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Home My WebLink About2009-4183 Civil MICHAEL J. DUCHARME AND : IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : THE CUMBERLAND VALLEY : SCHOOL DISTRICT, : DEFENDANT : : V. : : PENNSYLVANIA EDUCATION JOINT : PURCHASING COUNCIL, : ADDITIONAL DEFENDANT : 09-4183 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFFS TO A JOINDER COMPLAINT OF DEFENDANT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., October , 2009:-- On June 19, 2009, plaintiffs, Michael J. Ducharme and Nicholas J. Shears, property owners and taxpayers in the Cumberland Valley School District, filed a complaint seeking a declaratory judgment against the Cumberland Valley School District. The complaint contains the following averments: 10. Upon information and belief, on or about February 27, 2009, the CV School District awarded certain public contracts for roof restoration work at the Monroe Elementary School, the Silver Spring Elementary School and the Eagle View Middle School to entities known as Tremco Incorporated and a subsidiary of Tremco Incorporated (“Tremco”) known as Weatherproofing Technologies, Inc. (“WTI”). 11. Upon information and belief, the aforementioned contract award was 09-4183 CIVIL TERM made by the CV School District without the required public advertisement and without meeting other statutory requirements for bids as required by the School Code of 1949 at 24 P.S. §7-751 to include, but not be limited to, the following: (a) failing to enter into separate contracts for each project; (b) failing to enter into contracts with the “lowest responsible bidder” because no bidding actually took place; (c) failing to enter into contracts upon “proper terms”, including, but not limited to, making an award for a non-competitive price; and (d) failing to obtain competitive bids for the projects. 12. Upon information and belief, the CV School District awarded the roof restoration contract to Tremco and WTI based upon a proposal made by WTI dated October 16, 2008. A true and correct copy of the proposal so submitted is attached hereto as Exhibit “A” and is incorporated by reference (the “proposal”). 15. Plaintiffs contend the failure of the CV School District to comply with public bidding requirements has resulted in the awarding of roof restoration work at costs substantially above those which could have been incurred had the CV School District complied with the provisions of 24 P.S. §7-751, et seq. 16. The CV School District has alleged that it has complied with the School Code of 1949 through a “bidding” process conducted by an organization known as the Association of Educational Purchasing Agencies (“AEPA”) for the roofing work at issue. 17. Plaintiffs contend the AEPA “bidding” process does not meet the requirements of the School Code of 1949, has resulted in higher costs to the CV School District and does not comply with other applicable laws and statutes. 18. The CV School District owns many more buildings than the three (3) identified hereinabove and all of these other properties will require roof restoration and/or replacement in the future. 19. By continuing to award roofing restoration and replacement contracts without meeting the requirements of the School Code of 1949, Plaintiffs anticipate the CV School District will continue to violate the applicable laws of the Commonwealth and will incur costs for roof restoration/replacement substantially in excess of those costs which could be incurred through proper public bidding. Plaintiffs seek the following relief: Issue a judgment declaring the bidding process as conducted by a) -2- 09-4183 CIVIL TERM the CV School District for the Monroe Elementary School, Silver Spring Elementary School and Eagle View Middle School roofing projects failed to comply with applicable law and b) award costs of this action to Plaintiffs and such further relief and declaration of rights and legal determinations as the Court may seem just and proper. (Emphasis added.) On September 2, 2009, the School District filed a joinder complaint against Pennsylvania Education Joint Purchasing Council (PEJPC). In its complaint, the School District alleged that pursuant to an Agreement, it remits membership dues to PEJPC to administer the public bidding process for its purchase of materials, supplies, equipment, and services, including construction services. The District alleges that PEJPC was legally responsible for the means and methods of administering the public bidding process that is the subject of the within complaint including ensuring full compliance with all statutes and regulations, and that any failure of PEJPC to conduct the bidding process in accordance with the Public School Code of 1949 would be a material breach of their Agreement. The School District sets forth a claim for common law indemnity and contribution against