J-A05035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRANSYSTEMS, INC.,                                 IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellant

                      v.

PHILADELPHIA WHOLESALE PRODUCE
MARKET A/K/A PHILADELPHIA REGIONAL
PRODUCE MARKET AND PHILADELPHIA
FRESH FRUIT TERMINAL CORPORATION
A/K/A PHILADELPHIA FRESH FOOD
TERMINAL CORPORATION,

                           Appellees                     No. 1862 EDA 2014


                    Appeal from the Order Entered May 13, 2014
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): January Term, 2013 No. 03651


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 07, 2015

      Appellant, Transystems, Inc., appeals from the order entered on May

13, 2014, that granted the motion for summary judgment filed by

Philadelphia Wholesale Produce Market, also known as Philadelphia Regional

Produce Market, and Philadelphia Fresh Fruit Terminal Corporation, also

known    as    Philadelphia   Fresh    Food   Terminal   Corporation   (collectively

“Appellees”). We affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

            In October 2010, Lee Real Estate sued [Appellant] in
      federal court for copyright infringement for using its copyrighted
      architectural plans without permission. The plans in question
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       were designs for the construction of a new fruit and produce
       terminal in South Philadelphia. [Appellant] promptly filed joinder
       complaints against [Appellees] raising claims for negligent
       misrepresentation for allegedly having erroneously told
       [Appellant] that Lee’s plans could be used without concern for
       copyright issues, and for contribution and indemnification.

              It is not disputed that the misrepresentations took place in
       2006. Lee and [Appellant] settled the federal matter in August
       2012. The settlement terms specifically excluded [Appellant’s]
       contribution and negligent misrepresentation claims against
       [Appellees] which the federal judge dismissed as being strictly
       state law claims.

             It is undisputed that in [June of] 2013, [Appellant] filed a
       new legal action against [Appellees] in the Philadelphia Court of
       Common Pleas for contribution and damages … instead of
       proceeding pursuant to the Transfer of Erroneously Filed Matters
       Statute, 42 Pa.C.S.A. [§] 5103.[1]

             Pleading and Discovery have closed and [Appellees have
       moved] for summary [judgment] claiming that the negligent
       misrepresentation claim is barred by the two year Statute of
       Limitations, and that the contribution claim is barred by the
       terms of the relevant statute, 42 Pa.C.S.A. 8324(c)[.]

Trial Court Opinion, 5/13/14, at 1-2.            The trial court granted Appellees’

motion for summary judgment in an order filed on May 13, 2014.                 This

timely appeal followed.

       On appeal, Appellant raises the following issues for this Court’s

consideration:


____________________________________________


1
   “Section 5103 allows a party to transfer a case dismissed by a federal
court on jurisdictional grounds to an appropriate state court, bringing with
the case its federal filing date for purposes of the statute of
limitations.” Kelly v. Hazleton General Hosp., 837 A.2d 490, 493 (Pa.
Super. 2003) (citing 42 Pa.C.S. § 5103) (emphasis added).



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      1. Whether the trial court erred in granting summary judgment
      in favor of Appellees, dismissing Appellant’s claim for
      contribution with prejudice, by misapplying the provisions of the
      Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321
      et seq., where Appellees were not original defendants.

      2. Whether the trial court erred when it granted summary
      judgment in favor of Appellees, dismissing Appellant’s claim for
      negligent misrepresentation with prejudice without considering
      the application of the discovery rule to the applicable statute of
      limitations.

Appellant’s Brief at 3.

      An order granting summary judgment is subject to the following scope

and standard of appellate review:

             Our standard of review [in] an appeal from the grant of a
      motion for summary judgment is well-settled. A reviewing court
      may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

             In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non[-]moving party bears the
      burden of proof on an issue, he may not merely rely on his
      pleadings or answers in order to survive summary judgment.
      Failure of a non-moving party to adduce sufficient evidence on
      an issue essential to his case and on which he bears the burden
      of proof establishes the entitlement of the moving party to
      judgment as a matter of law. Lastly, we will review 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.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).


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     In its first issue, Appellant claims that the trial court erred in granting

summary judgment in favor of Appellees by misapplying the provisions of

the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. §§ 8321-8327

(“the Act”).   Appellant’s Brief at 13.    Appellant argues that, because no

determination has been made as to Appellees’ status as a joint tortfeasor

under the Act, the trial court’s decision was premature. Id. We disagree.

     The relevant portion of the Act provides as follows:

     § 8324. Right of contribution

     (a) General rule.--The right of contribution exists among joint
     tort-feasors.

     (b) Payment required.--A joint tort-feasor is not entitled to a
     money judgment for contribution until he has by payment
     discharged the common liability or has paid more than his pro
     rata share thereof.

