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DEPARTMENT TRANSPORTATION v. BETHLEHEM STEEL CORPORATION AND SANDERS AND THOMAS (01/18/77)

decided: January 18, 1977.

DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA (PENNDOT), PLAINTIFF
v.
BETHLEHEM STEEL CORPORATION AND SANDERS AND THOMAS, INC., DEFENDANTS AND TENSOREX COMPANY, INC., ET AL., ADDITIONAL DEFENDANTS



Original jurisdiction in the Commonwealth Court of Pennsylvania in case of Department of Transportation, Commonwealth of Pennsylvania v. Bethlehem Steel Corporation and Sanders and Thomas, Inc., Defendants, and Tensorex Company, Inc., a New York corporation, Tensorex Company, Inc., a Florida corporation, No. 1 Contracting Corporation of Delaware, and Sanders and Thomas, Inc., Brookhart and Tyo, and Tyo and Fleisher, Inc., Additional Defendants.

COUNSEL

Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

William A. VanBrunt, with him Edward C. First, Jr., McNees, Wallace & Nurick, and, of counsel, Curtis H. Barnette and Howard A. Feldman, for defendant, Bethlehem Steel Corporation.

Joseph P. Hafer, with him James K. Thomas, and Metzger, Hafer, Keefer, Thomas and Wood, for defendant, Sanders and Thomas, Inc.

Henry W. Rhoads, with him J. Bruce Walter, and Rhoads, Sinon & Reader, for additional defendants.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish, Jr.

[ 28 Pa. Commw. Page 216]

The Pennsylvania Department of Transportation (PennDOT) originated this litigation by filing a complaint

[ 28 Pa. Commw. Page 217]

    in trespass and assumpsit against Bethlehem Steel Corporation (Bethlehem) and Sanders and Thomas, Inc. (Sanders) in connection with the buckling of a structural steel member of a bridge improvement built for PennDOT in the City of Bethlehem (City). Both Defendants filed preliminary objections to this complaint and Bethlehem filed a first third-party complaint and amended complaint against No. 1 Contracting Corporation of Delaware (No. 1) and Tensor Engineering Company. Bethlehem later filed a second amended third-party complaint against No. 1 and Tensorex Engineering Company of New York and Tensorex Engineering Company of Florida (Tensorex). Tensorex in turn has filed preliminary objections to Bethlehem's second amended complaint. To date No. 1 has filed no responsive pleading to Bethlehem's second amended complaint.

In attempting to frame the posture of this case, we note that PennDOT's original complaint alleges that on or about March 31, 1967, PennDOT, the City, and Bethlehem entered into a written agreement whereby Bethlehem was to engage the services of a consulting engineer who would furnish design plans and drawings for reconstruction and improvement of Legislative Route 48096, more specifically known as the New Street Bridge and its approaches. The consulting engineer obtained by Bethlehem was Sanders. It is further alleged that pursuant to their various contractual obligations, Bethlehem and Sanders collaborated in producing a design of a new slant leg rigid frame steel bridge. Tensorex enters this scenario as consultant to Bethlehem, employed to aid in the preparation of the design drawings ultimately used by Bethlehem. More specifically, Tensorex was to have done certain detail work for Bethlehem, take drawings and specifications prepared by Bethlehem and Sanders, and prepare these drawings and specifications

[ 28 Pa. Commw. Page 218]

    for use by Bethlehem in fabricating the steel to be provided in the construction of the bridge. Bethlehem's second amended complaint alleges that the detail work done by Tensorex was defective in that it omitted and relocated certain brackets (web stiffeners) called for in the basic Sanders plan.

Bethlehem's other second amended complaint related to No. 1. It is alleged that following advertising of the bid proposal which contained specifications received from the Bethlehem-Sanders design plans, PennDOT awarded the contract to the successful low bidder, No. 1, for construction of the improvements. Allegations are made that No. 1's failure to use workmanable techniques in pouring concrete in a manner which would avoid overstressing of the bridge subjects No. 1 to liability.

For purposes of this opinion we shall dispose of both the preliminary objections lodged against the original complaint and those outstanding against Bethlehem's second amended third-party complaint.

PennDOT v. Bethlehem -- Bethlehem's Preliminary Objections

1. Initially, Bethlehem argues that in Count I, PennDOT alleges Sanders became the agent of Bethlehem for the preparation of a suitable and safe design of a bridge structure, that Bethlehem and Sanders collaborated in producing a design for the bridge, and further that PennDOT has failed to aver any facts in support of its conclusion that Sanders was Bethlehem's agent and that the parties collaborated in the bridge design as required by Pa. R.C.P. No. 1019(a).

As we recently said in General State Authority v. The Sutter Corporation, 24 Pa. Commonwealth Ct. 391, 395, 356 A.2d 377, 381 (1976):

Rule 1019(a) requires fact pleading. 'The purpose of [1019(a)] is to require the pleader

[ 28 Pa. Commw. Page 219]

    to disclose the "material facts" sufficient to enable the adverse party to prepare his case.' A complaint therefore must do more than 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.' It should formulate the issues by fully summarizing the material facts. 'Material facts' are 'ultimate facts,' i.e., those facts essential to support the claim. Evidence from which such facts may be inferred not only need not but should not be alleged. . . . Allegations will withstand challenge under 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, and (2) they are 'sufficiently specific so as to enable defendant to prepare his defense.'

With the realization that GSA's allegations will withstand a 1019(a) scrutiny only if they contain averments of all of the facts that plaintiff will eventually have to prove, and they are sufficiently specific to enable a defense to be prepared, we must determine whether the facts as pleaded are material in relation to the posture of the parties as determined by the build-up guarantee. (Citations omitted.)

We have reviewed the disputed allegations in light of Pa. R.C.P. No. 1019(a) and conclude that the allegations of agency between Bethlehem and Sanders, and those establishing the working relationship between Bethlehem and Sanders, are sufficient to withstand the test of 1019(a). PennDOT has pleaded material facts establishing the contractual relationship of the parties and their respective rights and duties incident thereto, and those facts pleaded do enable Bethlehem to prepare a defense.

Next, Bethlehem contends that the ad damnum clauses of Counts I and II fail to set forth when each

[ 28 Pa. Commw. Page 220]

    of the items of work listed in the Plaintiff's complaint were paid as required by Pa. R.C.P. No. 1019(a) and (f), and further, objection is made to the ad damnum clause of Count II in that it fails to distinguish between those items of damage which arose from negligence of omission or relocation of the web stiffeners and those which arose as a result of the negligence in selection of a design engineer. The damages as pleaded are as follows:

"Payee Item of Work Cost

No. 1 Contracting Work performed to prop

Corporation of Delaware distressed West Bridge

Knees $47,549.81

No. 1 Contracting Modification to East

Corporation of Delaware Bridge Frames A, B and

C Knee strengthening 75,104.39

No. 1 Contracting Temporary X-bracing

Corporation of Delaware Frame A North side

Pier No. 7 and North

     and South sides Pier No.

8 West Bridge 19,700.89

No. 1 Contracting Modification to East

Corporation of Delaware Bridge Frame B girder 12,195.00

No. 1 Contracting Restoration and modifi-

Corporation of Delaware cation of West Bridge

Frame B Knees 484,362.90

No. 1 Contracting Additional Bond and In-

Corporation of Delaware surance Premium 5,655.28

No. 1 Contracting Additional Inspector Of-

Corporation of Delaware fice Rental ...


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