite the exercise of

reasonable diligence.” Dalrymple v. Brown, 549 Pa. 217, 224, 701 A.2d

164, 167 (1997). The reasonable diligence standard “is not a standard of

reasonable diligence unique to a particular plaintiff, but instead a standard of

reasonable diligence as applied to a ‘reasonable person.’” Id. “[T]he point

at which the complaining party should reasonably be aware that he has

suffered an injury is generally an issue of fact to be determined by the jury;

only where the facts are so clear that reasonable minds cannot differ may

the commencement of the limitations period be determined as a matter of

law.”    E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388, 1391

(Pa.Super. 1993) (internal citation omitted).

        Actions sounding in negligence must be commenced within two years.

42 Pa.C.S.A. § 5524(7). Failure to disclose property defects is a tort. See

generally Bortz v. Noon, 556 Pa. 489, 729 A.2d 555 (1999). Therefore,

Appellant’s claim is subject to the two-year statute of limitations.    See 42

Pa.C.S.A. § 5524(7) (stating: “The following actions and proceedings must

be commenced within two years: (7) Any other action or proceeding to

recover damages for injury to person or property which is founded on

negligent, intentional, or otherwise tortious conduct or any other action or

proceeding sounding in trespass, including deceit or fraud, except an action

or proceeding subject to another limitation specified in this subchapter”). In

any negligence action, the plaintiff must identify a duty owed by one party to


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another; courts have applied a negligence standard to actions involving

misrepresentations. See Bortz, supra.

     In the instant case, Appellant entered into a sales agreement to

acquire the subject property in 2005.      The sales agreement included

provisions releasing all brokers and sellers from responsibility for any

environmental hazards found on the property, a waiver of the right to

inspect the property, and an agreement to buy the property in its present

condition, or “as is.”   In spring 2006, Appellant began to question the

apparent encroachment of Sledziewski Excavating, Inc.’s vehicles and

construction equipment on a corner behind the garage at the rear of his

property.   After a heavy rainfall, Appellant also began to suspect that a

portion of his property might be contaminated, because he noticed a shiny

film on a puddle of storm water he observed in that area. On October 20,

2008, Appellant sent a counseled letter to Sledziewski Excavating, Inc.

concerning the encroachment and possible contamination.

     In June 2009, Appellant hired RK Environmental Services to test the

soil on his property. RK Environmental Services discovered the presence of

petroleum products in the soil and recommended further testing at a greater

depth. Appellant also received a letter dated February 16, 2010, from the

DEP, which enclosed the analytical results of the soil collected from

Appellant’s property on November 17, 2009.         The record additionally

contains a seller’s disclosure form (signed on 4/13/10) in which Appellant


                                  - 13 -
J-A20010-17


answered “Yes” in response to the question, “Are you aware of any past or

present hazardous substances present on the property (structure or soil)

such as, but not limited to, asbestos or polychlorinated biphenyls (PCBs),

etc?”    In answer to the question, “Are you aware of…any other hazardous

substances    or   environmental   concerns   that     might   impact   upon   the

property?” Appellant responded “Yes.” Appellant further modified his answer

stating he suspected contamination from previous owner, but Appellant

claimed he was not informed of the contamination at the time of his

purchase.     Finally, Appellant answered “Unknown” in response to the

question, “Are you aware of any violations of federal, state, or local laws or

regulations relating to this property?” On the form, Appellant wrote, “I don’t

know how much spillage was done by previous owner—testing ongoing.”

        On December 9, 2013, Appellant spoke to a representative of the DEP

concerning the contamination on Appellant’s property.            The handwritten

report of this conversation documented that Appellant knew of the obvious

petroleum impacts to the soil as early as June 2009, and knew that the

samples collected in November 2009, contained lead and arsenic at levels

which exceeded residential statewide health and safety standards.

        On December 12, 2013, the DEP sent Appellant a formal letter

addressing    environmental   responsibilities   for    the    lead   and   arsenic

contamination on his property.     The DEP sent Appellant another letter on

September 30, 2014, confirming its receipt of a report documenting


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remediation activities of soil impacted by the historical storage and

maintenance of vehicles and equipment at the referenced property and

reporting that soil samples had been collected and analyzed for various toxic

compounds and the samples now met the residential statewide health

standard for soil. The DEP letter encouraged Appellant to report any future

environmental problems if they arose.

