Original jurisdiction in case of The General State Authority v. The Sutter Corporation and Certain-Teed Products Corporation.
No appearance for plaintiff.
Anthony J. Ciotola, with him Feldmann & Ciotola, for defendant, The Sutter Corporation.
Roger T. Shoop, Robert J. Brown, and Bernadette Barattini, with them Kain, Brown, Roberts & Woodbury; Richard H. Wix; Wix, Wenger & Weidner; Stephen R. Krone; James K. Thomas; Thomas & Thomas; Armand E. Olivetti, Jr.; Dunn, Byrne & Coviello, for additional defendants.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 44 Pa. Commw. Page 158]
We have before us a second round of preliminary objections in this original jurisdiction action in assumpsit commenced by the General State Authority (GSA) against the general building-construction contractor, Sutter Corporation (Sutter), and against the supplier of roofing materials, Certain-Teed Products Corporation (Certain-Teed), for damages arising from difficulties encountered with the roof of a newly-constructed annex to the Scranton State General Hospital. The roofing subcontractor, Dunmore Roofing and Sheetmetal Company (Dunmore) has also properly been joined as an additional party-defendant. General State Authority v. Sutter Corporation, 24 Pa. Commonwealth Ct. 391, 356 A.2d 377 (1976), is our previous decision in this case granting the motions of
[ 44 Pa. Commw. Page 159]
Sutter and Certain-Teed for a more specific complaint, with which GSA complied by filing its Second Amended Complaint.*fn1
The current preliminary objections have been raised against subsequent complaints filed by the original defendant, Sutter, attempting, under Pa. R.C.P. No. 2252, to join as additional defendants: (1) the architects, George M. D. Lewis and Donaldson Berghauser, individually, and t/d/b/a Lewis and Berghauser; (2) the surety behind the "Built-up Roof Guarantee" issued by Certain-Teed, National Surety Corporation (National); and, (3) the supplier of the roofing insulation, Owens-Corning Fiberglass Corporation (O-CF).
The Preliminary Objections of Donaldson Berghauser, individually and t/d/b/a Lewis and Berghauser
General Contractor Sutter's complaint joining the architects is in assumpsit and alleges the existence of a contract between GSA and the architects under which the architects agreed to supply various architectural services and also agreed to supervise and inspect the work generally and thereby protect GSA against deficiencies in the work of roofer Dunmore and defects in the materials used. Sutter also alleges
[ 44 Pa. Commw. Page 160]
specific duties of the architects to visit the construction site at least weekly and to make periodic written reports of their inspection and supervision.
However, the only averments of liability by Sutter, in paragraphs 14 and 15 of the complaint, are that if it is determined that the roof is defective and was not installed according to the plaintiff's and Certain-Teed's specifications, or if it is determined that defective materials were used, then the architects are alone liable, or jointly and severally liable, or liable over to the original defendant.
We must agree with the architects that bald allegations of the existence of contractual duties of inspection and supervision in the architects cannot support a theory of liability to, or a right to indemnification, in the general contractor. The statement of "liability over" to Sutter is a mere legal conclusion, impossible to sustain upon proof of any of the facts averred. See Zachrel v. Universal Oil Products, 355 Pa. 324, 49 A.2d 704 (1946).
As to the theories of sole or joint and several liability on the part of the architects, Rule 2252(b) requires that, "[t]he complaint, in the manner and form of the initial pleading of the plaintiff in the action, shall set forth the facts relied upon to establish the liability of the joined party. . . ." (Emphasis added.)*fn2
Of the requirements relating to the complaint, the most important is that the facts asserted as a basis of the liability of the additional defendant be set forth, for it is the allegation of fact and not statements of legal conclusion which governs the determination whether
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the complaint alleges the requisite liability. . . If the complaint fails to state facts sufficient to establish liability of the additional defendant, the ...