     (c) Effect of settlement.--A joint tort-feasor who enters into a
     settlement with the injured person is not entitled to recover
     contribution from another joint tort-feasor whose liability to the
     injured person is not extinguished by the settlement.

42 Pa.C.S. § 8324.

     After review, we conclude that the trial court correctly granted

summary judgment in favor of Appellees with respect to Appellant’s

argument on joint-tortfeasor status under the Act. If, as Appellant argues,

Appellees are not joint tortfeasors, then the Act does not apply; therefore,

Appellant is not entitled to contribution from Appellees because the Act

permits contribution only from joint tortfeasors.      42 Pa.C.S. § 8324(a).

Conversely, if Appellant establishes that Appellees are joint tortfeasors,


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Appellant is not entitled to contribution because it is undisputed that

Appellant’s settlement in the federal case did not extinguish Appellees’

liability. 42 Pa.C.S. § 8324(c). Accordingly, Appellant is entitled to no relief

on this issue.

      In his second issue, Appellant argues that the trial court erred in

granting summary judgment in favor of Appellees without considering the

application of the discovery rule.    Appellant claims that, while the alleged

negligent misrepresentations were made in 2006, Appellant was not aware

of these misrepresentations until depositions in the federal case on

December 6, 2011. Appellant’s Brief at 16. Thus, Appellant asserts that the

discovery rule tolled the accrual date to December 6, 2011, providing

Appellant until December 6, 2013, to file a timely complaint.         Id.   We

disagree.

      As noted above, Appellant claimed negligent misrepresentation in its

complaint against Appellees. Trial Court Opinion, 5/13/14, at 2; Complaint,

6/3/13, at ¶¶ 21-26 Count I.         This negligence claim carries a two-year

statute of limitation.   42 Pa.C.S. § 5524(7).    “[I]t is well-settled that the

statute of limitations begins to run as soon as the right to institute and

maintain a suit arises.” Morgan v. Petroleum Products Equipment Co.,

92 A.3d 823, 828 (Pa. Super. 2014) (citation omitted).        Once a cause of

action has accrued and the statute of limitations has run, a party alleging

damages is prohibited from bringing its cause of action. Id. However, the

discovery rule is an exception to this general rule that may toll the running

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of the statute. Id. The discovery rule is a “judicially created device which

tolls the running of the applicable 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.” Id.

(internal citation and quotation marks omitted).

      The record reveals that in a December 20, 2011 deposition, a vice

president and representative of Appellant, Mr. William Bremner, testified

that as far back as 2006, Appellant was aware of issues with the use of the

copyrighted material, but he claimed he was informed that the issues had

been resolved and that Appellant was permitted to use the copyrighted

designs.    N.T., Deposition of William Bremner, 12/20/11, at 181-184.

However, Lee Real Estate specifically averred in its complaint in the federal

action that Lee Real Estate did not intend to transfer the copyrights of the

architectural plans to Appellant and that the copyright issue was unresolved.

Second Amended Complaint for Copyright Infringement, 10/13/10, at ¶¶ 18-

59.

      Accordingly, despite Appellant’s belief that the misrepresentation

concerning the copyright was resolved in 2006, Appellant was on notice by

way of the Second Amended Complaint, filed October 13, 2010, that the

misrepresentation regarding the use of the copyrighted materials remained

at issue.   The trial court, finding that Appellant’s claim was specious,

concluded as follows:




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             Even if [Appellant] could prove it did not know that it had
      been damaged until Lee Real Estate filed the federal court action
      in October 2010, its claim is time barred; at the most optimistic,
      it is chargeable with knowledge of injury from the time it joined
      [Appellees] in the federal court action [on November 12, 2010].
      Therefore, the Market defendant’s motion for Summary
      Judgment as to Count I, negligent misrepresentation, is granted
      and the claim is dismissed.

Trial Court Opinion, 5/13/14, at 3.    Thus, Appellant was on notice of the

alleged misrepresentation, at the latest, on November 12, 2010.

      Therefore, viewing the evidence in the light most favorable to

Appellant as the non-moving party and giving Appellant the benefit of the

doubt regarding discovery, Appellant was required to initiate its cause of

action alleging negligence on this issue on or before November 12, 2012.

Here, Appellant did not file its writ of summons until January 30, 2013, and

did not file its complaint until June 3, 2013. Accordingly, Appellant did not

initiate its cause of action until after the statute of limitations expired, and

therefore, we conclude that the trial court properly granted summary

judgment in favor of Appellees.

      For the reasons set forth above, we discern no error of law or abuse of

discretion in the trial court’s May 13, 2014 order. Thus, we affirm the order

granting summary judgment in favor of Appellees.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




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