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COMMONWEALTH PENNSYLVANIA v. UPPER PROVIDENCE TOWNSHIP MUNICIPAL AUTHORITY (12/17/80)

decided: December 17, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PLAINTIFF
v.
UPPER PROVIDENCE TOWNSHIP MUNICIPAL AUTHORITY, DEFENDANT. FRIDY, GAUKER & FRIDY, INC. ET AL., ADDITIONAL DEFENDANTS



Original jurisdiction in the case of Commonwealth of Pennsylvania, Department of Transportation v. Upper Providence Township Municipal Authority.

COUNSEL

John T. Kalita, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

Clarke F. Hess, with him William J. Brennan, Butera, Hess, Beausang & Moyer, for defendant.

James L. Price, Steinberg, Greenstein, Gorelick & Price, for additional defendants, Robert J. Gauker and Gauker-Fridy Associates.

William C. Summers, McWilliams, Sweeney & Powell, for additional defendants, Charles D. Fridy and Betz Environmental Engineers, Inc.

Judges MacPhail, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 55 Pa. Commw. Page 399]

The Commonwealth of Pennsylvania, Department of Transportation (DOT) has filed a complaint in assumpsit and trespass in this Court naming the Upper Providence Township Municipal Authority (Authority) as defendant.

The complaint seeks damages in the amount of $20,709.15 for an alleged breach of or negligent performance of a contract entered into in 1967 between DOT and the Authority for installation of a sewer line within the right of way of the State highway known as Legislative Route 462.

The Authority filed an Answer and a Petition for leave to join additional defendants. Leave was granted to join Fridy, Gauker & Fridy, Inc. (FG&F), Betz Environmental Engineers, Inc., Gauker-Fridy Associates, and Lisbon Contractors, Inc.*fn1 as additional defendants. The Authority then filed its complaint against these additional defendants.

[ 55 Pa. Commw. Page 400]

Subsequently, the Authority sought and was granted leave to file an amended complaint to join still other additional defendants, namely, Gauker & Fridy, Inc., Charles D. Fridy, and Robert J. Gauker. When preliminary objections were filed to that complaint, the Authority was granted leave to file and did file a second amended complaint. Preliminary objections again were filed by Charles D. Fridy (Fridy), Robert J. Gauker (Gauker), and Gauker-Fridy Associates (Associates) and it is those objections in the nature of a demurrer which are now before us for disposition.

The pertinent factual allegations in the Authority's complaint, which for the purpose of disposing of the demurrer must be deemed to be true, indicate that in 1963*fn2 Upper Providence Township entered into a written contract with FG&F to perform all engineering work on a sanitary sewerage system the construction failure of which is the gravamen of the suit between DOT and the ...


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