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LEO MCKENZIE v. COST BROTHERS (12/21/79)

decided: December 21, 1979.

LEO MCKENZIE, APPELLANT,
v.
COST BROTHERS, INC., APPELLEE, V. DICKERSON STRUCTURAL CONCRETE CORPORATION AND NADCO CONSTRUCTION, INC., TASSOS KATSELAS AND R. M. GENSERT ASSOCIATES, ADDITIONAL DEFENDANTS-APPELLEES



No. 38 MARCH TERM, 1979, Appeal from the Order of the Superior Court at No. 944, April Term, 1977, affirming the order entered July 7, 1977 of the Court of Common Pleas of Allegheny County -- Civil Division at No. 3923, October Term, 1973

COUNSEL

Allan H. Cohen, Gatz, Cohen, Segal & Kerner, Pittsburgh, for appellant.

Frederick N. Egler, Avrum Levicoff, Egler & Reinstadtler, Pittsburgh, for Cost Brothers, Inc.

Jerome W. Kiger, Grogan, Graffam, McGinley & Solomon, Pittsburgh, for Dickerson Structural Concrete Corp.

Daniel F. Cusick, Stein & Winters, Pittsburgh, for Nadco Construction, Inc.

W. Arch Irvin, Jr., Wayman, Irvin & McAuley, Pittsburgh, for Tasso Katselas.

Raymond G. Hasley, Rose, Schmidt, Dixon, Hasley & Whyte, Pittsburgh, for R. M. Gensert Associates.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Nix

[ 487 Pa. Page 306]

OPINION

A compulsory non-suit was entered in this trespass action by the trial court. A subsequent motion to take off the non-suit was also denied. The Superior Court affirmed by an equally divided court in an Opinion in Support of Affirmance by President Judge Cercone in which Judges Price and Van der Voort joined. 260 Pa. Super. 295, 394 A.2d 559 (1978). This appeal followed.*fn1

Appellant, Leo McKenzie, filed this accident in trespass on September 25, 1973 for personal injuries he sustained while on the job at the construction site of a fourteen-story apartment building in East Hills, Allegheny County, on October 2, 1971. Named as defendant was a subcontractor for the job, Cost Brothers, Incorporated. Cost then joined as third party defendants: Dickerson Structural Concrete Corporation (appellant's employer); Nadco Construction, Inc. (the general contractor); and Tassos Katselas (the architect). Katselas later joined R. M. Gensert Associates (structural engineers) as additional defendants. The original defendant and third party defendants are appellees here.

Cost Brothers, Inc. was engaged to construct the walls of the building and to secure into place nine hundred pound, precast concrete blocks known as lintels, which spanned the top openings in the corridor walls to complete the doorway entrances. When set properly, the lintels would sit flush with the concrete walls and constitute the surface upon which appellant's employer (Dickerson) would set the precast ...


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