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ALEXANDER LUPINSKI AND CAROL LUPINSKI v. HERITAGE HOMES (01/11/88)

filed: January 11, 1988.

ALEXANDER LUPINSKI AND CAROL LUPINSKI, HIS WIFE, APPELLEES,
v.
HERITAGE HOMES, LTD., APPELLANT, V. WILLIAM A. BROJACK INDIVIDUALLY AND T/A BROJACK LUMBER COMPANY, APPELLEE (TWO CASES)



Appeal from the Judgment entered February 2, 1987 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 82-Civ-3078. Appeal from the Judgment entered February 17, 1986 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 82-Civ-3078.

COUNSEL

John J. Brier, Scranton, for appellant.

Patrick C. Carey, Scranton, for Lupinski, appellees.

Jan Kuha, Scranton, for Brojack, appellees.

McEwen, Olszewski and Del Sole, JJ.

Author: Del Sole

[ 369 Pa. Super. Page 489]

In 1979, Appellees, the Lupinskis, contracted with Appellant, Heritage Homes, for the construction of a home. Thereafter, Heritage entered into an agreement with Appellee, Brojack Lumber Company, by which Brojack would supply Heritage with the lumber necessary for the construction of the home. Shortly after moving into the house, the Lupinskis filed a complaint against Heritage alleging that the lumber which was used in building the dwelling was infested with wood-boring insects. The complaint also stated that the insects were in the wood at the time of construction. Subsequently, Brojack was joined as an additional defendant by Heritage by way of an original defendant's complaint. The complaint averred that Brojack was jointly and severally liable with Heritage, or was liable over to Heritage, due to the fact that Brojack had supplied all of the lumber used in the construction of the house.

Following a jury trial, the jury returned a verdict in the Lupinskis' favor and against Heritage for $36,522.35. In addition, the verdict found in Heritage's favor and against Brojack in the amount of $4,664.00. Heritage filed timely

[ 369 Pa. Super. Page 490]

    motions for a judgment n.o.v. and a new trial which were denied by the trial court. Judgment was entered on the verdict in favor of the Lupinskis and against Heritage on February 2, 1987. Judgment was entered on the verdict in favor of Heritage and against Brojack on February 17, 1987. These timely appeals followed.*fn1

Heritage presents three issues on appeal:

1. Whether the doctrine of strict liability under the Restatement (Second) of Torts ยง 402A applies to a claim for loss of market value of the dwelling itself caused by the defective lumber;

2. Whether the trial court misstated the law on indemnification when it instructed the jury members that they could find Brojack liable over to Heritage for a lesser amount than that for ...


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