No. 01242 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 82-3170-05-02.
I. Leonard Hoffman, Philadelphia, for appellant.
Steven A. Bergstein, Allentown, for appellee.
McEwen, Del Sole and Popovich, JJ.
[ 337 Pa. Super. Page 206]
This is an appeal by Kasco Construction Company, Inc. (hereinafter Kasco), appellant, from the order of the Court of Common Pleas of Bucks County granting a motion for summary judgment filed by appellee, Hess Brothers, Inc. (hereinafter Hess) after Kasco filed a third party complaint
[ 337 Pa. Super. Page 207]
against Hess. In response thereto, appellee has filed a motion to dismiss the appeal of Kasco Construction Company.
On April 30, 1975, Kasco entered into a Limited Partnership Agreement with, among others, Hess, to form a limited partnership known as Richland Mall Associates (hereinafter RMA) in which Hess was the sole general partner. The purpose of the agreement was to erect, own and operate Richland Mall in Richland Township. Kasco undertook the general construction of the mall after executing a construction agreement with RMA in 1975. Subsequently, Kasco, as general contractor, entered into a contract with Hamada, Inc. (hereinafter Hamada) whereby the latter, as sub-contractor, would undertake to construct the roof of the Richland Mall. On June 30, 1978, Richland Mall Corporation (RMC) entered into an agreement of sale with Hess and RMA whereby RMC acquired the partnership known as RMA. After construction of the mall, it was found that the roof was defective.
On June 29, 1981, RMC instituted a federal action against Kasco and Hamada alleging the defective construction of the roof. This suit involved the same subject matter as the instant appeal and was brought before the United States District Court for the Eastern District of Pennsylvania. It was dismissed by order dated March 8, 1982.
On June 15, 1982, a complaint was filed by RMC trading as RMA against Kasco and Hamada, alleging problems with the roof installed at the Mall. Kasco filed a complaint joining the additional defendants, including Hess, on July 14, 1982. Various pleadings were exchanged until a motion for summary judgment was filed by Hess on March 3, 1983, which was granted on April 7, 1983. A Notice of Appeal to this court was filed on May 6, 1983. Subsequent to presentation of the motion for summary judgment, answers were filed on behalf of two additional defendants; however, Kasco never responded to the motion by brief. The trial court granted appellee's motion for summary judgment on two separate substantive grounds: (1) that Hess was not
[ 337 Pa. Super. Page 208]
responsible for the defective roof and (2) that Kasco had executed a release in favor of Hess which acts as an effective bar to the action. This appeal followed, and Hess filed a motion to dismiss appellant's appeal, which motion is likewise predicated on two contentions: (1) that Kasco failed to respond effectively and properly to the motion for summary judgment of Hess and has, therefore, waived its right to appeal under Pa.R.A.P. 302(a) and (2) that the decision to grant summary judgment was interlocutory in ...