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COMMONWEALTH PENNSYLVANIA v. BETHLEHEM STEEL CORPORATION AND SANDERS AND THOMAS (12/13/77)

decided: December 13, 1977.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION (PENNDOT), PLAINTIFF
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, SANDERS AND THOMAS, INC., BROOKHART AND TYO AND TYO & FLEISHER, INC., ADDITIONAL DEFENDANTS



Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Transportation 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, Sanders and Thomas, Inc., Brookhart and Tyo and Tyo & 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.

David E. Lehman, with him Edward C. First, Jr., and McNees, Wallace & Nurick, for defendant, Bethlehem Steel Corporation.

Joseph P. Hafer, with him James K. Thomas, and Thomas & Thomas, for defendant, Sanders and Thomas, Inc.

Henry W. Rhoads, with him J. Bruce Walter, and Rhoads, Sinon & Hendershot, for additional defendants, Tensorex Company, Inc., a New York Corporation, and Tensorex Company, Inc., a Florida Corporation.

Edward E. Knauss, III, with him Metzger, Wickersham, Knauss & Erb, for additional defendant, Brookhart and Tyo and Tyo & Fleisher, Inc.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 33 Pa. Commw. Page 4]

Before our Court are the preliminary objections of Bethlehem Steel Corporation (Bethlehem) and Tensorex Engineering Company of Florida (Tensorex) in an action in its original jurisdiction. This case involves the attempt by the Department of Transportation of the Commonwealth of Pennsylvania (PennDOT) to recover the additional expense it incurred in rebuilding the "New Street Bridge" in Bethlehem after the bridge initially failed soon after opening in May of 1970 due to allegedly faulty design. In January of 1975 a summons and complaint were filed by PennDOT against Bethlehem and Sanders and Thomas, Inc. (Sanders), the company which had collaborated with Bethlehem on the design of the bridge. In April of 1975 Bethlehem filed a complaint against Tensorex Engineering Company of New York, the company which had drafted the detailed drawings from the original design of the bridge for use in fabricating the bridge. As an out-of-state corporation, service was upon the Secretary of State*fn1 who attempted to serve the Tensorex Engineering Company of New York by registered mail. Tensorex of New York had, however, gone out of business and the applicable papers were forwarded to Tensorex Engineering Company of Florida (Tensorex), a successor corporation.

Bethlehem and Sanders made preliminary objections to the original complaint of PennDOT, certain of which were granted by Order of this Court dated January 18, 1977. Tensorex also made preliminary

[ 33 Pa. Commw. Page 5]

    objections to its joinder which, due to lack of opposition on the part of Bethlehem, were granted in the same Order. The Order and Opinion, together with a description of all the parties hereto and a full description of the prior procedural difficulties which have afflicted this case, may be found in Department of Transportation v. Bethlehem Steel Corp., 28 Pa. Commonwealth Ct. 214, 368 A.2d 888 (1977) (PennDOT I). PennDOT then served an amended complaint upon the defendants and shortly thereafter Sanders and Brookhart and Tyo, an additional defendant that had been brought in by Sanders,*fn2 sought to once again join Tensorex to this action as an additional defendant by way of Answer together with New Matter.

Preliminary objections on the part of Bethlehem to the amended complaint and preliminary objections on the part of Tensorex seeking to prevent its joinder are now before our Court.

Preliminary Objections of Bethlehem

Bethlehem demurs to both counts of the amended complaint (count one alleges a breach of contract, while count two alleges negligence on the part of Bethlehem in the design and construction of the bridge and the selection of Sanders as design consultant) and makes a motion for more specific pleadings. Since Bethlehem did not argue on behalf of its demurrer, we will deal only briefly with it and then discuss its motion for more specific pleadings.

The demurrer to count one of the amended complaint is based upon averments in the amended complaint which were contained in the original complaint. Preliminary objections to them should have been made

[ 33 Pa. Commw. Page 6]

    at the same time as the original preliminary objections were made. "Preliminary objections to an amended complaint may not include matters which appeared in the original." Hi-Grade Service Station, Inc. v. Ben & Frank, Inc., 35 D. & C. 2d 165 (C.P. Luzerne 1964). See Pa. R.C.P. No. 1028. The demurrer to count two of the complaint was in effect raised by Bethlehem during the original round of preliminary objections and rejected by the Court at that time. See PennDOT I, 28 Pa. Commonwealth Ct. at 222, 224, 368 A.2d at 894.

The thrust of Bethlehem's motion for a more specific complaint, as we glean it from the brief, which is somewhat at variance with the preliminary objections filed with the Court, is that PennDOT has lumped the damages flowing from the negligence in the construction of the bridge together with the damages from the negligent selection of the design consultant. As we read the complaint, PennDOT is alleging that all the damages sustained are attributable to the negligence in the construction and all the damages are also attributable to the negligent selection of the design consultant. It is well settled that causes of action may be pleaded in the alternative, Pa. R.C.P. No. 1020(c), and causes of action may be inconsistent with each other. Bethlehem's other allegation that PennDOT has not set forth the acts of negligence involved in the selection of Sanders as design consultant was raised in PennDOT I and rejected at that time. See PennDOT I, 28 Pa. Commonwealth Ct. at 222-23, 368 A.2d at 894.

If Bethlehem requires more information as to the particulars of PennDOT's case, the traditional methods of interrogatory and deposition are available to it.

Preliminary Objections of Tensorex

The second set of preliminary objections before this Court are the objections by Tensorex to its joinder

[ 33 Pa. Commw. Page 7]

    as an additional defendant by Sanders. As we have already noted, Tensorex's preliminary objection to joinder in PennDOT I was sustained solely on the basis of Bethlehem's lack of opposition and we never reached the merits thereof. Prior to our decision in PennDOT I, Sanders had expressed the desire to join Tensorex as an additional defendant but was prevented from doing so because it had filed preliminary objections to PennDOT's complaint and was precluded from filing an answer to the complaint and bringing in Tensorex by way of new matter. It worried that, while waiting for its preliminary objections to be decided, the statute of limitations might expire. President Judge Bowman was mindful of these problems and an unreported decision dated June 4, 1976, held that the statute of ...


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