text:
    Commonwealth v. Wilkins

      C.P. of Lawrence County,
    no. 1180 of 2004.

      Jeffrey Baxter, senior deputy attorney general, for Commonwealth.

      Carmen F. Lamancusa, for defendant.
    January 18, 2007
   COX,./.,

Defendant in the instant case, Thomas R. Wilkins, has filed an appeal pertaining to the order of this court denying defendant’s motion for new trial dated November 17,2006, to the Superior Court of Pennsylvania. On September 22, 2004, Agent Gregory S. Smith of the Pennsylvania Attorney General’s Office filed a criminal complaint against defendant Thomas R. Wilkins with Magisterial District Judge J.V. Lamb, Magisterial District 53-3-02. Subsequently, defendant was arrested on September 23, 2004, pursuant to the criminal complaint and warrant for arrest issued by Magisterial District Judge Lamb. On April 10,2006, a jury trial commenced involving co-defendants Philip Wagman and Thomas Wilkins. Then, on May 9, 2006, defendant was convicted of 19 counts of prescription by physician not in accordance with treatment principles accepted by a responsible segment of the medical profession of the Controlled Substance Drug Device and Cosmetic Act as an accomplice, and one count of conspiracy. On July 24, 2006, defendant filed a motion for judgment of acquittal and motion for new trial and arrest of judgment. Oral argument on the motions was held on October 10, 2006. On November 17, 2006, this court denied said motions.

FACTUAL BACKGROUND

Defendant Thomas Wilkins graduated from the Palmer School of Chiropractic, a renowned school with campuses located throughout the United States. Upon graduating and passing his licensing board exam, defendant became a sole practitioner in New Castle, Pennsylvania. Ms. Shelley Hudson, who began working for Dr. Wilkins in 1998, explained that in the year 2000, Dr. Wilkins was treating approximately five to 10 patients per day and was ready to terminate his practice. However, through unclear means, Dr. Wilkins met Dr. Philip Wagman, a pain management physician and, in hopes to keep his practice afloat, asked him to join his practice. Ms. Hudson testified that Dr. Wagman did indeed join the practice in April of2001, and from that time forward, the practice grew exponentially. Ms. Hudson explained the explosive growth and testified that at the height of the practice, the doctors were treating approximately 118 patients per day. To further corroborate Ms. Hudson’s testimony, Agent Gregory S. Smith explained that surveillance of the practice exhibited its wide spread nature; patients were traveling to the practice from areas as far north as Erie to areas south of Pittsburgh and throughout Ohio. Additionally, Agent Smith testified that patients were also carpooling to their appointments and leaving together with prescriptions in hand. Also, the office was always crowded and, at times, there were people standing outside waiting to see the doctors.

Testimony from multiple witnesses also identified the relationship of the doctors. There were signs posted throughout the office that clearly required all patients who wished to see Dr. Wagman first receive treatment from Dr. Wilkins. Mr. John Lee, an ex-patient of the doctors, testified that he overheard a discussion between Dr. Wagman and Dr. Wilkins in which Wagman stated, “You got to love this — $2,500 per day.” Also, there was testimony that explained the office staff performed duties for both doctors.

Testimony concerning the treatment practices of the doctors demonstrated their lack of desire to administer needed medical treatment, but rather provided it to increase their personal financial gain. Although Dr. Wilkins prescribed x-rays or MRIs for new patients without previous medical treatment, the results often indicated minor abnormalities, if any, that questioned the need for chiropractic treatment, and certainly revealed no need for immediate pain management treatment. Further, Dr. Dennis Corbett, the Commonwealth’s chiropractic expert, illustrated the gross deviations in the length of treatment provided to patients, often exceeding guidelines by several months.

Additionally, Dr. Corbett questioned Dr. Wilkins’ failure to refer a patient to their primary care physician for treatment before introducing him or her to a pain management doctor. Dr. David Evanko, the Commonwealth’s expert on pain management, further corroborated this testimony, claiming that a pain management physician treats patients with chronic pain who are unable to obtain relief through another medical specialty. Dr. Evanko testified that Dr. Wagman did not provide pain management treatment in accordance with treatment principles accepted by any responsible segment of the medical profession. Rather, Dr. Wagman prescribed narcotic medications on his patients’ initial visits without determining whether non-narcotic treatment or other types of therapy would be proper or successful. Thus, Dr. Evanko concluded that Dr. Wagman was engaged in a practice in which he was improperly prescribing narcotic medication. Moreover, even though these patients were receiving both chiropractic and pain management treatment, most claimed minimal, if any, improvement.

Also, Dr. Wagman’s treatment dictated the length of time a patient would receive chiropractic treatment. Mr. Lee testified that there were times he would be receiving treatment from Dr. Wilkins when Dr. Wagman identified him as his next patient, and the chiropractic treatment would stop. More importantly, the record shows a lack of correspondence between the doctors, demonstrating Dr. Wagman’s practice consisted of prescribing narcotic medications without tests or physical therapy.

As a result of these findings of fact, the jury concluded that Dr. Wilkins was clearly involved with the criminal acts carried out by Dr. Wagman and, therefore, found him guilty on the previously stated counts. For the following reasons, this court contends its decision to uphold the jury verdict and deny defendant’s motion for a new trial should be affirmed:

I. Sufficiency of Evidence

This court will first address defendant’s challenge that the sufficiency of the evidence does not support the verdict and sentence imposed. This court contends the verdict and sentence is clearly supported by ample evidence to sustain the conviction. Therefore, this court asserts that its decision to deny defendant’s motion for new trial on the basis that there was sufficient evidence to uphold the jury verdict should be sustained.

In Pennsylvania, the appellate court’s standard of review in regards to a sufficiency claim is: “whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt.. . [the appellate court] may not weigh the evidence and substitute [its] own judgment. . . [additionally] the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding [appellant]’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.” Commonwealth v. Lewis, 911 A.2d 558, 563 (Pa. Super. 2006). (citations omitted) Additionally, the Commonwealth may satisfy its burden of proof by demonstrating all elements of the crime solely through circumstantial evidence. Id. quoting Commonwealth v. Gooding, 818 A.2d 546, 549 (Pa. Super. 2003), appeal denied, 575 Pa. 691, 835 A.2d 709 (2003).

In the case at hand, the appellate court must view all evidence presented during the trial in the light most favorable to the Commonwealth since it was the verdict winner. Therefore, the court must determine whether the evidence and all inferences deducible from it, when viewed in the light most favorable to the Commonwealth, are sufficient to support the elements of accomplice liability and conspiracy charges beyond a reasonable doubt.

a. Accomplice Liability

To find a person guilty of accomplice liability under 18 Pa.C.S. §306, a two-prong test must be satisfied: (1) there must be evidence which demonstrates the defendant intended to facilitate or promote the underlying offense, and (2) there must be evidence showing the defendant actively participated in the offense by aiding, soliciting, or agreeing to aid the principal. See Commonwealth v. Kimbrough, 872 A.2d 1244 (Pa. Super. 2005). This court acknowledges that defendant correctly sets forth the law regarding complicity, asserting that a person may not be charged as an accomplice to a crime merely because he is present at the scene or has knowledge that the crime is being committed. See Commonwealth v. Henderson, 249 Pa. Super. 472, 378 A.2d 393 (1977). Rather, the defendant must have knowledge of the crime and actually be an active partner with the intent to commit the crime. Commonwealth v. Brady, 385 Pa. Super. 279, 560 A.2d 802(1989).

In determining whether defendant was an accomplice in the violation of 35 P.S. §780-113(a)( 14), this court must first determine whether defendant acted with the intent to promote or facilitate in the commission of the crime. Unlike criminal conspiracy, there is no requirement to show that defendant reached an agreement with the principal to find accomplice liability. See Commonwealth v. Allen, 425 Pa. Super. 615, 625 A.2d 1266 (1993). Id. Rather, a “mere rendition of aid is sufficient,” id., and this requirement is satisfied by the least degree of concert or collusion between the accomplice and principal. Commonwealth v. Potts, 388 Pa. Super. 593, 566 A.2d 287 (1989).

