IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`WILLIAM ERWIN GRAY, JR., and
`NANCY GRAY, his spouse,
`
`Plaintiff,
`
`vs.
`
`READING CRANE AND ENGINEERING
`COMPANY, et al.,
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`.
`
`CIVIL DIVISION – ASBESTOS
`
`No. GD 21-013838
`
`DEFENDANT READING CRANE AND
`ENGINEERING COMPANY’S MOTION
`FOR SUMMARY JUDGMENT BASED ON
`THE STATUTE OF REPOSE
`
`Filed on behalf of Defendant,
`READING CRANE AND ENGINEERING
`COMPANY
`
`Counsel of record for this party:
`
`CHRISTIAN W. WRABLEY, ESQUIRE
`Pa. I.D. #92630
`DAVID F. RYAN, ESQUIRE
`Pa. I.D. #56182
`
`ZIMMER KUNZ, PLLC
`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
`(412) 281-8000
`
`02460583.DOCX 6701-0829
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`CIVIL DIVISION – ASBESTOS
`
` No. G.D. 21-013838
`
`WILLIAM ERWIN GRAY, JR., and
`NANCY GRAY, his spouse,
`
`Plaintiff,
`
`vs.
`
`READING CRANE AND ENGINEERING
`COMPANY, et al.,
`
`Defendants.
`
`NON PRODUCT MOTION FOR SUMMARY JUDGMENT
`BASED ON THE STATUTE OF REPOSE
`
`AND NOW, comes Defendant, Reading Crane and Engineering Company, (hereinafter
`
`Reading Crane), by and through its attorneys, CHRISTIAN W. WRABLEY, DAVID F. RYAN and
`
`ZIMMER KUNZ, P.L.L.C. and files the following Non Product Motion for Summary Judgment
`
`asserting as follows:
`
`1.
`
`Plaintiffs commenced the within action by filing a Complaint alleging, inter alia,
`
`that William Gray suffers from personal injuries caused by exposure to various products allegedly
`
`containing asbestos.
`
`2.
`
`Plaintiff contends that Reading Crane sold or supplied products allegedly
`
`containing asbestos to which Mr. Gray was exposed during his employment at J&L Aliquippa
`
`from 1959 to 1963; St. Joe Lead Company/St. Joe Mineral/Zinc Corp. of America from 1963
`
`until 1979 and 1987 until 2002; and several gas stations performing automobile repairs.
`
`3.
`
`Reading Crane was in the business of designing, engineering, manufacturing,
`
`and constructing large scale industrial cranes, and hoists.
`
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`