PEJPC for any judgment entered against it and reimbursement of all attorney fees and costs of suit incurred in defending this case. Plaintiffs herein filed a preliminary objection to the joinder complaint averring that it does not comply with Pa. Rule of Civil Procedure 2252. The issues were briefed and argued on October 14, 2009. Pa. Rule of Civil Procedure 2252 provides: (a) Except as provided by Rule 1706.1, any party may join as an additional defendant any person not a party to the action whom may be (1) solely liable on the underlying cause of action against the joining party, or . . . -3- 09-4183 CIVIL TERM liable tothe joining party on any cause of action (4) or with arising out of the transaction or occurrence or series of transactions or upon which the underlying cause of action against the occurrences joining party is based. (Emphasis added.) Harker v. Farmers Trust Company, In 248 Pa. Super. 427 (1977), the Superior Court stated: Rule 2252 is remedial in nature, designed to facilitate the adjudication in a single action of the rights of all parties growing out of a single situation. The objective of the Rule is to avoid multiplicity of suits, thereby saving time and money for both litigants and the courts. In view of its objectives, it has been held that the Rule should be liberally construed and “the cause of action declared upon by the plaintiff” broadly interpreted . . . . (Citations omitted.) Plaintiffs correctly note that it was the legal responsibility of the Cumberland Valley School District to properly bid its roof restoration work and enter into appropriate contracts pursuant to the Public School Code of 1949 at 24 P.S. Section 7-751(a), which provides: All construction, reconstruction, repairs, maintenance or work of any nature, including the introduction of plumbing, heating and ventilating, or lighting systems, upon any school building or upon any school property, or upon any building or portion of a building leased under the provisions of section 703.1, made by any construction, reconstruction, repairs, maintenance or work including labor and material, shall exceed shall be done under separate contracts ten thousand dollars ($10,000), to be entered into by such school district with the lowest responsible bidder , upon proper terms, after due public notice has been given asking for competitive bids. (Footnote omitted.) (Emphasis added.) Any failure of PEJPC to conduct the bidding process in accordance with the Public School Code of 1949 would seemingly be a material breach of their Agreement with the School District to do exactly that. There would be no legal basis for finding -4- 09-4183 CIVIL TERM PEJPC solely liable on the underlying cause of action or liable to or with the School District on that action. However, it appears that PEJPC could be liable to the School District for a breach of their Agreement. That is a cause of action against it arising out of the transaction upon which the underlying cause of action against the School District is based, and therefore properly joined under Rule 2252(a)(4). That is the relief sought in the School District’s joinder complaint against PEJPC. According, the following order is entered. ORDER OF COURT AND NOW, this day of October, 2009, the preliminary objection of plaintiffs to the complaint of defendant, the Cumberland Valley School District, joining Pennsylvania Educational Joint Purchasing Council (“PEJPC”), as an IS DISMISSED. additional defendant, By the Court, Edgar B. Bayley, J. Hubert X. Gilroy, Esquire 10 East High Street Carlisle, PA 17013 For Plaintiffs Anthony F. Andrisano, Jr., Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 For Cumberland Valley School District -5- 09-4183 CIVIL TERM Michael I. Irvin, Esquire 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 For PEJPC :sal -6- MICHAEL J. DUCHARME AND : IN THE COURT OF COMMON PLEAS OF NICHOLAS J. SHEARS, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : THE CUMBERLAND VALLEY : SCHOOL DISTRICT, : DEFENDANT : : V. : : PENNSYLVANIA EDUCATION JOINT : PURCHASING COUNCIL, : ADDITIONAL DEFENDANT : 09-4183 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF PLAINTIFFS TO A JOINDER COMPLAINT OF DEFENDANT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of October, 2009, the preliminary objection of plaintiffs to the complaint of defendant, the Cumberland Valley School District, joining Pennsylvania Educational Joint Purchasing Council (“PEJPC”), as an IS DISMISSED. additional defendant, By the Court, Edgar B. Bayley, J. 09-4183 CIVIL TERM Hubert X. Gilroy, Esquire 10 East High Street Carlisle, PA 17013 For Plaintiffs Anthony F. Andrisano, Jr., Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 For Cumberland Valley School District Michael I. Irvin, Esquire 1301 Masons Mill Business Park 1800 Byberry Road Huntingdon Valley, PA 19006 For PEJPC :sal -2-