This court opines that the circumstantial evidence presented during trial clearly demonstrates that it was defendant’s intent to promote and facilitate in the commission of the underlying crime and, therefore, satisfies the first prong of the test. The facts illustrate that:

(a) Defendant sought a pain management doctor to become part of his practice and help increase business.

(b) After the inclusion of a pain management doctor into the practice, the patient count increased to remarkable levels in a short period of time.

(c)Although defendant maintains that his practice was separate and distinct from that of the pain management doctor, the facts demonstrate that signs throughout the office stated, “Chiropractic treatment is required in order to see the pain management doctor” and “Narcotics would only be prescribed to active chiropractic patients,” suggesting the doctors had a more intimate relationship than what is claimed.

(d)Both doctors required the assistance of the same office personnel, again indicating a closer relationship existed than what defendant admitted.

(e) Defendant continued to treat patients well beyond the normal treatment times as suggested by the chiropractic standard and saw minimal, if any, improvement in his patients.

(f) Defendant would immediately refer patients to the pain management doctor before evaluating the success of non-medicated treatment, such as continued chiropractic treatment and recommended home exercises.

(g) Defendant continued to provide treatment and allow pain management treatment even after x-rays and MRIs showed unremarkable conditions.

(h)If Dr. Wagman terminated a patient relationship, treatment with defendant would cease also, once again indicating a closer relationship existed than what is claimed.

Defendant, on the other hand, contends that the only evidence, if any, that demonstrates an intent to promote or facilitate the commission of the crime was a statement overheard by John Lee, in which Dr. Wagman stated to defendant, “You got to love this — $2,500 per day.” Defendant argues that Mr. Lee’s testimony was impeached several times during trial and, therefore, should not have been considered by the juiy. However, this assertion is incorrect. “The trier of fact, while passing on the credibility of witnesses ... is free to believe all, part or none of the evidence.” Kimbrough, supra, 872 A.2d at 1251. Therefore, the jury was free to assess and believe the testimony of Mr. Lee and rightfully consider the statement he overheard when determining the defendant’s guilt. The court finds that based upon these findings, the first prong of the test to find accomplice liability is satisfied.

Next, to find defendant guilty of accomplice liability, it must be shown that he aided, agreed to aid, or solicited the principal in the planning or commission of the crime. As this court previously identified, defendant immediately recommended patients to Dr. Wagman before providing more extensive chiropractic treatment. Dr. Dennis Corbett, the Commonwealth’s expert witness on chiropractic treatment, testified that this was clearly against established protocol.

Defendant contends that there can be no finding that he aided in the commission of the crime because he never prescribed, nor could he prescribe any medication. However, the legislature has eliminated the defendant’s ability to raise a defense based on an individual’s class or inability to commit the crime. Therefore, the fact that defendant could not prescribe medication to patients is irrelevant. Even if this defense was considered, the court still maintains that the evidence demonstrates defendant assisted Dr. Wagman in carrying out the underlying offense. As previously stated, the aid provided by the accomplice need not be substantial as long as it was offered to assist him in committing or attempting to commit the crime. This court is persuaded by the Commonwealth’s argument that defendant aided in the commission of the crime by “knowingly leaving patients at Dr. Wagman’s doorstep who did not need treatment beyond that of chiropractic care, if any at all.” Therefore, even though defendant did not write the prescriptions to the patients, he aided Dr. Wagman by providing patients that did not need his care. This court is convinced that the entire record illustrates defendant not only intended to facilitate or promote the underlying offense, but also actively participated in the commission of the crime by aiding Dr. Wagman in obtaining patients who were not in need of treatment.

In conclusion, this court is of the opinion that, when viewing the facts in light most favorable to the Commonwealth, there is sufficient evidence to uphold the conviction for accomplice liability.

b. Conspiracy

The next issue the court must address is whether there was sufficient evidence for the jury to convict defendant of conspiracy to violate the Drug, Device and Cosmetic Act. Before a person may be convicted of conspiracy, the trier of fact must find:

“(1) the defendant intended to commit or aid in the commission of the criminal act;

“(2) the defendant entered into an agreement with another (a ‘co-conspirator’) to engage in the crime; and “(3) the defendant or one or more of the other co-conspirators committed an overt act in furtherance of the agreed upon crime.” Commonwealth v. Murphy, 577 Pa. 275, 292, 844 A.2d 1228, 1238 (2004). (citations omitted)

The initial analysis, whether the defendant intended to commit or aid in the commission of the underlying act, is the same as that provided for accomplice liability. First, “mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient to establish that a defendant was part of a conspiratorial agreement to commit the crime.” Id. quoting Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). Rather, some additional evidence that the defendant intended to commit the crime with his co-conspirator must be established. Id. (citations omitted) As provided in detailed analysis for the accomplice liability charge, this court opines that the evidence establishes defendant’s intent to commit the crime.

Additionally, this court is unpersuaded by defendant’s contention that the absence of the direct exchange of money from Dr. Wagman to defendant prevents a finding that a conspiracy existed. The Commonwealth correctly points out that existing case law does not require a direct exchange of proceeds from one co-conspirator to another to maintain a meritorious claim of conspiracy. Additionally, the Commonwealth highlights the fact that defendant still wallowed in financial gain as a result of the conspiracy. Moreover, the conspiratorial arrangement was a daily routine continuing for approximately two years. The practice essentially became a “script mill” with a revolving door and defendant was making $25 every time a patient walked through, regardless of whether or not actual treatment was necessary. These facts clearly manifest defendant’s intent to enter into a conspiratorial agreement with Dr. Wagman. Thus, the first element is satisfied.

The distinguishing factor that separates conspiracy from accomplice liability is the requirement that there be an agreement between the co-conspirators. See id. (citations omitted) The Pennsylvania Supreme Court has recognized that direct proof of a conspiratorial agreement is rarely available. See id.; see also, Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). Accordingly, such an agreement may be proven inferentially through a showing of the parties’ relationship, conduct, or circumstances. Jackson, supra, 506 Pa. at 474, 485 A.2d at 1104. Evidence of the co-conspirators’ overt acts is also sufficient to demonstrate proof of the conspiracy. Id.

In Murphy, supra, the Supreme Court affirmed the conspiracy conviction of the defendant for his involvement in a drug sale. In that case, the court determined that the circumstantial evidence allowed the jury to infer that an agreement existed between the defendant and the co-conspirator, whereby the defendant “would screen drug buyers before introducing them to [the drug dealer] based on [defendant’s] acts of questioning the trooper and calling out to [the dealer], and the evidence that [the dealer] knew upon being called... that the trooper was interested in buying drugs.” Murphy, 577 Pa. at 292-93, 844 A.2d at 1239. Additionally, the court concluded that the delivery of the drugs to the trooper satisfied the requirement that at least one conspirator must perform an overt act in furtherance of the underlying crime.

Although Murphy involved “street dealers,” the case at hand can be resolved similarly. The jury could infer that an agreement existed between defendant and Dr. Wagman, in which defendant would screen potential patients by obtaining a case history and requesting x-rays and MRIs, and then immediately referring the patients to Dr. Wagman for their narcotic prescription. Also it can be concluded that Dr. Wagman’s act of prescribing the narcotics satisfies the requirement that there be an overt act. Therefore, this court is satisfied that enough evidence was presented for the jury to conclude that the elements of conspiracy existed.

In conclusion, this court asserts that there was sufficient evidence to sustain defendant’s conviction for conspiracy to violate the Drug, Device and Cosmetic Act.

II. Weight of Evidence

Finally, this court will address defendant’s argument that the weight of the evidence does not support the verdict. Again, this court will demonstrate that the record provides a substantial amount of evidence to support the fact-finder’s decision. Thus, this court insists that its decision to sustain the convictions is justified and must be upheld.