     Appellant filed a pro se writ of summons against Appellees on

December 11, 2015, and a pro se complaint against Appellees on January

25, 2016. In response to Appellees’ preliminary objections, Appellant filed a

pro se amended complaint on March 3, 2016, alleging Appellant did not have

his own broker during the 2005 purchase of the subject property so

Appellees acted as his agents throughout the purchasing process by

assisting Appellant in obtaining a mortgage and answering his questions

about the lease and condition of the property.     Appellant further claimed

Appellees failed to inform him at the time of purchase of the presence of a

gravel driveway on the property, or of Sledziewski Excavating, Inc.’s use of

the driveway to park and store its vehicles and equipment.         Appellant

contended Appellees had an obligation to inform Appellant of Sledziewski

Excavating, Inc.’s use of the driveway because it amounted to a latent

environmental defect on the property.       Appellant averred he began to

suspect in 2008 that Sledziewski Excavating, Inc. caused environmental

contamination on his property, but maintained he had no more than an


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unconfirmed suspicion until he received the DEP’s letter on December 12,

2013, confirming the presence of lead and arsenic in the soil.     Appellant

asserted Appellees’ failure to disclose the contamination on the property

prevented him from selling the property and caused Appellant to incur

considerable costs and attorney’s fees in his attempt to discover and correct

the alleged problem.

     Appellees filed an answer with new matter to the amended complaint

on March 22, 2016, with exhibits which included: (1) the Standard

Agreement for the Sale of Real Estate; (2) an addendum/endorsement to

the sales agreement; (3) the handwritten 2/23/09 letter from Appellant to

the Glen Summit Company; (4) a 3/12/13 email from Appellant to Andrew

Cornell; (5) a photo of a sign Appellant posted on his property in 4/11, that

said: “DICK, YOU FORGOT TO TELL ME YOU LEASED CONTAMINATED LAND

TO ME”; (6) another photo of the same sign Appellant posted on his

property in 4/11; (7) the Seller’s Property Disclosure Statement; (8) RK

Environmental Services’ Phase II Environmental Assessment; (9) David

Golebeck’s 2/16/10 letter to Appellant; (10) Gary Marshall’s 3/18/13 letter;

(11) Dennis Noonan, Jr.’s 1/23/13 letter; and (12) the DEP’s “Storage

System Report From Narrative Information,” dated 12/9/13. Appellees also

specifically asserted the affirmative defense of the relevant statute of

limitations in paragraphs 10 through 27, referring to the various exhibits

attached, which revealed that Appellant knew or had reason to know of the


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soil contamination well before 2013. Based on these documents, Appellees

averred as follows:

               28. The statute of limitations in Pennsylvania for
         negligence actions is two years.

               29. [Appellant’s] claims against [Appellees] are
         barred by the two-year statute of limitations, because of
         [Appellant’s] failure to commence this action within two
         years of the time [Appellant] knew, or had reason to know,
         that there was possible environmental contamination of his
         property and that there was a possible encroachment on
         his property.

(See Answer to Amended Complaint and New Matter, 3/3/16; R.R. at 100A-

102A.) On April 11, 2016, Appellant filed a reply to Appellees’ new matter in

which Appellant admitted the authenticity of all of Appellees’ exhibits

referenced in paragraphs 10 through 27; but Appellant then simply denied,

as a conclusion of law, Appellees’ affirmative defense based on expiration of

the relevant two-year statute of limitations.

      Appellees filed a motion for judgment on the pleadings on April 11,

2016, which the court granted on August 29, 2016, reasoning that Appellant

had confessed through the admissions in his pleadings that his complaint

was time-barred     The court denied Appellant’s motion for reconsideration,

again explaining: “[Appellant’s] Answer to New Matter in paragraphs 10

through 27 constitute judicial admission to factual averments which

substantiate dismissal of the action as time-barred by the applicable statute

of limitations.   Those paragraphs refer to multiple exhibits which clearly

document a contamination issue [that] would have triggered the initial time

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frame to bring an action.” (See Order, 9/15/16; R.R. 208A.)

      Preliminarily, Appellant’s reply to Appellees’ affirmative defense of the

two-year statute of limitations was inadequate. See Devine, supra. Here,

Appellant admitted the factual basis for Appellant’s affirmative defense but

then simply denied the defense as a conclusion of law. As a result, Appellant

has, in effect, admitted Appellees’ assertion that his suit is time-barred. See

id.; Pa.R.C.P. 1029(b).

      Moreover, Appellant’s own pleadings revealed Appellant suspected

encroachment on his property in 2006, and knew of possible contamination

on his property in 2008, when he began to suspect environmental

contamination of his property due to Sledziewski Excavating, Inc.’s activities

upon and adjacent to his property.         Appellant attached to his amended

complaint the counseled letter he had sent to Sledziewski Excavating, Inc.

on   October   20,   2008,   in   which    counsel   addressed   the   company’s

encroachment and apparent spillage of petroleum products.