`

`4.
`
`The Pennsylvania Statute of Repose, 42 Pa. C.S. § 5536, provides for a twelve-
`
`year statute of repose for actions alleging defect in the design, planning, supervision,
`
`observation of construction, or construction of an improvement to real property. Actions for
`
`personal injury or wrongful death are included in the scope of this Statute.
`
`5.
`
`In Graver v. Foster Wheeler Corp., No. 641 EDA 2012, the Pennsylvania
`
`Superior Court issued an opinion in which it held that asbestos personal injury claims against
`
`entities engaged in performing or furnishing the design, planning, supervision or observation of
`
`construction, or construction of any improvement to real property, are barred unless the claims
`
`are brought within 12 years of the completion of the project.
`
`6.
`
`As Plaintiffs did not file the instant lawsuit until 2021, more than 12 years after
`
`any alleged exposure to a Reading crane, this action falls well outside of the statute of repose
`
`provided for in 42 Pa. C.S. § 5536.
`
`WHEREFORE Reading Crane & Engineering Company respectfully request that
`
`this Honorable Court enter an order granting summary judgment in its favor as to
`
`Plaintiffs' claims and all cross claims.
`
`Respectfully submitted,
`ZIMMER KUNZ, PLLC
`BY: s/ David F. Ryan
`CHRISTIAN W. WRABLEY, ESQUIRE
`DAVID F. RYAN, ESQUIRE
`Attorneys for Defendant,
`READING CRANE &
`ENGINEERING COMPANY
`
`02460583.DOCX 6701-0829
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`CIVIL DIVISION – ASBESTOS
`
` No. G.D. 21-013838
`
`WILLIAM ERWIN GRAY, JR., and
`NANCY GRAY, his spouse,
`
`Plaintiff,
`
`vs.
`
`READING CRANE AND ENGINEERING
`COMPANY, et al.,
`
`Defendants.
`
`BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
`BASED ON THE STAUTE OF REPOSE
`
`Pursuant to Pennsylvania Rule of Civil Procedure 1035, Defendant, Pollock Research &
`
`Design, Inc., by and through its attorneys, CHRISTIAN W. WRABLEY, ESQUIRE, DAVID F.
`
`RYAN, ESQUIRE, and ZIMMER KUNZ, PLLC, files the within Brief in Support of its Motion
`
`for Summary Judgment based on the Statute of Repose.
`
`1.
`
`SUMMARY OF ARGUMENT
`
`Reading Crane moves for summary judgment pursuant to Pa. R.C.P. 1035.2 and
`
`1041.1(f). The Pennsylvania Statute of Repose, 42 Pa. C.S. § 5536, sets a 12-year time limit in
`
`which claims against those persons and/or entities involved in the furnishing, designing,
`
`planning, supervision or observation of construction, or construction of any improvement to real
`
`property, may he filed. Plaintiffs filed the instant claim far more than 12 years after any alleged
`
`asbestos exposure. As such, any Reading overhead crane and its components constitute
`
`"improvements to real property" for the purposes of 42 Pa. C.S. § 5536. Consequently, there is
`
`no issue of material fact in this matter and Plaintiffs' claims are barred as a matter of law.
`
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`

`

`2.
`
`ARGUMENT
`
`A.
`
`The Pennsylvania Statute Of Repose, 42 Pa. C.S. § 5536, Bars Civil Actions
`Arising Out Of Improvements To Real Property Brought After 12 Years Of
`The Completion Of Said Improvements
`
`The PA Statue of Repose is available as a defense in asbestos cases such as this.
`
`In Graver v. Foster Wheeler, 96 A. 3d 383 (Pa. Superior Court 2014), petition for allowance of
`
`appeal denied, 113 A.3d 280 (2015), the Pennsylvania Superior Court held that Pennsylvania's
`
`statute of repose for improvements to real property, 42 Pa. C.S. § 5536, is available as a defense
`
`to asbestos personal injury claims.
`
`The Statute of Repose at 42 Pa. C.S. § 5536 reads in pertinent part:
`
`(a) A civil action or proceeding brought against any person lawfully performing or
`furnishing the design, planning, supervision, or observation of construction., or
`construction of any improvement to real property must be commenced within 12 years
`after the completion of construction of such improvement to recover damages for:
`
`Any deficiencies in the design, planning, supervision or observation of
`(1)
`construction or construction of the improvement.
`*
`*
`*
`(3)
`Injury to the person or for wrongful death arising out of such deficiency.
`
`42 Pa. C.S. § 5536 does not merely bar a party's right to a remedy as a statute of
`
`limitations does. Instead, "[s]tatutes of repose differ from statutes of limitation in that statutes of
`
`repose potentially bar a plaintiff’s suit before the cause of action arises, whereas statutes of
`
`limitation limit the time in which a plaintiff may bring suit after the cause of action accrues."
`
`McConnaughey v. Building Components, Inc., 637 A.2d 1331, 1332 (Pa. 1994). Therefore, the
`
`statute of limitations for any action is irrelevant if the applicable statute of repose has run.
`
`The statute of repose begins to run when such party is first exposed to defects in design,
`
`planning, or construction. See Beaver v. Dansk, 838 F.Supp. 206, 249 (E.D. Pa. 1993)
`
`(Interpreting 42 Pa. C.S. § 5536). Given that this matter was not filed until 2021, the twelve-year
`
`time period allowed to file suit under the Pennsylvania Statute of Repose has long passed.
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`