Under Pennsylvania law, the finder of fact exclusively determines the weight of the evidence and, therefore, may believe the testimony of a witness in full, partially, or not at all. Lewis supra. An appellate court must accept the fact-finder’s decision unless “it is so contrary to the evidence as to shock one’s sense of justice.” Id. Additionally, when the trial court has already entertained a weight of the evidence claim, appellate review is limited to determine “whether the trial court palpably abused its discretion in ruling on the weight claim.” Id.

As the record demonstrates, this court has rejected defendant’s argument that his conviction was contrary to the weight of the evidence. This court determined that the testimony provided during the trial allowed the jury to return a verdict of guilty. Although this court is mindful of defendant’s contention that Mr. Lee’s testimony should not have been provided any weight because it was impeached, the court recognizes that the function of the jury is to evaluate and determine the weight to be given to each witness. Thus, the court is persuaded that enough reliable evidence was introduced, even without consideration of Mr. Lee’s testimony, during defendant’s trial that would allow the jury to conclude that the Commonwealth established beyond a reasonable doubt the elements necessary for a finding of guilty on charges of accomplice liability and conspiracy.

This court emphasizes that the Superior Court review is limited to determine whether there was an abuse of discretion in denying defendant’s weight claim and a new trial should only be granted if the verdict is “so contrary to the evidence as to shock one’s sense of justice.” Commonwealth v. Miller, 555 Pa. 354, 367, 724 A.2d 895, 901 (1999). However, if the appellate court finds support for the trial court’s decision anywhere in the record, the trial court’s decision must be affirmed. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 259, 523 A.2d 723, 727 (1987) (“If such support is to be found [in the record], the trial court must be affirmed, for in that event, it could not be said that the lower court palpably abused its discretion.”). In light of the foregoing evidence, this court is confident that the Superior Court will find a plethora of reliable evidence to sustain the denial.

III. Conclusion

Based on the foregoing analysis, this court asserts that defendant’s contention that his conviction was against the sufficiency and weight of the evidence must be denied. Thus, this court’s decision to deny defendant’s motion for a new trial must be affirmed.

This court requests that defendant’s appeal be denied and the decision to deny defendant’s post-trial motions on the basis of sufficiency and weight of the evidence upheld.

ORDER

Now, January 18, 2007, an appeal having been filed in the above-captioned case by the defendant, Thomas Wilkins, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(a). The clerk of courts of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable Rules of Appellate Procedure.

The clerk of courts is directed to serve a copy of this order of court and attached opinion upon counsel of record, Jeffrey Baxter, Esquire and Carmen F. Lamancusa, Esquire.

      . The court notes that a Pa.R.A.P. 1925(b) order was not issued upon defendant, as this court has already considered post-trial motions concerning the same issues raised. This court believes it can provide a proper analysis of its position to the Superior Court without a statement of matters complained of from the defendant.

      . Initial charges brought against defendant included: “Medicare fraud” 62 P.S. § 1407(a)(6) (accomplice liability) (11 counts); “prescription by physician not in accordance with treatment principles accepted by a responsible segment of the medical profession, Controlled Substance, Drug Device and Cosmetic Act” 35 P.S. §780-113(a)(14)(iii) (accomplice liability) (19 counts); and “conspiracy” 18 Pa.C.S. §903(a) (1) (2 counts).

      . 35 P.S. §780-113(a)(14)(iii).

      . 18 Pa.C.S. §903(a)(l).

      . During trial, Ms. Shelley Hudson provided testimony in which she explained that Dr. Wilkins told her that he was bringing in a pain management doctor to increase the number of patients.

      . Testimony provided by Shelley Hudson illustrates the explosive growth of the practice. Ms. Hudson testified that prior to co-defendant Dr. Wagman joining the practice, defendant was treating approximately five to 10 patients per day. However, once Dr. Wagman joined the practice, the number of patients began to increase and, at its busiest time, the office treated approximately 118 patients in one day

      . Additionally, a patient, Anthony Villani, testified that he was required to pay defendant even if he was not treated by him on the day he went to the office.

      . 18 Pa.C.S. §306(e) states: “In any prosecution for an offense which criminal liability of the defendant is based upon the conduct of another person ... it is no defense that the offense in question, as defined, can be committed only by a particular class or classes of persons, and the defendant, not belonging to such class or classes, is . .. legally incapable of committing the offense in an individual capacity.”

      . Defendant contends that Commonwealth v. Paolino, 837 A.2d 1216 (Pa. Super. 2003) provides guiding principles in determining whether a conspiracy agreement existed. In Paolino, the defendant, an osteopathic physician, entered into an agreement whereby he would pay another osteopathic physician $2,500 per week in exchange for the ability to write prescriptions using their DEA number. Defendant contends that the case at bar is substantially different because: (1) he did not receive a direct exchange of money, (2) he maintained his own patient and financial records, and (3) co-defendant Wagman utilized his own DEA number when he wrote out prescriptions. However, this court has found no case law that supports defendant’s proposition that these differences result in the inability to find the existence of a conspiracy agreement in the case at bar. Rather, this court finds that the facts defendant differentiates were only evidence germane to Paolino that allowed the court to find a conspiracy agreement. The court believes that the evidence presented in this case was sufficient to allow the fact-finder to determine a conspiracy agreement existed in accordance with established precedent.

      . The Commonwealth identifies the fact that defendant’s practice grew from 10 patients per day to a maximum of 118 a day after the arrival of Dr. Wagman. As a result of this exponential growth, the defendant was making approximately $2,950 per day.

      . According to testimony provided by Anthony Villani, an ex-patient of the defendant, Dr. Wilkins would receive a fee from an office visit even if he did not provide treatment that day.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Grasso v. Grasso

      C.P. of Monroe County,
    no. 3291 CV 2005.

      Colleen Mancuso, for plaintiff.

      George W. Westervelt, for defendant.
    January 5, 2007
   ZULICK, J.,

This matter comes before the court on defendant Robert J. Grasso’s (Father) exception to the report of Support Master Richard D. James, Esquire. Father alleges that he has been improperly assessed child support for the parties’ 19-year-old son (Robert Jr.). Robert Jr. is repeating his senior year of high school after failing to graduate last year due to excessive absenteeism. Defendant’s exhibit one. Robert Jr. completed his academic requirements during the 2005-2006 school year with a 2.195 grade point average, defendant’s exhibit two, but was denied graduation due to absenteeism. He has re-enrolled in the same New Jersey high school for the 2006-2007 academic year.

Father was assessed $202 per week in support payments for two minor children on October 6, 2005. On May 8, 2006, he petitioned to remove Robert Jr. from the support order, alleging that his son had become emancipated. On August 16, 2006, a hearing was held before Richard D. James, Esquire, support master, who found that Robert Jr. attended his senior year of high school and met academic requirements for graduation. However, he did not graduate due to absenteeism and had re-enrolled. Mr. James found testimony questioning Mother’s parenting not compelling and was not persuaded by testimony relating to Robert Jr.’s emotional state during the 2005-2006 school year. The master recommended that support continue for the 2006-2007 school year, but that, if Robert Jr. failed to graduate or withdrew from school, Father could re-file his petition. On October 5, Father filed two related exceptions:

“(1) The master erred in concluding that Father should pay support for his 19-year-old son, Robert Jr. (d/o/b 2/22/87), to repeat twelfth grade.

“(2) The master erred in concluding that defendant should pay support for his 19-year-old son, Robert Jr., to repeat twelfth grade when the master found as fact that:

“(a) Robert Jr. had qualified academically to graduate from high school on June 9, 2006;

“(b) Robert Jr.’s failure to graduate on June 9, 2006 was due to his failure to attend school for a sufficient number of days; and

“(c) Robert Jr.’s failure to attend school was not due to illness or physical limitation.”

In evaluating these exceptions, I consider that while a master’s recommendations are not binding, they are entitled to the “fullest consideration” because the master has had an opportunity to view the testimony of witnesses and evaluate their credibility, which this court has not. Goodman v. Goodman, 375 Pa. Super. 504, 507, 544 A.2d 1033, 1035 (1988).

