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HomeMy WebLinkAbout89-0879 CivilDORE & ASSOCIATES : IN THE COURT OF COMMON PLEAS OF CONTRACTING, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION - LAW : WEST SHORE SCHOOL DISTRICT : and HALL-KIMBRELL : ENVIRONMENTAL SERVICES, INC., : Defendants : NO. 879 CIVIL 1989 IN RE: MOTION OF DEFENDANT HALL-KIMBRELL ENVIRONMENTAL SERVICES, INC., FOR PARTIAL SUMMARY JUDGMENT BEFORE SHEELY, P.J., HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of June, 1995, after careful consideration of the motion of Defendant Hall-Kimbrell for partial summary judgment, the motion is DENIED. BY THE COURT, Allen C. Warshaw, Esq. P.O. Box 1003 Harrisburg, PA 17108-1003 Attorney for Plaintiff C. Roy Weidner, Jr. 301 Market Street Lemoyne, PA 17043 Attorney for Defendant West Shore School District Mitchell S. Pinsky, Esq. Curtis Center, 4th Floor Independence Square West Philadelphia, PA 19106 Attorney for Defendant Hall-Kimbrell Environmental Services, Inc. :rc DORE & ASSOCIATES : IN THE COURT OF COMMON PLEAS OF CONTRACTING, INC., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION - LAW : WEST SHORE SCHOOL DISTRICT : and HALL-KIMBRELL : ENVIRONMENTAL SERVICES, INC., : Defendants : NO. 879 CIVIL 1989 IN RE: MOTION OF DEFENDANT HALL-KIMBRELL ENVIRONMENTAl. SERVICES, INC., FOR PARTIAL SUM_NLARY JUDGMENT BEFORE SHEELY, P.J., HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This case arises out of a claim for damages because of cost overruns in an asbestos abatement project. Presently before the Court is a motion for partial summary judgment~ filed on behalf of Defendant Hall-Kimbrell Environmental Services, Inc. (Defendant Hall-Kimbrell). For the reasons stated in this Opinion, Defendant Hall-Kimbrell's motion will be denied. On November 1, 1991, Defendant Hall-Kimbrell filed an amended motion for summary judgment in this case. The motion was denied by the Honorable Edgar B. Bayley on November 22, 1991.2 Defendant Hall-Kimbrell has now filed another motion for summary judgment as ~ This is a motion for partial summary judgment because Defendant West Shore School District filed a crossclaim against Defendant Hall-Kimbrell, which is not a subject of this motion. 2 The Court is aware of the rule that absent some new evidence it is improper for a trial judge to review an interlocutory order entered by another judge of the same court involving the same issue. See, e.g., Farber v. Engle, 106 Pa. Commw. 173, 177, 525 A.2d 864, 867 (1987). In the present case, however, Defendant does not seek a different ruling based solely on the same evidence; rather, Defendant maintains that there has been a change in law. Moreover, the "law of the case doctrine" does not preclude such review in that it applies only to appellate courts. Id. at 176 n.5, 525 A.2d at 866 n.5. NO. 879 CIVIL 1989 to Plaintiff, arguing that as a result of the Superior Court's decision in Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa. Super. 67, 602 A.2d 897, appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992), the law in the Commonwealth has been expanded and clarified with respect to obligations of an architect/engineer to a contractor.3 As a result of this decision, Defendant Hall- Kimbrell argues it is entitled to judgment as a matter of law against Plaintiff Dore & Associates Contracting, Inc. The pertinent facts may be summarized as follows: Plaintiff Dore and Associates Contracting, Inc., is a business corporation with its principal place of business at 900 Harry S. Truman Parkway, Bay City, Michigan. Defendant West Shore School District (Defendant West Shore) is a political subdivision-agency of the Commonwealth of Pennsylvania with its principal place of business at 1000 Hummel Avenue, Lemoyne, Cumberland County, Pennsylvania. Defendant Hall-Kimbrell Environmental Services, Inc. (Defendant Hall-Kimbrell) is a business corporation with its principal place of business at 4840 West Fifteenth Street, Lawrence, Kansas. On or about February 15, 1988, Defendant West Shore advertised for bids with regard to general asbestos abatement projects involving the removal of asbestos from buildings owned and operated by Defendant West Shore. Defendant Hall-Kimbrell served as the Motion for Partial Summary Judgment on Behalf of Defendant, Hall-Kimbrell Environmental Services, Inc., paragraph 4. 2 NO. 879 CIVIL 1989 architect and project manager for Defendant West Shore with regard to these projects, including the pertinent project herein. Plaintiff was the successful bidder with regard to one of the projects for asbestos abatement offered for bids by Defendant West Shore and for which Defendant Hall-Kimbrell served as architect and project manager. As one of the successful bidders, Plaintiff entered into a contract with Defendant West Shore; however, there was no contract between Plaintiff and Defendant Hall-Kimbrell. According to Plaintiff, while performing the work pursuant to the contract with West Shore, it discovered that some of the asbestos was encapsulated in such a way as to make its removal from the "scratch coat" of a ceiling surface impracticable and unreasonably expensive, if not impossible.4 Plaintiff further averred that this condition was concealed from and/or unknown to it and was of an unusual nature, differing materially from those conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the contract between Plaintiff and Defendant West Shore.