Appeal from judgment of Court of Common Pleas of Erie County, Feb. T., 1961, No. 136, in case of Hammermill Paper Company v. The Rust Engineering Company.
Robert N. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellant.
John G. Gent, with him James D. McDonald, Jr., and Quinn, Plate, Gent, Buseck & Leemhuis, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Roberts concurs in the result.
This appeal is from a judgment entered on the pleadings by the Court of Common Pleas of Erie County.
On March 5, 1956, Rust Engineering Company (Rust) submitted to Hammermill Paper Company (Hammermill) a proposal to "construct additional Finishing Facilities at (Hammermill's) Erie, Pennsylvania, plant, consisting essentially of a Finishing Building Extension, Roll Storage Building and Packaging Materials Building." No drawings or specifications were submitted at that time, nor was a price included in the proposal,*fn1 although, when executed, the contract, in this respect, provided: "When drawings and specifications are sufficiently developed, an estimate of the total cost of engineering and constructing the above facilities will be furnished (Hammermill)." Article XIII of Rust's proposal, titled "Approval After Acceptance", stated "This proposal is subject to the approval of the President . . . of (Rust) and is not binding on (Rust) until so approved after acceptance by (Hammermill) whereupon it shall become a contract." Hammermill "accepted" the proposal on March 28, 1956, and Rust approved said acceptance on April 30, 1956.
The instant controversy involves the construction and later collapse of a brick curtain wall, 14'8" high and 165' in length, which was erected as a "vertical extension to a third story height of the existing east wall of Building No. 75." Hammermill contends the wall collapsed because of faulty and negligent construction, while Rust's pleaded position is that the cause of the collapse was an "Act of God", that Hammermill had paid Rust for and accepted the work involved in constructing the original wall and in reconstructing it after collapse and was, thereby, estopped from further complaint, and finally that Hammermill has been adequately compensated by its insurance carrier for any "use and occupancy" loss incurred by the collapse of the wall. Said "use and occupancy" loss in the averred amount of $70,392.56 arose by reason of the interruption of Hammermill's paper-making operation caused by the collapse of the wall through the roof of the Building No. 75 and onto machinery in the operation, and there is an additional averred loss of $11,757.53 for clean-up, maintenance and reconstruction costs involving machinery and Building No. 75, making a total claimed loss of $82,150.09, which amount was apparently paid to Hammermill by its insurance carrier under a binder to its fire insurance policy.*fn2
Hammermill's insurance carrier in the name of Hammermill instituted this assumpsit action against Rust in the Court of Common Pleas of Erie County to recover $82,150.09. Rust filed an answer containing new matter, Hammermill filed a reply thereto and Rust moved for judgment on the pleadings, which motion was granted. The court below, granting Rust's
motion for judgment on the pleadings, concluded that Rust was ". . . an employee agency under the direct control of Hammermill" and that Hammermill alone was at fault, having retained the control and responsibility for the construction of the wall. With those conclusions of the court below we do not agree.
The pleadings fail to disclose the extent of the controls and approvals to be exercised by Hammermill and the interrogatories taken ...