Today's Express, Inc. v. Barkan

626 A.2d 187, 426 Pa. Super. 48, 1993 Pa. Super. LEXIS 2094
CourtSuperior Court of Pennsylvania
DecidedJune 24, 1993
DocketNo. 01688
StatusPublished
Cited by1 cases

This text of 626 A.2d 187 (Today's Express, Inc. v. Barkan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Today's Express, Inc. v. Barkan, 626 A.2d 187, 426 Pa. Super. 48, 1993 Pa. Super. LEXIS 2094 (Pa. Ct. App. 1993).

Opinion

POPOVICH, Judge:

This case involves an appeal from the order granting a motion for summary judgment against the Plaintiffs/Appellants, Today’s Express, Inc., Mach I Personnel, Inc., t/d/b/a Delta Investments. We affirm.

[50]*50The standard for assessing the grant of a motion for summary judgment is clear; to-wit:

In reviewing an entry of summary judgment, this Court may disturb the order of the trial court only where there has been an error of law. This Court applies the same standard as the trial court, affirming a grant of summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In deciding whether summary judgment should have been granted, this Court must examine the record in the light most favorable to the non-moving party.

Jenkins v. Bolla, 411 Pa.Super. 119, 600 A.2d 1293, 1295 (1992) (Citations omitted).

Additionally, the barring effect of the statute of limitations, being a question of law, is properly decided in the context of a motion for summary judgment. Northampton County Area Community College v. Dow Chemical, 389 Pa.Super. 11, 566 A.2d 591, 595 (1989).

The facts, viewed in a light most favorable to the non-moving party, indicate that John J. Ghaznavi entered into an agreement with the Defendants/Appellees, David M. Barkan, Gloria Barkan, Herbert R. Tauberg and Madelain N. Tauberg, to purchase a 7-story apartment building (hereinafter referred to as “Lincoln House”)1; Paragraph 19 of which read:

19. Inspection of Property: It is hereby understood between the parties hereto that the Property has been inspected by Buyer or his agent, that the same is being purchased solely in reliance upon such inspection and that there have not been and are no representations or warranties, expressed or implied, with respect to the physical condition of the Property, made by Seller or Broker except those provid[51]*51ed in this Agreement or those set forth in this paragraph: See paragraph 4 of Addendum.
4. Seller warrants and represents that roof and gutters are in good condition and free of leaks and heating, plumbing and electrical systems are in good operating condition, and all will continue to be in said condition on the closing date. Within thirty days after execution hereof, Buyer shall have the right to inspect the property to determine that all units are in the same general condition as those units which have been inspected, and that the conditon [sic] of the building, roof and gutters, and heating, plumbing and electrical systems is satisfactory to Buyer. Buyer may require that any matters revealed by the inspection be repaired prior to closing, unless Buyer fails to complete the inspection within said thirty day period. In the event the cost of correcting any matters revealed by the inspection exceeds Twenty Thousand ($20,000) Dollars, Seller shall have the option of correcting such matters or terminating this Agreement. [Emphasis added]

Prior to the closing, Ghaznavi assigned his rights to the Plaintiffs, who were the recipients of the property by deed dated April 2, 1985. Thereafter, the Plaintiffs “discovered” asbestos on the property and, as a consequence, filed a Pi-count complaint (grounded in fraud and negligence) on August 28,1990,2 averring that the Defendants knew or had reason to know, by the exercise of due diligence and ordinary care, of the asbestos content of the property, that the Plaintiffs purchased the property without knowledge of the asbestos, and that the Defendants had an affirmative duty to disclose the presence of the carcinogen. The failure to act accordingly by the Defendants, asserted the Plaintiffs, constituted fraud in inducing the buyers to purchase and negligence in failing to disclose property contaminated with asbestos.

[52]*52Numerous pleadings, answers to interrogatories and depositions preceded the Defendants’ presentment of a motion for summary judgment, wherein it was alleged that the Agreement of Sale and Addendum afforded the Plaintiffs the right and the opportunity to inspect the property before the closing. In fact, it was claimed, an inspection of the property was conducted, a report of which was sent by Ghaznavi’s attorney to the sellers’ attorney pointing out a number of problems. However, none mentioned the presence of asbestos materials on site. Paragraphs 6, 7 & 9.

It was David Gutowski, president of Delta Investments, who “discovered” the asbestos in Lincoln House in December of 1988: It was “open and obvious” in the ceiling of the below-ground garage of the building. Paragraph 15; Gutowski’s Deposition, p. 99 (Exhibit # 1).

Of interest to this Court is the remark by the Plaintiffs, appearing in their brief filed in opposition to the Defendants’ motion, that: “The facts as related by the Defendants in their Motion are undisputed.” An attempt to ameliorate this crucial remark was made in the body of the brief and reads:

John Ghaznavi, a naturalized citizen who was born and raised in Iran, testified on pages 96 and 97 of his deposition taken March 13, 1992, that prior to this matter arising, he had never even heard of the word asbestos. On page[s] 138 and 139, Mr. Ghaznavi testified that prior to 1988-89 he had no idea that asbestos in a building could be a problem.

In light of the aforesaid, the Plaintiffs aver that, despite the fact that the asbestos was not concealed but obvious and open to anyone using the garage facilities, the lack of “some awareness that the condition [wa]s a problem or a potential problem” exonerated them from any duty to exercise due diligence in discovering the asbestos prior to the expiration of the statute of limitations. We disagree.

As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute [53]*53suit within the prescribed statutory period. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations ...; even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time. Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.
The “discovery rule” is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.’

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Horbal v. Moxham National Bank
657 A.2d 1261 (Superior Court of Pennsylvania, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
626 A.2d 187, 426 Pa. Super. 48, 1993 Pa. Super. LEXIS 2094, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todays-express-inc-v-barkan-pasuperct-1993.