NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P GONGLOFF CONTRACTING, LLC, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. L. ROBERT KIMBALL & ASSOCIATES, ARCHITECTS AND ENGINEERS, INC., v. Appellee WHITING-TURNER CONTRACTING COMPANY, KINSLEY CONSTRUCTION, INC., AND CARNEY ENGINEERING, INC., Appellees No. 680 WDA 2013 Appeal from the Order April 18, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD BEFORE: BOWES, WECHT, and STABILE, JJ. MEMORANDUM BY BOWES, J.: FILED: March 6, 2014 Gongloff Contracting, LLC, appeals from the April 18, 2013 order granting judgment on the pleadings to L. Robert Kimball & Associates, Architects and Engineers, Inc. ( Appellee ). This appeal has been filed from an interlocutory order in that the action remains pending against three additional defendants. We therefore are constrained to quash. On August 6, 2012, Appellant instituted this action by filing a complaint against Appellee and two other individuals who were subsequently dismissed as defendants. Service of the complaint was effectuated on

2 Appellee on August 14, On October 9, 2012, within sixty days of service of the original complaint on it, Appellee filed a joinder complaint against Whiting-Turner Contracting Company ( Whiting-Turner ), Kinsley Construction, Inc., ( Kinsley ) and Carney Engineering, Inc. ( Carney ) (collectively referred to as the Additional Defendants ). Each additional defendant was duly served with the joinder complaint. On December 31, 2012, Appellant filed an amended complaint naming Appellee as the sole defendant. Appellee designed an athletic and convocation center, which had a novel roof structure, for California University of Pennsylvania. Appellant, a steel erector, averred in its amended complaint that its erection procedure was premised upon Appellee s roof design and that it incurred damages as a result of work that it was required to perform to remedy the problems caused by Appellee s defective design. Appellee filed an answer and new matter to the amended complaint, and on January 24, 2013, within sixty days of service of the amended complaint, Appellee filed an amended joinder complaint against the Additional Defendants. Appellee alleged, inter alia, that, in the event that Appellant was entitled to recover damages, the three Additional Defendants were solely liable to Appellant based upon the contractual relationships and dealings among the Appellant and the three Additional Defendants. Amended Joinder Complaint, 1/24/13, at

3 On February 13, 2013, Whiting-Turner filed preliminary objections to Appellee s amended joinder complaint. Two days later, Kinsley and Carney filed joint preliminary objections to the amended joinder complaint. The preliminary objections were scheduled for argument on March 28, 2013, and that argument was postponed, by request of counsel, to April 11, Order of Court, 2/28/13, at 1. On February 21, 2013, Appellee filed a motion for judgment on the pleadings with an accompanying brief. Appellee filed briefs in opposition to the grant of the preliminary objections filed by the Additional Defendants. Appellant filed a brief in response to Appellee s request for judgment on the pleadings, and Whiting-Turner filed a reply brief in support of its previouslyfiled preliminary objections to the amended joinder complaint. On April 18, 2013, the trial court granted the motion for judgment on the pleadings filed by Appellee. While the trial court indicated that its ruling in favor of Appellee obviated the need to address the pending preliminary objections filed by the Additional Defendants to the amended joinder complaint, in its April 18, 2013 order, the trial court dismissed only Appellee from this action and did not dismiss this case against any of the three Additional Defendants: AND NOW, this 18th day of April 2013, upon consideration of the Motion for Judgment on the Pleadings and Brief of Defendant L. Robert Kimball & Associates, Architects and Engineers, Inc. and any response thereto, it is hereby ORDERED that said Motion for Judgment on the Pleadings is GRANTED; and Defendant L. Robert Kimball & Associates, Architects and - 3 -

4 Engineers, Inc. is dismissed from the above-captioned litigation with prejudice. Order of Court, 4/18/13, at 1. This action was not discontinued against the three Additional Defendants, and the pending preliminary objections were not resolved. Appellant filed the present appeal from the April 18, 2013 order granting judgment on the pleadings to Appellee. The three Additional Defendants declined to file a brief on appeal. Initially, we observe that we cannot address the merits of an appeal prior to ascertaining whether we have jurisdiction. Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505, 508 (Pa.Super. 2009) Since we lack jurisdiction over an unappealable order it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order. Id. (citation omitted). Subject to exceptions that are inapplicable herein, this Court has jurisdiction only from final orders. Pa.R.A.P. 341(a) ( an appeal may be taken as of right from any final order of an administrative agency or lower court ); Commonwealth v. Scarborough, 64 A.3d 602, 608 (Pa. 2013) ( As a general rule, subject to some exceptions noted by the Superior Court herein,... appellate courts have jurisdiction only over appeals taken from a final order. ). A final order is an order that disposes of all claims and of all parties, or is expressly defined as a final order by statute or the ordering court. Pa.R.A.P. 341(b) (defining a final order as one that (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by - 4 -

