Appeals, Nos. 36 and 37, May T., 1951, from judgments of Court of Common Pleas of Dauphin County, Jan. T., 1949, Nos. 90 and 91, in case of Helen J. Shaull, Admrx., Estate of Donald F. Shaull, deceased, v. The A.S. Beck New York Shoe Co., Inc. and R.S. Noonan, Inc., and Delson Wrecking Company, Inc. Judgments reversed.
F. Brewster Wickersham, with him Metzger & Wickersham, for appellant.
Wm. E. Shissler, with him Nauman, Smith Shissler & Hall, McNees, Wallace & Nuricks, Samuel A. Schreckengaust, Jr., Earl V. Compton, and William J. Lescure, for appellees.
Before Drew, C.j., Stern, Stearne, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE HORACE STERN
Having in mind that summary judgments should not be entered on pleadings save in very clear cases the present judgments must be reversed and the mutual rights and liabilities of the parties left for determination at a trial of the issues.
The A.S. Beck New York Shoe Co., Inc. was the lessee of certain premises on Market Street abutting in the rear on Court Street in the City of Harrisburg. It engaged R.S. Noonan, Inc. to make extensive structural changes in the buildings. The work necessitated the demolition of parts of the existing structures, and in the written contract entered into between the parties it was provided that the entire Court Street building should be removed to grade except a portion of the north wall which was to remain in position and become the north wall of the new structure to be built. The specifications provided that Noonan was to do all shoring, bracing and underpinning required to install walls and any other parts of the work necessitated by the
operation under the contract, and that the demolition should be done in a manner and by methods that complied with all applicable laws and regulations. Noonan entered into a sub-contract with Delson Wrecking Co., Inc., wherein the latter agreed to do the demolition work. In the course of the demolition a part of the north wall of the Court Street building which had been left standing collapsed and fell upon and killed Donald F. Shaull, an employe of Delson. His widow, as administratrix of his estate, brought suits for damages under the Wrongful Death and Survival Acts against the Beck Company, and Beck brought Noonan and Delson on the record as additional defendants.
In the complaint filed by plaintiff against Beck it was alleged that in ordering the demolition of the building on Court Street, Beck, as it knew or should have known, created a dangerous condition, and that it was guilty of negligence in specifying that the north wall was to stand alone and in not taking proper measures for shoring it and making it sufficiently secure. Beck filed an answer in which it averred that its contract with Noonan provided for the shoring and bracing of the wall but that Noonan did not properly perform the demolition provisions of the contract and that it was Noonan who created the dangerous condition. Beck filed a complaint against Noonan in which it made these same averments. Beck also filed a complaint against Delson alleging that in the sub-contract between Noonan and Delson the latter agreed to demolish the structures according to the same plans and specifications as were provided in the contract between Beck and Noonan but failed to do so, and that the accident was due to the negligence of Delson in failing to shore the wall. It asserted that Delson was solely liable, or jointly and severally liable with, or liable over to Beck, and jointly and severally liable with, or liable over to Noonan, or
jointly and severally liable with, or liable over to Beck and Noonan. Delson filed an answer to this complaint in which it averred that it had contracted to do the work, not in accordance with the plans and specifications contained in the contract between Beck and Noonan, but only in accordance with directions received from Noonan and the architects, and that its contract did not require it to shore and brace the wall. It also pleaded New Matter in which it set forth that Shaull was its employe and at the time of his death was in the course of his employment, that he came under the provisions of the Workmen's Compensation Act, and that Delson had entered into a compensation agreement with plaintiff and was then making payments to her in accordance therewith; subsequently it amended its pleading by adding as another ...