      Further, in his reply to Appellees’ new matter, Appellant admitted the

authenticity of Appellees’ exhibits.      These exhibits showed that Appellant

knew of the potential presence of petroleum products in the soil on his

property as early as June 2009, following RK Environmental Services’ Phase

II Environmental Assessment and recommendation for further soil testing.

Appellees’ exhibits also revealed Appellant acted on his knowledge of the

contamination, where Appellant tested the soil on his property multiple times


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between 2009 and 2013.           Essentially, these pleadings and exhibits

demonstrated that Appellant knew about the contamination for more than

two years before he initiated the action against Appellees on December 11,

2015.    Given his admissions in the pleadings, Appellant cannot invoke the

discovery rule to toll the statute of limitations until December 12, 2013.

See Crouse, supra; Kingston Coal Co., supra.

        Instead, the statute of limitations began to run once Appellant

possessed sufficient critical facts to put him on notice of the contamination

and his need to investigate whether he was entitled to redress.           See

Haggart, supra.     At the latest, the statute of limitations for a negligence

claim began to run in June 2009, when Appellant learned of the presence of

petroleum products in his soil and was advised to conduct further testing.

See id.     Appellant’s subjective belief that he did not possess “enough”

information to file his claim, until he received the DEP’s December 12, 2013

letter, failed to toll the statute of limitations.   See id.; Sterling, supra.

Appellant did not need to know the precise extent of the contamination

before the statute of limitations began to run.         See Sterling, supra.

Rather, Appellant’s injury occurred, and the statute of limitations began to

run, as soon as Appellant had sufficient critical facts of the contamination.

See Crouse, supra; Haggart, supra. Based on Appellant’s admissions in

the pleadings, reasonable minds could not disagree that Appellant knew

about the soil contamination before December 12, 2013.            See E.J.M.,


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supra.    Therefore, the record supports the trial court’s decision that

Appellant’s negligence claim was time-barred. See id. Compare Nicolaou

v. Martin, ___ Pa. ___, 195 A.3d 880 (2018) (holding when appellant

reasonably knew or should have known of appellees’ misdiagnosis of

multiple sclerosis was question for jury, where appellees told appellant over

course of seven years that she had four negative tests for Lyme disease;

appellant was later able independently to confirm her Lyme disease

diagnosis); Gleason v. Borough of Moosic, 609 Pa. 353, 15 A.3d 479

(2011) (holding when appellants reasonably knew or should have known

they had suffered injury from toxic mold was question for jury, where

basement flooding occurred in 1993, mold was discovered in 1997, and

appellants began to experience health problems in 1997, but appellants did

not connect their health problems to toxic mold until they saw television

program on topic that aired in 2000).

     In any event, Appellant failed to identify the specific nature of his

negligence claim against Appellees, who brokered the sale of the property at

issue. Appellant conceded in his amended complaint that a two-year statute

of limitations applied to his case, but he did not aver the elements of a

negligence cause of action against Appellees. See Roche v. Ugly Duckling

Car Sales, Inc., 879 A.2d 785, 789 (Pa.Super. 2005), appeal denied, 587

Pa. 732, 901 A.2d 499 (2006) (stating “elements of a negligence-based

cause of action are a duty, a breach of that duty, a causal relationship


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between the breach and the resulting injury, and actual loss”).       In his

amended complaint, Appellant alleged that Appellees’ failed to disclose the

contamination on the property, and the contamination prevented him from

selling the property and has caused him to incur considerable costs and

attorney’s fees in his attempt to discover and correct the problem.

Appellant, however, did not identify any duty Appellees owed to him in this

regard. See id. Appellees were not Appellant’s agents in the sale/purchase

transaction.   Also, the sales agreement included provisions releasing all

brokers and sellers from responsibility for any environmental hazards found

on the property, Appellant’s waiver of his right to inspect the property, and

his agreement to buy the property in its present condition, or “as is.”

Further, Appellant identified the contamination as “known,” but he did not

aver how or if Appellees knew or had reason to know of the contamination.

Appellant simply averred that Appellee David Hourigan knew Sledziewski

Excavating, Inc. used a gravel driveway near Appellant’s garage.       These

broad averments in Appellant’s amended complaint, however, did not create

a direct nexus between Appellees and the alleged contamination.        Thus,

Appellant failed to make out a cause of action against Appellees for

negligence. Based upon the foregoing, we conclude Appellant’s negligence

claim is time-barred. Accordingly, we affirm.




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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