HomeMy WebLinkAbout95-01916
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Phone
(717}761.oeeO
Fax (717) 761-6-428
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R. F. Fager, Co.
2058 ST"TE RD.
CMl~ Hlu.. PII 17011
DARWIN IIROSIUS
Vice PrHfdlO1
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CL.:~~~7';
~XlSi!NU.OLO.hOME
C~RC.:... .~j:~~')E~
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~~.... 2C5~:: 5~.;..; ;;:: ;~C:~~ ~;: ,~
.j" eM',:' , "L ' ;:o,~ :70: . ,~
i":,. .... , -
::>ROJ::C"':
OAT::::
~!5!O!N~:A~/~:GH7 CO~M~~C:A~ HVAC ~CAOS
OES:GN2',R:
:<! c 1-', . "\ARK':::'"
DES:~~ CC~O!Tr:~is:
-------------_..--~-------_.._----------------_..----------------------------....--
_____________..____.M__________________-______________--------------------------
D~5:GN PARAM~7!~
S:,.lMt.:S;.(
W:N7~R
QUTI)O,JR :):;.~ 9u!..a ;::~?~R~,:URE '~.; c~.,: -= C DEG.~
-..... .,
!Ni:lOOR DRY 8lJl.= TSi1?ER:'ITLRE - ZCNE 1 75 OEG.1" 7C CEG.F'
!NO:'OR DRY euLf~ rEMPE~^71..'R~ - ZONE ;.l 7,5 OEG.r 70 C!EG. . F
OES!\:iN -;-EMP!RAiiJR::: :>r;:;=ERe~c~ - ZONE 1 20 OEG.!=" 70 "II:'" ':
........:1.,
O:iS!GN TEt~P::'Rr-,TVRE ~: p l:q;:R~:\CE - ZONE 2 2C DEG.F 70 OEG.!"
!Ntl(J(;R..CUTOOOR GRt"\:NS OZF'FEi'l::::NC::' 36 GRA!~S
OUTOOOR OA:L y TEi~Pt!RATURE RANGE MEO
------------------------------------------------------------------------------
TOTAL eU!LOtNG ~OAOS:
-----~----_._--------------------_._-------------~--------------.---------.-------
SLC';3 _ LC:~u
OE5CI~!~7!C~5
---------.----------------------.-----------------------------------------------
AREA
CUAN
SEN.
~oss
L.Ai. +
GAIN
5<::1'1. .. l'OTAL
G;\!~ ~A!N
2-A W:ND. Sul ?:'4&S';;vl CL.R G~S lo.;C FR 170 5,656 0 9,31A ~.e1e
3-,C; W!NOCW 08L. PA;'~C: Cd, GL.S LJOoe Fi'! 12 463 0 864 864
= - GL.So OOQR C8;,. _Ct~ :. WOCD., F:'< 60 2.022 0 3,320 ~i ,320
.':)-....
l2-f~ WAl.L. NJ!NS :/2 "GYPSUM SRO( R 'O.5.l 1,512 2;,664 0 9,67: 9.671
10-A DOOR WOOD HCL,l. Ol_ COR::' 21 6:l3 0 279 278
16~C C:::!L.ING ~_11 :NSUL.AT!Oi" 708 4~36~ 0 2.741,3 2.74:3
I, ...-
::.9~A fLOORlENCL eRP,~,L. HARDLJD NO INS 910 9,9:37 0 0 0
------------------..-------------------------.--------------------------..-------
s:.;,::,70TA1.5 FOR 5 ~RlJC n"'~E : 3,4~3 :1.1.946 0 26.694 2~,e94
PEI)r-L,::: 6 c 1.380 : ,800 :l.1'20
APPL !A:'lCE5 0 0 c 1.200 1.:200
DUC7WOR:': ,., 6.937 0 3."226 3.22::0
v
;:N:::':L. 7R.~r!ON !,..,I .C~.~~: 2'3~.6 5, .CF:~: Ll6.3 0 17,glO 2.947 2,:')59 ".40b
VC:Ni!L,~rIO~ W.Cr-I"'!: " - 5 .c:='r-o;: 0,0 0 0 c 0 "
V.V v
---------..----------..-------------------------------------------~-------------
:n,47CJ
X l.'jO
5E~St8L.E G~!N TOTA~
iE~P. SW:NG M~~r!~~IER
-------
eU!LO:N~ ~CAO TO~'AlS
76.544
4,22i'
35,47c; 39,706
-------------------.---------.-.--------------------.-------------------......-------
~=*~~~~e RESIO~NT!A~
~NO ~:GHT CCMM~~CI~L ~VAC ~OADS 2Y ELITE SOF71~ARE ~~$*X~;~
.. CAM> HI,-!... ~A J. 70,: :i'
11/24/95 ~AG! 3
ZONE ~ : A!R a~JAN~!T~ES ~$*;~~*~**_~*~*'A~*~*~***~**
~ R. ~. F~G[K CO ~
Ex!s'rINQ.OLO.HaM~
**W~~:~*~;:~*~~8~*~~~*'~m~~*~~~~
-------------------_....------------_.._-------~---_.---..------..--..----..---------
RM "OO~
NO. ~ESCR:PT:.:ON
ARSA
(5;= )
------ HEA7ING ------
!~~H % TOT CFM
------ :OCLrN~ ------
eTUH % 70~ CF~
----- --- ....--- ..---- .... --.. . ---- ----- .....--------..---- -'" ..--- - ...----- . -...-------...--- -'''-
1, '-'....,. l44 e,4:'0 :..'~ .5 10'" " ,474 20.:? ::o~
1\.1..
:2. PC'WOcR ~'!8 1 .429 2.~ ~i. 9 476 " . 22
~, .
3. O:N 11.0 4.565 8.4 5("; ~ ,525 L ., e:.9
, " y . .
4. NOOK 121- 6.316 ,- ... 108 3,897 li.6 177
.0...
S. FOVf;R - - :;,()17 5.6 39 620 Z.S 28
~e
6. ~IN:::nE 14:: 6,956 16.5 116 3.725 16.0 1(,9
7. t..!V ')"'1. 19.569 36.1 254 i.45~ 33.b 339
~~o ----...----..---------....--------------...---------------...----------------....--------
ZOI\E SU6TOiAL 'HO 54.262 :00.0 705 22 , 1 71 100.0 1.006
I.A'::':Ni GAll'\ 2~11\3
------ ------
ZONE ;OTA~S 5~ .26~ 24,314- 2.026 TONS
______~._____-__________~_____________..___________________________..M...___________
~
~na.o;o::':'n.Ol ~E~~!C::I\'T ':A~ ~.:'\C '_:Gi~T CCI\lI~cF;C~At.. ":J.VP--C ~C,(~DS
~ R. F. ~A6ER CO ~
EXI$T:NG.O~D.~O~~
~**M$~~*A;~~~ue~;~~~~~~~~~~~~* ZONE ,
:~(21,/95
2 AIR QUANT!T!S5
3Y E~!TE SC~7~ARE ~:~~~~~~*
* CA~ir H:t.L. p~ 17011 ~
Pf',G.E 4
~~x~~~~~~~~:~~~~M*~~~~~:~:~~~*~
-------------.......--...-------------....-----------------...--------...-----------------..
RM ROO~
NO. Oe:5C:~:P7ION
___...-...----...---- .....___....___ _.___ __.__ ____ _________.. - __..... '0_- ..________ - ---- ---------
ARl!A
{ 3F)
------ ~EATING ------
RYUH % ~O~ C~M
__'._'__ COOL:~:G -0.----
BTGH % TOT CFM
9. EE::>.2 .",... 5,960 26.4 :",0 .Z.S7e 29.: :7c
.-'"
9. SEa .:? 121 6,201 27.u ~~6 3,913C ;2'; .Lf 18:
10. SED .l 1 ' '} 6,664 29.c 179 3,999 30.1 182
<;'w
11. BAT:-: 56 ::',73' 15.5 100 1,45:2 10," 66
--- .---- - ~...__..'-- --....---..----...---- ...--- ..---- ----- --- -----.....----.------------- ------
ZOt<.E 5USTOTA!~
LATENT G.<\:N
,130
:2.!.~e2 1.00.0
605
13.307 100.0
2,oe~
605
ZONE 'rOTA:"S
----------...--..----------.----.------------...---------.-----------------..--------.--
:;2,.562
:5.3'11
:. .. :-~r~3 TONS
lU.\jj' ';O:J
LJ:IJIJ
kHUU ,:>Ut+L I
~.
IIUu.f'H,l','lll
IJUJ
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~ r-:::I c=:J
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===
MODEL 361AAN MULT/POISE 4-POSITION OIL FURNACE
T~1S new line ul furnaco. provldo. 'he lalosl 'ochnology III 011 furnaces. Tho
.10 IAAN "urnacols do.lgnod lor top performance 10 prOVide vsftrs 01 roUshle. com,
'ollable home hoatlng,
The 361AAN IS a mUII'pol.o. .'no~llIon olll",,,uco Ihel cun be .nslellod upl/ow,
dowl1llo." honlUnla' "oht, or hOr/zonlellelt lor G~oeler appllcellon covellge. All
slzos aehlove 80% Annual FuOI Ulillzallon Elllclency (AFUE), Tho heal exchanger Ie
backod by a L1miled Llfellme Werranly.
FEATUJlES
MULTlPOl8E FLE XIBILITY - Tha JO t AAN '"S1oIlU In all 4 poslllon, for groaler ep.
IJIlcBllon coverage and Inslallallon IIexlblllly,
ALUMINIZED HEATER eXCHANGER- Th. p.l,"ary aod socondary heat ox-
e~.ngOrs I'" construcled 0' aluminiZed sleol for oUlslandiog reHablNty bocked by I
Llmlled Lllatimo Warranly Tho he.t o.cI1angor uilllzes crimped seams Ins lead 0'
weldS 'or COfr05l011 raslslanco Alllnlernal surfacas are accessible 'or any I/old
malnlooanco without ,ornovlog Ihe hoot a"hol100r
CONTROLS- The Bockelt 0.1 burne' Is equipped Wllh an oleclroole PrImary relay
10' added reliability. Slandard '00 all dolBY nOd 40'va Iral1sforme, maka air cOOdl.
1I0nlng 101lallallon easy.
HEAVY DUTY BLOWER -Olower 'Hulors ere PSC type and 3 speed. The dlroct.
drlvo blowers eUmlnele bell edjuslmenls In Iho field,
DURABLE CABIN!:T - The casing Is construcled 01 prepalnled sloel'o, years 01
allracllvoneu Filler and Ire me are provided wllh elch 'urnace,
~c:="":'1C'::]
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-
"l3l't
UNIT 1111
speCIFICATIONS
. .
flnnq 11.1.
k''OOiiiiIUhI- - - - - - - - 7~.OOO
~e.~c.~~ffi~(::::::::_:::~~:::
AFU!..... IC~
01""" 81-s-- -- --------
""1 TllmjIR'...":'F----------
~'-' ~ o.J€~ }iJ.~.fr!!..,,~.::-.:-
tloallnQ eFt.! 0.2..,..... ~101lc PrOIl",O
0,18
---'Os,onO--
- - 05:000' - - 100,000
-------~F-------
----------------r---------
--------5T.:&s
',12
--154,000
:':125.000-=
-.
..
;,
1I1lo'VoIII-.H...._Pho,. 115 60-1
Opc;';k,nVl)liion';;li:.lIqp; - - - - - --- -- - - - - - ---- -- - -iii4:iU- --- -- _ _ _____,__
~~i~!*~:~~~~=~~=~ ~~~~t~~J~~!===~=~=~=1i~~~=I~~-,r ,--
----~-,~-------- ------ ------- ------ ----
M'II~lnl FIlS, S'1.t'IA,nJ'''lo, 3S J, 45 60
~1;.nii~~i.if~-:-~ ~~~~:. ~:::=:_:_:===--~v.-.:.::==_=::
Ellem..1 Corlllot JlQIilIW A'IOJ~flUte HOIIIIlQ oIUv.
-----------___S~~ -------------__2~_______________
Burnet '-'000113450 '1JI1'1 BIC~.lI ,\FO
.' ,
loIn'.r HP 113 1/3 1/2 31~
R'k)w."Wi;"'"":llii'ttiinl" ., . .. . - - -- - - - - 10;9- - - .IO.~ - - - - --l'{;f - - - - - -ii"-12--
8k;~-;' Molnr~~J.,i;1 rYI':' .. . - .' - .- - ...- - - - - - .- - - - - - .. -1()75-PSC 0.'0r.1- - - - .~ ,_ _ _ _. _ _ _ _ __._
F'ie,Q;;i;;iiiYN.tN,';-. - ------ -ji,ie-;rsi",-- --tiilii'-2f,,- -I'~o.Ig;l- -ii,i'o.2uOi--
. . ,
. I' .
0...."'.... ~1I1lb.". KOA~B03DtDF'-' KC..~BO.OIOrM
oo;.j;jIO-;v;.1ip~."r.I~Il;j - -. ." -. - - - - ------- ----- --t<LAVQUlCiiora-------.--- ____
. C.1Plll.il~ 0\1\11 ^nJf "' >In'Otll.IHt.;I~ ""'Ill tI S Unll'''"l11lOnl DOE hl"l C"UC:ClJlIllI~
t POfn"'I"I~ II"",., utili" Ylllllll/U 1""'1\1;11 \\'Iueh 1M unll WI. Ov.o,..IG ..1h"oICIUfllf
· Lllngln ,noW" la I1kll1Sllll'ft I ........, ..Iono ~"fll"'U1 bcUwflcn UOII.MU ,urvce paJlet rot ",,,nllum 2% youlR_OrOI1
" TIm..d.13y lu",o i', ,ncurn'ntjndl'f1
ICS-I&oI0Iltd CentlJll'hOII U."I.",
SE'RVIOE INVOICE
~ StWftlPluuuta ()~ ~
,
OmaburO
432.9711
70 825 00
Carol Pieper
112 ~ncl 51.
ROl'lmnnsrlale
MechanlClbuIO
766-1511
DATE
YOlk Spring.
528.4747
Octobor 24. 19l1l
1'1\ 17009
7fiG-lJ77ll
SERVICE REaUESTED BY CUSTOMER
CLCAN FUHNACr.
D4'f SEnVICE R4 TES: App'v 10 '1I..""co bOlv"'n 8:00 'I,M, & 4:00 P,M, D.IIV, '
NIGHT SERVICE RATES: APPIV .ft" 4:00 P,M, D'"V, All D.V Sllurd.v, All D.V
SUM.v .nd Halld.V'. MIN. CIIARGE ONE HOUR.
HOURS "
SEnVICE cowr I.
lor _
JlL
t' i ,t:!/~ /'",,.'" ji-/.'c.[
--
,:i1' .r.l"C t'
c ~~c:Jc, .~",t: -:. "' t,.c
i'(.JI'?'.(! ,..
('to
/A i,;/ tJl
/'/I.r liL l,c .,
UNDER CONTRACT SERVICEMAN
ES NO
o {"F
TA~
~
,-
5 '/':..
