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Home My WebLink About97-4323 CIVILCUMBERLAND VALLEY SCHOOL DISTRICT, Plaintiff NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant ADAMS COUNTY ASPHALT COMPANY, GEMINI EQUIPMENT COMPANY, KIMBOB, INC., ROBERT M. MUMMA, II, AND THE RAY GROUP, INC., Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4323 CIVIL TERM CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT THE RAY GROUP, INC. TO DEFENDANT'S JO1NDER COMPLAINT BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT The case arises out of a construction project undertaken by the plaintiff Cumberland Valley School District. Adams County Asphalt Company (hereinafter ACA) submitted a successful bid for the performance of certain site work. Defendant National Union Fire Insurance Company (hereinafter "National Union") furnished the performance bond for ACA's work. Plaintiff commenced this action against National Union to enforce the terms of the performance bond. NO. 97-4323 CIVIL National Union has joined several additional defendants, including The Ray Group, Inc. (hereinafter "Ray"). Ray has filed preliminary objections in the nature of a demurrer to National Union's Amended Joinder Complaint.~ The parties have briefed and argued their respective positions. This matter is now ready for disposition. DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader' s right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. The pleader's conclusions or averments of law are not considered to be admitted as true by a demurrer. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402, 408 (1985) (citations omitted). When ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A.v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Furthermore, "a preliminary objection in the nature of a demurrer must be rejected if the facts as pleaded state a claim for which relief may be granted under any theory of law". Sunbeam Corp. v. Liberty Mutual lns., Co., 566 Pa. 494, 781 A.2d 1189, 1192 (2001), (emphasis added). Applying the above standard, Ray's demurrer must be rejected. 1 There was an additional preliminary objection in the nature of a motion to strike for lack of specificity. We will dismiss that objection without discussion. NO. 97-4323 CIVIL Plaintiff' s complaint alleges that it incurred more than $1.3 million in "damages, costs, and expenses.., to repair work done by ACA and to perform and complete ACA's siterwork construction on the Project.''2 Plaintiff seeks to recover those costs, expenses, and damages from National Union pursuant "to its obligations under the Bond.''3 Plaintiff hired Ray to provide, inter alia, "professional architectural design,... consulting, project supervision, and contract administration services with regard to the project.''4 National Union alleges that any damages sustained by plaintiff were not caused by ACA, but rather were the result of Ray's breach, or negligent performance, of its duties under its contract with plaintiff. 5 The joinder complaint against Ray sounds in both breach of contract and negligence. As to the breach of contract claim, Ray points out that there is no contract between it and National Union. As to the negligence claim, Ray contends that it owed no duty to National Union. However, Ray concedes, as it must, that the causes of action would survive preliminary objections if brought by plaintiff. We are satisfied that Ray was properly joined as an additional defendant upon cognizable claims. Pa. Rule of Civil Procedure 2252(a) provides: (A)ny defendant or additional defendant may join as an additional defendant any person, whether or not a party to the action, who may be (1) solely liable on the plaintiff's cause of action, or (2) liable over to the joining party on the plaintiff' s cause of action or (3) jointly or severally liable with the joining party on the plaintiff' s cause of action, or Complaint, Para. 9. Complaint, Para. 12. Amended Joinder Complaint, Para. 22. Amended Joinder Complaint, Para. 27. NO. 97-4323 CIVIL (4) liable to the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff' s cause of action is based. Ray would have us limit the phrase "plaintiff' s cause of action" to the action on the bond. Based upon that limited definition, and National Union's lack of privity with Ray, it argues that the demurrer must be sustained.6 However, our appellate courts have rejected such a narrow definition. The phrase "plaintiff' s cause of action" means "damages or injuries for which plaintiff seeks recovery". Derry Township School District v. Day and Zimmermat~, It~c., 345 Pa. Super. 487, 493 498 A.2d 928, 931 (1985). In the instant case, plaintiff has sought recovery for damages incurred to repair or complete the work of ACA. The joinder complaint alleges that all or some of those damages were caused by Ray in breaching or negligently performing its duties under the contract with plaintiff. Since the joinder complaint has, at the very least, alleged sufficient facts to support a claim by plaintiff against Ray for some or all of the damages it seeks, joinder is appropriate under subparagraphs (1) and/or (3) of Rule 2252(a). Therefore, the demurrer must fail. ORDER OF COURT AND NOW, this 11TM day of JUNE, 2002, the preliminary objections of additional defendant The Ray Group, Inc., are DISMISSED. 6 Ray relies on Linde Ent. v. Hazelton City Authority, 412 Pa. Super. 67, 602 A.2d 897 (1992) which stated "Pennsylvania Courts have long held that privity between parties is required to maintain an action for professional negligence." 602 A.2d at 899 quoting from Hartford Accident andlndemnity Co. v. Parenti Randolph, et al., 642 F. Supp. 38, 40 (M.D. Pa. 1985). However, Linde is inapposite to the case at bar. In Linde the subcontractor plaintiff sued the owner to recover cost overruns on a construction project. The owner joined the architect, alleging breach of contract and negligence. The Superior Court held that the trial court erred in instructing the jury that plaintiff could recover directly from the architect, holding that any recovery would have to flow through the owner. It did not, however, address the propriety of the joinder. NO. 97-4323 CIVIL By the Court, /s/Edward E. Guido Edward E. Guido, J. Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, Pa. 17055 R. James Reynolds, Jr., Esquire 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 R. Thomas McLaughlin, Esquire S. 620 West Germantown Pike, Suite 350 Plymouth Meeting, Pennsylvania 19462-1056 Adams Co. Asphalt Company Robert M. Mumma II, President Post Office Box E Bowmansdale, Pennsylvania 17008 Kimbob, Inc. Robert M. Mumma II, President Post Office Box E Bowmansdale, Pennsylvania 17008 Gemini Equipment Company Robert M. Mumma II, President Post Office Box E Bowmansdale, Pennsylvania 17008 :sld NO. 97-4323 CIVIL