DISCUSSION

The rule in Pennsylvania is clear: “[Notwithstanding a child reaching majority at age 18, a parental duty of support is owed until a child reaches 18 or graduates from high school, whichever event occurs later. This will ensure that children have a minimum education in order to prepare them for the challenges of life.” Blue v. Blue, 532 Pa. 521, 529-30, 616 A.2d 628, 633 (1992). While the Supreme Court in Blue did not explicitly address the issue of students who were 19 years of age or older continuing in high school as a result of non-attendance or otherwise failing to graduate, Pennsylvania precedent justifies applying the per se duty affirmed in Blue to Robert Jr.’s situation.

Before Blue, the Pennsylvania Superior Court had held that support for a student in college was appropriate in certain cases. Marino by Marino v. Marino, 411 Pa. Super. 424, 431, 601 A.2d 1240, 1244 (1992), citing Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super 640, 190 A.2d 182 (1963). To determine whether college support was appropriate, a court looked to whether the student was “able and willing to successfully pursue his course of studies,” and whether the parent had “sufficient estate, earning capacity or income to enable him to pay the order without undue hardship.” Id., citing 200 Pa. Super, at 643-44, 190 A.2d at 184. (emphasis in original) Such support was deemed inappropriate where a student showed “no aptitude, ability, or desire to continue with a course of study.” Marino, 411 Pa. Super, at 433, 601 A.2d at 1245. However, low academic achievement in a college student’s freshman year was not a justification for terminating educational support. Commonwealth ex rel. Colligan v. Kass, 225 Pa. Super. 299, 302-303, 303 A. 2d 225, 227 (1973). This precedent suggests that a court should not respond to dismal attendance during one high school year with an automatic cessation of support. Marino, 411 Pa. Super, at 434, 601 A.2d at 1245.

As the Blue court recognized, high school and college are meaningfully different endeavors with different costs and levels of autonomy. Unlike many college students, Robert Jr. lives at home with his mother (though he lived in Missouri for two months at one point), cannot schedule his classes around part-time work to support himself, and lacks the high school degree necessary to obtain many jobs. However, our research discloses no appellate decision interpreting Blue to guarantee support for a child over 18 who is obviously not putting forth the minimal effort necessary to obtain a diploma. Consequently, applying the Marino test, which determines when a student should be seen as forfeiting child support to which he is otherwise entitled because of his inattention to his studies, is a proper way to address this jurisprudential lacuna.

Applying the test, it would be difficult to find that Robert Jr. has no “aptitude, ability or desire” to graduate. Instead, his ability to graduate from high school has been clearly established by his successfully meeting the relevant academic requirements during the 2005-2006 academic year. While he was not a diligent student in 2005-2006, Kass and Marino suggest that I should not terminate support based on one year’s struggles. In this case, the master gave Robert Jr. one more opportunity to demonstrate the desire to graduate, explicitly noting that if he fails to graduate or withdraws from high school, Father may re-file his petition.

The plain language of the Pennsylvania Supreme Court’s decision in Blue v. Blue appears to guarantee Robert Jr. support as long as he is attempting to graduate from high school. I agree with Father that this privilege should be interpreted to have reasonable limits which have to do with when a student becomes emancipated. However, even applying the more restrictive test which was used before Blue to determine whether a college student had forfeited his support entitlement, Robert Jr. deserves an opportunity to complete his program. I therefore accept the master’s recommendation to continue child support while Robert Jr. attempts to graduate in 2007.

ORDER

And now, January 5, 2007, it is ordered that defendant’s exceptions are denied.

      . The Pennsylvania General Assembly responded by passing a statute requiring divorced couples to provide support for their children while those children were attending college, which was struck down as a violation of the equal protection clause because no similar obligation is imposed on parents who remain married. Curtis v. Kline, 542 Pa. 249, 260, 666 A.2d 265, 270 (1995) (“Ultimately, we can conceive of no rational reason why those similarly situated with respect to needing funds for college education should be treated unequally. Accordingly, we agree with the common pleas court and conclude that Act 62 is unconstitutional.”).

      . Father does not allege that he is subjected to undue hardship by paying support for Robert Jr.

      . In Marino, the Superior Court refused to provide continuing support for a 23-year-old community college student who had moved to Arizona, established a quasi-marital live-in relationship with his girlfriend, expressed to Domestic Relations his intent to be financially independent, and secured part-time employment.

      . A child is considered emancipated as a matter of law at age 21. See Marino by Marino, supra at 432, 601 A.2d at 1244. “Thus, at minimum, absent some clear exception to the contrary, a person reaches the age of majority, and necessarily is considered emancipated by act of law, when that person arrives at the age of 21.”


author: FORADORA, P.J.,

text:
    Ingros v. BFG Electroplating & Manufacturing Company

      C.P. of Jefferson County,
    no. 131-2005 CD.

      Robert P. GingJr, for plaintiffs.

      Carmon M. Harvey, for defendants.
    December 15, 2006
   FORADORA, P.J.,

INTRODUCTION

Now before the court is a motion for summary judgment filed by defendant BFG Electroplating & Manufacturing Company and joined by third-party defendant First Commonwealth Financial Corporation. They contend that all of the claims asserted by Jon Ingros and Judy Ingros, plaintiffs, are barred by the relevant statutes of limitations and that their claim under the Hazardous Sites Cleanup Act is further impaired because the statute does not apply retroactively. BFG and Ingros submitted briefs, and the court entertained arguments on November 6, 2006.

FACTUAL HISTORY

In their complaint, filed February 16,2005, the plaintiffs assert that metals, volatile organic compounds, and other chemicals were detected in various concentrations on their property. They further assert that concentrations of mercury, nickel, chromium, copper, aluminum, and trichloroethylene (TCE) were discovered in the basement and living areas of the home. These findings, aver the plaintiffs, were documented by the United States Environmental Protection Agency (EPA) in a Superfund Technical Assessment and Response Team report dated December 2003 and by the Pennsylvania Department of Environmental Protection (DEP) in a draft technical directive memorandum prepared in April 2004.

TCE, continues the complaint, was also found in BFG’s manufacturing process, located well adjacent to the plaintiffs’ property. It and the other compounds and chemicals discovered on their property, they say, are known human health hazards, ecological risks, and carcinogens that BFG discharged into the soils and groundwater without permission. Such discharge, claim the plaintiffs, has harmed them insofar as their property has been stigmatized and rendered valueless by the presence of these known contaminants.

In Count I — trespass—of the complaint, the plaintiffs aver that as a result of BFG’s negligence, organic and inorganic contaminants were discharged onto their property and the soil and water beneath and surrounding their property, thereby diminishing its value. Count II — violations of the Hazardous Sites Cleanup Act — claims that BFG acted in violation of Pennsylvania law, which makes illegal the contaminating conduct in which BFG allegedly engaged and provides a legal remedy for damaged property owners. Finally, the plaintiffs aver in Count III — private nuisance — that the discharges onto their property constitute a nuisance.

In its motion for summary judgment and accompanying brief, BFG argues that the actions for trespass and nuisance must be dismissed as untimely filed. Reminding the court that those causes of action have two-year statutes of limitations, BFG maintains that at the latest, the plaintiffs’ causes of action accrued on or about January 25, 2003. BFG also argues that the plaintiffs had to bring their claim under the Hazardous Sites Cleanup Act within 20 years of the contamination’s discovery, which BFG avers occurred as early as 1984. Alternatively, BFG says that the statute only became effective in 1988 and does not apply to contamination that occurred before that time.

Attached to the motion were multiple exhibits, including the letters that BFG offered as proof that the plaintiffs knew about the contamination at least by January 25,2003.

DISCUSSION

Amoving party is only entitled to summary judgment when there exists no genuine issue of material fact such that the party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(b). In making that decision, the court must view all facts and reasonable inferences in the light most favorable to the nonmovant and resolve any doubts in the nonmovant’s favor. Haggart v. Cho, 703 A.2d 522, 525 (Pa. Super. 1997).

