J-A05035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRANSYSTEMS, INC., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

PHILADELPHIA WHOLESALE PRODUCE 

MARKET A/K/A PHILADELPHIA REGIONAL 

PRODUCE MARKET AND PHILADELPHIA 

FRESH FRUIT TERMINAL CORPORATION 

A/K/A PHILADELPHIA FRESH FOOD 

TERMINAL CORPORATION,

Appellees No. 1862 EDA 2014

Appeal from the Order Entered May 13, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): January Term, 2013 No. 03651

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

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

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

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

Philadelphia Wholesale Produce Market, also known as Philadelphia Regional 

Produce Market, and Philadelphia Fresh Fruit Terminal Corporation, also 

known as Philadelphia Fresh Food Terminal Corporation (collectively 

“Appellees”). We affirm.

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

by the trial court as follows:

In October 2010, Lee Real Estate sued [Appellant] in 

federal court for copyright infringement for using its copyrighted 

architectural plans without permission. The plans in question 
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were designs for the construction of a new fruit and produce 

terminal in South Philadelphia. [Appellant] promptly filed joinder 

complaints against [Appellees] raising claims for negligent 

misrepresentation for allegedly having erroneously told 

[Appellant] that Lee’s plans could be used without concern for 

copyright issues, and for contribution and indemnification.

It is not disputed that the misrepresentations took place in 

2006. Lee and [Appellant] settled the federal matter in August 

2012. The settlement terms specifically excluded [Appellant’s] 

contribution and negligent misrepresentation claims against 

[Appellees] which the federal judge dismissed as being strictly 

state law claims.

It is undisputed that in [June of] 2013, [Appellant] filed a 

new legal action against [Appellees] in the Philadelphia Court of 

Common Pleas for contribution and damages ... instead of 

proceeding pursuant to the Transfer of Erroneously Filed Matters 

Statute, 42 Pa.C.S.A. [§] 5103.[1]

Pleading and Discovery have closed and [Appellees have 

moved] for summary [judgment] claiming that the negligent 

misrepresentation claim is barred by the two year Statute of 

Limitations, and that the contribution claim is barred by the 

terms of the relevant statute, 42 Pa.C.S.A. 8324(c)[.] 

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

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

timely appeal followed.

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

consideration:

____________________________________________

1

 “Section 5103 allows a party to transfer a case dismissed by a federal 

court on jurisdictional grounds to an appropriate state court, bringing with 

the case its federal filing date for purposes of the statute of 

limitations.” Kelly v. Hazleton General Hosp., 837 A.2d 490, 493 (Pa. 

Super. 2003) (citing 42 Pa.C.S. § 5103) (emphasis added).
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1. Whether the trial court erred in granting summary judgment 

in favor of Appellees, dismissing Appellant’s claim for 

contribution with prejudice, by misapplying the provisions of the 

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

et seq., where Appellees were not original defendants.

2. Whether the trial court erred when it granted summary 

judgment in favor of Appellees, dismissing Appellant’s claim for 

negligent misrepresentation with prejudice without considering 

the application of the discovery rule to the applicable statute of 

limitations.

Appellant’s Brief at 3.

An order granting summary judgment is subject to the following scope

and standard of appellate review:

Our standard of review [in] an appeal from the grant of a 

motion for summary judgment is well-settled. A reviewing court 

may disturb the order of the trial court only where it is 

established that the court committed an error of law or abused 

its discretion. As with all questions of law, our review is plenary. 

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non[-]moving party bears the 

burden of proof on an issue, he may not merely rely on his 

pleadings or answers in order to survive summary judgment. 

Failure of a non-moving party to adduce sufficient evidence on 

an issue essential to his case and on which he bears the burden 

of proof establishes the entitlement of the moving party to 

judgment as a matter of law. Lastly, we will review the record in 

the light most favorable to the non-moving party, and all doubts 

as to the existence of a genuine issue of material fact must be 

resolved against the moving party.

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

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)). 
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In its first issue, Appellant claims that the trial court erred in granting 

summary judgment in favor of Appellees by misapplying the provisions of 

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

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

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

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

The relevant portion of the Act provides as follows:

§ 8324. Right of contribution

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

tort-feasors.

(b) Payment required.--A joint tort-feasor is not entitled to a 

money judgment for contribution until he has by payment 

discharged the common liability or has paid more than his pro 

rata share thereof.

(c) Effect of settlement.--A joint tort-feasor who enters into a 

settlement with the injured person is not entitled to recover 

contribution from another joint tort-feasor whose liability to the 

injured person is not extinguished by the settlement.

42 Pa.C.S. § 8324.

After review, we conclude that the trial court correctly granted 

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

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

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

Appellant is not entitled to contribution from Appellees because the Act 

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

Conversely, if Appellant establishes that Appellees are joint tortfeasors, 
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Appellant is not entitled to contribution because it is undisputed that 

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

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

on this issue. 

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

granting summary judgment in favor of Appellees without considering the 

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

negligent misrepresentations were made in 2006, Appellant was not aware 

of these misrepresentations until depositions in the federal case on

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

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

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

disagree.

As noted above, Appellant claimed negligent misrepresentation in its 

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

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

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

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

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

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

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

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

discovery rule is an exception to this general rule that may toll the running 
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of the statute. Id. The discovery rule is a “judicially created device which 

tolls the running of the applicable statute of limitations until the point where 

the complaining party knows or reasonably should know that he has been 

injured and that his injury has been caused by another party’s conduct.” Id.

(internal citation and quotation marks omitted).

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

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

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

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

been resolved and that Appellant was permitted to use the copyrighted 

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

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

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

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

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

59.

Accordingly, despite Appellant’s belief that the misrepresentation 

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

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

misrepresentation regarding the use of the copyrighted materials remained 

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

concluded as follows:
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Even if [Appellant] could prove it did not know that it had 

been damaged until Lee Real Estate filed the federal court action 

in October 2010, its claim is time barred; at the most optimistic, 

it is chargeable with knowledge of injury from the time it joined 

[Appellees] in the federal court action [on November 12, 2010]. 

Therefore, the Market defendant’s motion for Summary 

Judgment as to Count I, negligent misrepresentation, is granted 

and the claim is dismissed. 

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

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

Therefore, viewing the evidence in the light most favorable to 

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

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

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

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

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

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

therefore, we conclude that the trial court properly granted summary 

judgment in favor of Appellees.

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

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

granting summary judgment in favor of Appellees.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/7/2015