PENNSYLVANIA RECORD

A federal judge has granted a plaintiff’s motion for allowance of joinder in a case initiated

by Northampton County, Pa. against two construction firms.

Northampton County, which is located in Northeastern Pennsylvania, filed suit in late September of last year against Cleveland-based RAM Construction, which had been retained in mid-May 2010 by county officials to resurface an upper parking deck at the county courthouse complex.

In exchange for the work, the county agreed to compensate RAM to the tune of $2.2 million, although the county ended up holding onto a claimed retention in the amount of $44,000, the record shows.

Following the project’s completion, the county claimed that the parking garage surface exhibited defects, such as cracking, a misalignment of joints, and fallen and failed overhead patches.

The county asserted that the defects were due to shoddy workmanship, and it soon filed suit in the Northampton Court of Common Pleas against RAM over breach of contract claims.

The county seeks $700,000 in damages.

This past October, RAM filed a notice of removal seeking to transfer the case to the U.S. District Court for the Eastern District of Pennsylvania on the basis of diversity jurisdiction.

In court papers, the defendant also maintained that it had performed all work in a construction-like manner and in accordance with the “design specifications prepared by the third-party design professional(s) responsible for the design and/or redesign of the parking garage structure.”

RAM contended that any defects at the project site were the direct result of actions and/or inactions by the design professionals.

On Feb. 11 of this year, the county filed with the court a motion for leave to join a third-party defendant to the action, or entire dismissal of the action, as well as an amended complaint, the record shows.

In the motion requesting joinder, the county sought to add Pennoni Associates Inc. to the litigation.

Pennoni is the Philadelphia-based company that did the design work on the courthouse project.

The county said that if the federal court denied its request for joinder, it would file a separate action against Pennoni in state court.

In a March 11 memorandum and order, U.S. District Judge Michael Baylson said he decided to grant the plaintiff’s motion for joinder because the result would mean a remanding of the case to state court.

“First, while Plaintiff has not presented a highly detailed explanation as to why it waited so long to join Pennoni as a defendant, Plaintiff does not appear motivated by a desire solely to defeat diversity jurisdiction,” Baylson wrote. “Plaintiff claims it realized only during discovery ‘that Pennoni’s duties included daily oversight of work being done on the project.’”

The judge stated that it’s entirely possible the county was not truly aware of the full extent of Pennoni’s involvement in the daily oversight of the project.

“Plaintiff is a local government, not a business; Plaintiff may not have focused on the details of the case until recently,” Baylson wrote. “Overall, it appears Plaintiff is motivated more by a desire to be made whole and to join all proper defendants rather than by a desire to defeat diversity jurisdiction.”

Baylson further wrote that the plaintiff would be harmed if joinder wasn’t granted because the county would then have to pursue two parallel cases, one in federal court against RAM and the other in state court against Pennoni.

“Moreover, given that Pennoni would be liable to Plaintiff either for negligent supervision of RAM or for breach of contract, it is not the case that Plaintiff could be made whole in the present action solely by pursuing RAM – in other words, Pennoni’s liability is not derivative of RAM’s, but separate.”

Baylson also wrote that the defendant has not shown it would experience prejudice by having to litigate the case in state court.

“The fact that employees in the Court of Common Pleas of Northampton County use the parking garage involved in this lawsuit and that the County Executive gave two interviews to local media outlets about RAM’s ‘botch[ing]’ of the construction does not render Pennsylvania state court inhospitable to this lawsuit,” the ruling states.

In opposing the motion for joinder, RAM’s attorneys had earlier written that the request should be denied because the county had known about Pennoni’s involvement in the project for years and had ample opportunity to join Pennoni as a defendant.

The defendant had claimed the county’s motion for joinder was motivated solely by a desire to defeat diversity jurisdiction.