Dudash v. Palmyra Borough Authority
| Decision Date | 26 October 1984 |
| Citation | 483 A.2d 924,335 Pa.Super. 1 |
| Parties | Thomas J. DUDASH v. PALMYRA BOROUGH AUTHORITY, Glace & Glace, Inc., Westland Industries, Inc. and Condor Construction Company. Appeal of GLACE & GLACE, INC. Thomas J. DUDASH v. PALMYRA BOROUGH AUTHORITY. GLACE & GLACE, INC. v. WESTLAND INDUSTRIES, INC. and Condor Construction Company. Appeal of WESTLAND INDUSTRIES, INC. Thomas J. DUDASH v. PALMYRA BOROUGH AUTHORITY, Glace & Glace, Inc., Westland Industries, Inc. and Condor Contractors, Inc. Appeal of GLACE & GLACE, INC. Thomas DUDASH v. PALMYRA BOROUGH AUTHORITY. GLACE & GLACE, INC. v. WESTLAND INDUSTRIES, INC. and Condor Construction Company. Appeal of WESTLAND INDUSTRIES, INC. |
| Court | Pennsylvania Superior Court |
Argued April 3, 1984.
Richard A. Bausher, Reading, for appellant (at Nos. 229 and 275) and for appellee (at Nos. 238 and 280).
John B. Mancke, Harrisburg, for appellant (at Nos. 238 and 280) and for appellee (at Nos. 229 and 275).
Joel D. Smith, Lancaster, for Palmyra, appellee.
Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
These are appeals from the lower court's June 7, 1983 Order and June 27, 1983 amended Order entering judgment on the pleadings in appellee's favor and against appellants. We reverse.
On February 21, 1973, appellee Palmyra Borough Authority (Palmyra), a municipal authority, employed appellant Glace & Glace, Inc. (Glace) as a consulting engineer to prepare the plans and specifications for extensions to the sanitary sewage system in the Borough of Palmyra, Lebanon County, Pennsylvania. Pursuant to the employment agreement, Glace also agreed to be responsible for supervising the construction work. On March 2, 1977, Palmyra entered into a contract with appellant Westland Industries, Inc. (Westland), an independent contractor, for the construction of the extensions and additions. Under this agreement, Westland was permitted to award work to a subcontractor without Palmyra's written approval when the value of the work to be awarded was less than 50% of the contract price and also agreed to indemnify Palmyra for any losses or injuries caused by the negligence of Westland, its subcontractor or employees. On March 16 Westland, subcontracted part of the excavation and construction work to Condor Construction Co. (Condor), a sewage contractor.
On April 11 1977, Thomas J. Dudash, a Condor employee, was injured when a sanitary sewer trench in which he was working collapsed. Dudash filed a December 1, 1978 trespass action against Palmyra and Glace, alleging their negligence and that the construction site was under their control. In its April 20, 1979 answer, Palmyra asserted new matter and a cross-complaint against Glace, alleging that if Palmyra was found liable, then Glace was liable for breach of its contractual duty to supervise the construction work. Also, in April of 1979, Palmyra joined both Westland and Condor as additional defendants and filed a complaint in trespass and assumpsit against them. Upon Palmyra's motions, the lower court issued rules to show cause (1) on November 12, 1980, why partial summary judgment should not have been entered in Palmyra's favor and against Dudash; (2) on November 2, 1982, why judgment on the pleadings should not be entered in Palmyra's favor and against Westland; and (3) on November 5, 1982, why judgment on the pleadings should not be entered in favor of Palmyra and against Glace.
On June 7, 1983, the lower court, per Order and Opinion, directed the Prothonotary to enter (1) judgment in Palmyra's favor and against Dudash and (2) judgment on the pleadings in Palmyra's favor and against Westland and Glace. Glace and Westland appealed that order on June 28 and July 5, respectively. On June 20, 1983, Dudash filed a motion for reconsideration because Palmyra's motion had requested only a partial summary judgment against Dudash.
On June 27, 1983, the lower court issued an amended Order directing the Prothonotary to enter (1) partial summary judgment in Palmyra's favor and against Dudash on all claims made by Dudash against Palmyra arising under § 411 of the Restatement (Second) of Torts and (2) judgment on the pleadings in Palmyra's favor and against Westland and Glace. Glace and Westland filed timely appeals from the amended Order. Dudash, in turn, filed a motion to quash the appeals on the ground that the lower court's orders were interlocutory. All four appeals and the motion to quash are presently before this Court.
We must first determine whether the lower court's orders entering judgment on the pleadings in Palmyra's favor and against Glace and Westland are final and appealable. An appeal may be taken as of right from any final order of a lower court. Pa.R.A.P. 341(a). A final order is usually one which ends the litigation or, alternatively, disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978); Praisner v. Stocker, 313 Pa.Superior Ct. 332, 336-338, 459 A.2d 1255, 1258 (1983). An order is interlocutory and not final unless it effectively puts the litigant "out of court". Praisner v. Stocker, supra. "An order does not put 'a party out of court' unless it precludes proof of facts at trial, which if determined in favor of the pleader would provide him with a complete defense to the action." Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). "In ascertaining whether an order is final, we will look beyond the technical effect of the order and apply practical considerations in light of the order's ramifications." Freeze v. Donegal Mutual Ins. Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982).
Here, the entry of partial summary judgment in Palmyra's favor and against Dudash does not put Dudash "out of court" and therefore, in this respect, the amended order is interlocutory and nonappealable. See Praisner v. Stocker, supra (). However, the entry of judgment on the pleadings in Palmyra's favor and against Westland and Glace does effectively put Westland and Glace "out of court" because it precludes them from ever receiving a favorable verdict in this case. Therefore, we hold that the lower court's order and amended order are final and appealable by Westland and Glace. Accordingly, the motion to quash is denied.
On the merits, appellants Westland and Glace contend that the entry of judgment on the pleadings in appellee Palmyra's favor was improper. They argue the following: In its original order, the lower court erroneously granted full summary judgment for Palmyra and against Dudash. Then, because the court believed Palmyra could not be liable on any theory, it also granted judgment on the pleadings in Palmyra's favor and against Westland and Glace without considering any basis of liability on their part. When the court amended its order to grant only partial summary judgment against Dudash on § 411 claims, it failed to also amend the entry of judgment on the pleadings against Westland and Glace in consideration of Palmyra's possible liability under § 416 of the Restatement (Second) of Torts.
"Judgment on the pleadings is appropriate only where no material facts are in dispute." Pennsylvania Association of State Mental Hospital Physicians, Inc. v. State Employees' Retirement Board, 484 Pa. 313, 320 n. 11, 399 A.2d 93, 96 n. 11 (1979).
Under Pa.R.C.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party's well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him.... Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto.
Thomas Merton Center v. Rockwell International Corp., 280 Pa.Superior Ct. 213, 215-16, 421 A.2d 688, 689 (1980), quoting Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967) (footnote and citations omitted). See also Keil v. Good, 467 Pa. 317, 319, 356 A.2d 768, 769 (1976); North Star Coal Co. v. Waverly Oil Works Co., 447 Pa. 241, 246, 288 A.2d 768, 771 (1972).
In the instant case, the lower court's rationale for granting judgment on the pleadings against Glace in the original Order was as follows:
The disposition of the Authority's [Palmyra's] motion for summary judgment against Dudash obviates the required analysis of the Authority's motion for judgment on...
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