Counts I & III — Trespass and Private Nuisance

The “Discovery Rule”

Under 42 Pa.C.S. §5524, actions for trespass and nuisance must be commenced within two years. Pennsylvania courts favor strict application of statutes of limitations. Kingston Coal Co. v. Felton Mining Co., 456 Pa. Super. 270, 278, 690 A.2d 284, 288 (1997). Thus, statutes of limitations generally begin running as soon as the right to institute and maintain suit arises. Id.

The law imposes upon a claimant the duty to use all reasonable diligence to be properly informed of the facts upon which a potential right of recovery is based and to timely file suit based upon those facts. Kingston Coal Co., 456 Pa. Super at 278, 690 A.2d at 288. Whether a claimant was reasonably diligent depends upon an objective assessment of his or her actions; the person’s subjective understanding of his or her responsibilities is irrelevant. Id. at 280, 690 A.2d at 289. Moreover, when information is available, a claimant’s failure to make proper inquiries constitutes failure to exercise reasonable diligence as a matter of law. Id.

Nonetheless, the “discovery rule” protects potential plaintiffs insofar as it tolls the running of a statute of limitations in instances where they were uncertain of their injury and could not have reasonably known at an earlier point in time. As our Supreme Court says it, 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). Once the plaintiff possesses sufficient critical facts to put him on notice that a wrong has been committed and that he needs to investigate further to determine whether he has sustained a redressable injury, however, the tolling period ceases and the statute begins to run. Melley v. Pioneer Bank, N.A., 834 A.2d 1191, 1201 (Pa. Super. 2003).

Whether a plaintiff exercised due diligence and discovered his injury within a reasonable amount of time is generally a jury question. Haggart, 703 A.2d at 528. That changes, however, when the undisputed facts lead inexorably to the conclusion that the plaintiff did not act reasonably. Id. Then the question of due diligence can be decided by the court as a matter of law. Id.; Murphy v. Saavedra, 560 Pa. 423, 426, 746 A.2d 92, 94 (2000). Because the record clearly demonstrates that more than two years before the plaintiffs instituted this lawsuit, they possessed sufficient critical facts to put them on notice not only that their property was contaminated, but also that BFG may have caused the contamination, they cannot now, as a matter of law, take advantage of the “discovery rule”.

Rule 1035.1 governs what constitutes the “record” for purposes of summary judgment proceedings; it specifies that pleadings, depositions, answers to interrogatories, admissions and affidavits, and filed reports signed by an expert witness may be considered. Id. Within those parameters, BFG offers interrogatories directed to the plaintiffs and the affidavit of Jon Ingros. That affidavit, by itself, leaves no doubt that the plaintiffs were sufficiently on notice of both their injury and what they deemed its likely cause more than two years before filing the instant complaint.

In the first numbered paragraph of his affidavit, Ingros makes the legal conclusion that he only became aware that he had a cause of action against BFG in April 2004. Subsequent paragraphs belie that conclusion, however. Paragraphs 2 through 4 demonstrate that in 2001, the plaintiffs were in possession of the Stewart Lab reports documenting the contamination on the plaintiffs’ property and believed that BFG was the cause of that contamination firmly enough that Ingros confronted BFG’s president, Jeffrey Grube, with those reports. In fact, it was not until March 17,2003 that the plaintiffs received word from the DEP and EPA that BFG may not have caused the contamination. (Affidavit of Jon Ingros, ¶8.) However, the fact of the contamination remained, and the necessary corollary to the statement that BFG may not have caused the contamination was that BFG may have caused the contamination. Yet the plaintiffs chose not to sue BFG either in 2001 or any time thereafter until they filed their complaint on February 16, 2005.

In the final numbered paragraph of his affidavit, Ingros avers that in April 2004, after meeting with Nathan Walker of the DEP, he finally became aware that BFG was the most likely cause of the contamination on the plaintiffs’ property and thereafter obtained counsel and filed this lawsuit. As evidenced by this averment and his arguments in opposition to BFG’s motion for summary judgment, the plaintiffs apparently assume that they did not become sufficiently aware that they had a cause of action against BFG until confronted with the proposition that BFG was the “most likely” cause of their alleged injury. But as the above cited precedents make clear, the law does not require that level of certitude before it deems a cause of action to have accrued.

The inapplicability of the “discovery rule” is further evidenced by the letter dated January 25,2003, wherein Ingros details the plaintiffs’ efforts to locate the contamination and its source, as well as his continued belief that BFG is responsible for the contamination.

The plaintiffs knew as early as 2001 that their property was contaminated, and certainly by January 25, 2003. They believed as early as 2001 that BFG had released the contaminants and continued to believe that in 2003. Clearly they possessed sufficient critical facts leading them to further investigate the problem, see Melley, 834 A.2d at 1201, and Ingros’ affidavit and the letter authored by him show that the plaintiffs did indeed continue investigating at that time. Therefore, they were objectively aware that they had a cause of action as early as 2001. Their subjective feeling that they did not possess enough information to sue BFG until hearing that it was “most likely” the cause of the contamination on their property did not toll the statute of limitations. Once the critical facts were within the plaintiffs’ knowledge, i.e., in the year 2001, the statute began to run. To conclude otherwise would contravene the statute of limitations’ purpose of providing repose to BFG. See Kingston Coal Co., 456 Pa. Super, at 278, 690 A.2d at 288 (“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.”). The plaintiffs knew in 2001 that they were injured. They believed in 2001 that BFG had caused their injury and never received any definitive evidence to the contrary. They were thus obligated by law to bring suit against BFG, and it was BFG’s right to have suit brought against it, no later than 2003. Their failure to do so was objectively unreasonable and constituted a failure of due diligence. As a matter of law, therefore, the plaintiffs are precluded from asserting the “discovery rule” to justify their untimely filing of this suit.

Fraudulent Concealment

The plaintiffs also argue that BFG is precluded by the doctrine of fraudulent concealment from successfully asserting a statute of limitations defense.

Where the parties dispute whether the defendant made certain allegedly fraudulent and concealing remarks, the decision whether the remarks were made lies with the jury. Fine v. Checcio, 582 Pa. 253, 270-73, 870 A.2d 850, 860-62 (2005). Here, however, BFG does not deny that Jeffrey Grabe informed Ingros that BFG did not use the chemicals found on his property, but that they were utilized by a string of coke ovens that had operated a few miles away at the turn of the century. (Affidavit of Jon Ingros, ¶¶2-3.) Consequently, that conversation stands as established fact upon which the court can decide whether BFG engaged in fraudulent concealment.

The doctrine of fraudulent concealment functions as a remedy based in estoppel and precludes a defendant from effectively pleading the statute of limitations if he, through fraud or concealment, causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. Fine, 582 Pa. at 270-71, 870 A.2d at 860. The doctrine encompasses both intentional and unintentional deception, and its applicability is for the plaintiff to prove by clear, precise, and convincing evidence. Id. The presiding court may determine whether established facts create an estoppel situation.

The court finds in BFG’s favor. Ingros’ affidavit demonstrates that Grube’s statements, even if they were deceiving, did not cause the plaintiffs to relax their vigilance or deviate from their right of inquiry into the facts. Rather, after speaking with Grube, the plaintiffs actively continued their investigation, among other things contacting the DEP and EPA for further investigation into what the plaintiffs already thought they knew. (Affidavit of Jon Ingros, ¶4.) Thus, the plaintiffs have themselves established that even if Grube’s statements were somehow deceiving, they did not result in diminished vigilance on the part of the plaintiffs.

Count II — Violation of the Hazardous Sites Cleanup Act

The Hazardous Sites Cleanup Act, 35 P.S. §6020.101 et seq., attempts to ensure that hazardous substances do not get released into the environment. Section 6020.102. Section 6020.1115 creates a mechanism for citizen suits when the release of hazardous substances causes or threatens to cause personal injury or property damage. Id. The Act includes its own statute of limitations in section 6020.1114, the meaning of which the parties dispute.

