J-A16038-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

GEORGE L. WATSON,                      :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                        Appellant      :
                                       :
                  v.                   :
                                       :
ROBERT ALLEN SHIPMAN,                  :
                                       :
                        Appellee       :    No. 1304 WDA 2015

                     Appeal from the Order July 21, 2015,
              in the Court of Common Pleas of Greene County,
                  Civil Division at No(s): AD No 159 of 2014

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 28, 2016

      George L. Watson appeals from the trial court’s July 21, 2015 order

granting summary judgment in favor of Robert Allen Shipman. We affirm.

      The trial court has summarized the factual and procedural history of

this case as follows:

           During calendar year[s] 2008 and 2009, [] Watson
      operated a beef cattle farm in Waynesburg alongside Hargus
      Creek Road. During the same time frame, [] Shipman operated
      a water-hauling business dealing, in part, with the disposal of
      [wastewater] from the natural gas drilling operations in Western
      Pennsylvania and the surrounding region.

           Over the course of three months in late 2008 and early
      2009, [Watson] lost 21 of his cattle who died due to “unknown”
      causes.

            Although lab testing came back with negative results
      regarding a specific cause of death, [] Watson had every reason
      to suspect by March, 2011, that illegal dumping operations
      conducted in the area of Hargus Creek led to the death of
      [Watson’s] cattle.



* Retired Senior Judge assigned to the Superior Court.
J-A16038-16

            In March of 2011, [Shipman] was arrested and officially
      charged criminally inter alia in the matter of illegal [wastewater]
      disposal. [Shipman] pled guilty to those charges in February of
      2012.

           As developed in criminal proceedings, the illegal dumping
      by [Shipman] took place between the years 2003 and 2009.

            [Watson] admits seeing [Shipman’s] trucks and operations
      taking place just upstream from his own property, watching as []
      Shipman’s trucks deposited wastewater into Hargus Creek.

              Notwithstanding this knowledge, a complaint was not
      initially filed in the office of the District Magistrate until
      December 30, 2013.

           After proceeding before the Magisterial District Judge, the
      matter was then appealed to the Court of Common Pleas and a
      board of arbitrators heard the matter to a conclusion.

Trial Court Opinion, 7/21/2015, at 1-3 (citation to the record omitted).

      After Watson did not prevail in arbitration, he filed a notice of appeal

to the Court of Common Pleas of Greene County.          Shipman filed both a

motion for summary judgment and a motion for judgment on the pleadings.

Relevant to this appeal, Shipman argued that Watson did not file this lawsuit

within the applicable two-year statute of limitations.1 On July 21, 2015, the

trial court granted Shipman’s motion for summary judgment concluding that

the “statute of limitations has been exceeded and [Watson’s] time for filing a

claim has lapsed.” Id. at 8.      Specifically, the trial court analyzed the

applicability of the discovery rule for tolling the statute of limitations in

reaching its conclusion. The trial court determined that Watson reasonably


1
   Watson concedes that this case is governed by a two-year statute of
limitations pursuant to 42 Pa.C.S. § 5524(7). Watson’s Brief at 18.



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should have known of the relationship between the death of his cattle and

Shipman’s actions no later than March of 2011; however, Watson did not

commence this lawsuit until December of 2013. Accordingly, the trial court

granted summary judgment in favor of Shipman.            Watson timely filed a

notice of appeal.2,3

      Watson presents three issues on appeal.

             I.    Did the trial court err[] by finding the statute of
      limitations in a tort action arising out of criminal activity begins
      to run on the date that the defendant is charged with the
      criminal activity as opposed to the day he pled or is found guilty
      of the criminal activity?

             II.  In a case where the criminal activity leading to a
      cause of action is concealed in a normal course of conduct by a
      defendant is the statute of limitations tolled by the discovery rule
      until defendant’s activity is deemed criminal in a court of law[?]

             III. In a case where the           cause of action is not
      discoverable until after the injury is   sustained by plaintiff and
      from facts unknown to plaintiff at the   time of the injury should a
      jury determine the question of the       running of the statute of
      limitations?

Watson’s Brief at 5-6.

      We set forth our standard of review from an order granting summary

judgment.

             The standards which govern summary judgment are well
      settled. When a party seeks summary judgment, a court shall
      enter judgment whenever there is no genuine issue of any

2
  The trial court did not direct Watson to comply with the mandates of
Pa.R.A.P. 1925.
3
  Watson also filed a motion for reconsideration the same day.               On
September 14, 2015, the trial court denied Watson’s motion.

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      material fact as to a necessary element of the cause of action or
      defense that could be established by additional discovery. A
      motion for summary judgment is based on an evidentiary record
      that entitles the moving party to a judgment as a matter of law.
      In considering the merits of a motion for summary judgment, a
      court views the record in the light most favorable to the non-
      moving party, and all doubts as to the existence of a genuine
      issue of material fact must be resolved against the moving party.
      Finally, the court may grant summary judgment only when the
      right to such a judgment is clear and free from doubt. An
      appellate court may reverse the granting of a motion for
      summary judgment if there has been an error of law or an abuse
      of discretion.…

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.

2005) (citations omitted).

      We also set forth the principles of law governing the statute of

limitations and the discovery rule.

             The discovery rule originated in cases in which the injury
      or its cause was neither known nor reasonably knowable. The
      purpose of the discovery rule has been to exclude from the
      running of the statute of limitations that period of time during
      which a party who has not suffered an immediately ascertainable
      injury is reasonably unaware he has been injured, so that he has
      essentially the same rights as those who have suffered such an
      injury.

