claims $ 6,300.00 in damages against Higgins, based upon an alleged breach of an entirely separate contract "to move a 'dearator tank' into service."
In response to Hammermill's counterclaim against it, E.E. Austin deemed it necessary to jump on the bandwagon for a second ride by filing a crossclaim against Higgins for contribution and/or indemnity should E.E. Austin be found liable for any damages claimed by Hammermill.
Hammermill, apparently concerned that not enough people had been invited to the party, also prepared an invitation list of its own joining the following as fourth party defendants: Sandwell International, Inc.; Swan Wooster Engineering, Inc.; and their successors, Schuchart & Associates, Inc.; Sandwell Swan Wooster, Inc. (a Canadian corporation); and Sandwell Swan Wooster, Inc. (a Georgia corporation). We will not attempt to embark upon an explanation of the interrelationships of these corporations. We will instead treat them as one entity which we will refer to as "Sandwell." Sandwell was retained by Hammermill to perform engineering services relative to the project in which E.E. Austin was the prime contractor. The basis of the fourth party complaint is the allegation that Sandwell's delay in providing Hammermill with drawings and specifications is the reason for Hammermill's delay in supplying them to E.E. Austin.
Finally, our cast of characters becomes complete with the filing of a fifth party complaint by Sandwell against J.C. Williamson Company. Williamson had a separate contract with Hammermill which included providing design drawings and certain conveyor belts. Sandwell alleges that Williamson's negligent delays in providing these to Hammermill led to Sandwell's own delays in providing drawings and specifications for the foundation supports for the Williamson conveyors.
B. Higgins v. Hammermill - C.A. 87-127E
Apparently believing that the waters had yet to be muddied enough by the ongoing proceedings in its action against E.E. Austin, Higgins also initiated a separate cause of action directly against Hammermill. In its complaint, Higgins places the blame for the delayed construction upon Hammermill. Because, however, Higgins had no direct contractual relationship with Hammermill on the project, Higgins has pled a cause of action for unjust enrichment. Hammermill responded by filing a counterclaim identical to the one filed in C.A. 87-237E. It also filed a third party complaint against E.E. Austin and the Sandwell group, alleging the same causes of action against them as in C.A. 87-237E. Upon the motion of Hammermill, this action was consolidated with 87-237E, at that number.
Presently, pending before us in these consolidated actions are several motions to dismiss. Having sorted through the intricate web of claims, counterclaims and crossclaims, and resolved the confusing question of "who's on first?" we will now address these motions.
A. Motion to Dismiss Fifth Party Complaint Against J.C. Williamson Company - C.A. 88-237E
J.C. Williamson Company has moved to dismiss the fifth party complaint against it for failure to state a claim. In response to Williamson's motion, Sandwell provides the following clarification of the basis of its claim for indemnity and/or contribution:
Sandwell's stated indemnity cause of action against Williamson is not direct, but rather is secondary or derivative. While Sandwell readily admits that there is no contractual indemnity agreement between Sandwell and Williamson, if Sandwell is found liable, its liability is secondary to that of Williamson. See, e.g., Eckrich v. DiNardo, 283 Pa. Super. 84, 423 A.2d 727 (1980).