~ Plaintiff commenced this action by filing a complaint on March 10, 1989, seeking damages against Defendant West Shore and Defendant Hall-Kimbrell. According to Plaintiff, Defendants knew, or should have known, that it would be impracticable, if not 4 Plaintiff's Complaint, paragraph 18. ~ Plaintiff's Complaint, paragraph 24. 3 NO. 879 CIVIL 1989 impossible, for Plaintiff to discover the condition of the asbestos-containing material in Cedar Cliff High School's planetarium; therefore, Plaintiff assumed that Defendants would reveal any such condition known to them.6 Additionally, Plaintiff averred that Defendants knew or should have known that it would be impracticable and unreasonably expensive, if not impossible, to remove the asbestos-containing material in the planetarium by the scraping method called for in the bid specifications.7 Moreover, according to Plaintiff, Defendants failed to disclose that the asbestos-containing material in the planetarium had been encapsulated, even though they knew that condition would materially affect the method and cost of abatement.8 Plaintiff claims that the foregoing alleged misrepresentations by Defendants were made intentionally in order to deceive Plaintiff and others with regard to the condition of the asbestos.9 Plaintiff seeks $115,851.02 for the additional work done to remove the allegedly encapsulated asbestos, in addition to $32,500.00 in damages for delays allegedly caused solely by the conditions misrepresented and/or concealed by Defendants.~° Plaintiff's Complaint, paragraph 40. Plaintiff's Complaint, paragraph 41. Plaintiff's Complaint, paragraph 42. Plaintiff's Complaint, paragraph 43. Plaintiff's Complaint, paragraph 46. 4 NO. 879 CIVIL 1989 Defendant Hall-Kimbrell now contends that it is entitled to summary judgment as to Plaintiff because a contractor cannot bring an action for damages against an architect, absent a contractual relationship, citing Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa. Super. 67, 602 A.2d 897, appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992), as authority for this proposition. In Linde, a contractor (Linde) was the low bidder on a contract for the reconstruction of a dam for which an engineering firm was hired to provide specifications. The contractor incurred significant cost overruns on parts of the project. As a result, the contractor brought an action against Hazelton City Authority (HCA), which put out the bids for the dam, claiming that the overruns were due to faulty specifications and negligent supervision. HCA joined the engineering firm, Westmoreland Engineering Co., Inc. (WECO). After a jury trial in which both HCA and WECO were found liable to Linde, WECO filed post-trial motions claiming Linde could not recover directly from it since there was no contract between them; the motions were denied. On appeal to the Superior Court, WECO claimed that the trial court's instructions to the jury that WECO could be directly liable to Linde despite a lack of privity was prejudicial error. Agreeing with WECO's position, the Court, in vacating the judgment against WECO, first observed that Linde's suit involved allegations of negligence. Linde Enterprises, Inc. v. Hazelton City Authority, 5 NO. 879 CIVIL 1989 412 Pa. Super. 67, 73, 602 A.2d 897, 899, appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992). Specifically, according to the Court, the allegations involved professional negligence. Id. The Court noted that "'Pennsylvania courts have long held that privity between parties is required to maintain an action for professional negligence.'" Id., quoting Hartford Accident & Indemnity Co. v. Parenti Randolph, 642 F. Supp. 38, 40 (M.D. Pa. 1985). Opposing the appeal, Linde argued that WECO, as an architect drawing up design specifications, owed a duty under Pennsylvania law to the contractors applying the specifications. Linde Enterprises, Inc. v. Hazelton City Authority, 412 Pa. Super. 67, 76, 602 A.2d 897, 901, appeal denied, 533 Pa. 601, 617 A.2d 1275 (1992). The Court, however, found no such duty to exist, stating that "Linde has not offered a compelling reason why we should deviate from the well-established requirement of privity to adopt a rule holding negligent architects directly liable for economic damages to contractors with whom they share no contractual relationship." Id. (emphasis added). In the present case, however, we are not presented with allegations of mere negligence. Plaintiff's claim is that Defendant Hall-Kimbrell intentionally concealed the condition of the asbestos from Plaintiff, knowing that Plaintiff could not complete the project as specified by the contract, and that Plaintiff had no way of knowing this. Because the Linde Court's NO. 879 CIVIL 1989 ruling dealt specifically with a case of negligence, this Court cannot, at this stage, apply its holding to the facts as presented herein. ORDER OF COURT AND NOW, this ~{~ day of June, 1995, after careful consideration of the motion of Defendant Hall-Kimbrell for partial summary judgment, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Allen C. Warshaw, Esq. P.O. Box 1003 Harrisburg, PA 17108-1003 Attorney for Plaintiff C. Roy Weidner, Jr. 301 Market Street Lemoyne, PA 17043 Attorney for Defendant West Shore School District Mitchell S. Pinsky, Esq. Curtis Center, 4th Floor Independence Square West Philadelphia, PA 19106 Attorney for Defendant Hall-Kimbrell Environmental Services, Inc. :rc 7