0C; '/-
"
TOTAL
PlAINTIFF'S
EXHIBIT
.1
,,-- -._" . ....... " . ,J - -- '"-'.
. ."... I..;". '.'
.$t ~~()itOo# ~
Dlllsburg Mechanlcsburg York Springs
432.9711 766.1511 528.4747
70 837 00'
Carol Pieper
112 Second St.
Bowmansdale PA 17008
DATE
May 27. 1994
766-8779
"
Weekdaya, 8 a.m. . ~ p,m,
Aller Hours: Weekdaya, aile, 4 p.m" Saturday., Sunday., and Holidays.
- . .. Minimum Charge: 1 hour
HOURS
AMOUNT
as done to datel
800 00
UNDER CONTRACT
',YES NO,
o ~
TECHNICIAN
TOTAL 2 300 00
PLAINTIFF'S
EXHIBIT
b
.
~ R. ~. ~AG~R C~ $
*~ 2C5b 5T~~~ ~C:;J ~~
N CAM~ }~:L~, ?~ 170~~ ~
?ROJ::C"':
CL.:'Z~:'7 ';
!X1ST!NU.OLC.HCM~
C~RC.... .~:) :::~')e:~
-,\.;, /:;,~/~E.
OAT!:
RES:O!N~:A~/~:GH7 COMMe~C:~~ ~VAC ~CAOS
~)E S:' G:'J 2'. R :
:HCI-', .~,AP.KE-
DES:~~ CC~~!T!C~IS:
------------------------------------------------------------------------------
o~s:Gl'~ ?A~:_\M'::7=:;;
------------------,------------------------------------------------------------
s~.:~r.:;:;;
v.::N7Z;';
OU:I)OI~R Of.,'l 3Ut_8 ;E:-1~:=RATURE. '.~ c:r.:!: = <: ~Ej';: .r
........
!NOOOR JRY 8Ul..2 T'::11PER."I TURE - ZCNE 1 75 CEG.F' 70 CEG.F
!NO::'OR C'RY BULB TEMPC:RI\TURS - ZCN~ ;.: 75 DE':;.F 70 CE:.:.F
DES!Gr\ ~:MP!RATUR: lJIFi-ERENCE: - ZONE 1 :::0 ~E~.~ 70 C'~~3 . 'f
01:5:':;;-'; 1'E?~P::RA TURe: O:;::t:ERE~CE. - ZONE: :2 2C DSQ.F 7e OEG.F
!NOOOR'.CUTDOOF: GfH~ ::"lS otF'FER::NC;: ~6 GRAI:-.tS
OUTDOOR DAILY ;EMPERAiURE RANGE MEO
------------------------------------------------------------------------------
n':TA'- eut\.C :NG '_vA"::;:
------------------------------------------------------------------------------
",-eG. l.C:'ID
OE5Cl~I;:7:CN5
------------------------------------------------------------------------------
AR<:A
Q~AN
Sf.N,
~_OS5
L.Af, +
GA:N
SE:N, '" YOTAL
GA!:-; GAIN
2-A W:NC1. SGL. ?~2cS7~i CL.R G~S we FR 170 5,656 0 9.818 9,816
3",0, WINDOW i)8L ?A:<C: Cl.~ G\..S ~JOOO f"R 1.2 -'.62 0 864 864
s-~ Gl..S COOR C8;.. _Ol~ 1;; weoo, FR 60 2.027- 0 3~'320 ~i ,320
12-A "At.\.. NO:N5 ~/2"GYPSUM S:'lO( R.O.5.l 1,512 za,664 0 '1,67: 9.671
10-'\ DOOR waoO I,CL.L. cH. COR::' 21- 6:l3 0 279 278
16-C C~!~!NG :<-11 :NSl)L.~:!ON 70e 4~36~ 0 2 .7~,3 2,743
1.9'.;" :=~OOR/=:NCL eR~,\,L ",AR0~W NO !NS 910 9,937 0 0 0
-------------..----------------------------------------------------------------
5.J,~70T,'1L.S fOR S'rRl,;CiL.':"'-(c: 3,4:''3 5:\..~46 0 26.694 26,694
?EGr-l..~ " c 1,380 1,800 3.180
APPUf\>lCE5 0 0 0 1,200 1,200
ou,: 7WC~:'~ 0 6,937 0 3,226 3,226
!N~:L '7RAT!'ON W .C~:"'I: 2'3~.6 5.CF;..c,: 116.3 0 17t~lO 2,'347 2,::>59 5,406
VC:N1':\..,~TIO;-': W.CPI"'!: 0.0 fi .C~r-',: 0.0 0 Q 0 0 0
------------------------------------------------------------------------------
SE~S!3LE G~!N ToTA~
rE~? Sw:N~ ~1)LrIP~!ER
35,479
X ~ .00
-------
aU!L~:NG ~CAO 10~At.5
-------------------------------------------------------------------,._---------
7i.J,S44
4.227
35.479 39,706
. .
~~*H~~~~ ~ESIO~NT:A~ ~NC ~:GH7 :CMM~~(!~L HVAC ~CAOS 8Y E~:TE SOF71~ARE ~~,~*x~~
* R. ~. PAG~R co *
EX!S7ING.OLO.HOM~
*:t.::i'~;:.r :-:~;!t :t::~; '~~*;~ :1'. $:;::X~: *~~,,:~*:i(~*)I(
ZONE ~.
:1/24/,,5
!. A!R aiJAN'r!T~ES
* CAMP HI~L. PA 170~: ~
;.....~G;: 3
***a*~:'~~*~****:x~*~~~*~*~~=
---------------------..--------------..----..------------..-----_..-_..~--_..---------
RM RCO~
NO. :>ES:R:PT ~I,)N
---------..---.-----..---.--.-------------------..-----....-------------------------.--
ARSA
'- s;::)
------ HEA7ING ------
27U~ % TOT CFM
------ COOL!~C ------
ETUH % 70~ CFM
1- j",:-'- :'44 '" ,4:'0 1,13 .5 lOq 4 .474 20.2 :':03
~
2. PC'~L)~R ~;o . ,429 2.6 ~..9 476 " . '2:?
- - . .
3. O:N 110 4 .565 8.4 59 : ,525 6. 9 :'9
.... NOOK 1'" 6 ,3:6 ,- " l08 3,697 ' -: , :77
.".~ ~. .'J
S, :=OYSR 2a 3~O17 5.0- 39 620 2.5 26
6, a:N~.tTE . ~- S,956 16.5 11,0:, 3 ,725 16 ,C< . (.0
~ ,.;. ." ,
7, ~!V ,,,...t 19.569 36,,1 254 7 ,454 33.b 339
...j,;:) -------------~------~-------------_.._--------------,.-----..----------...---------
zo~;;: SUBTOTAL
I.A':!/\T (;..:\1/\
910
54.262 100.0
705
22 .171 1 CO. 0
2,1'\3
1.006
ZOi~E TOTAl-=-
5~ .262
24~314
2.026 TONS
-----------.------------------------_..~_._------------------------.......-----------
,
~'IJ':< x*:~::t. *' i\;;: ~.~ ~.t ~.1.;,.~ /.:;.':~~.~ ~ '.~;,'t i'I: ::: 'J.:~!C ~
ZONE f,
::./.24/95
2 AIR CUAN7!T!~5
~:s::,.:r,*:rt~
1.701\ "
Pt,i?E: r.
*~"X~*~~*~~~~:~~~~~:~~:~~~:~**
s:r:;~~RE
~~MJ~):~M'~ RE5!~SNT~A~
~)\D
~_:G;-:i'
CCMMERC:A~ HVPC ~OAD5 2Y ELITE
:;( CA~'ir.
H:~.L. Pi.:
~ R. F. ~AGER CO ;~
EX!S7:NG.O~D.~CME
______-______....-__.____________.__...__________________________..____M__..__________
-----..----.----- .....---....----------.----- - ...---- ----.... -_.. - ..----------- - ...--- ---------
AREA
{SF)
------ ~EATING ------
R"iUH % ;07 CfM
__..0'_- COO~:~:G ------
RM ROO~
NO. O::SC;'{:P7 ION
8TJH % TOT CFM
,9. Se:D..2 110 5,%0 26.~ ~~O Z ,Si'6 2,t"'. ., :76
? -
9. BED ,- 121 6.201 27.n 166 :) ,'lac 2';' .(j 16:
...
10. 8:::0.1 l' ,') 6,684 29.6 179 3,999 30.1- 182
,,~
II eA~:-: 56 3.737 1&,5 100 1 .452 10.9 ~6
___ ____.. .'.'__'" .._ - _,,, ___.. ____ ._____ ...___" ____ ...___.0 ___ ____ __..._ - ---..-- ---------- ------
ZO!',!:: 5USTOTA!...
LATENT 13,'\:.';
4::'0
22.~S2 ~co.o
~OE\
l3,3C7 10':'.0
2.06~
605
ZONE 'rOTA:"S
:22.582
1.:- .~.;;l
: . 2f~"3 TONS
---------_..__...---------_._--~._----------_..--------------------------..----------
.
,
installation of a thermostat, would have been required to remedy
any deficiencies in plaintiff's work.
In FormiQ1i Corcoration v. Fox, 348 F. Supp. 629 (E.D. Pa.
1972) (copy attached), the court decided, under Pennsylvania law,
that a subcontractor properly refused to complete its work and to
correct defects in its work. The court found that this refusal
was justified because the subcontractor had substantially
completed its work, while the general contractor had failed to
pay substantial sums that had been due to the subcontractor for
six months.
Plaintiff submits that FormiQ1i is directly on point. As a
federal court decision, it is not binding on this Court, but it
correctly states the applicable pennsylvania law on the issue in
question.
Pursuant to the principles stated in Formiali, judgment
should be entered in plaintiff's favor.
Respectfully submitted,
KEEFER, WOOD, ALLEN & RAHAL
Dated:
December 1, 1995
"\ ~
. ././ ",."., ~ ''J
l-4C.~~/,-- ~ JCl
'Eugenei E. epinsky, Jr.
Donald . Lewis III
210 Walnut street
P.O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8051 and 255-8038
Attorneys for plaintiff
By:
-2-
FORMIGLI CORPORATION v. FOX
t;lttt;u J"''i 1o"~'IPII. Ii:'~ 11Ui:':)
629
,d tlreman
ulsh a fire
ld in Jack,
wroniful
:at, ~ 768..
lualty and
'A & P.
defendant
to provide
,y makinII'
'emlses In
.ns which
:0 persons
'S. Plain-
dant nell-
,tions and
P at the
ld to the
I Second I 01 Tort. i iJ2,IA i 191;;;), where-
in it is .Hated:
One who undertakes, gratuitously or
t'or congideration, to render jerviccs to
another which he should .'ecognize lIS
necessary lor the pI'otectiou 01 a thil'd
person or his things, is subject to lia-
bility to the third person 101' physical
harm re.ultinll' 11'001 his lailure to
eserci,e reasonable core to perlorm his
undertaking, il
(0) his lailure to esercise reason-
able core increases the risk of such
harm, or
(bl he has undertaken to perform 0
duty owed bv the other to the third
per,on, .' IIootnote omitted),
See Hill v, United States Fidelitv &
Guaranty Co.. 428 F,2d 112 (5th' Cir,
1970),
[31 In addition, this Court believe,
that decedent's presence at A & P for
the purpose ot fighting a lire was I'ea-
son ably foreseeable, and defendant's duty
to t!xercise reasonable care in inspecting
the pt'emises estended to him, Geer v,
Bennett, 237 So,2d 311 (4th D,C..\.
1970).
It is, accordingly,
Ordered:
The motion to dismiss Is hel'eby de-
nied.
smiss the
claim tor
Jetendant
any duty
ba.es it.i
at a fire.
,es of on'
uty occu'
nd there-
decedent
ld willful
,
.
"
FOR~IIGLI CORPORATION
v.
William L. FOX, Indlvldulllly and 1/..
Foxcroll SqlllU'e CompanY, el 01.
Clv, A. No, H313.
United Slate. DI.trlct Court,
1::. D. Pennsylvania.
Sept. 12, 1972.
action is
uer, and
~d u.eful
I licensee
r defend,
i. Court
tatement
'!
Di\'enity action by subcontractor to
recover trom general contractor halance
due on building construction subcontract.
The District Court, Hannum, J" held
that subcontractor hod substantially per.
lormed, In addition, the Court held that
general contractor waived any provision
of written agreement which conditioned
payment on approval or acceptance of
work by general contractor's architect.
Furth~rmore, the Court held that sub.
contractor', reiusal to complete work and
correct defects was justified by general
contractor's failure to pay, within a rea-
sonable time. substantial amounts in ex-
cess of contract retainnge that had been
due and payable for over six months.
Judgment for plaintii!,
1. ConlT""15 (l::>~32(2)
Under subcontract providing that
general contractor could order extra
work. with contract sum being adjust.
ed accordingly, subcontractor was entitled
to additional sum for four beams and
four one.story columns to enclose garage
when general contractor changed desiin
of and relocated iaraie ramp so that a
void was Ie it in perimeter oi garall'e. to
additional sum for furnlshlni additional
panels when revised design omitted ,ev-
eral windows thereby Increasinll' area to
be covered by wall panels, to additional
sum for panels and beams furnished
when two exterior stair towers were In-
creased in size and additional sum for
additional eniineerinll' time in revisini
structural drawlnlls and makinII' addl.
tional calculations,
~, Conl.....15 <:=>232(6)
Where ieneral contractor stated
that it had no intention to pay steel
contractor any thinII' for installini extra
reinforcing steel to extend. to the cor.
rect length, precast concrete columns to
the wind beams, general contract was
not entitled to any windfall setotf of
such sum against amount claimed by
subcontractor eniaged to furnish pre-
cast concrete work.
3, ~lechlLltlc.' Uen. <:=>~Ot
Under Pennsylvania law, the right to
file a mechanic'S lien may be waived by
agreement. 4~ P,S. Po, ~ 1401.
4. ~'.ch..nlcs' LIen. C=>20t
Validity of subcontractor's waiver
of right to file a mechanic's lien was
630
3~8 FEDERAL SUPPLEMENT
not, under Pennsylvanill Illw. a((ectccl hy
builcllnll' contractor's brench o( contract.
.,. ~I..hanlc.' Liens ~~01
Where subcontractor. which hod
ail'reed not to file mechllnlc's liens.
breached It.> aireement, ieneral contrac,
tor WU, under Pennsylvania low, entitled
to 0 set o(f for leial services and ex,
penses In connection with thllt claim,
6. Contl"l>Cls :;O~lH
Under Pennsylvanlll law, a party
has a I'iiht to recover Cor incomplete
but substantial performance of his con.
tractual undertaklni.
1. Contracls :;O~03(11
Where adjusted subcontract to (ur.
nish precast concrete work amounted to
almost 1.5 mllllon dollan. work left In-
complete amounted to Ie.. than four-
tenth. of adJu.ted conlract price, aure.
iate of defect.> wa. little more than 2%
of price, building hod been "ubstantially
occupied, some deCect.> were attributable
to ieneral contractor's delay in llTound
breaking and subcontractor'. refu.al to
continue work and correct deficiencies
was Ju.tifled In view of general contrnc.
tor's breach of promise to bring It.> ac.
count current, subcontractor hod sub.
