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DERRY TOWNSHIP SCHOOL DISTRICT v. DAY & ZIMMERMAN (09/13/85)

filed: September 13, 1985.

DERRY TOWNSHIP SCHOOL DISTRICT
v.
DAY & ZIMMERMAN, INC. AND SUBURBAN ROOFING CO., INC. AND OWENS-CORNING FIBERGLAS CORP. APPEAL OF DAY & ZIMMERMAN, INC.



No. 00352 Harrisuburg, 1984, Appeal from the Order entered April 23, 1984 in the Court of Common Pleas of Dauphin County, Civil, No. 2487 S 1983

COUNSEL

Kevin J. Conners, Philadelphia, for appellant.

Clyde W. McIntyre, Harrisburg, for Derry, appellee.

Francis X. Clark, Norristown, for Suburban, appellee.

Tamilia, Montgomery and Roberts, JJ.

Author: Roberts

[ 345 Pa. Super. Page 489]

Derry Township School District (the District) filed a complaint against appellant Day & Zimmerman, claiming that appellant was responsible for damages resulting from preparation of defective specifications for planned roof repairs and breach of its contract to plan and supervise those roof repairs. Appellant filed a third-party complaint against appellee Suburban Roofing Co., Inc., the contractor hired to perform the repairs. On this appeal, appellant challenges the trial court's order sustaining appellee's preliminary objections and dismissing the third-party complaint for improper joinder of appellee under Pa.R.C.P. 2252(a). Because we believe the trial court misconstrued relevant authority in interpreting this rule, we reverse and remand with directions.

The District contracted with appellant, an engineering firm, to prepare specifications for and to supervise a reroofing project planned for one of the District's school buildings. After the specifications were prepared, the District solicited bids for the actual roofing work. Appellee was low bidder, and consequently was awarded the roofing contract.

Several weeks after appellee began work, appellant determined that appellee was not performing the work in accordance with the specifications. On appellant's recommendation, the District issued a stop work order. Appellee and the District ultimately agreed to submit the question of appellee's compliance with the specifications to common law arbitration. One of appellant's engineers testified at the arbitration hearings, but appellant played no further role in them.

The arbitrators found the work stoppage to have been capricious, ordered the District to pay appellee damages caused by the stoppage, and directed the District to allow the contract work to be completed. No attempt was made by appellee or the District to appeal the award.

[ 345 Pa. Super. Page 490]

The District then filed a complaint against appellant that contained both trespass and assumpsit counts. The trespass count was based on allegations that appellant was negligent in advising the District to issue the stop work order, in preparing inadequate plans and specifications, and in improperly supervising the roofing work. The assumpsit count alleged that appellant breached its contractual obligations to the District by improperly preparing the specifications.

Appellant promptly filed third-party complaints against appellee and Owens-Corning Fiberglas Corp., manufacturer of certain materials used in the roofing project. See Pa.R.C.P. 2252(b) (allowing joinder of nonparties as additional defendants by filing third-party complaint). The third-party complaint filed against appellee contained counts in trespass, assumpsit, and strict liability. Each count averred that appellee was alone liable to the District, or jointly and severally liable to the District, or liable over to appellant for contribution and/or indemnity, and was based on general allegations that any problems with the roof were attributable solely to appellee's negligent workmanship and ...


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