*1 We are circumstances, therefore these persuaded Smoker and Far- coupled with the in principles enunciated rell, the conclusion that sufficient evidence compel exists to sustain conviction of appellant’s involuntary manslaughter. of sentence affirmed.
Judgment HOFFMAN, J., did not participate the consideration or decision of this case.
v. KIEFER, Rake, Murrell R. Elmer J. Kiefer and William A. co-partners, trading Rinker, Rake, Edinger as Kiefer and Co., corporation, Stroudsburg Co., a Construction Gas a corporation Par-Gas, Inc., corporation, and H. C. Archi Co., corporation, Co., corpora bald and H. N. Crowder Jr. tion, Defendants,
v. REFRIGERATION, INC., Marvin, MARVIN’S Robert Individual ly trading Marsh, Refrigeration, as Marvin’s and Lester B. Individually trading as Marshall’s Creek Insulation Corporation, and Insto-Gas Additional Defendants.
Superior Pennsylvania. Court of Argued June 1977. Decided Dec. *3 Marsh,
James M. Philadelphia, appellants. for Easton, Kiefer, Gary Figore, Kiefer, S. for and appellees, Rake, Rinker, t/a Kiefer and Rake. Hudders, Allentown,
William S. for H. N. appellee, Crow- der Jr. a corporation.
No entered nor briefs appearance submitted for remaining appellees. WATKINS, JACOBS,
Before President and Judge, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge: President This is an from the order of the lower court appeal sustaining appellees Rinker, the demurrers of Kiefer and Rake (hereinafter Rinker) Crowder, and N. (here- H. Jr. Co. Crowder) inafter to those paragraphs of com- appellants’ appel- on sought impose liability appellants wherein plaint below, part we affirm developed reasons lees. For the in part. and reverse from the the confusion which stems through
Cutting relevant pleadings, following parties multiplicity 28, 1969, a fire de- February facts of record. On appear Hall at Dining Building the Administration stroyed in Pike Hall,” facility vacation “Unity I.L.G.W.U.’s fire, extensive was remodeling At the time of the County. com- building. By in the kitchen of the being performed November, 1972, com- plaintiffs-appellants filed in plaint connected with the against menced action six defendants Rinker the architect in remodeling charge was project. alterations; construction of the supervising designing charge as electrical contractor in Crowder was engaged objections filed to this Preliminary all electrical work. sustained, were directed to appellants were complaint which did. they Preliminary file an amended complaint, first amended were complaint filed to objections appellants’ Thereafter, 26, 1975, also on February appellants sustained. “Further Amendments to filed their third entitled pleading in Tres- Complaint Counts I and VI of Plaintiffs’ Amended averred, inter alia : pass.” Appellants
“FIRST COUNT Rinker, “13. to a written contract with pursuant plain- Pike, 14, 1968, tiff of which is copy dated October attached to Amended as Exhibit plaintiffs’ Complaint “A”, undertook to construction of design supervise *4 additions, alterations and renovations of the Administra- tion Hall at Dining Building Unity and House. additions,
“14. alterations and renovations were Said when Hall being Dining made the Administration was fire as set forth in Building destroyed plaintiffs’ by Amended Complaint.
“15. of contract with Pike Paragraph 3.4.3 Rinker’s provided: will make visits to the site to
‘(The Architect) periodic familiarize himself with the generally progress if general of the work and to determine in the quality work is in accordance with the Contract proceeding make on-site required inspec- Documents. He will be to to check the or the work quality tions quantity he will be for the failure to responsible Contractors' out the work in accordance with the construction carry installed, Documents with to all work respect Contract or to be in connection with the Dur- project. installed^ such visits while ing and on the basis of his observations site, at the he will informed of the keep Owner work, will to progress guard endeavor Owner in the work of against defects and deficiencies Contrac- ’ tors . . . (emphasis original). “16. Rinker failed on Febru- carelessly negligently 28, 1969, and at other times: ary (a) to the construction work to assure con- supervise to contract documents and to de- formity guard against work; fects and deficiencies in the (b) to make visits and fre- periodic adequate and/or on-site to check the work of contractors quent inspections and to defects and guard plaintiffs against deficiencies as do; it had contracted and undertaken to (c) to discover defects and deficiencies in the work of the contractors and to correct or warn plaintiff said deficiencies; defects and
(d) to supplied or cause to be watchman or supply watchmen to the construction site and to detect guard site; at the problems
(e) require to that salamanders used the contractor by be vented to the exterior of the building; tanks, lines, connections,
(f) inspect the gas piping and valves which were or placed by installed contractors work; in the course of the construction suppliers tanks, lines, con-
(g) properly police gas piping, nections and valves on plaintiffs’ premises thereby allow- ing gas escape ignited therein to and to become and to spread and cause fire to the plaintiffs’ building; *5 salamanders, lines, valves and (h) piping, to require to be in such condition that no was gas connections to and to become said failure escape ignited, permitted to damage plaintiffs’ building; in serious resulting (i) working to the contractor or sub-contractors require on the to with statutes and the premises comply applicable rules and of the National Board of Fire regulations Un- Association, derwriters and the National Fire Protection as more in appears paragraphs 22(p) 33 of fully Amended which are plaintiffs’ Complaint, incorporated by reference though as set forth herein. fully carelessly
“17. Rinker negligently permitted in sprinkler systems plaintiffs’ building be shut off despite presence, building, open-flame heat- ers and other fire hazards which it on the permitted premises.
