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GENERAL STATE AUTHORITY v. SUTTER CORPORATION AND CERTAIN-TEED PRODUCTS CORPORATION (11/01/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 1, 1982.

THE GENERAL STATE AUTHORITY, PLAINTIFF
v.
THE SUTTER CORPORATION AND CERTAIN-TEED PRODUCTS CORPORATION, DEFENDANTS. DUNMORE ROOFING & SUPPLY CO. ET AL., ADDITIONAL DEFENDANTS

Original Jurisdiction in the case of The General State Authority v. The Sutter Corporation and Certain-Teed Products Corporation, Dunmore Roofing & Supply Co., Owens Corning Fiberglass Corporation, George M. D. Lewis and Donald Berghauser, individually and t/a Lewis and Berghauser, National Surety Corporation, Garner R. Slutter, Leroy Leary and Henry K. Fluck.

COUNSEL

No appearance for plaintiff.

Louis G. Feldmann, for defendants, The Sutter Corporation.

Bernadette Barattini, Wix, Wenger & Weidner, for additional defendants, George M. D. Lewis and Donald Berghauser, individually and t/a Lewis and Berghauser.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 69 Pa. Commw. Page 506]

In June 1976, the General State Authority (GSA) commenced this action in assumpsit against the general contractor, Sutter Corporation,*fn1 for damages arising from difficulties encountered with the roof of a newly-built annex to the Scranton State General Hospital. Sutter, in turn, filed a complaint in December 1976 joining architects Lewis and Berghauser as additional party-defendants under Pa. R.C.P. No. 2252. By order of July 10, 1979, this court dismissed Sutter's complaint, with leave to amend, because the contractor had failed to set forth an adequate claim for relief.*fn2

Now that Sutter has amended its complaint, alleging that Lewis and Berghauser are jointly or severally liable to GSA,*fn3 the architects contend through preliminary objections that Sutter has not cured the

[ 69 Pa. Commw. Page 507]

    deficiencies in its original claim; accordingly, they ask us to dismiss the action against them or require Sutter to file a more specific complaint. Moreover, they contend that, at best, they are only liable secondarily to GSA, in order to invoke Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969) and Eckrich v. DiNardo, 283 Pa. Superior Ct. 84, 423 A.2d 727 (1980), for the proposition that an original defendant who is primarily liable cannot require a party secondarily liable to be joined as an additional defendant.*fn4

We are satisfied, however, that Sutter's amended complaint now states a viable cause of action against Lewis and Berghauser as additional party-defendants under Rule 2252.*fn5

[ 69 Pa. Commw. Page 508]

Rule 2252(b) requires that a defendant's complaint aver the factual basis for an additional defendant's liability in the same form and manner as the plaintiff's complaint under Pa. R.C.P. No. 1019. As under Rule 1019(a), a Rule 2252 complaint should formulate the issues by fully summarizing the "material" or "ultimate" facts, i.e., those facts essential to support the claim. General State Authority v. Sutter Corp., 44 Pa. Commonwealth Ct. 156, 160-61, 403 A.2d 1022, 1025 (1979). A complaint must (1) contain averments of all the facts the moving party will have to prove eventually to recover and (2) be sufficiently specific to enable the non-moving party to prepare a defense. General State Authority v. Sutter Corp., 24 Pa. Commonwealth Ct. 391, 396, 356 A.2d 377, 381 (1976). A complaint, however, need not be "an all inclusive narrative of events underlying the claim." General State Authority v. Lawrie & Green, 24 Pa. Commonwealth Ct. 407, 356 A.2d 851 (1976).

In its amended complaint, Sutter has pleaded not only the existence of an architectural services contract between GSA and Lewis and Berghauser, but it has described how the architects' alleged failure to inspect and supervise the installation of asphalt-coated ply felts by Sutter and its roofing subcontractor, Dunmore, may have led to the entrapment of water in the roof, thereby causing blisters and leaking. Mindful of our decisions which note that a case is not tried at the preliminary objection phase of litigation*fn6 and guided by Pa. R.C.P. No. 126,*fn7 we are now satisfied that Sutter's complaint against Lewis and Berghauser pleads

[ 69 Pa. Commw. Page 509]

    facts which may result in the architects' liability and which enables the architects to prepare a defense. See, e.g., Kladias & Son v. Sonneborn Building Products, Inc., 2 Pa. D. & C.3d 310 (1975) (in suit for breach of painting contract, architect may be joined for improper planning and supervision).

As to Lewis and Berghauser's claim of mere secondary liability, we find that the contract between GSA and the architects may establish a basis for liability of the architects concurrent with Sutter. The agreement obligated Lewis and Berghauser to

     generally supervise the aforesaid work [of constructing the hospital annex]; visit the site at least once weekly during periods of active construction and make written report to The Authority relative to the progress of the work and guard The Authority against defects and deficiencies in work of Contractors. [Emphasis added.]

Had GSA and the architects entered into the contract to indemnify Sutter, then Lewis and Berghauser might be correct in asserting that, as a matter of law, we could hold them, at best, secondarily liable and thus ineligible for joinder under Rule 2252. Clearly, however, GSA and the architects did not enter into the contract for that purpose and, hence a court could possibly find Lewis and Berghauser jointly and/or severally liable along with the other defendants, based upon the allegedly negligent performance of the architects' separate agreement with GSA.*fn8

[ 69 Pa. Commw. Page 510]

Because we believe that we would be furthering the general plan of joinder procedure to settle "all the rights of all the parties in all the claims that grow out of the event upon which the plaintiff sues,"*fn9 because the Supreme Court has directed that we give Rule 2252(a) a broad interpretation,*fn10 and because Lewis and Berghauser have not presented us with compelling reasons to deny their joinder, we dismiss their preliminary objections to Sutter's amended complaint.*fn11

Order

Now, November 1, 1982, the preliminary objections of George M. D. Lewis and Donald Berghauser, individually and t/d/b/a Lewis and Berghauser, are hereby dismissed.

Disposition

Preliminary objections dismissed.


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