.tanllaliy p<!rformed, under Pennsylvania
loW, and was entitled to recover therefor.
8, Conl.....1s e=>316(11
One may waive any provision In the
contract which has been e,'ablished for
hi. benefit,
O. CllnlJ'llcls e=>~1lO
Where ieneral contractor hod mode
12 payments to subcontractor, to tali nil'
over U,IM,OOO, on Invoice. .ubmltled by
ieneral contl'llctor and had neither askecl
for nor received aPllroval IIf architect
that such payment. were due, Keneral
contractor had waived contractual re,
qulrement that .um. wero to bo paid on
approval of archilect and could not suc.
cess(uliy urllO lock of architect's approval
as defense to claim (or (Inal paymont for
work substantially and honestly done In
compliance with contract,
to. Evidence C:> II
Court would not tAke Judicial notice,
ex parte, of money market durini rele.
vant period In determlnlni Interest on
sum. wronifully withheld from subcon-
tractor by il'eneral contractor,
11, Inleresl G=>31
Under Pennsylvania law, subcontrac,
tor was entitled to recover sile percent
Interest on .um. wroni(ully withheld,
by ieneral contractor,
12, In'er..' C:>H
Under Pennsylvania law, when mon-
ey Is due a person under 0 contmct but
i. improperly withheld or unpaid. party
to whom such money is due I. entitled to
interest from the time it was due. at six
percent per annum, H P,S, Pa, ~ 3,
13. Damaces ~68
Under Pennsylvania law, In the ab-
sence of express contract. simple lntere.t
at the statutAry legal I'llle Is recoverable
os damages for breach of contmct. 41
P.S. Po, ~ 3,
I~, Contracts ~311
Refusal of subcontractor, seeking to
recover balance due on building construc-
tion contract, to complete work and cor-
rect detects In prior work was JUSllfled
under Pennsylvania law, by ieneral con-
tractor's failure to pay within a reason-
able time substantial amounta In excess
of contract l'1ltalnaie that had been due
and paysble (or approximately six
month..
RnYr:1ond W. )Ildgett. Jr., Decherl.
Price '" Rhoad., Philadelphia, Po., for
plalnti((,
J, Paul Erwin, Jr., White .k WllllanlS,
Philadelphia. PlL., tor de(endan13.
rOR:.IIGLI CORPOR.A TION .. rox
fial
(~lll' .I., ,Hi f' ;itlll[l. 'I'","J 110~::1
FI:-iDI:-iGS Or' F,\CT, DISCL'SSIO:-i, ['or the Benjamin Fox Pavilion waa pro'
CO:-:CLL'SIO:-iS OF LAW, ,'ided by Irwin J, Speyer, an independent
o\:-iD ORDER prole99ionnl ,!n~ineer who wa9 eommi9'
,ioned and paid by FormiKIi lor thi9
prt:ljl"ct. 5pt!ytJr i:J ;! Jtructural t!ngineer
wlth .lPPNximatclj' ~o j'ear:i ,d e:cperi~
~nce. 5inct! 1!J53 he hil:J 1pecialized in the
de~illn iJi jtructures made with prestre9S~
ed preeaat concrete, Speyer participated
in the preparation al the Ameriean Can.
crete Inatitute requirement. lor the de.
jilln oi ..:oncrettl Hructures.
7, The engineering de.ign pro\'ided
by Speyer W/1.'l ba.ed on architectural
plan. prepared by George S. Idell, an
architect who acted ior Foxcroit with
re.pect to the work at the Benjamin Fox
Pavilion, Speyer'. de9ign WIU submit-
ted ta and approved by Idell.
a, Ba.ed apon architectural drawing.
prepared by Idell and drawinga and eal,
eulations iarni9hed by Speyer, Formigli',
draiting department prepared ",hop
drawinga", according to which the pre,
caat concrete element. (including col.
umn., beam., Spancrete (a preca.t can,
crete planking) and exterior wall panela)
Were labricated, and "erection draw.
Inl1'''' according to which the preca.t
concrete elements were erected,
9, The Formll1li .hop and erection
drawinga were .ubmitted to and approv.
ed by Speyer, Idell and Foxcrolt prior to
the .tart ot tabrieation.
la, Subat.1ntially all the preca.t con.
crete element. tor the Benjamin Fox Pa,
vilion were iabrleated by Formlgll and
delivered ta the job.lte,
HA:-i:-iL')I, Di.triet Jud~e,
n:-iDI:-iGS OF FACT
The P"ties and jr,ri.di'lioll
1. Plaintii!, Formigli Carporation, i,
Incorporated in Delaware and i. .ueces.
.or by merl1er to Formlgli Corporation,
which at the time oi commencement 01
this action wa. inool'Jlarated in :-iew Jer.
sa;' and had It. principal place oi bu.i.
nC:J:i in ='ew Jersey ('IFarmillli"),
~. Detendants are William L, F"x,
Ir.,'in C. Fox ,IOd Doroth;' Kotin ()II'9,
Edward Kotin', and Foxcrolt Square
Company, which is the partner.hip 01
which the individual deiendant. are part.
ners. )le9sr.. Fox and )In. Kotin are
all residents and dtizen. oi penn.ylvan.
ia, (William L, Fox ia reierred to as
"Fox" and all at the deiendant. are col-
lectively "Foxcrott",)
3. The amount In controversy, exclu.
.ive ot intereat and coata, ia a 'um in
excess at $10,000,00.
The Contract Betu:een the Portie.
~, Thia i. a .ult on a contract be.
tween Foxcrott, which I. a building eon.
tractor and Formll1li, which was one 01
Foxcrolt'3 ,ubeontractol".!, ariaing out ot
the con.truction ot a multi.,tory build.
inl1 in Abington Town.hlp, Pennaylvan.
ia, The building i. known a. thl> Ben.
Jamln Fox Pavilion and eontaina ",tail
stores in itJ lower levels and ~e"'en Jtorit!:I
ot otileea.
5, Formigli entered into a written
agreement with FlJxcroit dated June :.!1.
19~5, in whleh Formi~1i a~r'!1!d to iur,
ni.h certain labor .IOcI material" inclucl.
inll all prCC:l3t concretl! work (or the
Benjamin F"x P"vilion, ior a prIce "i
Sl.159,1)1)1) ("the \\Oritten agreement"'.
6. The t!nl{incerinw de9il{n nl~e:J9ary
for the work to be do,," by Formi~1i
11, Sub~tantially all the prec...t eon,
elete element. ior the Benjamin Fox
Pavilion were en'Cted at the jobaite by
Berr)',Ba.ehoit, Inc.. a .ubeldiary oi
Formigli.
Chan~" III The Scope 01 Tho Work
[I] l~, With re.pect to changes in
the :Jeope of the work. the written agree.
ment provided: "There 3hnll be no extra
charic:t to .:omplcte work called for !In-
der thi:t contract. However, the party
oi the iir9t pa~ (Foxcroitl, without
invalidating the Contract, may order ex.
tra. work or make changes by alterint.
6:13
FOR~1l0LI CORPORATION v, FOX
('1111 'l~ H.' r 3111pfl 'I::U IIO:Zl
oat ion an~ ,hapo 01 tho bulldin~ that ,'0' the '.'aluo 01 work as tho work prollre,sed
qui red Spoyor to mako ,'el'i,ion, 01 hI' on approval 01 the buildlnll archltoct.
thon.completed \tructural drawin~s and The remaining 10% was to be paid 120
to mako additional ,,,Iculatlon!, Sperer days alter completion 01 tho work and
charlled Formlllli the additional 31,500 acceptance 01 It by tho building archi.
lor his additional ongineering timo, toct,
Formillli i. entitled to an incre.,e in the
contract price in that .ImOunt,
Billing. nnd Payment.
18. The written aireement provided
that Formillli would ba paid 90", 01
Invoice
~o,
Invoice
Amount
1989
199';
2064
22513
22jj
2309
2325
2348
236';
2387
2411
2433
2504
Date
11)/29/';5
ll! 10/';5
2/2/~i3
9,30/';';
I'J/:lI/.;.;
11/30/';6
12/30/';';
1/311';7
2/23/6i
3/31/67
V28/.;j
5/19/';7
7/31/67
. 25,200,00 3 2.252.00 . 22,';80,00
lU92.40 I,H9,24 12,773.10
9,074.01) 907.40 8,1';';,';0
141,203,';0 14,120.36 127,083,24
248,Q30.00 24,003,00 223,227.00
145,901),01) 14,590,00 131,311),00
145,900.00 14,590,00 131,310,00
245.501),00 24,500,00 220,950.00
119,250,00 11,325,00 107,325,00
72,950,00 7,295,00 65,665.00
218,850.00 21,.l85,OO 196,9';5,00
14.590.00 1,459,00 13,131.00
58,360,00 5,836,00 52.52.&.00
20, Each ForlOillll invoice indicated
the value 01 the material and labor lur.
ni,hod to the job,.ita to the date 01 tha
Invoice.
21. On or about AUllust 30. 1967. For,
mlllll submitted to Foxcrolt a latter
statement 01 tha adJu.tment3 in tha con.
tract price arlslnll Irom additions, omi.,
.ions and ohan!!es in work which inclu,l.
ed the adjustmenu relarred to in para.
.raphs 13 to 17 above.
22, The adjustments .et forth In the
letter .tatament from Fonnillli to F"X'
crolt dated AUllu.t 30. 1967 for item.
3B, 4. 5 and 13B were tho lair valua
01 tho.e addition., omissions and ohan~eJ
that aro refonod to in para~raph. II to
17 abo\'e. :inti were ~akJlatt!d in JC.
cordance with ~he ,1Pplic:lble pro\':jion:i
I)l the written Jilreement.
23, Pal'menu totallln~ .l.ltill.254,88
were made for the work unul!r the writ.
US F ~wu-40""
19. Formlil'1l .ubmitted invoices to
Foxcrolt lor work parfonn~d under tha
writtan Dll'reOment on or about the dates
and in the amount3 set torth b~low:
Retainage :-let amount
on Invoice Billed on
Amount Invoice date
ten all'reem~nt, Such paymant3 wer~
made on or about the dates and in the
amounto ,et torth below:
Date Amount
2/ -I ! 60 35,335.35
3/22/6ti 8.d6.t29
4/19/66 60,000.00
10/15/li6 t;7,083,24
11/ 8 /66 223,227,00
12/9/6ti 131,310,00
1/12/t;7 131,310,00
2/13/67 1';0,000,00
3/1.a/u7 l07,325.lJO
4/141';7 50,000,00
5/11,67 101J,000,OO
6/ j ,tj7 9ti,OOO,OO
In ,uJdition F\Jrmillli al!ditt!d F,JXCrl)(t'.i
a~count in the amount III 3.3-1tJ,tH lln
.\prll 19, 19ljti,
~-t Durin", thl! Il~riod trom ;5~ptt!m.
b~r 19tir; throu~h January 191;7. F"X'
orott paid Formill'li with,n :10 .lap atter
634
H8 FEDERAl. SUPPLEMENT
th~ submission at Its Invoices, How-
ever, commenclnlr In February 19li7, Fox.
eroit withheld payment oi substantial
amounts In excess oi the retalnall'o pro-
vided ior In the written aireement.
From the submission at the Formlill In-
voice number 2348 on or about January
31, 19li7, the amounts In excess at tho
retalnall'e that remained unpaid by Fox-
croCt were as set torth below:
Balances
Earned but Net Amount
~ Unpaid Retainue Due this Date
1/31/67 $317,529.51 $ 97,500,00 $220,029,51
2/13/67 167.529,51 97,500.00 70,029,51
2/28/67 286.779,51 109,~25,OO 177,354,51
3/14/67 179,~54.51 109,~25,OO 70,029.51
3/31/67 252,~04.51 116,720.00 135,684,51
4/14/67 202,~04,51 116,720,00 85,684,51
4/28/67 421.254,51 138,605,00 282,6~9,51
5/11/67 321,254,51 138,605.00 182,6~9,51
5/19/67 335,844.51 140,064.00 195,780,51
6/7/67 239,844,51 140,064,00 99,780,51
7/31/67 298,204,51 145,900.00 152,304,51
25. As at July 31. 19li7, the outstand.
Ini balance Invoiced by Fonnlgll to Fox-
croCt WILS $298,204,51 at which $145.900,.
00 was retalnag~ and $152,304,51 was
then due.
,I
,f
26, There Is a net Increase In the con-
tract price resulting tram the ehanios
In the work ILS sot iorth In parairapha 13
to 17, above, In the amount at $15,647.60,
calculated as tallows:
Increases attributable to:
Items compromised (parairaph 13b, above)
Item 3B (parairaph 14, above)
Item 4 (paragraph 15. above)
Item 5 (parairaph 16, above)
Item 13B (parairaph 17, above)
$21,359,60
3,296.00
10,599,00
6,814,00
1,500,00
43,568,60
~
II
Decrease attributable to Items not In dispute
(parallraph 13a, above)
Net Increase In contract price
27,921.00
$15,647,60
j
!
27, As at October 22, 1967, the Fox.
crott accounts payable card admitted a
balance due Formlgll at $301,265.06 but
this sum Includes a credit to Formlill
at only $2,520, tar certain extra work
and does not lAke the debit at $540,61
correspandlnlr to the credit awarded by
Fonnlill on April 19, 1966,
28. Far many months prior to July
31, 19li7, Farmlgll had called to the at,
tentlan at Foxcrott that substantial
amounts were due to It since January at
1967 and demanded payment.
Tile StatUof ,4. 01 .-lug,..t, 1987
29, On or about AUiUst 8, 1967, Rob-
ert J, Staelker, then a Formlgll Vie"
President, met with Fox at the Benja.
mln Fox Pavilion and, among other
things, demanded payment at the out.
636
3~8 FEDERAL SUPPLEMENT
33. Foxcroft'~ decision to sp~cify
smooth-finish e.~terior panels made with
standard IIlrht Ilrey cement was made
with the knowledlle that such panels
would be less expensive but would be
~ubject to Irreater variation in color and
finish,
3~, Foxcroft had Earl Hart, an ex-
perienced construction superintendent, in
charlie at the Benjamin Fox Pavlllon
throullhout the entire period that For-
millli's erection work, includinll the erec-
tion of the exterior wali panels, was be-
inr done. In addition, the jobsite WaS
seen daily by Part rid lie, whom Fox had
desilr11ated as Foxcroft project superin-
tendent, and visited by Fox whose o(flce
was across the street from the jobsite,
35. Foxcroft made no complaint to
Stoelker about the smooth-finish exterior
wail panels prior to the m~etlnlr with
Fox at the jobslte in AUllust 1967, The
only other references to the appearance
of these panels was a letter dated No-
vember 11, 1966, from Fox to Theodore
Schwaab, who was in charlie of enllineer-
inll and schedullnlr for FormJIlII, and a
clUual conversation between Idell and
Paul Formilrll, a Fonnilrll executive, not
active in this job, sUlllrestinlr the need
for some repair work,
36. Throullhout the period that For-
mirll delivered and erected the smooth-
finish exterior wall panels which occur-
red over several weeks, no request was
made by Foxcroft to remove or replace
the smooth-finish exterior wail panels
which had been erected.
