Sun Pipe Line Co. v. Tri-State Telecommunications, Inc.
| Decision Date | 02 March 1995 |
| Docket Number | TRI-STATE |
| Citation | 440 Pa.Super. 47,655 A.2d 112 |
| Parties | SUN PIPE LINE COMPANY v.TELECOMMUNICATIONS, INC. and Davis Enterprises, Inc. v. E.A. DESIGN, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts & Summerson, Inc. Pier CIPRIANI and Ann Cipriani, His Wife, in Their Own Right and As Parents and Natural Guardians of Michael Cipriani, David Cipriani and Tricia Cipriani, Minors and Robert Leipholt and Susan Leipholt, His Wife, in Their Own Right and as Parents and Natural Guardians of Michael Leipholt, Melissa Leipholt and Jennifer Leipholt, Minors, and James J. Rowley and Gloria Rowley, His Wife, and John M. Atkins and Kathleen M. Atkins, His Wife, and George F. Hepp, Jr. and Marylynne Hepp, His Wife, and Pat G. Morales, Jr. and Divina Morales, His Wife, and George S. Hartman and Martha Hartman, His Wife, and Joseph P. Adams and Charlotte Adams, His Wife and Richard Foley and Jayne Foley, His Wife, v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Inc. v. E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts & Summerson, Inc. SUN COMPANY, INC. and Sun Pipe Line Company v. Harold DAVIS and Roger Davis v. E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza, and Pickering Corts and Summerson, Inc. and Tri-State Telecommunications, Inc. Appeals of SUN PIPE LINE COMPANY and Sun Company, Inc. Appeals of E.A. DESIGN, LTD. |
| Court | Pennsylvania Superior Court |
Bruce J. Chasan, Kenneth Scott, and Albert M. Saltz, Wilson, Elser, Moskowitz, Edelman and Dicker, Philadelphia, for Sun Pipe Line Co. & Sun Co.
Mitchell S. Pinsley, Philadelphia, for E.A. Designs, Ltd. & PA One Call Systems, Maple Shade Cable Co. and Newtown Twp. & Newtown Cablevision, Inc.
Gary Gremminger, Philadelphia, for Jan Gouza, Pickering Corts & Summerson, Inc. and Tri-State Telecommunications, Inc.
Before CIRILLO, OLSZEWSKI and HESTER, JJ.
Sun Pipe Line Company and Sun Company, Inc. (collectively "Sun") appeal and E.A. Design, Ltd. ("Design") cross-appeals from two judgment orders entered in these consolidated civil actions. The first order was entered on December 29, 1993; the second order was entered on January 25, 1994, and amended the first one. The four appeals were consolidated for our review. Neither appellant has raised any issues relating solely to the December 29, 1993 order; accordingly, we dismiss as moot the appeals from that order. We revise the January 25, 1994 order to provide for post-verdict interest on the total verdict at an annual rate of six percent and to impose joint and several liability as to the entire verdict, including delay damages. In all other respects, the judgment is affirmed.
This action arose as a result of a construction accident which occurred on November 12, 1982, during excavation work performed to install cable for a cable television system. The company hired to perform the excavation work by the cable franchisee ruptured one of Sun's pipelines, and 50,000 gallons of unleaded gasoline spilled into the area.
As a result, a class action was instituted by affected homeowners. The class action was instituted against Sun, and the defendants in that action either initially or eventually included the various entities and persons involved in the design, installation, and approval of the cable system which was being installed when the pipe was ruptured. In addition, Sun instituted a separate action to recover for its damages, including the costs of the gasoline, repairing the rupture, and cleaning up the spill. The action instituted by Sun was consolidated with the class action. Finally, some affected homeowners opted out of the class action and instituted separate actions which never were consolidated with this action.
The trial court certified the homeowners as a class as to the issue of liability for the accident but determined that the damages of each home-owner would have to be established at separate trials. In September and October, 1986, the issue of liability for the accident was submitted to a jury. On October 20, 1986, the jury apportioned liability for the accident as follows: 1) forty percent to Tri-State Telecommunications Inc., which performed the underground cable installation; 2) eighteen percent to Sun, for failing to take appropriate actions to insure against rupture of its pipeline during utility excavation work; 3) fifteen percent to Jan Gouza and his firm, Pickering Corts & Summerson, Inc. (collectively "Gouza"), who was the township During the liability phase, Tri-State and Davis settled with Sun for $4,500,000. Gouza has insurance coverage for the incident with limits of $1,000,000, and Design has insurance coverage for the incident with limits of $350,000. Gouza assigned to Sun his bad faith claim against his insurer for its failure to offer its policy limits in a timely fashion to settle the action against him, and in exchange, Sun has agreed not to execute its judgment in the action against him individually.
engineer responsible for approving the cable network installation plan; 4) fourteen percent to Design, which was hired to prepare the construction maps for the cable network; and 5) thirteen percent to Davis Enterprises, Inc., the owner of the cable franchise. We affirmed this liability determination in Cipriani v. Sun Pipe Line Co., 393 Pa.Super. 471, 574 A.2d 706 (1990).