Section 6020.1114 states in relevant part:

“Notwithstanding the provisions of any other statute to the contrary, actions for civil or criminal penalties under this act or civil actions for releases of hazardous substances may be commenced at any time within a period of 20 years from the date the unlawful conduct or release is discovered.”

The plaintiffs argue that the 20 years only began to run after they discovered the contamination on their property, while BFG maintains that the statutory period began when the EPA first discovered the contamination in 1984 or 1985. The court agrees with BFG’s interpretation.

The purpose of all statutory interpretation is to ascertain and effectuate the intention of the legislature, 1 Pa.C.S. §1921(a), and the best indication of that intent is the plain language of the statute. Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004). And because the court assumes that the legislature did not intend an absurd or unreasonable result when drafting a statute, statutory interpretation should examine the practical consequences of an interpretation. Piroli v. Loclico, 909 A.2d 846, 852 (Pa. Super. 2006).

The statute specifies that suit may be brought within twenty years “from the date the unlawful conduct or release is discovered.” 35 P.S. §6020.1114. (emphasis added) It contains no qualifying language indicating a particular person or entity whose discovery commences the limitations period. Specifically, it does not allow for 20 years after the first homeowner discovers the unlawful conduct or release that affected his or her property. Rather, the language is general; it indicates that the limitations period begins to run once the unlawful conduct or release is discovered by anyone.

Additionally, the plain language of the statute indicates that the statute of limitations begins to run when the unlawful conduct or release is discovered, period, and not when it is discovered on a particular parcel of property.

The plaintiffs blame BFG for the contamination of their property. Their claim comes too late. The record shows that hazardous substances released by BFG were discovered on BFG’s property in 1984 or 1985. Ingros’ letter to Governor Rendell makes reference to that event, and the plaintiffs admit as much in paragraph seventeen of their response to defendant’s motion for summary judgment. The plaintiffs now claim that the contamination originally released by BFG has infiltrated their property — a discovery they made less than 20 years ago. However, section 6020.1114 says that it is the discovery of the unlawful conduct or release, in and of itself, that triggers the statute of limitations, not the discovery that the unlawful conduct or release has adversely affected a particular piece of property.

Adopting the plaintiffs’ interpretation of section 6020.1114 would lead to the unreasonable result of a potentially unlimited period of liability for defendants. The plaintiffs argue otherwise, maintaining that once discovery is made by the first homeowner — here the plaintiffs — successive owners of the property are put on notice of the contamination and do not get an additional 20 years to commence suit should they rediscover it for themselves. While the argument is appealing on its face, however, it is ultimately unconvincing. First, even this scenario does not comport with the plain meaning of the statute. Second, the plaintiffs’ argument does not guarantee defendants repose within any reasonable period of time.

Suppose one homeowner discovers the unlawful conduct or release and simply does not care enough to report her discovery. Or suppose another homeowner makes the discoveiy and accepts a closed-door settlement offer from the entity that engaged in the unlawful conduct or release. Under either scenario, the plaintiffs’ argument breaks down, because even though both homeowners have discovered the unlawful conduct or release, neither has taken steps to put others on notice that such a discoveiy was made. The plaintiffs’ argument, then, necessarily becomes that the 20-year period begins to run only after the unlawful conduct or contamination is discovered by the first homeowner who makes a public record of his or her discovery. Under that proposition, a would-be defendant who violates the Act faces a potentially limitless limitations period during which he can be held liable for his conduct. As evidenced by the enactment of statutes of limitations, the legislature has deemed that result unacceptable.

The 20-year statute of limitations contained in the Act far exceeds most statutes of limitations. The court can only conclude that the legislature acted very deliberately in that regard, understanding that hazardous substances released into the soil and water could take years to migrate and contaminate properties downstream. With that recognition, the legislature gave potential plaintiffs 10 times as long to commence an action as the typical personal injury or property damage plaintiff enjoys. Discovery of the unlawful conduct or release of the contamination that allegedly affected the plaintiffs’ property occurred in 1984 or 1985. The plaintiffs then had until 2004 or 2005 to bring the instant suit. Section 6020.1114 thus precludes their claim under the Hazardous Sites Cleanup Act.

The date of the Act’s enactment also forbids maintenance of this suit under its provisions. The legislature specified in 1 Pa.C.S. §1926 that “[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” Id. Expounding upon the effect of section 1926 and statutes generally, our Supreme Court has long held that a statute containing general language that may be susceptible to retroactive and prospective application will be held to be prospective only. E.g., Krenzelak v. Krenzelak, 503 Pa. 373, 380, 469 A.2d 987, 990 (1983); Horn v. Brannen Manufacturing Co. v. Steelman, 215 Pa. 187, 189, 64 A. 409, 410 (1906).

The Hazardous Sites Cleanup Act was signed into law on October 18, 1988. It became effective 60 days later. The discovery of BFG’s unlawful conduct or release occurred three to four years before that. Nowhere in the Act does the legislature indicate that it was intended to operate retroactively. It thus may not be employed to penalize BFG for conduct that occurred years before its enactment.

ORDER

And now, December 15, 2006, for the reasons articulated in the foregoing opinion, it is hereby ordered and decreed as follows:

The summary judgment motion brought by defendant BFG Electroplating & Manufacturing Company and joined by defendant First Commonwealth Financial Corporation is granted.

      . As opposed to being an unauthenticated document purporting to be a letter personally written by Ingros, that letter was attached as an exhibit to interrogatories that BFG directed to the plaintiffs. In interrogatory no. 3, Ingros unequivocally admits that he wrote the letter to Governor Edward Rendell. As part of the interrogatories, therefore, the letter becomes a valid document for the court’s consideration.

      . BFG specifically maintains that the initial discovery occurred either in 1984 or, in any event, before February 16,1985, and thus that the plaintiffs’ suit was untimely filed either way.

      . Because the plaintiffs acknowledged and agreed with BFG’s assertions concerning the time of initial discovery of the contamination, and having offered no reason for delay that might have functioned to excuse a strict application of the statute of limitations, they were obligated to file suit prior to February 16,2006.


author: BIGHAM, J,

text:
    Repasky v. Jeld-Wen Inc.

      C.P. of Adams County,
    no. 06-S-717.

      Paul W. Minnich, for plaintiffs.

      Wayne W. Ringeisen and Jeffrey S. Adler, for defendants.
    December 29, 2006
   BIGHAM, J,

STATEMENT OF FACTS

In 1992, John and Christine Repasky (plaintiffs) constructed an addition to their home in Mt. Pleasant Township, Pennsylvania. The addition was built to house a pool and a gymnasium. The exterior of the addition was constructed of stone veneer interspersed with an Exterior Insulation and Finish System (EIFS) which was manufactured by STO Corp. and contained 18 exterior window and door units manufactured by Jeld-Wen Inc. and Pozzi Window Company. In 2004, plaintiffs noticed bubbling and cracking in the EIFS system around the windows and discovered extensive decay of the system. Plaintiffs also discovered that the frames of virtually all of the windows, window sills, and doors were rotted. Plaintiffs have had to completely replace the EIFS system as well as the windows and doors.

Plaintiffs commenced this action against STO, JeldWen and Pozzi on June 28,2006 by filing a writ of summons. Defendant Jeld-Wen filed a rule to file complaint on July 24, 2006 and defendant STO filed a rule to file complaint on August 11,2006. Plaintiffs filed their complaint on September 11, 2006. STO filed preliminary objections to plaintiffs’ complaint on September 27,2006 and filed their supporting brief concurrently therewith. Plaintiffs filed an amended complaint on October 13, 2006. On November 2, 2006, Jeld-Wen and Pozzi filed preliminary objections to plaintiffs’ amended complaint outlining the following objections:

“(1) applying either of the two possible limited warranties, Jeld-Wen and Pozzi properly and expressly excluded the implied warranties of merchantability and fitness for a particular purpose;

“(2) causes of action sounding in implied warranties and express warranties are time barred;

“(3) plaintiffs’ claims under the theories of negligence and strict liability are barred by the economic loss doctrine; and

“(4) causes of action sounding in negligence and strict liability are time barred.”

