Bethlehem Area School District v. White Bros. Construction

71 Pa. D. & C.4th 287, 2004 Pa. Dist. & Cnty. Dec. LEXIS 108
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedOctober 28, 2004
Docketno. C0048CV2002002968
StatusPublished

This text of 71 Pa. D. & C.4th 287 (Bethlehem Area School District v. White Bros. Construction) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethlehem Area School District v. White Bros. Construction, 71 Pa. D. & C.4th 287, 2004 Pa. Dist. & Cnty. Dec. LEXIS 108 (Pa. Super. Ct. 2004).

Opinion

BARATTA, J.,

STATEMENT OF REASONS

Presently before the court is the motion for partial summary judgment filed by plaintiff, Bethlehem Area School District (BASD) on the issue of liability. Specifically, [289]*289BASD contends that defendants, White Brothers Construction Inc. (WBC), Joseph Miorelli Inc., and Shippee Mechanical Inc., failed to establish any material facts on the issue of liability, such that BASD is entitled to judgment as a matter of law with regards to liability.

This matter arises out of a contractual relationship entered into between BASD and WBC to replace the existing roof of the west wing of Freemansburg Elementary School, and to install a new bituminous modified roofing system over portions of it. To assist with its duties under the contract, WBC entered into subcontract agreements with defendants Miorelli and Shippee.

In June 2000, the defendants, WBC, Shippee, and Miorelli, commenced work on the west wing of the elementary school. In the course of their performance of the contract, it is alleged that WBC, Miorelli, and Shippee individually and collectively altered, damaged, and/or changed the roof and roof drainage system of the elementary school. It is further alleged that after three rain storms in July 2000, rainwater accumulated on the roof and infiltrated the elementary school.

After the third storm on July 25,2000, Norman Snader and Tony White, both representatives of WBC, inspected the water damage to the elementary school. The next day, July 26, 2000, Snader sent a letter to Mike Franceski of D-Huy Engineering Inc.1 The content of the Snader letter contains the evidentiary support for BASD’s motion. In his letter, Snader acknowledged damage to the school from water penetration coming from the roof. The letter provides a detailed list of the party responsible (either [290]*290WBC or Shippee) for certain water damage to ceiling tiles and carpeting in various rooms within the elementary school.

As a result of the water infiltration, on April 24,2002, BASD filed a complaint against the defendants to recover for water damage to the elementary school. In addition to the water damage, BASD alleges that the defendants are liable for mold and mildew growth caused by the defendants’ defective work in replacing the elementary school’s west wing roof.

The instant motion for partial summary judgment was filed on June 29,2004. BASD alleges that the letter sent by Snader to Franceski serves as an admission of liability such that the only issue left is the amount of damages to be imposed.

In response, WBC asserts that, while the Snader letter may acknowledge liability for limited damage in the nature of ceiling tiles and carpeting, it does not acknowledge liability for the mold growth which WBC contends was likely caused by other factors and/or parties. Further, WBC asserts that the BASD motion is premature because there will be anywhere from 35 to 40 depositions addressing the factual record. Thus, the defendants contend that BASD’s motion is premature.

I. Legal Standard

Pennsylvania Rule of Civil Procedure 1035.2 states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

[291]*291“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discover or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.” Id. at Pa.R.C.P. 1035.2.

Further, under Pa.R.C.P. 1035.3(a), the nonmoving party may not rest upon mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion. In other words, the nonmov-ing party has a clear and affirmative duty to respond to a motion for summary judgment. Harber Philadelphia Center City Office Limited v. LPCI Limited Partnership, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. 1035.3(d) specifically provides that “[sjummary judgment may be entered against a party who does not respond.” Id.

Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and also demonstrates that the moving party is entitled to judgment as a matter of law. Trowbridge v. Scranton Artificial Limb Co., 560 Pa. 640, 747 A.2d 862 (2000); P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). Summary judgment is only appropriate in the clearest of cases because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mutual Insurance Company, 698 A.2d 602 (Pa. Super. 1997).

[292]*292The moving party has the burden of proving the nonexistence of any genuine material fact. O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039 (Pa. Commw. 1999); citing Kee v. Turnpike Commission, 722 A.2d 1123 (Pa. Commw. 1998). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590, 777 A.2d 418, 429 (2001), citing Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

II. Discussion

BASD argues that there are no genuine issues of material fact in this case with regards to liability for water, mold, and mildew damage to the elementary school.

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Related

Kee v. Pennsylvania Turnpike Commission
722 A.2d 1123 (Commonwealth Court of Pennsylvania, 1998)
Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership
764 A.2d 1100 (Superior Court of Pennsylvania, 2000)
Trowbridge v. Scranton Artificial Limb Co.
747 A.2d 862 (Supreme Court of Pennsylvania, 2000)
Ertel v. Patriot-News Co.
674 A.2d 1038 (Supreme Court of Pennsylvania, 1996)
P.J.S. v. Pennsylvania State Ethics Commission
723 A.2d 174 (Supreme Court of Pennsylvania, 1999)
Rochester MacHine Corp. v. Mulach Steel Corp.
449 A.2d 1366 (Supreme Court of Pennsylvania, 1982)
Young v. Commonwealth Department of Transportation
744 A.2d 1276 (Supreme Court of Pennsylvania, 2000)
O'ROURKE v. Pennsylvania Department of Corrections
730 A.2d 1039 (Commonwealth Court of Pennsylvania, 1999)
Murphy v. Duquesne University of Holy Ghost
777 A.2d 418 (Supreme Court of Pennsylvania, 2001)
Scopel v. Donegal Mutual Insurance
698 A.2d 602 (Superior Court of Pennsylvania, 1997)
Long Island Jewish Medical Center v. Schonholz
519 U.S. 1008 (Supreme Court, 1996)

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71 Pa. D. & C.4th 287, 2004 Pa. Dist. & Cnty. Dec. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethlehem-area-school-district-v-white-bros-construction-pactcomplnortha-2004.