J-A29024-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CAMERON BOBBETT AND DENA                :    IN THE SUPERIOR COURT OF
BOBBETT,                                :          PENNSYLVANIA
                                        :
                        Appellants      :
                                        :
                   v.                   :
                                        :
ALFONSO A. FOSCO AND JUDITH L.          :
FOSCO,                                  :
                                        :
                        Appellees       :    No. 320 WDA 2014

               Appeal from the Order Entered January 23, 2014,
              in the Court of Common Pleas of Allegheny County,
                   Civil Division at No(s): GD 12-02-021868

BEFORE: FORD ELLIOTT, P.J.E., ALLEN and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.: DECEMBER 03, 2014

      I respectfully dissent.

      In my view, Appellants’ multiple causes of action are based upon one

basic allegation, namely, Sellers misrepresented in the Seller Disclosure

Statement that they were unaware of any leaks, backups or other problems

relating to any of the plumbing, water, and sewage-related items.      Stated

succinctly, Appellants maintain that Sellers’ misrepresentation injured them

by causing them unknowingly to purchase a home with significant sewage

issues.

      In terms of the timeliness of their various causes of action, Appellants

invoke the discovery rule. Regarding the discovery rule, our Supreme Court

has explained that



* Retired Senior Judge assigned to the Superior Court.
J-A29024-14


     when a court is presented with the assertion of the discovery
     rules application, it must address the ability of the damaged
     party, exercising reasonable diligence, to ascertain that he has
     been injured and by what cause. Since this question involves a
     factual determination as to whether a party was able, in the
     exercise of reasonable diligence, to know of his injury and its
     cause, ordinarily, a jury is to decide it.      Where, however,
     reasonable minds would not differ in finding that a party knew or
     should have known on the exercise of reasonable diligence of his
     injury and its cause, the court determines that the discovery rule
     does not apply as a matter of law.

            When the discovery rule applies, the statute of limitations
     does not commence to run at the instant that the right to
     institute suit arises, i.e., when the injury occurs. Rather, the
     statute is tolled, and does not begin to run until the injured party
     discovers or reasonably should discover that he has been injured
     and that his injury has been caused by another party’s conduct.
     Whether the statute of limitations has run on a claim is a
     question of law for the trial court to determine; but the question
     as to when a party's injury and its cause were discovered or
     discoverable is for the jury.

Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations omitted).

Furthermore, when we review an order granting a motion for judgment on

the pleadings, “[w]e 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.” Erie Ins. Exchange v.

Conley, 29 A.3d 389, 391-92 (Pa. Super. 2011) (citation omitted).

     Appellants and Sellers closed on the home on July 11, 2005.

Appellants pled in their complaint that they experienced sewage backups in

December of 2005 and July of 2009. They also plad that, in September of

2011, a plumber informed that, during the period of July of 2004 and March




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J-A29024-14


of 2005, he had been to the property many times to snake out the sewer

line.

        A fact-finder could determine, as Sellers argue, that Appellants should

have known through the exercise of due diligence of their injury and its

cause when they experienced sewage backups in 2005 and 2009.                 I also

believe that a fact-finder reasonably could conclude, as Appellants contend,

that Appellants could not have known of Sellers alleged misrepresentations

until the plumber informed them in September of 2011 that he had been to

the home several times to address sewage-backup issues when Sellers lived

at the property.      If a fact-finder would agree with Sellers’ argument, then

the statute of limitations would bar Appellants’ causes of action.              If,

however, a fact-finder would agree with Appellants’ contention, then the

statute of limitations would not time bar those causes of action.

        In my view, reasonable minds could differ in finding when Appellants

knew or should have known through the exercise of due diligence that

Sellers   allegedly    misrepresented   themselves   in   the   Seller   Disclosure

Statement and that the misrepresentation injured Appellants.              Because

Sellers’ right to succeed in this case is uncertain and the case is not free

from doubt, I would reverse the order granting Sellers’ motion for judgment

on the pleadings.




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