37. There were some areas on the
front wall of the buildlnlr which were to
have dlsh,shaped panels. After the ini-
tial ~rection of a small number of dish-
shaped panels, Foxcroft expressed dis-
satisflll:tion with their appearance. For-
millll removed those dish,shaped panels
and replaced them with other dish,~haped
pan~ls in which the concrete mix had
been chanlled to white quartz and the
allllrellate in the dish portion WIIS ex-
posed, Fonnillli bore the ~ntire cost of
this ~ubstitution which amounted to $4,-
000.
38, The orillinal schedule for For,
mlllll's fabrication and erection at the
precast concrete elements calied for erec-
tion to belrin about January, 1966 with
fabrication at Formlllil's plan to belrin
in advance of that date. Fabrication did
bellin on schedule. However, by late
1965 it becllllle apparent that the erec.
tion schedule could not be Inet because
Foxcroft's work in clearlnr the site and
preparlnll the foundation had not pro-
Ilressed on ~chedule. Accordinllly, For,
millll's tabrication was interrupted and
erection postponed, Ground breakinr oc.
curred In late February 1966, There-
after, excavation bellan, poured-in-place
concrete such as retalnlnll walls and toot-
inllS were installed, and underrround
plumbinlr and electrical work was done,
Formlllli resumed fabrication of the
precast elements at Its plant about June
1966. Formllrli's work at the jobsite be.
Ilan with the erection of the superstruc-
ture In early September 1966.
39. The variations in the color and
texture at the surface of exterior wall
panels result from: (a) properties in-
herent in the use at the slandard lillht
rrey cement; and (bl the Foxcroft
chanlle of schedule which resulted In the
storalrll for months and subslantial de.
lay in the erection of some at the ex,
terior wall panels and in the interrup-
tion for several months of the fabrica,
tion of exterior wall panels.
40, As of AUllust, 1967, there were,
in Stoelker's opinion. approximately 15
exterior panels which were dirty or stain-
ed in some tashion and which did not
conform to the samples that earlier had
been shown to the architect.
~1. In AUlrust 1967. the cleaninlr,
patchin II and other work on the exterior
wall panels then contemplated by For.
miRiI would have cost approximately
$15.000 or $20,000,
The Caulking of Exterior Wall Panel.
42, Durinll the period immediately
precedlnlr September 26, 1969, ~lelrose
Waterprooflnlr Company examined the
entire outside of the Benjamin FolC Pa.
villon. recaulked joints to the extent it
rORmOL! CORPORATION 1, rox
c'Ue ,I~ a.'i F 3"11[1. 'l~~ I :~~~l
thnul{ht nCL'l':i:iaI'Y, ;lnd patdwd jpall:i ;ititllt~ Rulldinj,f l:,)llt~. ,standJ!'11 Budd.
;lOLI 1~l";ICk:i in l.:':< h.' rit)l' wall panel.'! and inlol' l:,ltl.! Rcq\lln!ml~nt.\ :,.)r RI!lllt">r~l'd
th~ panel t'I't)m \",hlch a pieCe ur ~Oll' C")Ocrl~te :il3-li:l. datl!d t~lj;l ("the .\cr
ClOtH!.! had fallen. end.!" l.
4~t ~r~ll'o:w hilled F,)xt.:rott Bl1i1tlin~ -t~. The ACl ':I).!e IflChlth1:i Jtandnrd:i
ClJl'pot'ation. \\.'hich i:J nnt a iJal'ty to thi" fill' the allo,,"'abl.! ddlection I Ill' t'!t~xibil.
actioh, .38.:390 for thl~ ','"ol'k dl':;cribeu in it,') uc' preca.it beam.i anti !11embt!t.~ U;icU
par~u,r3ph -t~. abo\'c. The )1~lr():ie '!:I' in:1 .HructUl't! ;uch a:J the purkin\( .riU'.
timatc for the caulkimr alone '.\'a:l $j,a~(), agt! at thl..! Benjamin F.):( Pavilion,
-1-&. The initial ~31.lkin~ \If thl! ~:<. .ID, Tht1 d~i1t!ction t'llr the preca~t
tt!rior wall panels Waoi dont! hj' Culh~rto nlembel':l furni:ihed f.H' tht! pnrkinl( ;far,
~on Colulking C\lOlP;:lnj' for F.Homil.r\i. ;\l{f! dt!ek '.va,i, in t!\'t!lj' t.::1~t!. le:u than tht~
Foxcroft did not complain tl) Formhrli ACr cadi! permittt.!d, Thl! dt!ilt!~tion fo\'
about the manner in which CulbertJon tht! Spnncrett! plank;:! used in the \liJl'age
did the caulking, 10,. only one-rourth to one.eighth or th.!
~5, During the period Culbel't.ion lOa. derlection allowed by the ACI code, The
doing the ~:lulkin'l'. it I'uportt!d tl) Pal't- deflection for the beamJ used in the
ridge of Fo:<croit: lol'araO{t! WU:i no mOl'e than onuo["ourth of
'.J.)b t.!:<:J,minntion of ~r.)nday, ,full' thL! lier1ection allowed by the .\Cr cade,
:~, (lDljj) re\'t!:lleli ;\ t.:on:iideruble Thu;:l, all th.!:;!! membel':! .1nd tht1 gar~lIrl!
. :Hl'UcturH \\'Nt! much 3tii(el' than tht!
amount or watt:1" prest!nt on tht! un.
d ' ACI codl! l'equll't!u,
complt:t~ l'OO[ and W:1tl!l' pen~tration
down behind the concret~ panels to
tho rloor below,
".\.i our caulkinl{ w:t:l jU;it beinl{
install~d and not yet fulll' cured, we
must ul'ge you to ke~p \\o'at~r from
at~lchlng thi. mut~I'ial rrom the In-
side or tho joint or the )Ianuracturer
warns at 3erious damage and loss or'
adhesion could result,
"YOUI' pl'ompt attention to thi:! mat,
ter will hI!' in both 1)t1r common inter.
est,"
Partridge could not recall what action,
it any, he took with .'espect to Culbert-
son's complaint.
~U, Foxcroft hu. not proven what
portion, It any, or the work done by
)lelrose two years after Formigli .top.
ped work and billed t,) F,,'crot't Build,
inK' Cllllloration at sa.agO wa~ cau;:l~tI by
any Formhrli breach or' tht! written
agreement.
The POI',htl~ Goro~~ Deck
oli, The engineerinjof lfe;:lilln .lr' thl!
par!\in~ /lal';}l{t! deck WUJ proviued by
Speyer, That design complied with the
applicable oode. and Handal'ds t"lr park,
in" i{ara:;e:t: the :Handard:i thcn..~:H;IIJ~
fished by thtl Clllllml)!1wl!alth IJr' P~!nn.
;:lyl\'nnia and tht! American C\JOcr~tt! In~
fj:J7
,10. Speyer'.i Je.iign anti the Formill~
Ii drawings for the pal'king garaqe deck
were submitted to and appro"ed by Idell,
51. A.i the .itructural enl{ineer. SPt!)',
t!r';:! re:3ptlnsibility with respect to the
watl!rproor'ing of the pnrkinll guralltl
deok lOa:! to design a dock which would
.upport the wolght or woterprooring ma'
terials normally used fOl' such applica-
tion:!, As F,lXcrOrt's archltoct, [dell's
responsibilit,' WU:I to :lpt~d(y thl! rrwth..
od :Inti matl!rial:t to hI! U:il!ti ior the \Va.
terprooring of the garage deck ju.t ..
he had u similar I'espon.ibilit), ror .po.
ciiyin~ thl! metltotls ;lnd materi!ll:l to btl
us~d in root'ing and waterproofinll thl!
.lffi~1! building towl!r. Foxcrot't hud thl~
ulti01att~ re:i(lon:lihilitj' to 3clcct and to
~t!e tll the applkatilln oi thl! partkulul'
kind 1)( waterproot'il1lC finally :wll!cted,
5~. Early in thl! project. tht!ru hUll
bt?1!n di;:lcu33ion t)[' wat~rprOilfin" the
pllrking ;.;oarJl{C dt!ck b)' cO\'t!nnl{ tht? ~lln.
crete tllppinlf with .t waterpron( memo
bran,! Jnd ,\ hlaektup Wt~;H'jn.c iUI'(acl~,
5:1. ,3pt!)'I!r dl!~lorned th,! pnrkin~ ~ar.
al{l~ oIl.lek .il) ~hilt it LI)llltl 3Ut1pl)rt. In
addnilHt rl) thl! ':lln.:rl!ll~ ttlppin~ ,Iflli IU
;,ntit.:lpated lllad 'If mulllr v'!hiclc.i, .1 \\0';1'
tcrprol)[ membranl! and a bituminouj or
638
3~8 FEDERAL SUPPLEMENT
blacktop wearing .uriace two Inches
thick.
54, Speyer specifically called to the
attention of Idell and Foxcroft the need
for waterproofing the parklnlf garalfe
deck, This matter was raised In the iol-
lowlnlf ways. amonlf others: (aJ letter.
and conversations between Spel'er and
Idell and his representatives; (b) a
manuscript note by Speyer on the copr
of Formllfll erection drawing G-l which
Wll.S .ent to Idell for approval; and (el
referrinll' to Foxcroft two companies
which provide waterprooilng materials
for application. of this type. Idell ex.
pressly recolI'nlzed the need ior a water,
proof finish or toppinII' on the parking
deck in re\'lslon ~3 of hi. architectu.'al
drawing number j,
55, Foxcroft rejected the ~ullll'estion
that the parkinll' lI'arage deck be water-
prooCed with a membraM waterprooClng
and blacktop wearing suriace. Until the
trial, FoxcroCt continued to reject the
need tor a waterprooflnlf membrane and
wearlnlf surface,
56. Foxcroft decided to apply sille."ne
to the parklnlf lI'arall'e de<:k and to caulk
the construction and expansion Joints
and cracks after they appeared In the
concrete topping of the deck.
57, Apart Cram the Inltlul applica-
tion oC silicone material to cure and .eul
the concrete and the initial caulking of
the construction and expansion Joint.
with Thlokol, Foxcroft tlrst considered
waterproofing the garall'e deck only uiter
the bulldlnll' Wll.S occupied, the deck was
In use, cracks had appeared, and the deck
was leaking,
58. Cracking of the poured concrete
topplnlf on the parking deck I. a normal
development which is anticipated by per-
sons Camlllar with the characteri.tics
of poured concrete, Concrete I. 0 lion-
ela.tic material, It Is not r..illent. It
crnck3 with ~hanges in tt!mp~raturl!. Thu
ploinciples upon \",'hleh j\ canel'ctu :Jtruc.
tUl'C 1:s dt!:ihrned prc:iumu crackinM'. Con..
crete cannot be maUl! impervious to water
by coating of the suriace or caulkinl(
cracks because the surfaco cracks and
the cracks continue to IfI'OW,
59, In considering whethel' to water.
proot the lI'arall'e deck, Fox did not ex.
pect the concrete topping on the deck
to wear and crack,
60, The methods that have been used
by Foxcrott In Its attempt to waterprooC
the garage deck were applied In ill'nor'
ance of the p~yslcal qualities oC con.
crcte, were Inappropriate for waterproof.
Ing a concrete parklnlf Ifarage deck and
were a waste of time and money.
61. Throulfhout the period that the
parkinlf Ifarage deck was belnlf designed
by Speyer, the .hop and erection draw:
ings were beinlf prepared by Formill'lI
and the precast componenl.'l were beinlf
iabricated by Formllfll and were bp.inll'
erected by Berry-Baschot(, Inc,. the ar.
chitectu,'ai drawings prepared by Idell
showcd the Intended use oC the entire
space below the parkinlf IfIlrall'e deek as
an open garage and did not show the
USe of that .pace for a store or other
tenant'occupied Interior space, Speyer
and Formlll'lI did not know that a por'
tion of the parklnlf Ifarage was golnlf to
be used Cor some other purpose untit
January, 1968, which was months aCter
Formhrli had lett the Job,
62. J( the entire parklnlf Ifarage
structure had been devoted to parking,
as orlll'inally planned, even a wearing
surCace on the deck milfht have provided
suiflcient wuter-repelllnlf action to per-
mit parkinlf on the lower levels, How-
ever, when Foxcroft decided to occupy a
portion ot the middle level oC the parkinII'
garage as n store with people and Cur'
nishinlls. the parking garage deck would
require a roof, us would any other struc,
ture to be used tor .uch .tore purposes.
to prevent the passalfe o( water to the
concrete deck. Such a roof would Include
a membrane waterproofing which would
be Impervious to the passage oC water,
';3. The poured concrete topping was
not 3upplietl by F,'rmillli but by Tribul,
ani, which wa. another .ubcontl'llctor of
Foxcroit, ~Iuch crackinll oC the deck
was cnused by Tribulani's tallure to
provide proper curinlf,
FOR~Il(lLI CORPORATION ':, FOX
tj:19
l:ltn ." ~I'i F :{'II'I' ':~...) , l'J;'~ I
'ChI! [ham At (,lluTtlfl I,tll" ~~.\r.V
,j.t The top Ol a IJl'1lC:l:-ll b.'am in
th~ pilrkln~ l('ar:ll{l~ ~\t l:olllmn \jul!L,l~lS
whkh \\0':13 t'urni;it\l.lll hy FtJrnlll{li I;;
;pallin~.
tili. The ipallin\ot' ,d thl~ bt~am at col-
umn line .H~tS ,lOJ thl~ cl'ackin.r 1)( lhl1
haunch 1)Il th~ 1~l)lumn .-\hllWI1 in E:xhihit
P-.I:J i:\ not :.:au:ied hy any JCt'I~ct in thl!
beam. The hmgth .)f that i)r+~ea;)t bl~am
W,\:! in ;.1cl;ordancc '.\'Ith thl! dr~\\,,:in~ re.
quiremt!nt3 .\nd inuu:Hrj' toh~r:lt\cc:.i. Tht.!
Jamaj.{e to the column upon which (J(1!.!
~nd of that beam rl!stj i:l cau:ied by,the
column bcinlot .:ic\'cral inches (lUl ,)[. t)l):ii-
lion. That column '.\';\3 not t'urni:5hcd by
FOI'mil.:\i hut .....iI:\ ;l 111)l1l'ed.inoplace col.
umn furni.ihl~d by oth~r:;.
litL Th!.! ~;(pi\n:iitJl\ joint abl)vt.! thl~
beam at column Ii"e ~,I:-l:-: \Va. ""t php'
ic.:ally lot:at~d at the place :\hown on the
plan.i lor it:i locatilJn. Tho inCt)rrt!ct
phY:iical placement at the ~:<pan;ii0n
joint wa, not done by F")rmi~li but bl'
Tribuianl who prQl,'ided tho poured.ln-
plllcl! ~oncretl! topping or by FOKcroit it-
:sell ;}s general contractor.
