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PIKE COUNTY HOTELS CORP. v. MURRELL R. KIEFER (12/29/78)

decided: December 29, 1978.

PIKE COUNTY HOTELS CORP., A CORPORATION AND LOUIS STULBERG, PRESIDENT AND TRUSTEE AD LITEM FOR INTERNATIONAL LADIES GARMENT WORKERS' UNION, AN UNINCORPORATED ASSOCIATION, APPELLANTS,
v.
MURRELL R. KIEFER, ELMER J. KIEFER AND WILLIAM A. RAKE, CO-PARTNERS, TRADING AS RINKER, KIEFER AND RAKE, AND EDINGER CONSTRUCTION CO., A CORPORATION, AND STROUDSBURG GAS CO., A CORPORATION AND PAR-GAS, INC., A CORPORATION, AND H. C. ARCHIBALD CO., A CORPORATION, AND H. N. CROWDER JR. CO., A CORPORATION, DEFENDANTS, V. MARVIN'S REFRIGERATION, INC., ROBERT MARVIN, INDIVIDUALLY AND TRADING AS MARVIN'S REFRIGERATION, AND LESTER B. MARSH, INDIVIDUALLY AND TRADING AS MARSHALL'S CREEK INSULATION CO., AND INSTO-GAS CORPORATION, ADDITIONAL DEFENDANTS



No. 694 October Term, 1977, Appeal from the Order of the Pike County Branch of the Court of Common Pleas of the 43rd Judicial District, Entered at No. 692 September, 1972, on November 30, 1976. CIVIL ACTION LAW

COUNSEL

James M. Marsh, Philadelphia, for appellants.

Gary S. Figore, Easton, for appellees, Kiefer, Kiefer, and Rake, t/a Rinker, Kiefer and Rake.

William S. Hudders, Allentown, for appellee, H. N. Crowder Jr. Co., a corporation.

No appearance entered nor briefs submitted for remaining appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion, in which Price, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 262 Pa. Super. Page 128]

This is an appeal from the order of the lower court sustaining the demurrers of appellees Rinker, Kiefer and Rake (hereinafter Rinker) and H. N. Crowder, Jr. Co. (hereinafter Crowder) to those paragraphs of appellants' complaint

[ 262 Pa. Super. Page 129]

    wherein appellants sought to impose liability on appellees. For the reasons developed below, we affirm in part and reverse in part.

Cutting through the confusion which stems from the multiplicity of parties and pleadings, the following relevant facts appear of record. On February 28, 1969, a fire destroyed the Administration and Dining Hall Building at "Unity Hall," the I.L.G.W.U.'s vacation facility in Pike County. At the time of the fire, extensive remodeling was being performed in the kitchen of the building. By complaint filed in November, 1972, plaintiffs-appellants commenced action against six defendants connected with the remodeling project. Rinker was the architect in charge of designing and supervising construction of the alterations; Crowder was engaged as electrical contractor in charge of all electrical work. Preliminary objections filed to this complaint were sustained, and appellants were directed to file an amended complaint, which they did. Preliminary objections filed to appellants' first amended complaint were also sustained. Thereafter, on February 26, 1975, appellants filed their third pleading entitled "Further Amendments to Counts I and VI of Plaintiffs' Amended Complaint in Trespass." Appellants averred, inter alia :

" FIRST COUNT

"13. Rinker, pursuant to a written contract with plaintiff Pike, dated October 14, 1968, a copy of which is attached to plaintiffs' Amended Complaint as Exhibit "A", undertook to design and supervise construction of additions, alterations and renovations of the Administration and Dining Hall Building at Unity House.

"14. Said additions, alterations and renovations were being made when the Administration and Dining Hall Building was destroyed by fire as set forth in plaintiffs' Amended Complaint.

"15. Paragraph 3.4.3 of Rinker's contract with Pike provided:

[ 262 Pa. Super. Page 130]

'(The Architect) will make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the work is proceeding in accordance with the Contract Documents. He will be required to make on-site inspections to check the quality or quantity of the work and he will be responsible for the Contractors' failure to carry out the construction work in accordance with the Contract Documents with respect to all work installed, or to be installed in connection with the project. During such visits and on the basis of his observations while at the site, he will keep the Owner informed of the progress of the work, will endeavor to guard the Owner against defects and deficiencies in the work of Contractors. . .' (emphasis in original).

"16. Rinker carelessly and negligently failed on February 28, 1969, and at other times:

(a) to supervise the construction work to assure conformity to contract documents and to guard against defects and deficiencies in the work;

(b) to make periodic visits and/or adequate and frequent on-site inspections to check the work of contractors and to guard plaintiffs against defects and deficiencies ...


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