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DELLA LEFLAR v. GULF CREEK INDUSTRIAL PARK # 2 (09/26/86)

decided: September 26, 1986.

DELLA LEFLAR, THE WIDOW OF PAUL LEFLAR AND ADMINISTRATRIX OF HIS ESTATE, APPELLEE,
v.
GULF CREEK INDUSTRIAL PARK # 2, JOHN A. CALLAHAN, JR., JOHN R. FARRELL, THOMAS P. MURRAY, AND PEERLESS INDUSTRIES, INC., APPELLEES, AND MONTGOMERY COUNTY INDUSTRIAL DEVELOPMENT CORPORATION. APPEAL OF PEERLESS PRODUCTS, INC.



Appeal from the Judgment Entered October 26, 1984 of the Superior Court of Pennsylvania, No. 3188, Philadelphia, 1982, Affirming the Judgment Entered September 28, 1984 in the Court of Common Pleas, Philadelphia County, Civil Action, Law, at No. 1600, January Term, 1980. Pa. Super. , 487 A.2d 443 (1984)

COUNSEL

George D. Sheehan, Jr., Philadelphia, for appellant.

Richard M. Shusterman, Philadelphia, for Gulf Creek Indus. Park # 2.

Joseph Szczepaniak, Earl T. Britt, (Phila Co.) David LeFlar, Philadelphia, for Della LeFlar.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Zappala

[ 511 Pa. Page 576]

OPINION

Peerless Products, Inc. has filed an appeal from the Superior Court's per curiam affirmance of a judgment entered against it by the Philadelphia County Court of Common Pleas in a wrongful death and survival action, 337 Pa. Super. 635, 487 A.2d 443. The action arose out of the fatal injuries sustained by Paul LeFlar on May 28, 1978 when he was struck by a wooden beam while attempting to repair sagging roof beams located at Gulf Creek Industrial Park. As his widow and administratrix of his estate, Appellee Della LeFlar initiated the action against Gulf Creek Industrial Park # 2 (Gulf Creek), John A. Callahan, Jr., John R. Farrell, Thomas P. Murray, Peerless Industries, Inc., Montgomery County Industrial Development Corporation, and Appellant Peerless Products, alleging the injuries resulted from the defendants' negligence in failing to maintain the premises and to make proper inspections and in failing to warn of dangers on the premises. The Industrial Park was owned by Gulf Creek, a partnership comprised of Callahan, Farrell, Murray and Peerless Industries, Inc., a corporation which is unrelated to Peerless Products. Peerless Products leased the property on which the accident occurred from Gulf Creek. The named individual defendants were also corporate officers of Peerless Products. David LeFlar, the decedent's brother, was joined as an additional defendant. He was hired by Peerless Products to renovate the property and had chosen the decedent, among others, to assist him.

Immediately before trial, the Appellee*fn1 executed a joint tortfeasor release of Gulf Creek, Callahan, Farrell, Murray, Peerless Industries, Inc., and Montgomery County Industrial Development Corporation for $232,280, expressly reserving the right to proceed against Peerless Products, its

[ 511 Pa. Page 577]

    servants, employees, agents, officers, directors or insurers.*fn2 Following a jury trial, a verdict was returned in favor of the Appellee against Peerless Products and David LeFlar in the amount of $800,000. The decedent was found to have been 30% contributorily negligent, Peerless Products 60% negligent, and David LeFlar 10% negligent. The jury determined that Gulf Creek, Callahan, Farrell, and Murray were not negligent. The trial court molded the verdict to reflect the decedent's negligence and assessed delay damages of $115,989 pursuant to Pa.R.C.P. 238. Post-trial motions filed on behalf of Peerless Products were denied by the trial court. The judgment entered was subsequently affirmed by order of the Superior Court, and Appellant's petition for allowance of appeal from that order was granted.

The Appellant has raised four issues in this appeal: (1) whether the trial court erred in failing to enforce the joint tortfeasor release in favor of Peerless Products; (2) whether a new trial should have been awarded due to an allegedly inconsistent verdict; and (3) whether the trial court erred in refusing it leave to cross-claim against Gulf Creek; and (4) whether the trial court erred in refusing to permit an amendment to its answer to assert the defense of the Workmen's Compensation Act. Because the first three issues were correctly resolved by the lower courts, it is necessary for this Court to address only the issue of whether it was error to refuse to grant the Appellant leave to amend its answer to plead the defense of the Workmen's Compensation Act.

The Appellee's amended complaint, filed on March 5, 1980, stated generally the allegations of negligence asserted against the defendants, the defendants' names and addresses, and the injuries which the decedent suffered. The amended complaint described the Appellant as owning, occupying, and controlling the ...


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