67, The incorrect ph)':iicul placeml!nt
ot' the e:cpansion joint ahol,'u the heam at
column line ~,U[~ i:J the cause 1)[ the
;palling o( that beom and the need (or
the ;hurin~ at that locotion, It i. ab"
a ~:1U:5C of ~racking in the 3UrlaCI! 1)(
the parkinlr fCara~e duck in tho \'icinity
o( thut beam,
AIleged Detect' in II',Jrkman.hip
ti8, .\ccorfHn\{' to Partridl.{l!, F'lI"mil.di
dl!\'iated from .!Cootl huihfinlot' practkl! hy
(a l in:ltalllnl{ a column on a porch huck-
wards, \ b I iailin.r to "fout certain pre-
t:.1st be3m connuction~, \ C I t:uttirHt' I.>OU
porch bu:.m in a :iloppy mannur, \ d) fail.
in~ tu complute ;\Ome welded bt~am con-
nl!.:tillll~, \ I~) 11!J.\'in~ expu:iet1 ;\llmU lli
the il11ltlLi ')f\ tht} UPflt!rmo~t .!:'ttl!rtl1l. ",,'all
pand~l ,n '.\'hlt.:h illml~ t1\1!tal liitlt\1( hUllk.l
Wt~rl! burned I)it', ; t'1 i.lilin\.(' t.o \,I!mtl\.'l!
debl'l.i t'rom hlllt!'i ':lIt in the '~\lanaIHI! .\t
the job:ute, and I}() in;\~lllin~ :1. ~aralo:t!
.:olumn [rom Whl.:h iIlO\t! I:ont:retl! ha,\
,ipallet!,
tia, Thert' l:i no '~\'Ith~nc~ that thl!
bat:Kwartl in:itailaUlll1 Llt' the iltlrch ";01-
limn rldl!1'l'etl to in jJaI'a;traph lidl,;l.),
ab'J\'I!, t:all:il!d F'lxaot't any [JI!CtlnHLry
IlanHlI{l! t)1' r1!dw:l!ti tht! value ,1[' the
huiltlinl{ in any amuunt.
71). Thl! ~O:it ,)f lfroutinl{ tht! pt'.!ca.it
ht!am ;:of1(wctil}n:i ret~rt',!d tt) in pnra-
J.Z'raph ,i,,,, hI, abo\'l!, wlluld btJ appro:<i~
matl!ly,5151),
71. The ";I):;t Ilt' J'I!pall'illloC the porch
beam l'utJrr1ld tl) in pal'agl'aph ,idte).
abl)\'e, '.\'oulti ht} approximatdy $50,
7::!. Thert! i~ no ~\'iutlnc~ that the fail-
url~ tl) complete JllmtJ \lO:\pccu'ied number
of wdded conncdttln.-l ;\t un:ip~cifil!d 10-
l'atlOI1:i I'I?t"n'rt?d ~t> in j1ar~ucraph ti8id),
,\hll\'t!, C:1l1;lt!d roJXCl'ot't any ;>tlcuttiar::
da0\3":'~ 'Jl" rcdllt:l~d III any amuunt the
value Ill' ,\ifcctlJli the ;wundnc:i;i oi thl:!
bulidin~,
7:1. F,'r i}atchin~ t.hc upp~rmtJ:it C;t-
t0l'!o)r panels where JI)OltJ ,)[ the liitil1~
h\)I)kJ Wrll'l~ bllrn~d o(f referred to in
para\itraph tjlH t! I, above, the chargl! to
FtJ~croft wa:J le:l:J than S l05,dO.
7,1. Trlbuianiient F",cra(t il bill for
;Sll3,) for tht! removal tJf the tJebrhl re-
3ultin~ (rom thl! cuttinK 'Jf hole:J in thl!
Spancrete by Fl)rmil{li referreu to in
paragraph tj~( {), above, Fo~croit 3t!nt
thl! bill to FI)rmhrli il)f puyml!nt, Th~rt!
i:i 110 +!\'iuunL'l:! that Fo:(crot"t hag paid or
c\'t.m intcnll:J to pay Tribuiani, The
a){rl!l!ment betwetJn thl~ partit!~ dot!:J not
jpcclf~' whurn the hoh:!:I in Spancrete
Wt~r{~ tl) he- cut,
t ,J, Thl! .ipallin.c tJf the- column re.
i~I't',!d tt> in par;\o('raph Ij8( gl, above, did
not ~l.ifect it.iitr'Jctural 3oundnu:J:J, The
CO:it 1)[ iu rt~iJair WllUld be about SlIJO.
ThtJrtJ t:i no t!\'i.lencl! ,)[ the cau:Jo of thl!
;pal\in~,
Tht~ frll:t:l1 H.,'lWI.f
71;, In .LUll1ary 1'Jli3, watl!l' irC);tt! in
tht~ hollow lntl!rtor ,It ,!It~\'en pl"!C~\jt bo:<
lJI:anu :'lIrr\l~t\l'd by r",)rmi~1i t\)r thl!
pal'kin.;- :.{ar:l:.c'~,
I.. Thn W:llt~r ,?ntl!r,~d th~ ~wam~
thr'llli.(h holc~ in th,~ tt)Jl O[ the bl!am3
which were nl?ce~;\ar:' ft1r the n1.lnut"a..:.
turinlC' proccg:t,
640
3~9 FEDERAL SUPPLEMENT
78, The wind blew the water Into the
beams after their erection by Formlllll,
79. Formlllll satisfactorily repaired
the frozen beams,
80, Foxcreft paid the fallowinll sums
which were fair and reasonable far the
materials furnished and the work done
as a result of water freezlnll In the
beams referred to in parallraph 76,
above.
a, Ambrlc Testlnll '" Enll'lneerlnll
Associates, Inc, $1,99~,OO for inspec-
tion, testlnll and consultatlon with re-
spect to the accumulation of water In
beams on the upper level of the park-
Inll IlUalle:
b, Fusion Welding Supply Com-
pany SI,400,79 for the rontal of sala-
manders:
c. J, Pia-Bowman Co, S700,OO for
haullnll' bricks:
d. Normal Rosclla $525,00 far the
rental of forklifts:
e. Stein Iran Works $243.80 for
steel beams and columns,
81, Parlrldlle estimated. at the re-
quest of Foxcroft's attorney and far the
purpose of this lawsuit that $2,000 was
expended to erect a supportinll' wall un-
der one of the frazen beams, bu t Part-
ridll'e does not haVe the underlyinll' cal-
culations or records which will e"lllain
how he arrived at such estimates,
Tribllia..i', Claim
82. Tribuia.ll Brothers, Inc. ("Tribu-
lani"), was the Foxcraft subcontractor
who performed all the poured,in-place
concrete work at the Benjamin Fax Pa-
vilion,
83. Tribulanl has braUllht suit
allalnst FoxcroCt and Formlllll In the
Common Pleas Court of Philadelphia
County, Pennsylvania, as of September
Term, 1970, ~o. 191~. Trlbulanl claims
$6,~26 for the alleged Installation ol "ex-
tra reinforcing steel to extend to the
correct length (rom the preen.t columns
to the wind beams for the straet, first,
second, third, fourth, fifth, sixth and
seventh Cloon and the roo!."
8~. Foxcraft has not paid and has de.
nied that it owes Tribulanl the amount
claimed by Trlbulanl In the lawsuit reo
ferred to in parallraph d3, above. Fox.
craft has stated its intention not to pay
that sum unless there is a Judicial de.
termination In that lawsuit of Faxaraft's
abllll'atlan to make such a payment.
The .If lchanic' J l.ie.. Claim
85, Farmlgll flied a mechanic's lien
claim allainst Foxcraft Square Pavilion,
Inc., In the Court of Cammon Pleas of
)lantgomery County, Pennsylvania, on
April H, 1968, The proceedlnll' was vol.
untarlly discontinued by Formlll'll on
)larch 27, 1969, legal feel related ,to
the defense of that claim, were stipulat'
ed to be S2,7~4.00,
86, At the time Formlllll flied the
mechanic's lien claim, Faxcroft had not
paid to Farmigll the sums inrolced by
Formlll'll under the written allreement,
The sums withheld by Foxcroft were far
in excess of any amount which was rea.
sonably necessary to satisfy any claim
for allell'edly Incomplete or improper
work attributable to Farmillll,
ThTu Dellected Beams
87. Acceptlnll' the truth that three
beams were deflected, there Is no com.
petent evidence of the cause of the de.
flection. Even assumlnll that the de-
flection was caused by the premature
removal of shartnll belore the concrete
tapping Was poured above them (and
there Is no testimony to thatl, there is
no testimony identifying the persons
who removed the short nil'.
Tile Composite Beams
88, The record does not disclose any
evidence to support the assertion by Fox.
craft that FarmillU desill'ned the sa.
called composite beams "sa that an Inar.
dinant amount of .oncrete was to be (ur.
nlshed by a contl"1ctor other than For,
migU" or that Formigll's desilln wns a
"self.serving and wranllful act",
Compi_Hon nnd Accl!'ptnnce 01 Formiyli's
Worl<
ao, Formigll's work at the Foxcroft
PaviUan was substantially compleled In
accordance with the all1'eement between
the parties by :'tlarch or April, 1967, in
rOR~1l0LI CORPOR.A TION v, rox
1~1l
,'111' H a'l V .'1'11'11 'I~".\, 1:;;;:1
fI'l \!\'I~nt latl!I' than tht.' illbrnLi;HtHl ,)1
F.)rmll{lI'l !a:-it Irl\"rlil't.' ')1\ Jill}' :\1, 1~l,i7.
'.lr), .\ltholllol'h:ifJ,!t:llicd 11\ tht.' tcrrn.1
tlt' tth~ WI'lt~L'n ai:rel'ml~flt. thl.! appr'l';al
1)( tlltl Hdlltt.'d jll'llH' to paynlt.'nt tl) Fill"
mlj,{li "\':t.i nl~lthct' rt!qlllred by FI)xt:t"olt
fill!" IlhtilltI,'U by .llthl!I' F'lxa,lt't 'lI' ~"lr.
ml~1i at any t1mt' dUrlnlot tll\.' fwri\)rm.
"nee M thl! L't)l\ll'act.
iJ1. The t'irit l'I~ltUt.'st hy F,)xcroit (1)1'
aPlll'oval by t.he .1rt:hitect prill!' to PUi"
ment t,) r">rnlllotli l}ccl1rred in AUlo{tut
191)7 aftt.'r thL' mt.'ctin~ reft.'rrl~d to in
pal'a~raph .lO. au,"'", Followln~ that
mt.'t.'tlnl( F,)x ""rote .l Jcll!!!' to :5tot!lkL'r
dated .\UI,f'Ht 11. 191;7, in whil:h hI.! Jtat.
cd "With r~:)Jll't;t tll :.'OllIO request tor puyo
m~nt ,It ~hl:i tlnW, ~Ir, [dedi i,:i >:oin~ tl)
rnak,~ ;111 In:ipc~tilH\ or thl! bUlldinj.f and
\J~terOlIOI~ the '.\'I)rk l''-'rn:lInin~ tl) bl~
dona FI)rnllltli ne\'~lO IOUo
t.:l'lwd Jny l't~pt)1"t \)t JUl.:h in:ipel.:tlon by
Oril(lnal ~ontract prien .
.\dd nf~t inCr1J3;iU for
chan'flJs in the jcope of
th!.! work i purallraph ~tj,
abo\'l! I
L"" (para~raph ~:l):
Paymcnt.i Iln account
Credit
Legs .ietotlloi.i tor:
[ncomplete w.lrk
i para~ral'h :lO, above I
E<t"rior wall panel.
i par:ucraph~2, abtJ\'I~)
DI!iel.:tj (pural{raph:t
iO, 71. anti 7~, .\bO\'I! l
FNZl!O beams
'paragraph, dO and
i[, aba,'!!)
C,mn:lel F'le~ ((laral{raph
,'i5, .\bo\"~)
B,llant;~ 1)\\'I~d P'lrmiorli
1).1. 1)( t:w bal;lnl.'l' ()Wl'd F>lrnllloCli,
$1.i~,JI}Li1 WUJ IJUt.! .wd payablt? \I1l1)n
thlt '1Uhnll,i:lIon ,If r'JrnllloCll'i W\'l)\t;e dato
HI; )~gg-41
fdd!. Therl~ loi at) 'l'o'tdt'fll'l! that tht.!rtl
,~\'.~r ',\';l,i Hlt.:h ;1I1 IU.iI.t!ctilJl1 11)' Itlell.
~:!. FI)XL'rrIEt Ita... lItdudl'd th~ (ull
al1\lHlllt I)f F'lrrnhc1i'.\ hlllinlC:I tllr it.i
Wlllok III .tet.~rnllninJ( thl' tutal t.:IHt ()( the
huildinl; ,,"d that tOL,\1 ~o~t hUoi bel'n
'Hed aj ;\ hn:H~ [")r ,JL'prL'ciation in Ilrt!-
partl1lC tax rl~tllrn.i and lJthl'r .:Jtatl'm~nLio
The huildinl{ ha.i bl'l!n .ulhstantially oe.
t:upied br tt!nant:l tor ,1 numbt.!r of i'l~ar:':
F,}r thl! year I V'i"O, tht.! B~njamin FI};t
P:\\"ili'Hl wn.:i ~~I~: rJr 11)I)'c r}ccupied by
tenantoi. F'Jr .January IV7l, thu OcC:U.
pane)" Wa:1 ~~(~" anJ for Februnry anu
~(arch lVii, tht~ oJcc'lparlcj' rate wa~
a~)l"; ,
Th,! RtJi'zrllot! Ot('t'li fiHo'lIi'lli
~:L The halance IJweu F'Jrmhrli bio
f',JxcrQ(t bL'rl}re the ;hlJition oi intl~rc~t
is ;:!'i"d,;I:17.7:! anti i:l ul'tlirmined :1S (ai-
I()\I.'J:
, , ,S 1.159,000,1)0
15,0,17.00
1,174,047,00
S l,lIjO.~54,88
,1-10,01
1.1';0,795,19
.H:1,852,ll
.i,liIlO,I)1)
20,\)1)1),1)1)
:IO;'5.dO
ti,~ti.1.5U
_ :!.7.I.t~
'11U1,I,39
. .)..~ 'J'I" .0
~;~=-~'l~:.'_:
.
lid Jltly :H, 1')1,7. The retaina[.{c provitl.
L'rJ r\,r in the JlCrel!ment hdwelln the par-
tlej '."':1::1 ml)!'!! than l!nol)J,fh to prolect
642
H8 FEDERAL SUPPLEMENT
Foxerott allalnst 10.. trom incomplete
or detective performance by Formlll!1.