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`B.
`
`Reading Crane as a Manufacturer is Entitled to the Protection Afforded it by
`42 Pa.C.S. 5536
`
`As noted above, the Pennsylvania Supreme Court has held that manufacturers are not
`
`excluded from the statute's protection as a matter of law. Noll v. Harrisburg Area YMCA, 643
`
`A.2d 81 (Pa. 1994). The Court in Noll also observed that the Pennsylvania Statute of Repose
`
`was not intended to apply to mere manufacturers or suppliers, but rather to the kinds of economic
`
`actors who perform acts of "individual expertise" akin to those commonly thought to be
`
`performed by builders. Id., at 87 (1994). The focus of the inquiry remains on the activity
`
`performed, particularly whether any individual expertise has been supplied, including those
`
`activities clearly specified within the Statute of Repose.
`
`Additional case law demonstrates that Pennsylvania courts broadly define activities
`
`protected under 42 Pa. C.S. § 5536. The Pennsylvania Supreme Court held that a product
`
`designer fell under the protection of the Statute of Repose simply because they had taken part in
`
`the design, planning, and supervision, of construction or construction of a conveyor belt.
`
`McCormick v. Columbus Conveyer Co., 564 A.2d 907, 910 (Pa. 1989) (Class identified "not by
`
`the status or occupation of its members but rather by the contribution or acts done in relations to
`
`the improvement to the real property.") Moreover, it has also been held that simply approving a
`
`design was the equivalent of creating a design. Goodrich v. Luzerne, 514 A.2d 188 (Pa. Super.
`
`1986).
`
`The Pennsylvania Superior Court in Rabatin v. Allied Glove, et al, 2011 Pa. Super., 118,
`
`again supported the statute’s protection for manufactures, “manufacturers are not excluded from
`
`the protections of section 5536 as a matter of law and, to the contrary, are entitled to its
`
`protections so long as it "was involved in the design, planning, supervision, construction or
`
`observation of construction of an improvement to real property." Rabatin v. Allied Glove, et al.
`
`citing Noll, Id at 282-83, 643 A.2d at 85.
`
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`Here, large-scale cranes are at issue. Reading Crane was in the business of designing,
`
`engineering, manufacturing, and constructing cranes. The cranes it designed and installed were
`
`manufactured and installed in strict adherence to the purchasers’ specifications.
`
`Applying the above analyses, and looking at the evidence and testimony in this case,
`
`Reading Crane clearly is a member of the class which Section 5536, was designed to protect.
`
`C.
`
`Cranes are Improvements to Real Property
`
`For purposes of the Statute of Repose, the Pennsylvania Supreme Court has defined an
`
`improvement to real property as "everything that permanently enhances the value of real
`
`property." Noll v. Harrisburg Area YMCA, 643 A.2d 81, 87 (Pa. 1994). In Noll, the Court placed
`
`focus on the intent of the parties, and listed a number of factors to consider: the manner in which
`
`the item is attached to real property. These included the ease of removing the object, whether the
`
`object may be removed without damaging the real property, the length of attachment, whether
`
`the object is necessary or essential to the real property and the conduct of the parties. Noll, 643
`
`A.2d at 88-89. However, a mere component, as opposed to an entire piece of equipment, does
`
`not qualify as an improvement to real property. See Ferricks v. Ryan Homes, 578 A.2d 441, 444-
`
`45 (Pa. Super. 1990).
`
`Although in Noll, the Pennsylvania Supreme Court held that diving blocks were not
`
`improvements to real property because they could be quickly and easily removed, “diving
`
`blocks” are certainly distinguishable from overhead cranes. Pennsylvania Courts have time and
`
`again held that heavy machinery constitutes an improvement to real property for the purposes of
`
`42 Pa. C.S. § 5536.
`
`A molding machine was an improvement to real property due to the fact that it weighed
`
`over twenty tons, was securely bolted to the floor, was connected to a structure's piping system
`
`and other equipment was built around it. Beaver v. Dansk, 838 F. Supp. 206, 211 (E.D. Pa., 1993)
`
`(applying and interpreting 42 Pa. C.S. § 5536). A weld and side trim machine was considered an
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`

