HomeMy WebLinkAbout95-311;314;96-171;271;272;97-2
MECHANICSBURG OVEN, INe.
et aI.,
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-171 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEBORAH e. ESPOSITO, et aI.,
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-271 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
FRANCES PRIBULSKY, et aI.
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-272 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CIPRIANO & JOSEPH ARENA,
et aI.,
Plaintiffs
vs,
BRIDGESTONE/FIRESTONE,
INe., et aI.,
Defedants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 97-0002
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
FRANCES PRIBULSKY, et aI.,
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 95-0314 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEBORAH e. ESPOSITO, et aI.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
NO, 95-0311 CIVIL
CIVIL ACTION - LAW
IRENE B. KERMISCH, et aI.,
Defendants
JURY TRIAL DEMANDED
\
IN RE: MOTIONS FOR SUMMARY mDGMENT
OF CORY CONSTRUCTION CO" ROTHSCHILD ARCHITECTS, BERT, DAVIS
AND ASSOCIATES AND MECHANICSBURG OVEN, INe.
BEFORE HESS AND OLEK II
MEMORANDUM AND ORDER
This matter arises from the partial roof collapse at the Windsor Park Shopping Center on
East Simpson Ferry Road in Mechanicsburg, Cumberland County, Pennsylvania, on January 21,
1994, The shopping center was originally constructed in 1971 by Windsor Park Shopping
Centers, a general partnership, The center underwent a number of repairs and renovations, In
1988, roof installation was performed by Donald B. Smith, Inc" and, according to the plaintiffs,
this roof installation added substantial additional weight to the existing roof structure leading to
the eventual collapse in 1994,
In May of 1992, Mechanicsburg Oven, Inc" entered into a lease for a portion of the
Windsor Park Shopping Center for the purpose of operating a restaurant. The architect for the
restaurant was Rothschild Architects, Bert, Davis and Associates was retained by the architect
for the design of the heating/ventilation systems, plumbing and electrical distribution upgrades
and renovations for the portion of the Windsor Park Shopping Center leased by Mechanicsburg
Oven, Inc, These renovations did not involve any changes to the structure of the building, Cory
Construction served as the general contractor for the preparation of the site of the Italian Oven
Restaurant. Again, no structural changes were made to the building during the work by Cory
Construction,
The partial roof collapse in 1994 has been generally attributed to poor designing of the
original trusses, defective construction of the trusses, and the added weight of a ballasted roof
that was installed over the original roof section involved in the collapse, The portion of the roof
over the Italian Oven did not collapse,
This litigation has progressed under several status orders issued by this court with expert
reports to have been filed by plaintiffs by April 15, 2001, and defense expert reports by May 15,
2001. Dispositive motions were due by June 30, 2001. These motions have since been argued,
When presented with a motion of summary judgment, the Court must view the record 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, Ertel v, Patriot-News Co" 544
Pa, 93, 674 A2d 1038 (1996), Summary judgment may only be granted in cases that are free
from doubt. Johnson v, Harris, 419 Pa,Super, 541, 615 A2d 771 (1992), A motion for summary
judgment is proper only if there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter oflaw, O'Brien Energy Systems, Inc, v, American Employers'
Ins, Co" 427 Pa,Super, 426, 629 A2d 957, appeal denied 537 Pa, 633,642 A2d 487 (1993),
Furthermore, the Pennsylvania Supreme Court has recently held:
[A] non-moving party must adduce sufficient
evidence on an issue essential to his case and on
which he bears the burden of proof such that a jury
could return a verdict in his favor. Failure to
adduce this evidence establishes that there is no
genuine issue of material fact and the moving party
is entitled to judgment as a matter of law,
Ertel, at 101-2,674 A2d at 1042, see also Pa,RC.P, 1035,3,
Although named as defendants in the several complaints filed in this matter, a review of
the discovery completed fails to disclose any factual or legal basis for liability in the building
collapse at the Windsor Park Shopping Center. None of the reports submitted by any party
reference Mechanicsburg Oven, Inc" Cory Construction, Rothschild Architects or Bert, Davis
and Associates as being liable by any act or omission, We will, therefore, grant the defendants'
motions for summary judgment.
ORDER
AND NOW, this
day of November, 2001, the motion for summary judgment
of Cory Construction Company is GRANTED,
The motion of Rothschild Architects for summary judgment is GRANTED,
The motion of Bert, Davis and Associates for summary judgment is GRANTED,
The motion of Mechanics burg Oven, Inc" for summary judgment is GRANTED,
BY THE COURT,
Kevin A Hess, 1.
The Honorable 1. Wesley Oler, Jr.
Daniel M, Taylor, Jr., Esquire
For Plaintiff Mechanicsburg Oven
Douglas B. Marcello, Esquire
For Plaintiffs, Pribulsky, Esposito and Arena
Marc T, Levin, Esquire
For Defendants Kermisch, Kleiman, Brown, Cohen & Lipitz, and Windsor Park
Thomas E. Brenner, Esquire
For Cory Construction Co" Inc,
Timothy 1. McMahon, Esquire
For Bert Davis & Associates
Robert 1. Ray, Esquire
For Rothschild Architects
Howard D, Kauffman, Esquire
For Charles Klein & Sons
Stuart S, Smith, Esquire
For Mechanicsburg Oven, Inc" Victor p, Smith, Jr., t/d/b/a Smith Management Group, and
Capital Ovens, Inc,
James W, Kutz, Esquire
For Firestone Building Products, Firestone Building Products Company, a division of Firestone
Tire and Rubber Company, Firestone Tire and Rubber Company, Bridgestone, Firestone, Inc"
and Bridgestone Corporation
Dennis 1. Bonetti, Esquire
For Donald B. Smith, Inc,
Samuel L. Andes, Esquire
For Ronald Raffensberger
:rlm
MECHANICSBURG OVEN, INe.
et aI.,
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-171 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEBORAH e. ESPOSITO, et aI.,
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-271 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
FRANCES PRIBULSKY, et aI.
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 96-272 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CIPRIANO & JOSEPH ARENA,
et aI.,
Plaintiffs
vs,
BRIDGESTONE/FIRESTONE,
INe., et aI.,
Defedants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 97-0002
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
FRANCES PRIBULSKY, et aI.,
Plaintiffs
vs,
IRENE B. KERMISCH, et aI.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 95-0314 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DEBORAH e. ESPOSITO, et aI.,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
NO, 95-0311 CIVIL
CIVIL ACTION - LAW
IRENE B. KERMISCH, et aI.,
Defendants
JURY TRIAL DEMANDED
\
IN RE: MOTIONS FOR SUMMARY mDGMENT
OF CORY CONSTRUCTION CO" ROTHSCHILD ARCHITECTS, BERT, DAVIS
AND ASSOCIATES AND MECHANICSBURG OVEN, INe.
BEFORE HESS AND OLEK II
ORDER
AND NOW, this
day of November, 2001, the motion for summary judgment
of Cory Construction Company is GRANTED,
The motion of Rothschild Architects for summary judgment is GRANTED,
The motion of Bert, Davis and Associates for summary judgment is GRANTED,
The motion of Mechanics burg Oven, Inc" for summary judgment is GRANTED,
BY THE COURT,
Kevin A Hess, l