On November 6, 2006, STO filed preliminary objections to plaintiffs’ amended complaint and as well as their supporting brief outlining their objections:

“(1) plaintiffs’ tort based claims are barred by the economic loss doctrine where the only damages claimed are to the product itself and do not involve physical injury; and

“(2) plaintiffs’ claim for breach of implied warranty is time barred.”

A court order was entered on November 8,2006 directing plaintiffs to file a responsive brief by November 21, 2006 and scheduling oral argument for December 8,2006 at 8:30 a.m. Plaintiffs’ counsel requested an extension for filing responsive brief and with all parties in agreement, plaintiffs were permitted to file their responsive brief on November 30,2006. STO filed a reply brief to plaintiffs’ response on December 6, 2006. Jeld-Wen filed a reply brief to plaintiffs’ response on December 18, 2006.

LEGAL DISCUSSION

Economic Loss Doctrine

STO and Jeld-Wen (defendants) argue that plaintiffs cannot recover in tort because the damages are barred by the economic loss doctrine.

Plaintiffs claim that neither defendant has taken their analysis of the economic loss doctrine and its exceptions to the extent necessary to reach an appropriate determination concerning the preliminary objections they now raise. We disagree.

It is well-settled in Pennsylvania that the economic loss doctrine bars recovery in tort where there is no physical injury and the only damages are to the product itself. “The general rule of law is that economic losses may not be recovered in tort (negligence) absent physical injury or [other] property damage.” Spivak v. Berks Ridge Corporation, 402 Pa. Super. 73, 78, 586 A.2d 402, 405 (1991). The economic loss doctrine bars recovery for the plaintiff when a claim is brought in tort (strict liability or negligence) but no physical injury exists, and the only damage is to the product itself. New York State Electric & Gas Corporation v. Westinghouse Electric Corporation, 387 Pa. Super. 537, 549, 564 A.2d 919, 925-26 (1989).

“In our opinion in the companion to this case, REM Coal Company Inc. v. Clark Equipment Company, this court has held that economic losses are not recoverable in negligence or strict liability in a product liability action.” Id. at 550, 564 A.2d at 925.

“[W]e adopt the standard unanimously adopted by the Supreme Court in East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), under which recovery in tort is barred in product liability actions between commercial enterprises where the only damage alleged is to the product itself, whether or not the defect posed a risk of other damage or injury or manifested itself in a sudden and calamitous occurrence.” REM Coal Company Inc. v. Clark Equipment Company, 386 Pa. Super. 401, 409, 563 A.2d 128, 132 (1989).

“A manufacturer in a commercial relationship has no duty under either a negligence or strict products liability theory to prevent a product from injuring itself.” East River Steamship Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 871 (1986). This rule has been further expanded by the court in Jones to include consumers. The economic loss doctrine applies to consumers as well as between commercial enteiprises. Jones v. General Motors Corp., 428 Pa. Super. 544, 546, 631 A.2d 665, 666 (1993).

The Commonwealth’s version of the doctrine precludes recovery for economic losses in a negligence action if the only damage sustained by the plaintiff/purchaser is damage to the product itself, but no other property damage or personal injury resulted. REM Coal Company Inc. v. Clark Equipment Company, 386 Pa. Super. 401, 413, 563 A.2d 128, 134 (1989). (emphasis added) Therefore, the outcome here turns on what is considered to be the “product itself’?

Defendants claim that the loss suffered was to the product itself and therefore recovery for that loss is not permissible. Defendants argue that a “product” is considered a finished product and not the individual components of which it is comprised, and that when an allegedly defective component is incorporated into the final integrated product it is not damage to “other property” under the economic loss doctrine.

Plaintiffs argue defendants have not analyzed this claim properly under the economic loss doctrine and that a proper analysis would indicate the injuries suffered were to “other property.” Plaintiffs argue that because their claims fall under the “other property” exception to the economic loss doctrine, recovery would not be barred.

Plaintiffs assert this court should apply the rule from Saratoga Fishing Co., 520 U.S. 875 (S.Ct. 1987) where it was found that a tort plaintiff could recover for physical damage the product causes to “other property”; equipment added to a product after the manufacturer or distributor selling in the initial distribution chain has sold the product to an initial user is not part of the product itself that caused physical harm, but rather constitutes “other property.” Saratoga Fishing Co., at 875. The court’s points of inquiry were identified as being whether or not equipment added by the initial user after the first sale constitutes part of the “product itself” or whether it constitutes “other property.” Id. at 877. The court held that the addition of property to the product sold to the initial user by the manufacturer or distributor constituted “other property” and that therefore the normal tort rules permitted recovery. Id. (emphasis added) “When a manufacturer places an item in the stream of commerce by selling it to an initial user, that item is the ‘product itself’ under East River. Items added to the product by the initial user are therefore ‘other property,’ and the initial user’s sale of product to a subsequent user does not change these characterizations.” Id. at 879. (emphasis added)

This court does not find the rule in Saratoga Fishing Co. applicable to this case. The products at issue here are not additions to the completed building but instead are components of the completed building. The separate products (i.e., windows, doors, EIFS) were used in combination with one another to form the building. Therefore the “finished” product is considered to be the entire building inclusive of its component parts. Actually, the court in Saratoga Fishing Co. points this out.

The Supreme Court finds that components that are part of a product when it is initially sold do not fall within the “other property” exception:

“Since all but the very simplest of machines have component parts, [a contraiy] holding would require a finding of ‘property damage’ in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability. Our holding here, however, does not affect this rule.” Saratoga Fishing Co. at 883. Citing East River, 476 U.S. at 867 (quoting Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska 1981).

To determine what constitutes damages to “other property” for purposes of the economic loss doctrine, the “product” is considered to be the finished product rather than the individual components of which it is comprised. King v. Hilton-Davis, 855 F.2d 1047, 1052 (3d Cir. 1988). When a component of a structure is alleged to be defective, it is not considered “other property,” and the economic loss doctrine will bar the plaintiff from recovering under a theory in tort. Lupinski v. Heritage Homes, Ltd., 369 Pa. Super. 488, 492, 535 A.2d 656, 657-58 (1988) (Damages to house allegedly caused by bug infested lumber that was integrated into the house was not damage to “other property”). Id.

Pennsylvania courts have recognized that when damages to certain building components are alleged to have been caused by other components in the same residential structure, the damage is not considered to be “other property” under the economic loss doctrine. Atkins v. Dryvit Sys. Inc., no. 99-10131 (C.C.P. Jan. 31, 2003) (Chester Cty.) (slip-op).

Damage to building facade caused by allegedly defective exterior wall coating was not damage to “other” property, thereby limiting plaintiff’s recovery to contract-based theories. Wellsboro Hotel Co. v. Prins, 894 F. Supp. 170, 175 (E.D. Pa. 1995). Damage to building allegedly caused by leaky doors was not damage to “other property” under economic loss rule. Longport Ocean Plaza Condo. Inc. v. Robert Cato & Assocs. Inc., 2002 WL 436742 at 5 (E.D. Pa. Mar. 18, 2002).

“In determining whether a product has injured only itself in an action in which a component part manufactured by a defendant causes injury to the product of which it is a part, a court should look not to the product manufactured by the defendant, but to the product purchased by the plaintiff.... Therefore, to the extent products used in construction prove defective and result in harm to a building itself, those damages should not be considered damage to ‘other property.’” Id.

The court held that a claim for damages to “other property” where defective components of a generator allegedly caused damages to other parts of the generator was clearly without merit. New York State Electric & Gas Corporation v. Westinghouse Electric Corporation, 387 Pa. Super. 537, 550, 564 A.2d 919, 925 (1989).

The fundamental rationale behind the economic loss doctrine is that the law of contracts and not of tort provides the appropriate remedy for plaintiffs seeking to recover for the alleged failure of a product to perform as expected. The purpose of the economic loss doctrine, as adopted in Pennsylvania, is “maintaining the separate spheres of the law of contract and tort.” New York State Electric & Gas Corporation at 550, 564 A.2d at 925. Therefore, because the court finds the building to be the “finished” product, the claims in tort are barred by the economic loss doctrine. Defendants’ preliminary objection under the economic loss doctrine is therefore sustained.