`

`improvement due to its permanence, heavy weight and immobility. Radvan v. General Electric,
`
`576 A.2d 396, 397 (Pa. Super. 1990).
`
`A coal delivery system, including conveyer belts, was found to be an improvement to real
`
`property based upon its unique and custom design, as well as its integration into the facility for
`
`which it was designed. McCormick v. Columbus Conveyer Company, 564 A.2d 907, 910-911
`
`(Pa. 1989). A tubular closer at a Bethlehem Steel facility was held to be an "improvement to real
`
`property" because of its large size, lack of mobility and utility to the mill where it was installed.
`
`Springnian v. Wire Machinery Company of America, 666 F. Supp. 66 (M.D. Pa. 1987)
`
`(Interpreting and applying Pennsylvania law).
`
`A General Electric turbine was held to be an “improvement to real property” by the
`
`Superior Court of Pennsylvania in Rabatin v. Allied Glove, et al, 24 A.3d 388, 391 (Pa. Super.
`
`2011). There, the Court reiterated the Pennsylvania Supreme Court's position in Noll v.
`
`Harrisburg Area YMCA, 643 A.2d 81, 84-85 (Pa. 1994), that manufactures in asbestos cases are
`
`entitled to the protections of the Statute of Repose, 42 Pa. C.S. § 5536.
`
`In Graver v. Foster Wheeler, 96 A. 3d 383 (Pa. Superior Court 2014), petition for
`
`allowance of appeal denied, 113 A.3d 280 (2015), the Pennsylvania Superior Court dismissed
`
`Plaintiffs’ argument that insulation on a boiler did not constitute an improvement to real
`
`property. Specifically, in Graver Plaintiffs argued that insulation integrated to the boiler at issue
`
`was not an “improvement” contemplated within the Statute. The Court strongly disagreed with
`
`this notion stating, “we find no merit to these contentions”. Id. Here, any Reading Crane
`
`overhead crane, is an improvement to real property and protected under the statute.
`
`Numerous other jurisdictions interpreting statutes of repose have considered this question
`
`and have unanimously found that overhead cranes are indeed "improvements to real property” ...
`
`See Ball v. Harnischfeger Corp., 877 P.2d 45, 49 (Okla. 1994). An overhead crane custom-
`
`designed to fit in a certain plant or facility is considered an "improvement to real property" under
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`

