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HomeMy WebLinkAbout96-171, 271,272 & 97-0002 Civil IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CHARLES A. KLEIN & SONS, INC. BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., October 19, 2001. This civil case arises out of the collapse of a roof at a shopping mall on January 21, 1994.~ Various tenants of the mall have sued various companies and individuals on the theory that the defendants were legally responsible for the collapse. One such defendant is Charles A. Klein & Sons, Inc. (Defendant Klein), a heating, air-conditioning, plumbing and ventilation company. For disposition at this time is a motion for summary judgment filed by Defendant Klein.3 The motion avers that Defendant Klein had replaced HVAC units on the roof prior to the collapse,4 and that all experts have attributed the roof failure to "some type of truss design, construction, installation or matters related thereto such as negligent inspection of the trusses.'5 The motion concludes that "[n]o party has produced any evidence, expert or otherwise, that would support a genuine issue of material fact upon which a fact finder could attach any liability to Defendant [Klein].'6 For the reasons stated in this opinion, the motion for summary judgment will be denied. Amended Complaint, filed June 28, 2000, paragraph 28. N.T. 13, Deposition of Andrew Klein, June 23, 1998. s Defendant, 4 Defendant, paragraph 3. s Defendant, paragraph 6. 6 Defendant, paragraph 7. Charles A. Klein & Sons, Inc.'s Motion for Summary Judgment, filed June 11, 2001. Charles A. Klein & Sons, Inc.'s Motion for Summary Judgment, filed June 11, 2001, Charles A. Klein & Sons, Inc.'s Motion for Summary Judgment, filed June 11, 2001, Charles A. Klein & Sons, Inc.'s Motion for Summary Judgment, filed June 11, 2001, STATEMENT OF FACTS The Pennsylvania Rules of Civil Procedure establish the standard of review for a motion for summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. Under subparagraph (1) of Rule 1035.2, summary judgment may be granted if the material facts are not in dispute and "the moving party is entitled to judgment as a matter of law." Dean v. Common~vealth, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). In this context, "[t]he record must be viewed in the light most favorable to the [non-moving] party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Id at 507, 751 A.2d at 1132. Under subparagraph (2), summary judgment also may be granted if the non-moving party has not offered evidence sufficient to support its burden of proof on a key element of the claim or defense. Young v. Commonwealth Dep't. of Transp., 560 Pa. 373, 375-76, 744 A.2d 1276, 1277 (2000). On Friday, January 21, 1994, a portion of the roof at the Windsor Parking Shopping Mall in Mechanicsburg, Lower Allen Township, Cumberland County, 2 Pennsylvania, collapsed under an accumulation of snow.7 Numerous tenants of the mall allegedly suffered damages as a result.8 Evidence exists in the record tending to show that the roof as installed was insufficiently supported for its weight.9 Evidence also exists tending to show that approximately 6 months before the collapse Defendant Klein had added to the weight of the roof in the process of replacing HVAC equipment,l° and that prior to doing so it had not ascertained whether the roof was sufficiently supported. ~ DISCUSSION In Paulscak v. Hoebler, 330 Pa. 184, 198 A. 646 (1938), the Pennsylvania Supreme Court affirmed a judgment in a negligence action in favor of a plaintiff, injured by the collapse of a building, against a company which maintained a sign on top of the building. In a unanimous decision, the Court emphasized the principle that the law will take notice of a situation where an excess load is in superimposition with an inadequate support, and, where a person is injured because of that dangerous interrelation, the law will hold as answerable in damages that party who was primarily responsible for it. Id at 191-92, 198 A. at 650. In this context, the Court noted the general proposition that "[t]he question whether a person charged with negligence or negligent acts or omissions should have foreseen the injuries resulting from those acts or omissions is for the jury, if there is any credible evidence from which a reasonable conclusion can be drawn in support of the claim of neglect of duty." Id at 192, 198 A. at 650 (quoting Ashby v. Phila. Elec. Co., 328 Pa. 474, 478, 195 A. 887, 888 (1938)). 