“18. As a result of the negligence above-described Rinker, the Dining defendant Administration and Hall House Building at was fire on Febru- Unity destroyed by 28, 1969,and the ary plaintiffs damage sustained loss.
“SIXTH COUNT ‘Crowder’, 1968, “40. on or about as the September electrical contractor for electric work in connec- engaged tion with at the Administration Dining renovations Hall at Building House undertook to furnish labor Unity and materials and electrical work for perform alterations House, and additions to the kitchen at as shown on Unity Drawings 14, 1968, Al-P and A2-P dated August revised September
“41. Crowder failed to its work as set forth perform above in a careful workmanlike manner and was careless in: negligent
(a) failing perform the electrical work shown in Al-P and A2-P drawings (dated 14, 1968, and August careful, 30, 1968) in a workmanlike September revised manner; *6 failing upon leaving to shut off electrical circuits
(b) 1969; on Unity February the work area at House and temporary light- defective (c) furnishing dangerous at construction Unity for the kitchen area ing during House; its materials and at the
(d) failing equipment to secure to them to House so as make unaccessible Unity site unauthorized persons; material the equipment flammable and at
(e) storing being for hot work conducted site without due regard materials; ignition there or the of of said possibility hot work without se- (f) dangerous, proper conducting regard measures without due for protective or and curity work; located in area of said flammable materials providing hot work without (g) performing dangerous, devices; fire fire extinguishing detection and/or fire detection or extin- (h) failing prevention, to provide at the Unity in the area of its work devices guishing facility; House wires, and electrical
(i) leaving equip- various circuits persons; accessible unauthorized exposed ment and to failing to electrical con- (j) systems during disconnect work; struction
(k) did not failing persons to assure unauthorized access electrical at the gain temporary systems to House and Unity facility; (l) electrical work performing dangerous pres- materials without for precautions pro-' ence of flammable tection of the of others. property Crowder,
“42. As a the above of negligence result of Dining the Administration and Hall at Building Unity 28, 1969, House was fire by February on destroyed ” sustained a loss of . . . plaintiffs property. at (Printed 55a-60a) Record 133 their third set of thereupon filed Rinker Crowder Rinker’s were in the na- objections objections. preliminary with specific pleading respect a motion a more ture of for of 16 of (b), (c), Paragraph (a), (g) subparagraphs off a motion to strike the amend- Appellants’ complaint were in the nature of objections I. ment to Count Crowder’s off a motion strike pleading, motion for more specific VI and a demurrer. the amendment to Count Rinker’s and 24, 1975, granted the lower court October On complaint, stating more for a specific Crowder’s motions of (a), (b), (c) Paragraph and (g) that subparagraphs (c), (d), (e), (f), (i), (j), subparagraphs (a), Rinker and against Crowder were Paragraph against (k), (1) part (g) days given period twenty were Appellants insufficient. I Al- which to amendments to and VI. within file Counts *7 in other the were denied all though preliminary objections a the on notice that put appellants lower court respects, was still a future possibility. demurrer I not to Counts and VI were forthcom- amendments Since with Rinker’s and Crow- presented the lower court was ing, This fol- objections. appeal der’s fourth set of preliminary 30, 1976, of sustain- lowed the lower court’s order November and considering the Rinker and demurrers of Crowder ing which had not all of portions appellants’ complaint waived the court’s order of Octo- been amended in accordance with 24, 1975. ber when a upon
The to be applied ruling principles aby demurrer are well-established. “A demurrer defendant in all facts the com sufficiently pleaded admits relevant the fairly and all deducible therefrom for plaint inferences the challenged of the of testing legal sufficiency purposes Judson, 406, 409, 380 Pa.Super. Duffee v. 251 pleading.” however, 843, not, It the (1977). A.2d 844-45 does admit law. Hoffman v. averments or conclusions of pleader’s 501, Pa. of 439 267 A.2d Hospital Pennsylvania, Misericordia in (1970). Moreover, objections sustain preliminary 867 “[t]o demurrer, with certainty nature of it must appear the a averred, that, permit the the will not recov- facts law upon 134 Electric Westinghouse Corp., v. the Schott
ery by plaintiff.” 443, (1969). also Interna- 279, 291, Pa. 259 A.2d 449 See 436 v. Linesville Construc- Engineers tional Operating Union of (1974); Co., 220, 322 353 Dana Perfumes tion 457 Pa. A.2d Inc., Fund, Industrial 248 v. The Wilkes-Barre Corp. Greater 295, (1977). principles A.2d 105 With these Pa.Super. 375 hand. mind, in we to the matter at proceed firmly sets complaint adequately that their submit Appellants both Rinker and Crowder. against forth a cause of action otherwise, considera- ruled and after careful The lower court record, at least with we are constrained agree, of the tion Crowder. respect appellee 1019(a) re Rule of Civil Procedure