5 statute; or (3) is entered as a final order pursuant to subdivision (c) of this rule. )). 1 1 Pa.R.A.P. 341(c) permits an order that does not dismiss all claims as to all parties to be appealed when the court issues a determination of finality, as follows: (c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order. In addition, the following conditions shall apply: (1) The trial court or other governmental unit is required to act on an application for a determination of finality under subdivision (c) within 30 days of entry of the order. During the time an application for a determination of finality is pending the action is stayed. (2) A notice of appeal may be filed within 30 days after entry of an order as amended unless a shorter time period is provided in Rule 903(c). Any denial of such an application shall be reviewable only for abuse of discretion pursuant to Chapter 15. (3) Unless the trial court or other governmental unit acts on the application within 30 days of entry of the order, the trial court or other governmental unit shall no longer consider the application and it shall be deemed denied. (Footnote Continued Next Page) - 5 -

6 Under the controlling decision in Brickman Group, Ltd. v. CGU Ins. Co., 829 A.2d 1160 (Pa.Super. 2003), the order in question must be considered an interlocutory, nonappealable order in that it dismissed only the original defendant and did not resolve the case against the additional defendants. In Brickman, the plaintiff appealed from an order granting summary judgment to the original defendant named in the action. We quashed the appeal. 2 The original defendant therein filed a joinder complaint against three additional defendants. In that pleading, the original defendant averred that the additional defendants were solely liable to the plaintiff for the damages that the plaintiff alleged that it incurred. The additional defendants filed preliminary objections to the joinder complaint. Before resolution of those objections, the original defendant was granted summary judgment and was dismissed from the case. The plaintiff appealed (Footnote Continued) (4) The time for filing a petition for review will begin to run from the date of entry of the order denying the application for a determination of finality or, if the application is deemed denied, from the 31st day. A petition for review may be filed within 30 days of the entry of the order denying the application or within 30 days of the deemed denial unless a shorter time period is provided by Rule 1512(b). The Pa.R.A.P. 341(c) protocol was not followed in the present case. 2 In that case, we also dismissed an appeal from an order entering a determination of finality as to the summary judgment order. However, that quashal was premised upon the failure to adhere to the time limitations of Pa.R.A.P. 341(c). As noted, no one invoked Pa.R.A.P. 341(c) in this case, so that aspect of our decision in Brickman is not germane

7 from the order granting judgment in favor of the original defendant, and, due to the filing of the appeal, the trial court dismissed the additional defendant s preliminary objections to the joinder complaint without prejudice. In Brickman, we noted that the third-party complaint remained pending when the notice of appeal was filed. The plaintiff suggested that the third-party complaint was moot based upon the order granting judgment in favor of the original defendant, and that the practical ramifications of the summary judgment order was to resolve the third-party complaint. However, we concluded that the order could not be considered final since it did not resolve all claims as to all parties. The matter presently before us contains the identical procedural scenario as that analyzed in Brickman. Appellee averred that, due to their contractual relationships and interactions, the Additional Defendants were solely liable to Appellant. While the Additional Defendants filed preliminary objections to the third-party complaint, those preliminary objections were never resolved, and the third-party complaint remained pending when this appeal was filed. Additionally, Appellant now has a viable cause of action as to the Additional Defendants, based upon the allegations in the joinder complaint that they are solely liable to Appellant for its damages. Pa.R.C.P. 2255(d) ( The plaintiff shall recover from an additional defendant found liable to the plaintiff alone or jointly with the defendant as though such - 7 -

8 additional defendant had been joined as a defendant and duly served and the initial pleading of the plaintiff had averred such liability. ). In light of Rule 2255(d), the trial court incorrectly believed that since Appellee s Motion on the Pleadings is granted, this court need not address the Preliminary Objections of the Additional Defendants. Trial Court Opinion, 4/18/13, at 3. Finding that the order in question is not final since there are three defendants remaining herein, we are required to quash the appeal. Appeal quashed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/6/