7 Amended Complaint, filed June 28, 2000, paragraphs 6, 31. 8 Amended Complaint, filed June 28, 2000, paragraph 31. 9 S~e Supplemental Report/Affidavit of James A. Kerms, filed June 29, 2001. l0 N.T. 44, Deposition of Andrew Klein, June 23, 1998. ~ N.T. 35-36, Deposition of Andrew Klein, June 23, 1998. 3 In Reed Stores Corp. v. Sears, Roebuck & Co., 49 D. & C. 407 (Blair Co. 1943), the court denied a defendant's motion for a new trial in a case where a certain company (defendant) had stored items in an attic without first ascertaining that the floor could sustain the load and where various commercial tenants below suffered losses when the floor collapsed. In denying relief to the defendant, President Judge Patterson stated: The court is of the opinion that there was credible evidence from which a reasonable conclusion could be drawn that defendant should have foreseen the injuries which resulted from its failure to use ordinary care in investigating the construction and carrying capacity of that portion of the floor which collapsed under the load placed upon it by defendant, and that the case was properly submitted to the jury for its determination on the question of negligence and want of due care under the circumstances. Id. at 412. In the present case, there is evidence tending to show that Plaintiffs suffered losses when a roof collapsed due to overloading, that Defendant Klein had added to the weight upon the roof several months prior to the collapse, and that it had done so without considering the roof's weight-bearing capacity. While it may well be that a jury would conclude that Defendant Klein's contribution to the event, if any, was so negligible as to be disregarded as an act of negligence or as a substantial factor in causing harm, those determinations are better left to the trier-of-fact than to a court on the theory that no reasonable person could find otherwise. BY THE COURT, J. Wesley Oler, Jr., J. 4 Daniel M. Taylor, Jr., Esq. Jones, Gregg, Creehan & Gerace 411 Seventh Avenue, Suite 1200 Pittsburgh, PA 15219 Attorney for Plaintiff Mechanicsburg Oven, Inc. Douglas B. Marcello, Esq. Thomas, Thomas & Hafer 305 North Front Street Harrisburg, PA 17101 Attorney for Plaintiffs Pribulsky, Esposito and Arena Mark Levin, Esq. Farrell & Ricci, P.C. 4423 North Front Street Harrisburg, PA 17110 Attorney for Defendants Kermisch, Kleiman, Brown, Cohen & Lipitz and Windsor Park Thomas E. Brenner, Esq. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Cory Construction Timothy McMahon, Esq. 100 Pine Street Harrisburg, PA 17101 Attorney for Defendant Bert Davis & Assoc. 5 Kelly B. Bakayza, Esq. James P. Thomas, Esq. Bums, White & Hickton 2400 Fifth Avenue Place 120 Fifth Avenue Pittsburgh, PA 15222-3001 Attorneys for Defendant Rothschild Architects John G. Devlin, Esq. Howard D. Kauffman, Esq. 100 Pine Street, Suite 260 Harrisburg, PA 17101 Attorney for Charles Klein & Sons Stuart S. Smith, Esq. John Churchman Smith & Associates 14 West Second Street P.O. Box 229 Media, PA 19063 Attorney for Victor Smith and Smith Mgt. Group James Kutz, Esq. McNees, Wallace & Nurick 100 Pine Street Suite 1166 Harrisburg, PA 17108 Attorney for Defendants Firestone Building Products Company, Firestone Building Products Company, a division of Firestone Tire and Rubber Company, Firestone Tire and Rubber Company, Bridgestone, Firestone, Inc., and Bridgestone Corporation Samuel L. Andes, Esq. 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 Attorney for Defendant Ronald Raffensperger 6 Dennis J. Bonetti, Esq. Peters & Wasilefski 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Donald B. Smith, Inc. Michael Marshall 409 South Kenilworth Avenue Oakpark, IL 60302 7 MECHANICSBURG OVEN, INC., et al. Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-171 CIVIL TERM DEBORAH C. ESPOSITO,: et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-271 CIVIL TERM FRANCES PRIBULSKY, et al., Plaintiffs Vo IRENE B. KERMISCH, et al., Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-272 CIVIL TERM CIPRIANO & JOSEPHINE ARENA, et al., Plaintiffs Vo BRIDGESTONE/ FIRESTONE, INC., et al., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-0002 CIVIL TERM