The balance WllS due 120 days aiter July
31, 1967, or on :-Iovember 28, 1967.
lnt~rut
95, .-\t all times since AUIIU.t, 1968,
Formillli has had lonll'term borrowlnlls
in amounts In excess ot $2,300,000 at in.
terut rates varylnll trom a minimum of
7.25% to a ma.dmum ot 11.39% ~r an.
num. The averalle Intere.t rate over
this period has been 7,8%,
96, Foxcroit Square Pavilion, Inc., a
corporation in which the Individual de.
fendants are the sole shareholder., bor'
rowed $725,000 trom Westlnllhou.e
Credit Corporation on or about AUllust
16, 1968, at an annual interut rate of
12\1z%. The loan was secured by a
mortllalle on real e.tate ot Foxcrott
Bulldlnll Corporation and Benson Apart.
ment Corporation. ot which the Indlvid.
ual defendants are also the sole share.
holders,
DISCUSSION
The Contract And The Nature 01 The
Dilpute Between The Parties
Thi. is a .ult on a contract between
Formiili Corporation ("Formlili") and
William L. Fox, Irwin C, Fox, Dorothy
Kotin, and Foxcroft Square Company,
the partnership of which the Individual
defendants are partners, (William L,
Fox i. referred to a. "Fol<" and all of
the defendant. are collectively "Fol<'
croft",) Foxcroft was the Ileneral con.
tractor and Fonniili waJ one ot FOlC'
croft'. .ubcontractors In the con.truc,
tlon of a multl..tory bulldini In Abing.
ton Township, Pennoylvanla, known as
the Benjamin FOl< Pavilion.
Jurl.dlction Is based upon diversity of
citizen.hip and the Juri.dlctional require-
ment3 have been met,
Formlllll entered into a written agree'
ment with Foxcrolt dated .Iune 21, 19ti5
In which Formigli agreed, arnoni other
thing., to furni.h certain labor and ma-
terial., Including all precast concrete
work. for the Benjamin Fox Pavilion for
a price of $1,~59,OOO ("the written allree.
ment"), Substantially all the precast
concrete elements for the Benjamin FOl<
Pavilion were fabricated by Formlill
and delivered to a Jobsite where they
were erected by Berry.Ba.choff, Inc" a
subsidiary of Formlllli,
The aireement dated June 21. 1962
provided that Formlill would be paid
90% of the value of work as the work
prollressed and the remaininll 10% 120
days aiter completion of the work and
acceptance by the architect, Between
October 29, 1965 and July 31, 1967. For.
mlllli submitted invoices to FoxcroCt for
work performed under the aireement
which totaled $1,~59,000.00, Between
February ~, 1966 and June 7, 1967,
Foxcrott made payments totallnll $1.160"
25U8. In addition, Formillll credited
Foxcrott'. account In the amount of
$5~1.61 on April 19, 1966,
From the submission of the Formlill
Invoice on or about January 31, 1967,
there were .ubstantial amounts in excess
of the retalnaie remaining unpaid by
Foxcroft, As of July 31. 1967 the out.
st4ndlni balance Invoiced by FormJill
remainlni unpaid by Foxcroft was
$298,204,51. Of that ,um. $152,304.51
was then due and payable and the reo
mainder was ret4inalle held by Foxcroft
pursuant to the written aa-reement. Re.
peated demands for the payment of the
sums due Formlill were made without
success.
Since AUiU.t 1967 there have been
disputes between Fonnlill and Foxcroft
about the amount of the net adjust.
ment to be made to the price provided
in the written aireement for chanies
In the scope of the work contemplated by
that agreement and Foxcroft bu claim-
ed set,offS allainst the balance of the
contract price that would otberwlse be
due Fonnlllll,
The set.offs claims by Foxcroft arise
out ot the. tollowini:
a, Incomplete work,
b, The condition of the exterior wali
panels tor the buildlni tower.
c. The caulklni of the JolnlA between
elCterlor wall panels.
rORmGLl CORrOI~\TlON 7, rox
f~l:!
1\(., ,I. ;I~ F .";'II'P. ,~.'~III\I~.'1
d. Thl! ,:I)fldiulllI 'l( thl! Ilar~in~ '.Ca-
I'Jli{t! d,~r.:k.
.1. 1'h.~ .ipal1in~ III ;\ hllam In thl~
parkinlo:' lof;1r:ll.l'~ at -':tl!umn lin~ H~I:-:,
i. .\lIt.!'.C'!d dt~rcr.:tl\'l! '.\"JrkmaU:illlp .ll
Furml'oCli.
)0(. Tht! t'rel!Zlni( 1)[' \Vatl!!" in -:eJ'tain
pnrkinlo:' Ilara;eu bl!am:i,
h, The <l:ijl!I'tIIHl of :'L cI;\im JloC:1in.it
fOX<I'oit .IOU F'Jrmigli by Tnut""ni.
i. The rUin\( hr [o\lfmi!.,1i of il mc.
t:hanic'j lien .ucaill:\t F')xcroit 3quarc P;l-
vllion, Inc.
j. Thrce dtdll~ctt!tI beam:!.
k. Imi1rrJpcr dc'li).,'n III th,! ..;nm[)l):iite
ht.!am:i.
FI}~crl1t't al;;I) a.'i~I!rtJ .IS ;\ dd\~nSL' the
(adul'l) ,)f (..iCl)!":':\! :3. [dell. f\pccr'1(t'.; al'.
.:hltt.!ct. (,)rmally tl) aCl.:l!pt r\H'mi~Ii'.i
work.
F'lrmigli cuntend:i that it ij entitled to
dnmlllo;cs tor FoxaOtt',i ',mrea:ionablc re-
t~ntion o( iUn1.i to which Fot'mhdi \\'ai
~ntitll!d. Formi!.:1i (ul.thet" ~ont~nd:l that
3u~h damafIC:i jhouhJ h~ mea:l1J1'ed at the
ratl! at 7.~':O per annum to fairly ~om-
p\!n:mtt! it tar it3 10:13 in thi~ re~pect.
.-ldju.:Itnlt!uta In Tht! C'lntmd Price For
ChflnYI!.i In tht: S~f)lle 01 rlad U"or,1.;
The written agr'~ement Pl'ovittcd:
"Thnre :ihall be no o.!xtra t.:hul'l{l!i tn
complett! wOl'k called fl)l' under thii
contract. Howe....er. the part)' of thl!
first part (Ft):<~rott 1. without in\'ali.
dnting the Conll'act. may orrfel' t,!xtl':l
work or make chnn~e:i b~" allHimr,
addinll to. or detlllctin~ [rllm the ',..'ork.
the Contract ::ium bcin'l adju:!ted aC-
COl'dlngly. .\11 ;\Ieh w,"'k ,\h,\1I h.. ."",
cut~d under the -:oluJitionj 1)( the ')rhc-
innl conll'act."
ftll'ml'fli liJtetllt.\ \~Inimi f'Jt. price ;ul.
jl1;itmenLi ,ltlt'lbutahle tu l:h,HHCll:i in thl!
\....ork in .l llHtl!I' to F\l:<cr,dt IJatl!tt ,\u-
~U:it :t.), IlJli7.
Tlh~ Final Pt',.,tl'l.d Ordl!l' I"FPTI)"1
nal'r'lWI!1! thl! lii::!pl1tl!:i ,lj)l)\lt the ,ldjll;it.
mlmt.i tll br! madt! in tht! ~'mtr3ct llri~'~
I'or chanl{e:i. Sub.paraotraph;i 151 J.) and
15ib) oi the final Pr.!,Trial Ordor pro'
\'h.1tHl:
",l. Item;; \vnich h;\\'I~ nilt bel~n in
.ti:i(l1ltl!, ',vlwn wt .)t'1. rl!:iult in a I1et
decl'l!~uc In tlw ~ontrat.:t I'I'kl! .d .5~'j"
;}~t.l)l),
"b, 1',) IU\I'r,)w tht~ i:HUe:i to bl!
tl'i,~d ~hl~ iJiu.titl:i ha\'I! .11oC1'Ilt~d tlJ l'om.
jll"lmLill ~t!rt;\in item:1 wlw:h, when .il~t
Ila, l'l!sult in an il1cl'l~a:ll~ in the con-
tract price ')( ,):,H.J.)~,utl,"
Thl:1 lea\'t!:\ I'emaifllnlot' f,)1' t!t.Jci~il)n hy
the ('t,lIr'. F.)nnil;h',i claint:l (1)1' increa~-
Il:i in the contract pl'lce I'e(p.rr~d to in
itom; :\8, ,I. ,i and 1:1Il "i Exhibit p.:!,
'FPTO, ~ I,ll <\,1 It.!m. :;n,1 and ,)
ari:ie from Fllrnlil{li'.i lUI'lli:ihin~ addi-
tional ;ulII mure costly material.;; than
'lI'iloCinull;: COlltl.!mpl.ltl.!tt br tht.! wl'itten
a'lCt'I~eml.!nt.
[t~m :~R i.;;S:l,~~)li t")I' t\)lIr additIOnal
bl!:\nt.i ,uHI ~alurnn.i t'ul'nl;ihed hi' FIJrmi!.:'-
Ii tll (ill a ','oid re:iultinl; from the elimina.
tion I)i a circ'Jlar ramp at the p~rimcltH'
a[ the parkin" j,faraloCl!.
Itt!ml ig .)11),5g~ [I)r tht! :iUb.ititution
oi J. mot'~ .:tlstlj' and ~rt~:1tel' ;ll'cn a[
"(li:ih.~hapcd" exterior ......0111 pnncl:i for
ilH.:alll!d "channd..~hilpcti" wall panels on
three areai 1)[ the oificc tower.
Item ,) i:!. St),,:H~ tor increa:lcd aren of
'~:<t~rior wall ill\nt!ls and lncrl!:l.ieli beam
It!rlllth attributablu to the relocation o[
t\\'IJ t!~terinr iil'e toWel':;,
[tom I:IB i. ,$1.501) to l'eimhllrso .or.
mi..c1i tllr ,In additional lee charged br
SpeYt..'I' :\.>r additional desi:.cn work I'c:mlt-
inloC from ~hiHll.tl!i mndl~ in tht! location
"".1 ;h"l'o 'Ii the ulllldi,,~ by [dell.
The nlc')1'd '!:ItabILihcj f'Jrmil.rli'j 1m.
titlHmcnt tu thl!:iH incrcaJc:i In the con.
tract prIce.
Tn.?tHll1ll'l (ldlm
[:: ~ Trlbuiani h:l;i jllet! P,):<crott anll
P,Jrmhdi in thl~ .Hat~ t:llllrt ilJ1' SIi.,I~li
ltlr the ;lill!l.;',!d in.:ltallation ,)t I.':<tra jtel~1.
FoJxalJi~ h01,-\ nllt paid ;1nll denil!::i It
,)\\"~:i Tl':huiani (,Jr ~hat ......rll't\. F'J:(ct'oit
ha.'i H.ltl!ll lU intl!ntLIHl !ll)t ~l) [Jar antil
thl~ .;tate ..:ourt dctcl'nune:i that FI):<crait
i:\ IJblil{utl!U tl) make the payment.
.\:J:lumlnll the CDrrj~ctnt~~3 or' Fl):('
al)(t'.i ,:tlntention that it l!oc:ln't llWI~ the
rOR~IIGLI CORPORATION .. rox
1~15
1~11" \, .~~., f :"qql -1'."" ,W~~l
.\,~d :11 ~ I 1 ~hi~ \, ..:crt. denl!.!l!. 100 r: ,:;,
"l~, ~I S,Ct. 'l,i, ~, L.E,I.~d 't; i InO),
~It)rl.! recently the prlnl.:iplej rclaltO\{
tll the ria.:ht to rt!CI}\'H for 3uh~tantial
llt.!rformanl:tJ Wt!I"C .HJmmarizctl in the
Rc:HatcnWnt lit' C.lntract.i .ll SectltHl:i
27.1(,,) and ~7;), as (1)110\\,3:
.. i ~H F'.\I!.CRE OF' co:<,sm,
ERA TIO:-; AS .\ DIS,
CIl,\RGE OF' on\',
"( 11 In promi5t!:5 t'or .In a~rt!ed ex.
change. .w}' material failure 1)( per.
formance h>" IlOt! party not jU.iliiied
by the conduct III the other di8charile:l
the latter',i dutr tll ~i\'e the allre~d
c:<t:hange l'\'t;!n thoul{h hi:l promi:ic i:s
not in tern1.i conditional. .\n [mma.
t'~l'ial failure doe:i not ,)pt!rate JJ .:iUch
a tli.:ichnr;cc."
.. j ~7,j, Rl'LES F'OR DETERm>;.
I;-;G ~r.\ TER!.\LIT\' OF
A F'.\ILl'RE TO PER,
FOR~r.
"In detel'mininl/ the materialit1' or
a failure rull)" to perform a prami:i~
the iollowin~ circum.tance. are inilu.
ential:
(a) The e~tend to which the injured
part}. will obtain the sllb.tantial
beneiit which he could have rea.on,
ably anticipated:
(b) The extend to which the injur'~tI
party may be adequately campen-
.inted in dam~u~c:i for luck or com.
pletu performance:
(c I The e~tent to which the party
iailin~ to perform has already part.
Iy p~r(ormt!d or maue prepuration~
t'or pert'llnnuncc;
I II) The ICrl!utcr {)r le~s hard~hip
on the party (ailing to perform in
terminntin~ the eontr"'t;
{tJ) The wil1'ul, ne~lil(ent or in.
nocent bcha\'ior ll( the j1art~. t'allinl(
to pt!rt\)rm:
I t'l Thi! iolre:1tt'I' 'lr It.':u tJnc'!I'~.linty
that the party (aliin\{ tl) 1)I~r:'lJrm
will jl'~l"ftll'm the remaintit!I' <It thl~
contra.ct."
Thc:\~ H~:;t.lt~ml.Hlt jCcthHl:; have ht.'cn
ad,'pwl ;lnd (ollowe,l by the renn.y\,
vania appellate CtlurtJ. E. 'I., .:i~arlat \'.
Grlt't'ith, jupra; Schlt~in v. Gr<):i:~, jU.
pra: Windber Trust ell, ..'. Evan::!, l~:!
P:l.3upcr. .U7, 1til ,\.:!t! ljtj., (19tjl)).
[;; .\ppIYin~ th., ~uldeiine. .et (orth
in ;;cctlon ~75 the t'olltlwinl( annIY:li:i i:1
appropria.te:
"I <1) The I!ztt!J1t to which thf! itljllrt'd
WITty IL.ill Obttll11 th~ .wu:ittInti4ll
bt!7lifit u.:hl~h ht! ctlulcl hfl,v~ rt'll.
Jtl"'lbly 'Hltit'i;Jlltr.Ii:'
The objt!ctivlJ 1)[ the entire project Wa:l
to built! a sture and u(iiee building fur
lea.e tu tenant~. That ubJe~tive hug
lJccn achieved with tJxtraordinarl' .iUC-
ee,", It wa. stipulated that the build.
in!: has heen .mh;;tantially occupied t'or
a numb~r 'Je' j'c:lr:J with the t!XCl~ptton of
January, t!)j'l. the occlJpnnCr ratl~ for
the ~rwti from .I:muar~' 1Uj'I) to :\Iarch
1971. W;13 ~H)(:, or lOl)'~, ant! fOl" Janu-
.lr:', ttln, wns 9li~.
