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THOMAS J. DUDASH v. PALMYRA BOROUGH AUTHORITY (10/26/84)

filed: October 26, 1984.

THOMAS J. DUDASH
v.
PALMYRA BOROUGH AUTHORITY, GLACE & GLACE, INC., WESTLAND INDUSTRIES, INC. AND CONDOR CONSTRUCTION COMPANY. APPEAL OF GLACE & GLACE, INC.; THOMAS J. DUDASH V. PALMYRA BOROUGH AUTHORITY. GLACE & GLACE, INC. V. WESTLAND INDUSTRIES, INC. AND CONDOR CONSTRUCTION COMPANY. APPEAL OF WESTLAND INDUSTRIES, INC.; THOMAS J. DUDASH V. PALMYRA BOROUGH AUTHORITY, GLACE & GLACE, INC., WESTLAND INDUSTRIES, INC. AND CONDOR CONTRACTORS, INC. APPEAL OF GLACE & GLACE, INC.; THOMAS DUDASH V. PALMYRA BOROUGH AUTHORITY. GLACE & GLACE, INC. V. WESTLAND INDUSTRIES, INC. AND CONDOR CONSTRUCTION COMPANY. APPEAL OF WESTLAND INDUSTRIES, INC.



No. 00229 HBG 83, Appeal from the Judgment entered June 7, 1983 in the Court of Common Pleas of Lebanon County, Civil Division, at No. 3829 of 1978. No. 00238 HBG 83, Appeal from the Judgment entered June 7, 1983 in the Court of Common Pleas of Lebanon County, Civil Division, at No. 3829 of 1978. No. 00275 HBG 83, Appeal from the Judgment entered June 27, 1983 in the Court of Common Pleas of Lebanon County, Civil Division, at No. 3829 of 1978. No. 00280 HBG 83, Appeal from the Judgment entered June 27, 1983 in the Court of Common Pleas of Lebanon County, Civil Division, at No. 3829 of 1978.

COUNSEL

Richard A. Bausher, Reading, for appellant (at Nos. 229 and 275) and for appellee (at Nos. 238 and 280).

John B. Mancke, Harrisburg, for appellant (at Nos. 238 and 280) and for appellee (at Nos. 229 and 275).

Joel D. Smith, Lancaster, for Palmyra, appellee.

Wickersham, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 335 Pa. Super. Page 4]

These are appeals from the lower court's June 7, 1983 Order and June 27, 1983 amended Order entering judgment on the pleadings in appellee's favor and against appellants. We reverse.

On February 21, 1973, appellee Palmyra Borough Authority (Palmyra), a municipal authority, employed appellant Glace & Glace, Inc. (Glace) as a consulting engineer to prepare the plans and specifications for extensions to the sanitary sewage system in the Borough of Palmyra, Lebanon County, Pennsylvania. Pursuant to the employment agreement, Glace also agreed to be responsible for supervising the construction work. On March 2, 1977, Palmyra entered into a contract with appellant Westland Industries, Inc. (Westland), an independent contractor, for the construction of the extensions and additions. Under this agreement, Westland was permitted to award work to a subcontractor without Palmyra's written approval when the value of the work to be awarded was less than 50% of the contract price and also agreed to indemnify Palmyra for any losses or injuries caused by the negligence of Westland, its subcontractor or employees. On March 16, Westland, subcontracted part of the excavation and construction work to Condor Construction Co. (Condor), a sewage contractor.

On April 11, 1977, Thomas J. Dudash, a Condor employee, was injured when a sanitary sewer trench in which he was working collapsed. Dudash filed a December 1, 1978 trespass action against Palmyra and Glace, alleging their negligence

[ 335 Pa. Super. Page 5]

    and that the construction site was under their control. In its April 20, 1979 answer, Palmyra asserted new matter and a cross-complaint against Glace, alleging that if Palmyra was found liable, then Glace was liable for breach of its contractual duty to supervise the construction work. Also, in April of 1979, Palmyra joined both Westland and Condor as additional defendants and filed a complaint in trespass and assumpsit against them. Upon Palmyra's motions, the lower court issued rules to show cause (1) on November 12, 1980, why partial summary judgment should not have been entered in Palmyra's favor and against Dudash; (2) on November 2, 1982, why judgment on the pleadings should not be entered in Palmyra's favor and against Westland; and (3) on November 5, 1982, why judgment on the pleadings should not be entered in favor of Palmyra and against Glace.

On June 7, 1983, the lower court, per Order and Opinion, directed the Prothonotary to enter (1) judgment in Palmyra's favor and against Dudash and (2) judgment on the pleadings in Palmyra's favor and against Westland and Glace. Glace and Westland appealed that order on June 28 and July 5, respectively. On June 20, 1983, Dudash filed a motion for reconsideration because Palmyra's motion had requested only a partial summary judgment against Dudash.

On June 27, 1983, the lower court issued an amended Order directing the Prothonotary to enter (1) partial summary judgment in Palmyra's favor and against Dudash on all claims made by Dudash against Palmyra arising under ยง 411 of the Restatement (Second) of Torts and (2) judgment on the pleadings in Palmyra's favor and against Westland and Glace. Glace and Westland filed timely appeals from the amended Order. Dudash, in turn, filed a motion to quash the appeals on the ground ...


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