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decided: June 22, 1971.


Appeals from judgments of Court of Common Pleas, Civil Division, of Allegheny County, Nos. 312, 2937, and 2963, Jan. T., 1969, 346, April T., 1969, 760 and 2472, July T., 1969, 1831, April T., 1970, 912 and 2268, July T., 1970, 48 and 850, Oct. T., 1970, in case of Ritmanich, Gold Coast, Inc., McPheron, O'Connor, Festa, Hardware Leasing, Kalmick, Cheslock, Meli and Lickert v. Jonnel Enterprises, Inc., Gold Coast, Inc., and Bilotta Construction Company, Charles Roberts, (David Ross Adams and Vernon Adams, d/b/a Adams Steel Erection), Oltrado Lisotto, Tyger Drilling, Domenic Mattei & Son, Inc., Structures, Inc., Weaver Excavating, Americo Gonano and Fahringer, McCarty & Grey and Associates.


Herman C. Kimpel and Clyde T. MacVay, with them Robert A. Jarvis, Eugene J. Reinbold, and James A. Ashton, and Dickie, McCamey & Chilcote, and Beck, McGinnis & Jarvis, and Evans, Ivory & Evans, for appellants.

Dale Cleland, with him Helen Mercer Witt, and Charles Kirshner, and Cleland, Hurtt and Witt, and Rosenberg, Kirshner & Solomon, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J. Wright, P. J., took no part in the decision in this case.

Author: Montgomery

[ 219 Pa. Super. Page 200]

These appeals involve eleven law suits filed in trespass which were brought to recover damages for personal injuries and property destruction caused by the partial collapse of a shopping center building in the Borough of Monroeville, Allegheny County, Pennsylvania, on August 11, 1968. The plaintiffs are tenants and their employees. The original defendants are the owners of the building, Jonnel Enterprises, Inc. (Jonnel), and a lessee of a major portion of it, Gold Coast,

[ 219 Pa. Super. Page 201]

Inc. The cause of the collapse is alleged to have been faulty construction of the building, which defects were not communicated to the plaintiffs.

Upon being served with the complaints, the original defendants filed complaints to join the additional defendants above named, which complaints alleged that they participated in constructing the building and their negligence caused its collapse. Bilotta Construction Company (Bilotta) was alleged to have been the general contractor; Charles Roberts, the architect; Fahringer, McCarty, Grey & Associates (Fahringer), the engineers; and the others, the subcontractors. David Ross Adams and Vernon Adams, d/b/a Adams Steel Erection and Adams Steel Erection, Inc. (Adams) allegedly provided all services for erection of the steel and Oltrado Lisotto (Lisotto) allegedly provided all masonry services.

Motions for summary judgment were filed by most of the additional defendants and were granted, inter alia, to Bilotta, Adams, Fahringer, and Lisotto. Exceptions to these orders were filed by the additional defendant, Charles Roberts,*fn1 and they were dismissed by the court en banc after argument. Thereafter, the other named appellants joined in these appeals filed by Charles Roberts.

Elizabeth Festa, the appellant at 217 April Term, appealed from the judgments entered in favor of Bilotta, Adams and Gold Coast, Inc. However, no brief was filed by this appellant and the case was not argued by appellant's counsel. Although the same issue

[ 219 Pa. Super. Page 202]

    is involved in this case as to Bilotta and Adams that is herein decided in the other appeals, we shall not dismiss this appeal as to those parties. On the other hand, no argument was advanced by anyone in support of the appeal relating to Gold Coast, Inc., and for that reason we conclude that the appeal was abandoned as to that party and it will be dismissed as to it.

On this review we lack the aid of a definitive opinion from the lower court regarding any basis for its judgments since the court en banc filed only a terse opinion stating its legal conclusion, ". . . that the pleadings, depositions and all other matters of record in these cases demonstrate that there is no genuine issue to any material fact with respect to the alleged liability of the defendants [appellees] . . ." However, in the orders relating to Adams, to which Roberts filed exceptions, Hon. Arthur Wessel, Jr., stated, ". . . counsel for the original defendant who accomplished the joinder of these parties as additional defendants having indicated that he would not contest the Motion for Summary Judgment . . ." The record referred to by the court en banc consists of the pleadings, unanswered interrogatories which were filed by Adams directed to Jonnel, and the depositions of James M. Bilotta and Elmer Jonnet. James M. Bilotta was the president of Bilotta at the time of the accident, and Elmer Jonnet is the president of Jonnel. These depositions are of great importance in these appeals since they are relied on almost exclusively by the appellees in support of their motions for summary judgment; they not having filed any supporting affidavits;*fn2 and all parties apparently

[ 219 Pa. Super. Page 203]

    being content that the facts were well pleaded since none of them filed preliminary objections or moved for judgment on the pleadings. Thus, we must examine these depositions to determine, under Pa. R.C.P. No. 1035, which was designed to remedy the situation where there is a sufficiently pleaded but factually improper claim or answer, whether the nonmoving parties' claims or pleadings are a sham. Ruhe v. Kroger Company, 425 Pa. 213, 228 A.2d 750 (1967). In doing so, we are to accept as true all well pleaded facts in the nonmoving parties' pleadings, as well as the admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom; the record must be examined in the light most favorable to them; and in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968).

Besides the major question raised by appellants, whether there exist genuine disputes of fact involving the three appellees, which we shall consider seriatim, each of the three appellees who filed briefs on this appeal raised additional legal questions. Adams relies on Jonnel's failure to answer interrogatories; and Fahringer, that Jonnel failed to reply to new matter in its answer. All appellees challenge the standing of Roberts (and the other appellants) to object to the summary judgments. Finally, Bilotta and Adams join in raising a question of procedure under Pa. R.C.P. No. 1035, claiming that ...

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