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NATIONAL LIBERTY LIFE INSURANCE COMPANY v. KLING PARTNERSHIP (02/06/86)

filed: February 6, 1986.

NATIONAL LIBERTY LIFE INSURANCE COMPANY, APPELLEE,
v.
THE KLING PARTNERSHIP, BETHLEHEM STEEL CORPORATION, L.F. DRISCOLL COMPANY, GEORGE H. DROSS COMPANY, INC., THE BELMONT IRON WORKS, R.H. JOHNSON COMPANY, KEYSTONE WIRE AND IRON WORKS, INC., P.P.G. INDUSTRIES, INC., MURPHY, INC., H.F. ORTLIP COMPANY OF PENNA. AND WM. ANDERSON COMPANY, A & R ENGINEERING COMPANY, INC. APPEAL OF BETHLEHEM STEEL CORPORATION



Appeal of: BETHLEHEM STEEL CORPORATION Appeal from the Order of August 1, 1983 in the Court of Common Pleas of Philadelphia County, Civil, No. 4644 June Term, 1979.

COUNSEL

John H. McKeon, Jr., Philadelphia, for appellant.

Jane L. Foster, Philadelphia, for National Liberty, appellee.

Lawrence L. Robinson, Philadelphia, for Driscoll, appellee.

Rowley, McEwen and Hoffman, JJ.

Author: Mcewen

[ 350 Pa. Super. Page 526]

This appeal has been taken from two orders entered by the distinguished Judge William M. Marutani which (1) denied the motion of appellant, Bethlehem Steel Corporation, for leave to amend its answer and (2) denied the petition of appellant, defendant Bethlehem Steel Corporation, for leave to join an additional defendant.*fn1

[ 350 Pa. Super. Page 527]

The litigation which gave rise to the instant appeal was commenced by National Liberty Life Insurance Company in an effort to recover damages which National Liberty allegedly sustained as a result of the design and construction of its Phase I headquarters building in Frazer, Pennsylvania. The building was designed by the Kling Partnership, which specified for use in the building a weathering steel product manufactured by Bethlehem Steel and marketed under the trademark of "Mayari R." The window walls in which "Mayari R" was employed were fabricated and erected by Keystone Wire and Iron Works, Inc. (hereinafter "Keystone"), a subcontractor of the project's general contractor, the L.F. Driscoll Company (hereinafter "Driscoll"). National Liberty alleged that Kling had (a) failed to properly design the building; (b) failed to properly inspect and supervise the construction; (c) failed to specify proper methods of welding or joining the mullions and members of the window wall; and (d) breached its contractual agreement with National Liberty. National Liberty alleged that Driscoll was liable by reason of its alleged (1) failure to properly install the window walls and sunscreens; (2) failure to properly treat and handle the weathering steel; (3) failure to perform the work in a careful and workmanlike fashion; and (4) failure to properly adhere to the specifications in the contract documents. As to Bethlehem Steel, National Liberty asserted that Bethlehem Steel was likewise responsible for the damages sustained by National Liberty by reason of its (1) failure to warn of extraordinary precautions required in the use and joining of "Mayari R" members; (2) failure to adequately test and research architectural uses of "Mayari R" before promoting it for such use; and (3) failure to warn that "Mayari R" was an inappropriate material for use in the headquarters building. National Liberty also contended that "Mayari R" was unfit for the ordinary purposes for which weathering steel is used and that Bethlehem Steel had breached its express warranties as to "Mayari R."

[ 350 Pa. Super. Page 528]

The general contractor, Driscoll, joined a number of its subcontractors as additional defendants, including Keystone, the subcontractor responsible for the fabrication and erection of the window walls. Driscoll and Kling filed cross claims against each other and against Bethlehem Steel. Bethlehem Steel, however, filed no claims against any other defendant or additional defendant.

National Liberty learned during the course of pre-trial discovery that a substantial number of welds in the "Mayari R" window wall and sunscreen assembly had broken or cracked and that joints had failed, all of which resulted in serious structural damage to the assemblies. National Liberty commenced a separate action against the structural engineer, A & R Engineering Co., Inc. (formerly Allabach and Rennis, Inc.), on October 8, 1982, as a result of the structural damage. However, no motion to consolidate the action against A & R Engineering with the present action was made by any of the parties.

Fourteen days before trial was scheduled to commence, National Liberty entered into a settlement agreement with Kling, Driscoll, Keystone, A & R Engineering and H.F. Ortlip Company.*fn2 National Liberty received $1,508,000 from the settling defendants in ...


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