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HENRY DESKIEWICZ & PATRICIA ANN DESKIEWICZ v. ZENITH RADIO CORPORATION (06/26/89)

filed: June 26, 1989.

HENRY DESKIEWICZ & PATRICIA ANN DESKIEWICZ, HUSBAND AND WIFE
v.
ZENITH RADIO CORPORATION, ZENITH ELECTRONICS CORPORATION, INTERNATIONAL PIPING SYSTEMS, AND ROBERT LEMPA, ESTATE OF STEVEN MARUSCAK, DEC'D, ROBERT FRANKS, JAMES BAKERT, APEX ELECTRICAL ENGINEERING CO., GENERAL ELECTRIC CO., & JOE DOE A/K/A PROJECT ENGINEER FOR GENERAL ELECTRIC CO. APPEAL OF ZENITH RADIO CORPORATION AND ZENITH ELECTRONICS CORPORATION



Appeal from the Order of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 1832 October Term, 1983.

COUNSEL

Joel D. Gusky, Philadelphia, for appellants.

Gerard Bruderle, Philadelphia, for Intern. Piping, appellees.

Brosky, McEwen and Olszewski, JJ. McEwen, J., files a concurring statement.

Author: Brosky

[ 385 Pa. Super. Page 375]

This is an appeal from an order finding that appellee, International Pipings Systems (IPS), was not obligated to indemnify appellant, Zenith Radio Corporation for a liability imposed upon Zenith for personal injury. IPS was contracted by Zenith to dismantle a large machine and move it to a plant located in Illinois. An employee engaged in this process was injured and a settlement was later reached with Zenith. Zenith sought indemnification from IPS under a contractual clause.

Zenith raises two issues for resolution: (1) was IPS contractually obligated to indemnity Zenith the sum paid the plaintiff? and (2) was IPS contractually obligated to pay Zenith's attorneys fees and costs in defending the underlying action? Upon consideration of the arguments advanced by all parties, we reverse.

The facts relevant to disposition of this appeal are, briefly stated: On or about October 9, 1981, Zenith and IPS entered

     into a contract whereby IPS was required to disassemble, inter alia, a General Electric Oxidizer for reassembly at Zenith's manufacturing plant in Melrose Park, Illinois. Subsequently, IPS subcontracted the disassembly of the Oxidizer to plaintiff, Henry Deskiewicz. On the date of the accident, plaintiff sustained serious bodily injury when he jumped from an eight (8) foot-high platform

[ 385 Pa. Super. Page 376]

    after he placed a screwdriver into a 30-amp switch which he believed to be de-energized. He had placed the screwdriver into the switch for the purpose of confirming the fact that the machine had been de-energized.

Extensive discovery revealed that the only defendants against whom plaintiffs had a viable claim were Zenith and IPS.

On June 23, 1988, the case at bar was assigned for trial. Prior to impanelling a jury, the trial court conducted a thorough pre-trial conference and heard the parties' respective contentions regarding liability and damages.

As a result of the conference, plaintiffs agreed to accept, if offered, $165,000.00. Later that day, plaintiffs agreed to accept 75% of the settlement demand or $123,750.00 from Zenith. Subsequently, on June 27, 1988, plaintiffs accepted IPS's settlement offer of $40,000.00 and the case, as between plaintiffs and defendants, settled.

In Zenith's Answer to Plaintiffs' Complaint, it pleaded a cross-claim against IPS for contractual indemnity and for reimbursement of counsel fees and costs. This cross-claim was denied by IPS. Counsel for Zenith and IPS agreed that Judge Moss would retain jurisdiction over the case to resolve the contractual indemnity issue between them. With the trial court's permission, appellant and appellee submitted Stipulated Findings of Fact in lieu of live testimony.

On August 17, 1988, an Order was entered denying Zenith's contractual indemnity claims. This appeal followed.

A fundamental rule of construction in the law of contracts states that words, phrases and clauses will be given their plain and ordinary expressed meaning. If this is so, then this particular area of law, indemnification for damages or injuries arising from negligent acts, could be thought of as an exception to the general rule. If literal effect was given to these clauses then indemnification would be ...


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