Van Wyk Constr. Co. v. City of Philadelphia

• Decision Date: 29 March 1974
• Docket Number: 4464,8574
• Citation: 64 Pa. D. & C.2d 443
• Parties: Van Wyk Construction Co. v. City of Philadelphia; City of Philadelphia v. Van Wyk Construction Co
• Court: Pennsylvania Commonwealth Court

64 Pa. D. & C.2d 443

Van Wyk Construction Co. v. City of Philadelphia; City of Philadelphia v. Van Wyk Construction Co

No. 4464, 8574

Common Pleas Court of Philadelphia County, Pennsylvania

March 29, 1974

June term, 1956

June term, 1957

Alfeo P. Libetti, Assistant City Solicitor, for City of Philadelphia.

George A. D'Angelo, for Van Wyk Construction Co.

William J. McKinley, Jr., for Maryland Casualty Co. surety.

OPINION

City of Philadelphia, plaintiff's motion for summary judgment; City of Philadelphia, defendant's petition to amend answer.

TAKIFF, J.

In 1954, the City of Philadelphia entered into a contract with the Van Wyk Construction Company and Maryland Casualty Company as surety, for the construction of an intercepting chamber for the Lower Delaware Collecting System. During the construction work, flooding occurred in and around the work site causing damage to abutting property and necessitating additional measures to prevent a recurrence thereof. At least three suits have arisen as a result of the flooding and construction work:

1. Nicholson File Co. v. Van Wyk Construction Co., United States District Court for the Eastern District of Pa., civil action no. 20604, a trespass action for the property damage and consequential damages caused by flooding. A jury verdict in favor of plaintiff in the amount of $ 8,561.24, including $ 1,705.27 for flood prevention, was returned on March 24, 1958.

2. Van Wyk Construction Company v. City of Philadelphia, June term, 1956, No. 4464, an assumpsit action for nonpayment for work undertaken pursuant to the contract as well as for extra work ordered to be done by the city.

3. City of Philadelphia v. Van Wyk Construction Company and Maryland Casualty Company, June term, 1957, No. 8574, an assumpsit action for failure to perform work under the contract and damages suffered by reason of having to obtain substitute performance.

In connection with the two assumpsit actions presently before the court, the City of Philadelphia has filed a petition for allowance to amend answer in the action in which it is defendant and a motion for partial summary judgment in the case wherein it is plaintiff. City seeks to apply the doctrine of collateral estoppel to the present cases by setting up the judgment obtained by the Nicholson File Co. in the Federal court trespass action as res judicata to the issue of whether Van Wyk's method of construction, specifically the iron fluming undertaken as a temporary solution to the problem of rain and sewage runoff, caused or contributed to the flooding in the area. In order to determine whether the doctrine of collateral estoppel applies in the present circumstances, and to what extent, it is necessary to examine the pleadings and charge of the court in the Nicholson case.

In Nicholson, plaintiff alleged that it suffered property damage and other consequential damages as a result of the construction work carried out pursuant to the contract between the city and Van Wyk. Suit was instituted solely against Van Wyk due to the " hold harmless" clause of the contract and it was expressly declared in the complaint:

" 2. The specifications and standard contract conditions, however, are in no way relevant to any of the issues involved in this case and, therefore, they are not incorporated herein as an exhibit."

The two counts of the complaint alleged that plaintiff suffered injury and loss due to: (1) the inherent nature of the construction under the contract, and (2) the negligent construction of temporary measures designed to relieve the runoff of water and sewage. In his charge, Judge John W. Lord, Jr., instructed the jury:

" If you find that the flooding of plaintiff's property was caused in whole or in part by the inherent nature of the construction work, or work done by the defendant in connection with the construction, and that the flooding caused damage to the plaintiff, then the plaintiff is entitled to recover from the defendant for this damage.

" Putting it in other words, members of the jury, you have two questions to decide: Did the defendant's construction work cause the flooding of plaintiff's property in whole or in part? Did the plaintiff sustain any damage as the result of the flooding?"

Although Pennsylvania cases still give lip service to the requirement of mutuality of parties where collateral estoppel is sought to be applied, it is apparent that this is no longer vigorously enforced: Posternack v. American Casualty Co. of Reading, 421 Pa. 21 (1966). The key factor to which the courts look to determine whether lack of mutuality of part...