            As the discovery rule has developed, the salient point
      giving rise to its application is the inability of the injured, despite
      the exercise of reasonable diligence, to know that he is injured
      and by what cause….

            Therefore, 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


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      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 and quotation

marks omitted).

      Instantly, the trial court analyzed the aforementioned principles in

connection with the facts of this case in the light most favorable to Watson.

It offered the following.

            In the case sub judice, it appears, based upon the
      inconclusive results of the lab testing, that there was at least
      some initial difficulty for [] Watson to make a fair determination
      as to any causal link between the death of his cattle and any
      outside forces.

             We say this somewhat reluctantly given [] Watson’s
      admissions that he observed [Shipman] interacting with the
      creek and his cattle actually drinking from the creek even prior
      to their deaths. However, whatever may be true regarding his
      earlier observations, the press coverage of the arrest of Mr.
      Shipman and the charges filed in March of 2011 clearly
      demonstrate that [] Watson, in fact, “discovered” this possible
      source of his cattle’s death (though the existence of an actual
      link between the dumping and those deaths remains unproven to
      this day) by March 2011 at the latest. In fact, this is exactly
      what he admits in Exhibit J of his own counsel’s brief.




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J-A16038-16

            Consistent with [] Watson’s admission in Exhibit J, there
      were articles, notably from the Pittsburgh Post[-]Gazette among
      others, detailing [] Shipman[’s] being arrested and charged in
      March of 2011. Yet, the complaint was not filed with the
      Magistrate until the end of 2013.

Trial Court Opinion, 7/21/2015, at 6-7.

      Exhibit J to Watson’s brief in response to Shipman’s motion for

summary judgment is a letter written on February 26, 2013 by Watson.

That letter stated, in relevant part, the following:

            On Christmas Day 2008 I found one of my cows dead. The
      following three months, January, February and March 2009, I
      lost a total of 17 cows and four 500 pound heifers.           My
      veterinarian … [ran] all kinds of tests, [but] she was unable to
      make any determination as to the cause of death of the cattle.

             I hired Mr. Sweeney, who hauls dead livestock, to haul
      most of my cattle from my property. I ask[ed] him if he noticed
      anything unusual about the cattle and he told me that their
      livers were yellow.

           Then in 2011 we found out about all the illegal
      dumping. Some of the dumping took place within a mile from
      my farm. The trucks that were illegally dumping traveled past
      my farm every day and night. I feel certain that this illegal
      dumping is the cause of death of my cattle.

Watson’s Response to Shipman’s Motion for Summary Judgment, 6/1/2015,

Exhibit J (emphasis added).

      Watson argues that he “exercised more than a reasonable amount of

diligence to determine the cause of the injury.” Watson’s Brief at 21.       He

contends that “after Shipman pled guilty and all of the details of his polluting

became public[,… Watson] could make a causal connection.” Id. at 22.

However, Watson’s contention is belied by his own admission.          The trial


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court made the following astute observations in denying Watson’s motion for

reconsideration on this basis.

            While undoubtedly [] Shipman’s eventual plea to the
      criminal charge may have enlightened [Watson] further as to the
      possible merit of his claim (if he could actually prove it) the
      facts of the plea disclosed nothing else he did not already know.
      Since knowledge of his claim (and not the merit of his claim) is
      the central consideration in determining the tolling of the statute
      of limitations any reconsideration possesses no conceivable
      merit. The fact remains [Watson] knew everything he needed to
      know at the time criminal charges were filed (he acknowledges
      he was aware of them) and did nothing.

Trial Court Opinion, 9/14/2015, at 2 (emphasis in original).

      We recognize that

      [p]ursuant to application of the discovery rule, the point at which
      the complaining party should reasonably be aware that he has
      suffered an injury is a factual issue best determined by the
      collective judgment, wisdom and experience of jurors. Thus,
      once the running of the statute of limitations is properly tolled,
      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.

Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000) (citations and

quotations omitted; emphasis in original). Instantly, we agree with the trial

court that “reasonable minds cannot differ” as to when Watson learned of

the criminal charges, as Watson himself admitted he learned of them in

2011. Id.   Moreover, “reasonable minds cannot differ” in concluding that

Watson knew or should have known that he had a claim against Shipman at

the time those charges were filed. Id. Accordingly, we are convinced that




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J-A16038-16

the trial court did not err as a matter of law in reaching this conclusion, and

Watson is not entitled to relief on this basis.

      Watson next argues that the discovery rule should be extended in this

case because Shipman “intentionally concealed his illegal dumping of

pollution into the streams and creeks of Greene County.” Watson’s Brief at

30. Watson did not raise this argument in his response to Shipman’s motion

for summary judgment or in his motion for reconsideration; accordingly, this

issue is waived on appeal. See Walsh v. Borczon, 881 A.2d 1, 5 (Pa.

Super. 2005) (“[A] non-moving party’s failure to raise grounds for relief in

the trial court as a basis upon which to deny summary judgment waives

those grounds on appeal.”).

      Finally, Watson contends that the trial court should not have heard the

motion for summary judgment until he had the opportunity to conduct

additional discovery. Watson’s Brief at 32-34. While Watson alludes to this

concept in his response to Shipman’s motion for summary judgment, he

does not argue what evidence was yet to be discovered as it related to the

issue on summary judgment. The trial court, utilizing undisputed facts and

viewing them in the light most favorable to Watson, concluded that

summary judgment was proper as a matter of law. We will not disturb that

conclusion.

      Based on the foregoing, we affirm the order granting summary

judgment in favor of Shipman and against Watson.



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J-A16038-16

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2016




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