"(I)) Thi erlind /" which /hi injltrid
p11rtlj may bf! IId/qUill/ly com-
pen3atifi in fwma!1t!s,"
The facts with regpect to damage.
have been set iorth. r'o~croit may be
adcquntlJly compensat~d for the dnmngc:I
it has ,u.tained which are the Incom'
plete work ($5,tiOO,OO J. the e~terior wall
punel. ($~O,OOO,OO), the trivial deleets
($:105,30), the e~penditure relating to
the irozen beams ($li,Sli,I,5D), the legal
iee. paid t" deiend (i1inl!' of meehan-
ic',i IilJn 1$:.1,7.1-&.00), The:le damages
have been jummnrized in paragraph !l:J
oi the Cuurt's Flndln~. oi Fact,
", c I Thi a/int to ~'hi"h thi plJrty
!lllliny tu pl'r;orm hll... ,dready
partl!} pt!rftJr"mtd or milde prl'ptl-
flllilJnJ fnr paf'lMnUtlCt',"
,\ fair mea.ure "i the magnitude "i
FIJrmhrli'J work i:i the contract priCl!.
which "ri~lnally was $1.15~,OIlIl, Ad.
jU:itment~ ior t:hani(c:i in the work will
incrt!:\:itl that j)(ICO by SLi,lj'l7.dl) to S1..
.&7.l.tj.l7.tiO. Thl! wnrk left incomplctt.!
by F'Jrmi;.:1i had :, prll't! llf .5.i,lilhl ')I' IC:i:i
than I) p;. <Ii the Jdjll;itCIJ ~ontrnct price.
Thl~ prtn~lp;l1 .tl!il~ct Witt thl! ..:ondition
l)r' thtl t!xtt.!rior panel:; for \\.'hich tht.! t.!~.
tlmatl!fi t:ll:lt lli repair \..'a:i SLi,IlOO to
646
318 FEDERAL SUl'PLEMENT
$20,000, or little more than t % 01 tha
value 01 the antlre work. In January,
19118, the Irozen beams ~ave rise to about
$6,300 In FOKcrolt a"panse. Thus, the
anre~ate 01 011 01 these thln~s, less than
$33,000, oVas only 0 little more than 2~
01 the adjusted contract price of appro"I,
mately $1.474,000,
"( d) The yrealer or leu /uJ.r.uhip on
the part V failiny to perform in
termi!l4liny the cont,act."
In this clUe the person lallin~ to per-
lorm hod almost, but not quite, entirely
completed his work. Thus, the loss bl'
Formlgli of hundreds 01 thousands 01
dollars to which It otherwise would be
entitled Is to be balanced agslnst award.
Ing Foxcroft s set.oft for omissIons and
deficiencies havin~ a value 01 less than
$33,000.
"(e) The wilful, nealigent or innocenl
behavior of the parla failing 10
perform."
FormIglI dId Intentionally reluse to
continue Its work and correct dellcien-
cles In Its work. But lU noted above.
the Incomplete work was Insignificant.
There was evidence from which It could
be found that the condition of the ex-
terior wall panels was not Fonnllrll's
fault and the other alleged defects were
trIvial. The Irozen beams and mechan-
ic's lIen disputes hod not yet arisen,
)Ioreover, Formigll's relusal was clearly
justifIed In the circumstances where
Foxcrolt had for many months withheld
substantial sums payable to Formigll un-
der Its contract and promised to bring
its account current at the August 8, 1967
Stoelker/Fox meeting and then relused
to do so pending on Inspection by Fox,
croft's architect, an InspectIon which
was never held.
"( fl The areoler or lu. certainty
thllt the partv foWay 10 perform
...ill pa-rfonn tha ""'lIind" 0/1
Ihe conlract." \
This factor ha. no application to the
case at bar since there Is no lurther per,
formance expected Irom Fonnlgli.
In August of 1967. Formlgll was enti-
tled to receive and Foxcrolt had refused
to pay more than $152.000 In excess 01
the retalnnKe of $145,900 as provided In
the written allreement. Substantial
amounts of money had been owed since
January :ll, 1967. and Formlgll had had
no success In collactln~ the amollnts by
which the billln~s axceeded the retalna~e
despite repeated requests and demands
lor payments. At the August 8, 1967
meetinil, Fox hod promised Stoelker a
payment would be mode and then he
broke that promise. Faced with this
situation. Formlgli was justified In re-
fusing to continue to underwrite Fox-
croft's building program and to com'
plete the work, East Cross Roods Cen-
tel', Inc, v. )[ellon,Stuart Co" 416 Po.
229,205 A.2d 365 (1965): United States
Fidelity .I< Guaranty Co. v. Robert Grace
Contracting Co,. 263 F. 283 (3rd Cir.
1920); Worden v, Connell, 196 Po, 281,
~6 A. 298 (1900): Turner Concrete Steel
Co. v, Chester Construetlon '" Contract-
ing Co,. 271 Po, 205, 11~ .\.780 (1921).
Th. ,-\b..nce Of Th. Mchil.ct's.Approv.
al Do.s .Vot Preclude RecoveMJ
Under the terms of the written agree.
ment, sums payable under the contract
would be paid as follows:
"90% to be paid from time to time
os the work processes on approval of
buildlnil architect, 10% to be paid
120 days otter completion of the work
Jane under this contract and accept-
ance by the building architect," (Ex-
hibit P-l, paile 2)
[t Is clear that this provision
was in ended os a protection to Foxcroft
by Formlilll and to Insure that Formlilli
properly perfonned Its agreement,
However, equally clear la the principal
01 low that one may waive any provision
In the contract which has been establish.
ed ior his benefit. )[ayer Brothers Con-
struction Co, v, American Sterlllzel' Co"
258 Po, 217, 101 .\, 1002 (1917): )Ic-
Kanna v, Vernon, 258 Po. 18. 101 A. 919
~
[n .It.Kenna, the plalntllf agreed to
erect a theatre for the sum of $7,750 to
be paid by the owner upon certificates of
the architect as follows ,: "Eighty per
J
FOR~llGLI CORPORATION 'I, FOX
f~17
1';1.' I. ;I'~ F ~:'1"1' 'l'."}' ~!l~~\
t:l~nt. ,)t' till! ',\"ll'kil!t HI ;llal'l! ,13 tht! WI)l'k
prd":I!I!d:i, till! r"irit j},\yml!nt withIn :~o
dil)';J ,u't!.!l" thl~ .;IHuplctIIH) ,)t' thL' 'NI)I'k.
,111 pnymcnu ~0 bl~ dUl! '.\'hl~n ..:el,tifkatl':I
,Ji thciilml..' jhall ha\'l! bl!t!f1 1:i:HJtlli hr the
ardlltcct.. ." :!5d [la. .n 18. :!l),
lIH .\. at 01~. Till! I)wn('I' made ,it.!\'cn
p:lynwnt.i ;13 the Wlll'k prl)IHI!.:!Jl.ld
amountinlt to $ti.')l)t), .suit W;l.i brl)Ul{ht
tl) recover the balance with intcre.H and
dt!t'endant.i .1O:n..'ered .a1lcllinl{ t'ailure .}i
the plaintiff tl) 1!I'Cct and ':l)mplcte the
hulldin~ in accordance to the plans and
.itwcit'ication3 and inferior workman3hlp
throul{hout \\.'hit.':h would require lar~c
l'xpcnuitul"l!:i to ':Ol'rt!ct. The trial re.iult.
l~tI in :\. verdict f{Jr the plaintiiI'. :lnd 'In
apptml. Jei~ndant rai::wd .:w\'eral ;ljJil.rn.
ment:J 1)( 'B'ror bajcd 'In tht.' tht~ory that
thll (ailul'e to pr()dll~l! .In :lrchit~c:t',i ct!t'.
tiiicate III final ~tJmpl~tion ,H' the build-
ing buned the plaintiff;; cause of action.
On the point the C.'UI't .aid at pa~e'
:!l-~~. lOl ,\. at p. 9:l0:
II. .... ~ot unli' i:J there no tlxprc:Js
pro....idion to thi;) t..'r'fect in the con.
tract, but the eontraet it.elt' .ho.",
that no di.tinction i. there made bo,
tween final parment and the parment.i
on account of tho ~li per cent of \,,'ork
in place, All pa}'ments WHe to hI.!
made only on certificate oi the archi.
tect, and yet with :l :lingle exception
each of the .ieVen paymenti made a~
the work pro~re"ed wa. made with,
out '1 certificate beinll u~ked fl)r.
With ,ueh con.tant 'lIld repeated di.,
regard on the part ot' the owner to
exact compliilncu with thhi provi:Jion in
the contract, it is too Inte now (fH"
him to insist that iailure on the piU.t
of the plaintiif to 3ecure :'iuch certifi-
cate be{ore .uit deieat. hi. ri~ht ,,(
action, . . . The provision in the
contract ior written cl!rtifk:1t~:J r'rl)m
tht! architect I:! for thu b~n~fit ;Ind
protection Ji the 'J\....ner. If he wai\'ed
it rl!pcatedl)', ;1:1 hl! ,ii.i ht!r.!, dllrin~
the prtJl;reH l)f thl! WI)r~\, hl' ..:aflnl)t,
l.:omplam If ht! be held t,) na\"! wai\'.~oi
it when he ~e,!k.l t,) dl!t\md _Il~:tlt\st ,1
final payment for work .ihown tl) ha".!
been hono,tly and .ub'tantially per,
t")I'Tt\,!d. '~:ipl!clally "..'!le!} allllll:il daily
Ill! ha:l h.ld till' Wfll.k III1Ih~I' hi:l I)WII .lh~
.it.!r\'atinn, wlth'lllt 1'1!II111fl:itrance dr
l.:llmlllaint _,t any tirnl~ ',,,'jth rt.!~pl!ct tll
either thl! ',VOl'!.; (I,)ne Ill' material.i em'
pllJ}'t!tI . . ."
(9] In the ea:ll! bl~fol.l! thi:-J Cl)urt.
"lXcro!'t mado 1~ pnyment.i totalin~ $1,'
11;1),25.1.3:-3 lm :lI'COlJnt (j[' im'oices ::luh-
mitted hr Fl}I.mi~1i and neitht!r a~ketl (tJr
nOl' rt!ct!ived apllrrJval o( tht.! archiluct to
thu dfect that th'!::!l! payml!nt.i \....t!re due,
Such a .ierit!.::I \)[ act.i pro\'idl!3 over.
whelmin~ l!Vitlenct! of .10 intentitm on
the part of d.H'endant;t to waive thi.::l
right l!::ltahliahl!d ror their bt!nefit.
Since they cho:;e to di::lrel{ard compli.
;lnCI! with thi:\ pl',wigion in 30 many
in:itancl':I during the Ilrf)j\r1'3:i oi thl}
wOl'k, dl'(endant,~ ,:annllt invoke it now
u1" ,:omplain when tht!y ilrt! prevented
irl)m doin~ 30 when rl~fendinK a claim
(tH' final payment for work which \Vas
.ubstantialJy and hono.tl)' dona in com'
pllanco with the contraet, Soe also, John
Conti Co, v, Donovan, :158 Pa, 5titi, 5j
A,~d dj~ (Ig4S),
Intt!Tt'at
Formigli contenu::l thnt it i:J entitled
to Jamillote:! r\Jr Fo:<croit'.l unrcn..3onable
retention Of' rntmer thw them l1ndt!r thl!
eont,,,,ct. They {u..thor eontand thnt
::Juch damal{e~ ,Ihould be mt.!il:!urecl at the
ratc IJ( j,.3c~. (ll'I' annum to fairly com.
pt.!n-iute it (or it.i 10:13 in thLi respect,
F.)rmhdi Urllt!:I thi:-t court to take ju-
dicial notice of tht! monuy markct from
.\u~u:n ,lI' !!')'ii ~Hlll thurt!b)' reCOl{nlZe
that (or the majority 01' thi. poriod the
prime inll1rl~;lt r:ltt! char~,!d by bunks to
their mtl-it aeditworthy ~u~tomcr9 had
been in ~:tCl;!:i3 "i IV~, per :lnnum. F.lr.
mll{li pre.ienttJd te3timonr which indi-
catc:) that durin\{ tht! :l:lmU pcriod tht~Y
i1ahl ~'n .l\'t!l":l.lr:"! inlt!re:it rille tlf i.::V'V
l]t~r annum, ilnd that FI)XCro{t 3qllilrt!
Pl'o'tlillll, lnc.. ,l ..:orpl)I';lti.>n ,Ii '.\'hich the
thrll,! ir\t.ii\'i,lllal ,lell1l1tJanu '.Vat.! the .inlt!
jh;ll'llholdt.!r~l, l1aid intl!l"c:it at a rutt! .)t.
l:.!"i'.~] i1t!r ..lOnllm ,)Il a loan ,)btaint!d in
,\lI~lI:it .){ l~lja,
648
3,18 FEDERAL SUPPLEMENT
[10] This court will not take judicial
notice, er parle, of the money market
durlnll the period in dispute. Even as,
suminll that the court could take notice
at this tact without requiring proof
thereat and that it was a proper Item at
damalle, the defendant3 should hove had
an opportunity to present it3 arguments
against taking judicial notice.
[11,12] This court does not believe
that the cases cited by plaintitf repre.
sent the law at Pennsylvania on this is.
sue.' When money is due a person un.
der a contract but is improperly with.
held or unpaid by the deCendant, the
party to whom such money is due is en.
titled to interest Cram the time It WIIS
due, at 6% per annum.
[13] Barium Steel Corp, v. Wiley,
370 Po, 38, 108 .....2d 336 (1054); Palm.
green v, Palmer's Garage, 383 Po. 105,
117 A,2d 721 (1055); Restatement of
Contract3 ~ 337, 41 P.S, ~ 3. In the ab.
sence of express contract, simple inter.
est at the statutory legal rate Is recov.
erable lIS damages for breach oC con-
tract, .Palmgreen v, Palmer's Garage,
supra,
CONCLUSIONS OF LAW
A, This Court hIlS jurisdiction over
the parties snd the subject matter of
the action, 28 U,S,C, ~ 1332,
B. Formlgll substantially pertormed
Jts agreement with Foxcrott and is en-
titled to recover thereon, '
C, Considering the nature and mag.
nitude of all at the work called for un-
I, Th. plolo,lfl I'1!U.. upon In re Kenln'.
Tru.i Eo..,., 3~3 Pa, lHO, ~3 ~.:!d S37
(104:1). Tbll cal' mlrel, staDtl, for the
lIropolltloa that Q, l"Ourt "m not award
Int'"lt lit the 11101 rlt. ot 6~ WhlD
the prlYltUal rate. .... Ie... Tbl. I. to
D.vohl a windf.1I recoverT b, thl pre.
der thu nllreement, the omissions and
defects in Formlgli's performance were
Insubstantial and due allowance may be
made to Foxcroft for such omissions
and defects by adjustments In the sum
otherwise owed to Formii'1l under the
aireement,
[14] D, Formii'Il's refusal in Au-
gust 1067 to complete the work and cor-
rect the defects In II" work was justified
by Foxcrolt's Callure to pay within a
reasonable time the substAntial amounts
In excess oC the retalnage that had been
due and payable to Fonnlgll since Feb.
ruary 1067,
E. Formlgll was entitled to the bal.
ances ,lIet Corth as due on the dates set
forth in parall'raph 24, above, and to
$278,337.72 on :-<ovember 28, 1967, The
latter amount retlects faJr and reason-
able credits to Foxcroft ior work re-
quired by the agreement which was un,
pertormed or uncorrected by Formigll
when it slopped work in AUi'ust 1967,
F, Foxcroft waived any provision of
the written agreement which conditioned
payment to Formlgll upon approval or
acceptance of Formlll'II's work by Fox.
croft's architect.