`

`the Illinois statute of repose; the Court opined that "the crane in question was an improvement to
`
`real property because it was more than a mere repair or replacement and it substantially
`
`enhanced the value [of the facility where it was installed]." Witham v. Whiting Corp., 975 F.2d
`
`1342, 1346 (7a, Cir. 1992) (interpreting Illinois builders' statute of repose). The Court of
`
`Appeals for the First Circuit, applying the Massachusetts builders' statute of repose, also ruled
`
`that an overhead crane constituted such an improvement. Snow v. Harnischfeger Corp., 12 F.3d
`
`1.154, 1156, n.1 (1st Cir, 1993).
`
`The Missouri Court of Appeals adopted three factors in determining that all overhead
`
`crane constituted an improvement to real property. 1) the crane was intended to be a permanent
`
`fixture in the facility in which it was installed; 2) the crane was an integral part of the plant
`
`where it was installed and; and 3) installation of the crane was very expensive and required a
`
`large expenditure of labor. Fueston v. Burns & McDonnell Engineering Co., 877 S.W.2d 631,
`
`636 (Mo. App. 1994). The factors set down by the Missouri Court of Appeals in Fueston are
`
`similar to those considered by the Pennsylvania Supreme Court in Noll. The Minnesota Supreme
`
`Court used the Fueston factors, in addition to the enhancement of the value of the structure
`
`where the crane was installed, when it ruled that an overhead crane was a "permanent
`
`improvement" to that facility. Sartori v. Harnischfeger Corp., 432 N.W.2d 448 (Minn. 1988).
`
`One key factor contemplated by many of the aforementioned courts is that the cranes in
`
`question, like the Reading Crane purchased and installed, were custom designed and built for a
`
`particular facility and purpose. Ball, 877 P.2d at 48-50 (Mass-produced, prefabricated items are
`
`generally not considered improvements to real property); Witham, 975 F.2d at 1346-47 (Custom-
`
`designed and custom-engineered items are improvements to real property; mass-produced
`
`"stack" items are not). The issues of custom design and uniqueness are directly addressed by
`
`Noll and related eases and must be accorded due weight by this Court.
`
`
`
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`

`

`Plaintiffs filed the instant lawsuit against Reading Crane in 2021. That is more than 12
`
`years since Plaintiff’s last employment in 2002, and obviously the installation of any Reading
`
`Crane overhead crane at issue in this matter. Correspondingly, suit here was filed well outside of
`
`the twelve-year period to bring suit under 42 Pa. C., S. § 5535. Plaintiffs' claims are therefore
`
`barred in their entirety as a matter of law.
`
`For the aforementioned reasons, no genuine issue of material fact exists and Reading
`
`Crane is entitled to judgment as a matter of law. Reading Crane & Engineering Company
`
`respectfully requests this Honorable Court grant its Motion for Summary Judgment and dismiss
`
`it from the instant actions, with prejudice.
`
`
`
`Respectfully submitted,
`ZIMMER KUNZ, PLLC
`BY:
`s/ David F. Ryan
` CHRISTIAN W. WRABLEY, ESQUIRE
` DAVID F. RYAN, ESQUIRE
`
` Attorneys for Defendant,
` Reading Crane and Engineering Company
`
`02460583.DOCX 6701-0829
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the within MOTION FOR SUMMARY
`
`JUDGMENT BASED ON THE STATUTE OF REPOSE and BRIEF IN SUPPORT OF
`
`MOTION FOR SUMMARY JUDGMENT AND ORDER OF COURT has been served upon
`
`below listed counsel, by electronic mail,
`
`Leif J. Ocheltree, Esquire
`GOLDBERG PERSKY & WHITE, PC
`Stanwix Street, Suite 1800
`Pittsburgh, PA 15222
`Counsel for Plaintiff
`
`ZIMMER KUNZ, PLLC
`
`s/ David F. Ryan
`BY:
` CHRISTIAN W. WRABLEY, ESQUIRE
`DAVID F. RYAN, ESQUIRE
`
`02460583.DOCX 6701-0829
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`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`CIVIL DIVISION – ASBESTOS
`
` No. G.D. 21-013838
`
`WILLIAM ERWIN GRAY, JR., and
`NANCY GRAY, his spouse,
`
`Plaintiff,
`
`vs.
`
`READING CRANE AND ENGINEERING
`COMPANY, et al.,
`
`Defendants.
`
`ORDER OF COURT
`
`AND NOW, to-wit, this ______ day of ____________, 2023, upon consideration of the
`
`Motion for Summary Judgment based upon the Statute of Repose filed by defendant, READING
`
`CRANE & ENGINEERING COMPANY, it is hereby ORDERED, ADJUDGED AND DECREED
`
`that said Motion is granted and that all claims and crossclaims against READING CRANE &
`
`ENGINEERING COMPANY in this action are dismissed with prejudice.
`
`BY THE COURT:
`
`_________________________________J.
`
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`