Penn Avenue Place Associates, L.P. v. Century Steel Erectors, Inc.

798 A.2d 256, 2002 Pa. Super. 133, 2002 Pa. Super. LEXIS 798
CourtSuperior Court of Pennsylvania
DecidedMay 2, 2002
StatusPublished
Cited by9 cases

This text of 798 A.2d 256 (Penn Avenue Place Associates, L.P. v. Century Steel Erectors, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penn Avenue Place Associates, L.P. v. Century Steel Erectors, Inc., 798 A.2d 256, 2002 Pa. Super. 133, 2002 Pa. Super. LEXIS 798 (Pa. Ct. App. 2002).

Opinion

DEL SOLE, P.J.

¶ 1 Penn Avenue Place Associates, L.P. (PAPA) and Oxford Development Company (“Appellants”) appeal from the trial court’s order granting Century Steel Erectors, Inc. and P.J. Dick, Inc.’s, (“Appel-lees”) preliminary objections and dismissing Appellants’ complaint. Upon review, we affirm.

¶ 2 The trial court summarized the facts of this case as follows:

The action arose from a fire which occurred at a building which was owned by Plaintiff Penn Avenue Place Associates, L.P. (hereinafter referred to as “the Owner”). 1 The Owner had entered into a contract with Defendant P.J. Dick, Inc. (hereinafter “the General Contractor”) for the renovation of the building. The General Contractor then entered into a subcontract with Defendant Century Steel Erectors, Inc. (hereinafter “the Subcontractor”) under which it would be responsible for the demolition work associated with the renovation. According to Plaintiffs Complaint, “[o]n or about July 9, 1996, sparks, embers and hot debris from the welding and cutting work performed by Century Steel, its agents, representatives and/or employees, dropped to the roof of [the building] and ignited flammable materials located in the area where such welding and cutting work was taking place.” ... “P.J. Dick, its agents, representatives and/or employees and Century Steel, its agents, representatives and/or employees were present at the time said sparks, embers and hot debris from the welding and cutting work by Century Steel its agents, servants, and/or employees, fell to the roof and ignited flammable materials located there.”

Trial Court Opinion, 2/10/00, at 2-8.

¶ 3 The fire damaged a large area of the roof surface, the brick and mortar on the elevator and water tank penthouses and roof parapet, and the roof-mounted heating and air conditioning equipment. Water and smoke damaged the roof and lower floors. Part of the cost of repairing this *258 damage was paid by Arkwright Mutual Insurance Company (now Factory Mutual Insurance Company), which provided property insurance coverage to PAPA and Oxford for the building. PAPA incurred an uninsured loss in the form of its deductible of $25,000.00. This action was filed to recover the full amount of damages sustained by PAPA, Oxford and Arkwright Mutual, including both insured and uninsured losses. Arkwright Mutual is identified as a real party in interest in the Complaint.

¶ 4 Appellants’ complaint contained counts of gross negligence, negligence, negligence per se and breach of contract against both Appellees. Appellees then filed preliminary objections to the complaint. The basis of Appellees’ preliminary objections was the “Waivers of Sub-rogation” clause which was incorporated in the contract between the Owner and the General Contractor, and in the subcontract between the General Contractor and the Subcontractor.

¶ 5 The trial court sustained Appellees’ preliminary objections in the nature of a demurrer and dismissed the Complaint with prejudice. This decision, sustaining Appellees’ preliminary objections, dismissed only the claim for insured loss, and permitted Appellants to file a separate action to recover their uninsured loss. PAPA and Oxford filed a Notice of Appeal from the trial court’s order. The Superior Court entered a Memorandum and Order of Court quashing the appeal based upon a finding that it was taken from an interlocutory order.

¶ 6 On remand, Appellants filed a Motion for Reconsideration and Amendment of the lower court’s Order of November 1, 1999. This Motion requested that the Order be amended to permit Appellants to proceed with their claim for uninsured loss in the existing case, rather than file a new action, and that the original Complaint be reinstated. This motion was granted by the trial court pursuant to a consent order dated April 2, 2001.

¶ 7 Between the filing of the lower court’s order of November 1, 1999 and the Superior Court’s decision to quash the appeal, the parties resolved the claim for the uninsured loss sustained by Appellants, which was limited to their deductible of $25,000.00. The trial court was advised of this agreement. The parties further stipulated and agreed that the trial court could reconsider Appellees’ preliminary objections raising the waiver of subrogation clause of the contract between the parties. The trial court then entered an Order dated April 5, 2001, sustaining Appellees’ demurrer and dismissing the Complaint with prejudice for the same reasons set forth in its Opinion dated February 10,-2000. This appeal followed.

¶ 8 Appellants present the following issues for our review:

1. Whether the Appellants’ claims against the Appellees are barred to the extent covered by insurance by the waiver of subrogation provision contained in the construction contract between Penn Avenue Place Associates, L.P. and P.J. Dick, Inc., where the negligent conduct of the Appellees from which the Appellants’ claims arise constitutes a violation of ordinances and regulations enacted to protect public safety.
2. Whether the waiver of subrogation clause contained in the construction contract included within its scope the entire subrogation claim asserted by the Ap-pellees’ property insurer, and was not limited to specific items or areas of property included within the definition of “the Work” set forth in the contract.

Appellants’ Brief at 3.

¶ 9 The only claim at issue here is Appellants’ claims for insured losses. With *259 regard to their first issue, Appellants claim that Appellees cannot claim the benefit of the waiver of subrogation provision of the construction contract because their acts and omissions causing the loss constitute a violation of an ordinance or regulation enacted for the protection of public safety. Appellants’ Brief at 10. Appellants allege that the conduct of P.J. Dick and Century Steel Erectors violated the City of Pittsburgh’s Fire Prevention Ordinances establishing fire safety requirements for welding and cutting. Appellants’ Brief at 15. Appellants contend that Century Steel Erectors failed to maintain the required fire watch after completing its work. Appellant’s Brief at 6.

¶ 10 Appellants do not contend that the waiver clause at issue should not be enforced because it was unclear or because Arkwright Mutual lacked notice of it. Nor do they argue that a waiver of subrogation clause in a contract is generally unenforceable, or should not be enforced in appropriate circumstances. Rather they argue that in this case Appellees cannot claim the benefit of the waiver of subrogation provision of the construction contract because their acts and omissions causing the loss violated an ordinance or regulation enacted for the protection of public safety. Appellants’ Brief at 10.

¶ 11 It is Appellants’ contention that:

Under Pennsylvania law, a waiver of a subrogation provision cannot be raised as a bar to liability when the conduct giving rise to liability constitutes a violation of a statute, ordinance, or regulation enacted to protect public safety.

Appellants’ Brief at 10. In support of this assertion, Appellants cite Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super.

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Bluebook (online)
798 A.2d 256, 2002 Pa. Super. 133, 2002 Pa. Super. LEXIS 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-avenue-place-associates-lp-v-century-steel-erectors-inc-pasuperct-2002.