Pennsylvania . . .de- material facts on which a quires “[t]he summary be in concise form.” fense is based shall stated court discretion It be that “the lower has broad may granted detail that must be averred the amount of determining 1019(a) set forth in Rule is pleading since standard measurement. Goodrich-Amram incapable precise v. 1019(2)-10&11.” Refrigerator Applebaum, United Co. § 213, 253, (1963). Nevertheless, 255 210, 410 Pa. 189 A.2d minimum, forth the facts concisely must set pleader “[a]s Lexington is based.” Line which his cause action upon Pennsylvania v. Publishing Lumber Millwork Inc. & 684, And, (1973). 301 A.2d “in Corp., Pa. action, it is that the fundamental negligence context of defendants], owed by establish plaintiffs duty [the *8 to injuries alleged of rise to be might give breach which v. American Mutual Insur- suffered the Otto by plaintiffs.” 429, 815, 423, (1976) 361 A.2d 818-19 Pa.Super. ance 241 v. Corp., in See also U. Steel (emphasis original). Boyce S. whether (1971). Pa. A.2d 459 The of or question 446 285 of the existence appellants sufficiently pleaded not have heart of Rinker is at the owed Crowder and duty by instant appeal. court have appellants
We with the lower that agree predicate failed to facts which to any upon aver material
135 Rather, appel- them and Crowder. between duty running in negligent was that Crowder alleged have simply lants in to failing provide circuits and off electrical to shut failing These allega- devices.1 extinguishing fire detection and/or however, any without incomplete, are tions of negligence by as to a owed Crowder. duty factual averments correlative to the notwithstand- And, contrary contentions appellants’ nature of the work from the duty we cannot infer such ing, Because of the above- to perform. was employed Crowder the demurrer complaint, in appellant’s deficiency described to insofar as it relates Crowder. must be sustained Rinker, however, we must disagree With respect allegations A of the comparison court. with the lower remaining against Rinker with those remaining against not suffer from that the former do reveals Crowder considering appel After as do the latter. shortcoming same have whole, appellants we find that as a complaint lants’ artfully, pleaded necessarily not sufficiently, although negli of allegations Rinker which by upon owed duty plead require appellants We cannot can be based. gence are the proper matters which matters or purely evidentiary to emascu would be to hold otherwise subject discovery; no formula provides magic late Rule While the law 1019(a). can be complaint of a sufficiency plaintiff’s which the by can be ascertained, only clear that a demurrer the law is Hoffman v. from doubt. e. g., sustained in a case free See 439 Pa. 267 A.2d Hospital Philadelphia, Misericordia in words, should be resolved In doubt (1970). any other Because we cannot to enter a demurrer. refusing favor of appellants the law will not permit state with that certainty Rinker, allegations against of their to recover on basis Rinker’s sustaining the lower court’s order we will reverse con proceedings further and remand the case for demurrer sistent herewith. deeming Appellants erred in the lower court do not contend portions complaint not amended which were waived all of their Therefore, 24, 1975. with the court’s order of October accordance (h) Paragraph (b), (g) only subparagraphs we can consider at this time.
136
Affirmed in and reversed and remanded in for part part further consistent herewith. proceedings
SPAETH, J., concurring dissenting files a opinion, PRICE, J., which joins.
WATKINS, HOFFMAN, J., former ánd Judge, President did not in the consideration or decision of this participate case.
SPAETH, Judge, concurring dissenting: I with the conclusion that the first count agree majority’s of the amended that Rinker complaint sufficiently pleads owed a does not duty appellants. Although majority conclusion, its reason for this I assume that it relies on give of the Rinker’s con- paragraph complaint, pleads 15 which tract with Pike.
I
with the
conclusion that the
disagree
majority’s
sixth
complaint
count of the amended
does not
that Crow-
plead
der owed a
The
duty
appellants.
majority simply says,
However, I
without
that no
is
explanation,
duty
pleaded.
believe that
40
does
paragraph
complaint
amended
as
as
15 does
plead
duty
clearly
paragraph
does so
—and
with
If an electrician undertakes
to Rinker.
to do
respect
kitchen,
electrical work in
which is what
40
my
paragraph
I think he owes me a
of care.
alleges,
duty
generally
See
Wilt,
380,
(1961) (negli-
Blanchard v.
403 Pa.
Accordingly, should reverse the order of the lower court in its entirety.
PRICE, J., in this joins opinion.
Carl Superior Court of Pennsylvania. Dec.
Submitted 1977.
Decided Dec.