Design's insurer offered its policy limits of $350,000, on September 28, 1988. Gouza's insurer offered its policy limits of $1,000,000 on February 16, 1989. Sun rejected the tender of the policy limits. The class-action case was settled in 1991, and the final opt-out case was settled in October, 1992. The jury trial as to Sun's damages against the two remaining tortfeasors, Gouza and Design, commenced on December 14, 1992, and on December 21, 1992, the jury awarded Sun $8,080,362.37 in damages, including the following:
1. What do you find to be the fair and reasonable amount of damages incurred by Sun Pipe Line Co. for project management, bioreclamation, air monitoring, laboratory analysis, geological and photography services, well drilling, installation and well closure, purchase, rental and maintenance of scientific equipment, office expenses, cleanup and site maintenance, homeowner damages, lost product, labor costs, long term monitoring and closure costs?
....
3. What do you find to be the net fair and reasonable amount of damages incurred by Sun Pipe Line Company for its lost investment opportunity in connection with its purchase of seven homes, the maintenance on those properties, and later resale of those seven homes?
$382,853.
Sun then filed a motion to mold the verdict to reflect the joint and several liability of Design and Gouza for twenty-nine percent of the verdict, in accordance with the liability determination of the previous jury. Sun also filed a motion for delay damages under Pa.R.C.P. 238 and for reasonable expenses under Pa.R.C.P. 4019(d), the rule imposing sanctions for discovery violations.
On December 29, 1993, the trial court molded the verdict and entered judgment as follows:
JUDGMENT AND ORDERAND NOW, this 29th day of December, 1993, upon consideration of Sun Pipe Line Company's Motion to Mold Verdict and Motion for Delay Damages Pursuant to Pa.R.Civ.P. 238, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The damages awarded by the jury on December 21, 1992 are $8,080,362.37.
2. Additional Defendant E.A. Design, Inc., Jan Gouza and Pickering, Corts & Summerson, Inc. are jointly and severally liable for 29% of the $8,080,362.37 or $2,343,305.00.
3. Delay damages are awarded to Plaintiff pursuant to Pa.R.Civ.P. 238 from November 12, 1983 (one year from the date of the accident) until September 28, 1988, (the date upon which Defendants offered policy limits) on 29% of $7,679,500.00 or $2,227,055.00.
4. Interest on the $2,227,055.00 shall be calculated as follows:
11"12"83 to 12"31"83 rate of 12.5% $ 37,375.55
1"1"84 to 12"31"84 rate of 12.0% 267,246.60
1"1"85 to 12"31"85 rate of 11.75% 261,678.96
1"1"86 to 12"31"86 rate of 10.5% 233,840.78
1"1"87 to 12"31"87 rate of 8.5% 189,299.68
1"1"88 to 9"28"88 rate of 9.75% 163,009.74
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$ 1,152,447.00
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5. Interest on the verdict shall accrue from the date of the verdict at the rate of 6% per annum.
6. Reasonable expenses to be awarded to Plaintiffs, pursuant to Pa.R.Civ.P. 4019(d), not including attorneys fees, are fixed at $74,415.14 pursuant to affidavit of Bruce J. Chasan, Esquire, of March 1, 1993, (paragraph 57).
The trial court then issued a revised judgment on January 25, 1994, as follows:
REVISED JUDGEMENT AND ORDER
AND NOW, this 25th day of January, 1994, upon consideration of Sun Pipe Line Company's Motion to Mold Verdict and Motion for Delay Damages Pursuant to Pa.R.Civ.P. 238, it is hereby ORDERED, ADJUDGED and DECREED as follows:
1. The damages awarded by the jury in its verdict of December 21, 1992 are $8,080,362.37.
2. Additional Defendant E.A. Design, Inc., Jan Gouza and Pickering Corts & Summerson, Inc. are jointly and severally liable for 29% of the $8,080,362.37 or $2,343,305.00.
3. Delay damages are awarded to Plaintiff pursuant to Pa.R.Civ.P. 238 from November 12, 1983 (one year from the date of the accident) until September 28, 1988, (the date upon which Defendants offered policy limits) on 29% of $7,679,500.00 or...
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