Torts

Jeld-Wen also objected to the tort claims asserting they are barred by the statute of limitations. However, because the objection under the economic loss doctrine has been sustained and the tort claims will be barred under that theory, the court sees no need to address this objection.

Statute of Limitations

Implied Warranty/Express Warranty

“An action for breach of any contract for the sale of goods must be commenced within four years after the cause of action has accrued.” 13 Pa.C.S. §2725(a).

Defendants argue that if a breach actually occurred it would have occurred when the pool house was originally constructed in 1992. A cause of action accrues for statute of limitations purposes “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” 13 Pa.C.S. §2725(b). Defendants argue that even if plaintiffs did not discover a breach until 2004, the statute of limitations period would have already expired.

There is no “discovery rule” with respect to a breach of implied warranty claims under Pennsylvania’s Commercial Code that would toll the running of the four-year statute of limitations period beyond the date of breach. Breach occurs, if at all, (and the four years statute of limitations begins to run) upon tender of delivery of the allegedly defective goods). Northampton County Area Community College v. Dow Chemical U.S.A., 389 Pa. Super. 11, 27, 566 A.2d 591, 599 (1989) (tort discovery rule does not apply to breach of warranty actions). The Commercial Code expressly rejects a discovery rule similar to the one that has been developed for personal injury actions. Patton v. Mack Trucks Inc., 360 Pa. Super. 1, 14, 519 A.2d 959, 966-67 (1986).

Plaintiffs concede that defendants properly and accurately cited to the statutory law applicable to the claims. However, plaintiffs argue that the rationale behind the statute is outdated, against public policy, and no longer applicable in the legal arena of the present day and age. Plaintiffs argue that in this day and age demands that records for certain types of products be kept for a period of time consistent with the typical or expected life of the product, rather than an arbitrarily selected narrow time frame of “four years.” “[I]n the usual circumstances,... defects are apt to surface within that time period, and the few odd situations where this is not the case, resulting in hardship to the buyer, are thought to be outweighed by the commercial benefit derived by allowing the parties to destroy records with reasonable promptness.” Nationwide Insurance Company v. General Motors Corporation, 533 Pa. 423, 428, 625 A.2d 1172, 1174 (1993) citing to William D. Hawkland, Uniform Commercial Code Series §2-725:02 (1984).

Plaintiffs also assert that the statute of limitations is actually a statute of repose and that this could potentially leave the plaintiffs with no means of recovery. “Thus, in breach ofwarranty cases the four-year statute of limitations period is essentially a statute of repose. ” Nationwide at 428, 625 A.2d at 1174-75. (emphasis added)

A statute of repose is distinguishable from a statute of limitations, in that a statute of repose limits potential liability by limiting the time during which a cause of action can arise, and cuts off a right of action after a specified time measured from delivery of a product or completion of work, regardless of the time of accrual of a cause of action or a notice of invasion of legal rights. Black’s Law Dictionary, 6th edition.

Plaintiffs’ arguments are interesting points that are well thought out. However, until the state legislature makes a change to the statute to reflect such an argument the law remains the same. The statute of limitations period is four years beginning at the tender of delivery of the goods. Therefore, because the building was completed in 1992, the alleged breach was discovered in 2004 and the claims were not brought until 2006, the statute of limitations period has expired and this preliminary objection will be sustained.

Warranty of Merchantability and Fitness for a Particular Purpose

Plaintiffs argue that Jeld-Wen warranted that its windows and doors were reasonably fit for the purpose for which they were ordinarily and customarily intended and that the same were of good and merchantable quality. Plaintiffs claim that because of the significant problems that arose Jeld-Wen breached those implied warranties. Plaintiffs argue that defendants interjecting two limited warranties that “may” have been used to disclaim their implied warranties are new factual information that is beyond the averments of the complaint, and has not been the subject of any discovery yet performed in the case. Plaintiffs claim these documents are prematurely before this court and therefore should not be considered. Plaintiffs also argue that they should be given a fair opportunity to question and develop a proper discovery record relating to whether the two documents are applicable here.

Jeld-Wen argues that these implied warranties were disclaimed by their express warranties and therefore no breach could have occurred based on those implied warranties. Jeld-Wen claims that plaintiffs failed to provide a copy of the limited warranty accompanying the windows and/or door purchase when filing their first amended complaint and the complaint fails to mention the date or month of the purchase as well as the supplier thereof. Therefore, Jeld-Wen offers two standard warranties that were used in 1992, one of which would have been used in this transaction. One warranty was used from January 1,1992 through October 2,1992 and the other was used from October 2, 1992 through January 1, 1994.

“When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance of the writing.” Pa.R.C.P 1019(i).

Where a plaintiff avers the existence of a written agreement and relies upon it to establish his cause of action; a defendant may properly annex that agreement without creating an impermissible speaking demurrer since the agreement is a factual matter arising out of the complaint. Martin v. PennDOT, 124 Pa. Commw. 625, 629, 556 A.2d 969, 971 (1989). See Satchell v. Insurance Placement Facility of Pennsylvania, 241 Pa. Super. 287, 361 A.2d 375 (1976).

Because the defendant is using these warranties as a basis for their defense to the claimed breach action, defendants will be permitted to use their standard warranties used in 1992 to support their objection that any implied or express warranty was disclaimed.

Pennsylvania Commercial Code states, in order to exclude or modify an implied warranty of merchantability the warranty must mention merchantability, and in the case of a writing, the language must be conspicuous. This statute also addresses the issue of implied warranty of fitness and that for exclusion or modification to be valid it must be conspicuous and in a writing. 13 Pa.C.S. §2316. A term is considered conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. 13 Pa.C.S. §1201.

Under Pennsylvania law there are factors to use in considering whether a reasonable person should have

noticed a warranty disclaimer and they include: (1) the disclaimer’s placement in the document; (2) the size of the disclaimer’s print; and (3) whether the disclaimer was highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document. Borden Inc v. Advent Ink Company, 701 A.2d 255, 259 (Pa. Super. 1997); citing Hornberger v. General Motors Corporation, 929 F. Supp. 884, 889 (E.D. Pa. 1996); see also, Beck-Hummel v. Ski Shawnee Inc., 902 A.2d 1266, 1274 (Pa. Super. 2006).

Here, the warranties offered are both short in length and have the disclaimer set in a separate paragraph on the warranties’ first pages. The disclaimers are set in a bigger size than the other print of the document and were printed in all capital letters. They both expressly mention merchantability and fitness for a particular purpose. Therefore, applying the factors in Borden Inc., a reasonable person should have noticed the warranty disclaimer. Because the implied warranties of merchantability and fitness for a particular purpose both mentioned merchantability and fitness, both were in writing with the language of a conspicuous nature, they have been properly disclaimed in accordance with 13 Pa.C.S. §2316(b).

Accordingly, the attached order is entered.

ORDER

And now, December 29, 2006, in consideration of defendants Jeld-Wen Inc. and STO Corp.’s preliminary objections to plaintiffs’ amended complaint and replies by defendants Jeld-Wen Inc. and STO Corp., it is ordered that the preliminary objections are sustained. Because these objections have been sustained Counts 1, 2, 3, 4, 5 and 7 of the amended complaint are dismissed. Count 6 of the complaint remains. The parties are directed to proceed in accordance with the applicable Pennsylvania Rules of Civil Procedure.

      . Plaintiff points out that Lupinski relies heavily on precedent that was set out in Industrial Uniform Rental Company Inc. v. International Harvester Co., 317 Pa. Super. 65, 463 A.2d 1085 (1983) that was reversed by REM Coal Co. However, Defendants argue that the court in REM Coal Co. in overruling Industrial Uniform expanded the rule by adopting the standard that was set forth in East River and therefore the outcome of Lupinski would not change.