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Herczeg v. Hampton Township Municipal Authority

Trial court did not improperly overrule the earlier decision on preliminary objections by granting defendant's motion to dismiss, which was in the nature of a motion for summary judgment.

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J. A31011/00

� 1 Appellant, Louise Herczeg, appeals from the trial court’s Order granting Appellee’s, Bankson Engineers, Inc. (Bankson), motion to dismiss based upon an affidavit of non-involvement filed pursuant to 42 Pa.C.S.A. � 7502. Appellant challenges the Order as violative of the coordinate jurisdiction rule. Alternatively, she asserts the trial court misapplied 42 Pa.C.S.A. � 7502 and erred as a matter of law in refusing to find Bankson owed the decedent a duty under the facts of this case. We affirm.

� 2 The facts and procedural background may be summarized as follows. In February of 1995, Hampton Township Municipal Authority (Hampton), as owner, retained Bankson to draft the plans and specifications for a water line extension project at Francis Drive in Hampton Township. Allison Park Contractors, Inc. (Allison Park) was hired by Hampton as the general contractor for the project. On March 20, 1995, Stephen M. Wagner, Appellant’s decedent who was employed by Allison Park, was working in an unshored trench approximately seven feet deep laying pipe when a cave-in occurred that completely engulfed Mr. Wagner. Rescue workers were able to extricate Mr. Wagner whereupon he was life flighted to a nearby hospital. Mr. Wagner never regained consciousness and succumbed to his injuries two months later.

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