G. Notwithstandlnll' the absence of
fonnal approval or acceptance by Fox-
croft's architect, Foxcrott accepted and
enjoyed the beneilts of Formigll's work,
H, Formltrll Is entitled to interest on
the sums due and payable to Formlgll,
To fairly compensate Formlgll for its
loss of use of these sums, simple Interest
shall be allowed at the rate of 6% per
annum.
nUlDE party. In Our ..arch w, baTt
found no Ptnn.,lvlDlll <:.11 whlre r..
COVlry "'(II Plrmlttttl tor IDuren It II
bleh.. mI. Iban Or.. -Uthoueb II ..a,
ba fol. ood equltabl. '0 do 10. tbla d_
not apptlr to b. the law of PlaD.,lnDt.
to whh:b w, l1re boUDd.
,
.
t,
I
ARGUMENT
In making findings of fact in this matter, Your Honorable
Court determined that while there was no evidence to support that
the furnace installed in Defendants' home was the wrong furnace,
there was evidence to show that, in addition to Plaintiff's
failure to install a new thermostat, there are problems with the
operation of the furnace in Defendants' home. However,
adjustments to the furnace will make it suitable for their home,
The expenses to Defendants to obtain the corrective work are
direct damages to Defendants.
While Defendants di.d not pay the entire amount invoiced,
they did make installments to Plaintiff which constituted sixty-
five percent (65%) of the outstanding balance. In addition, this
amount, evidenced by Plaintiff's pleadings and testimony
presented at trial, represented payment in full for the furnaCe
itself, payment in full was made for the furnace; the
outstanding bill was for ductwork. The furnace was under
warranty by plaintiff who refused to correct defects.
The furnace was installed in late spring of 1994.
Defendants did not operate the furnace until that winter. It was
at that time that they notified Plaintiff that there were
problems. Plaintiff refused to even inspect the furnace.
While no case law directly on point has been discovered by
Defendants' counsel, this case can be analogized to landlord and
tenant case law wherein the landlord's duty to keep a premises
habitable is not voided by a tenant's failure to pay rent. ~
pugh v. Holmes, 486 Pa, 272, 405 A,2d 897 (1979). Tenants may
raise as a defense to an action for rent arrearages the
landlord's breach under the implied warranty of habitability.
xg, Even a partial breach by a landlord entitles a tenant to a
reduction in any amount owed, rg.
Likewise, in the case at bar, Plaintiff had a duty under the
warranty it provided 011 the furnace to inspect the furnace and
correct any deficiencies, Defendants should be entitled to raise
Plaintiff's breach of its duty as a defense to Plaintiff's action
and accordingly, should be credited for any amount necessary to
install the thermostat and modify the furnace to their home,
Regardless of whether Defendant had a duty in January 1995,
to return to Defendants' home, Pennsylvania case law is clear
that Defendants are entitled to a set-off against Plaintiff's
claim. In Formiqli Corporation v. Fox, 348 F. Supp. 629 (E.D.
Pa. 1972) citinq Exton Drive-In. Inc, v. Home Indemnity Co., 436
Pa. 480, 261 A.2d 319 (1969) and applying the guidelines set
forth in the Restatement of Contracts, Sections 274 and 275, the
court concluded that the defendant, who had not paid the
plaintiff in full, was still entitled to a set-off against the
amount owed to the plaintiff, who had substantially completed its
work under a contract between the parties.
.
,
Ck)
KEE~ER.VVOOD.ALLEN& RAHAL
a,o WALNUT IT"IET
N"ILING ADD_II.. P. O. 80M II..~
H"""II.U.. ~A. 1710."..3
OCT 20 1995
-<<.r-'
...
.
.
"I . ' .
;V
SUSQUEHANNA OIL, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTV, PENNSYLVANIA
v.
NO, 95-1916 CIVIL TERM
CAROL PIEPER and
DOUGLAS PIEPER,
CIVIL ACTION - LAW
Defendants
PLAINTIFF'S PRE-TRIAL MEMORANDUM
Plaintiff Susquehanna Oil company, by its counsel, Keefer,
Wood, Allen & Rahal, submits the following pre-trial memorandum
pursuant to Local Rule 212-4.
I. statement of Basio Faots as to Liability
Plaintiff is in the business of installing and servicing
residential heating equipment, among other things. In May, 1994,
at defendants' request, plaintiff replaced the furnace in
defendants' home and installed additional ductwork. Return air
vents were expanded or upgraded. As per defendants' prior
agreement, plaintiff billed defendants $1,500.00 for the furnace
and $800.00 for the ductwork, for a total of $2,300.00.
Defendants eventually paid for the furnace. However, the
full amount of plaintiff's invoice was not paid in a timely
fashion. Rather, defendants asserted several different excuses
as to why they were having financial difficulty paying the
balance. For months after the work was completed, and well into
the fall/winter heating season, there were no complaints about
the furnace or the quality of plaintiff's work.
Only after plaintiff advised defendants, in late December
1994, that they would be sued if they did not satisfy their
obligation, did defendants mention any alleged dissatisfaction
with plaintiff's work. When it was apparent that defendants
would not pay the balance on their account without substantial
additional delay, plaintiff filed a complaint in the office of
District Justice Ronald E. K1air.
After a hearing before t~e district justice, plaintiff
obtained a judgment in its favor. Thereafter, defendants
appealed that decision to this Court. After plaintiff filed its
complaint pursuant to Pa. R. C. P. D. J. 1004, defendants
asserted a counterclaim for damages exceeding the limit for
compulsory arbitration. In their counterclaim, defendants for
the first time alleged that plaintiff installed the wrong size
furnace and that plaintiff's work was otherwise deficient.
Defendants allege that their home is too hot and that a piano has
been damaged as a result. Defendants also include a claim under
the Consumer Protection Act.
II. statement of Basic Facts as to Damages
Plaintiff's damages consist of the unpaid balance of
$800.00, plus accrued interest, plus the costs of pursuing
collection of the account before the District Justice and in this
Court.
-2-
necessary and Defendants, who have no knowledge about furnaces,
placed their trust in Plaintiff and accepted without question
Plaintiff's recomnlendation with respect which furnace to install
in Defendants' home.
It did not become apparent to Defendants that there was a
problem with the furnace until the heating season. Defendants
reported to Plaintiff the furnace's operation but to no avail.
Plaintiff has made no effort to install the thermostat or to
correct the operational defects of the furnace.
Plaintiff misrepresented the character and quality of the
appropriate furnace to install in Defendants' home.
II. Statement of Basic Facts as to Damages
As a result of the inefficient operation of the furnace,
Defendants are faced with a temperature in their home which is
either too hot or too cold. The furnace is unable to maintain a
comfortable temperature in Defendants' home. The furnace comes
on and blows excessive hot air through Defendants' home. The
thermostat registers the hot air and shuts the furnace off before
the house has actually reached the appropriate temperature. The
house cools off quickly and the furnace must again turn on.
The furnace's erratic and inefficient operation has affected
the operation of Defendants' piano, which is a source of income
for Defendants.
Because of the acts and omissions of Plaintiff, Defendants
IV. Leqal issues reqardinq admissibility of testimony.
exhibits. etc.
Defendants are also unaware, as of this time, of any legal
issues regarding the admissibility of testimony, exhibits, or
other types of evidence. Defendants agree with Plaintiff that
such issues would best be dealt with during the course of the
trial.
V. Witnesses
Defendants' witnesses will include Defendants, Carol Pieper
and Douglas Pieper; possibly Defendants' piano repairman with
whom Defendants' counsel has been unable to communicate regarding
this litigation; and possibly an individual from another fuel oil
company, the identity of whom remains undecided. Defendants
reserve the right to supplement this list prior to trial.
VI. Exhibits
Possible statement from piano repairman; and possible
statement/estimate from fuel oil serviceman. Defendants reserve
the right to supplement this list prior to trial.
VII. Settlement neqotiations
Prior to the institution of this litigation Defendants
offered to pay one half the amount for which Plaintiff claimed
they were liable. This offer was rejected by Plaintiff.
After this litigation commenced, Defendants' counsel made
this offer to Plaintiff's counsel which was promptly rejected.
Plaintiff's counsel indicated he would not take the offer to
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dismiss Plaintiff's Complaint.
COUNTERCLAIM
COUNT I - BREACH OF IMPLIED WARRANTI~
13. Paragraphs 1 through 12 of Defendants' New Matter and
Counterclaim are incorporated herein by reference as if set forth
at length.
14. Plaintiff performed work.
15. The work performed was warranted to be in all respects,
fit and proper for finished work in a home the size and character
of that which is owned by Defendants.
16. The work that was performed by plaintiff proved to be
unsound and unsuitable in that the workmanship was of an
unacceptable inferior nature. The work performed was not
completed in a workmanlike manner.
17. Defendants notified Plaintiff of the defects.
18. Plaintiff failed to correct the defects.
19. AS a result of the defects, Defendants will be required
to expend large amounts of time and monies to correct the defects
in an amount approximately $1,000.00.
WHEREFORE, Defendants demand judgment in favor of Defendants
and against Plaintiff in an amount less than $25,000.00 plus
interest, costs of suit and attorneys fees.
COUNT II
20. paragraphs 1 through 19 of Defendants' Answer with New
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PROOF OF SERVICE OF NOTl<
(This prOOI 01 sOTvieu MilS 1111_- III rn \VITI lI!i I
COMMOHWIAlTH 0' PtNNIVLVANIA
COUNTY Of
AFFIDAVIT: I hnrohy 'wnur or uffi"n Ihol I Whlltl
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SWORN (ArfIRMFU) AND !;lIl\'j(.IJIl\lll Illl! f.! t,',
IHIS_____DAYOF \'J
SJgrnJIUI' O'OltKldf b.Jin;;; ;-t;;:;;l:'l;;:~'~~-~~';~'I' "f"
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--I
SUSQUEHANNA OIL CO"
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-1916 CIVIL TERM
CIVIL ACTION - LAW
Plaint if f
v,
CAROL PIEPER and
DOUGLAS PIEPER,
Defendants
CERTIFICATE OF SERVICE
I hereby certify that a copy of Defendant's Answer with New
Matter and Counterclaim has been duly served upon the following,
by depositing a copy of the same in the United States Mail,
first-class, postage prepaid, at Harrisburg, Pennsylvania, as
follows:
Date: (Jjq/qr;-
Eugene E. Pepinsky, Jr., Esquire
Keefer, Wood, Allen & Rahal
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
JwfMY7?&~~
Tracy L. McNamara, Esquire
Attorney ID #72669
219 pine Street
Harrisburg, PA 17101
(717) 216-5000
Attorney for Defendants
IN THE COURT OF COMMON PLE
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 95-l9l6 CIVIL TERM
JUH 13 II 2S iill '95
SUSQUEHANNA OIL CO.,
Plaintiff
, fIef
t.'~ . ; "j!j~,~\.\hY
i,!JHI.. i,.- '.:i (> ,1.IIIY
i'11H.~:i.'.J,\'1!f.
v.
CAROL PIEPER and
DOUGLAS PIEPER,
Defendants
CERTIFICATE OF SERVICE
STEPHEN C, NUDEL
AnO"tHlY AT LAW
219 Pine Slrce.
Harrl.bura,Penn.y\vnnln 17101
(717) 1l6'SOOO
home, and denies that an insufficient number of air grills were
installed. By way of further reply, plaintiff avers that it did
not change the number of air returns in defendants' house and was
not asked to do so. with respect to the new thermostat,
plaintiff was unable to complete that aspect of the installation
because defendants had indicated that they would refuse to
complete payment for the installed furnac~ and ductwork.
9. Denied. Plaintiff denies that the heating unit was
improperly installed, and further denies that the unit causes
excessive heat to be "blown" in defendants' home. By way of
further reply, plaintiff avers that the subject furnace has an
adjustable three-speed fan that can easily be reset by the
installer, but that plaintiff received no complaints regarding
the amount of heat in defendants' home prior to the commencement
of litigation to collect the unpaid balance due on defendants'
account. with respect to the averment that defendants are unable
to control the heat in their home, plaintiff lacks sufficient
Knowledge or information to form a belief as to the truth of that
averment, which is, therefore, denied.
10. Admitted, with clarification. Although they took over
six months to complete payment, defendants paid the $1,500 price
of the furnace in full, which indicated that they were satisfied
with its performance.
-2-
l1. Denied. Defendants never notified plaintiff that its
work was unacceptable, nor did they ever ask plaintiff to correct
any alleged deficiencies. It was not until plaintiff threatened
to file suit to collect the unpaid balance due on defendants'
account, which was long after the work was completed and several
months into the fall/winter heating season, that defendants
raised any purported concerns about the furnace or duct work.
12. Denied. Plaintiff offered to install a new thermostat
if a substantial portion of the balance due was received.
WHEREFORE, plaintiff prays for entry of judgment in its
favor for $975.68, plus service charges (interest) as hereafter
accrue, costs of suit and attorney's fees.
REPLY TO COUNTERCLAIM
Count I - Breach of Implied Warranties
13. Plaintiff incorporates by reference paragraphs 1
through 4 of its complaint and paragraphs 5 through 12 of the
foregoing reply to new matter as if set forth in full at this
place.
14. Admitted.
15. Denied. The averments of this paragraph constitute a
legal conclusion, to which no response is required.
16. Denied. Plaintiff denies that its work was unsound,
unsuitable, inferior, or unworkmanlike in any respect.
-3-
17. Denied. Defendants never notified plaintiff that its
work was unacceptable, nor did they eyer ask plaintiff to correct
any alleged deficiencies. It was not until plaintiff threatened
to file suit to collect the unpaid balance due on defendants'
account, which was long after the work was completed and several
months into the fall/winter heating season, that defendants
raised any purported concerns about the furnace or duct work.
18. Denied. There were no defects for plaintiff to
correct. By way of further reply, plaintiff avers that it was
unable to install a new thermostat because defendants had
indicated that they would refuse to complete payment for the
installed furnace and ductwork.
19. Denied. There were no material defects; thus, there is
no reason for defendants to expend large amounts of time or
money.
WHEREFORE, plaintiff prays that judgment be entered in its
fayor and against defendants on defendants' counterclaim, that
the counterclaim be dismissed with prejudice, and that plaintiff
be awarded its costs of suit, attorney's fees, and such other and
further relief as the court deems fair and just.
-4-
Count II
20. plaintiff incorporates by reference paragraphs 1
through 4 of its complaint and paragraphs 5 through 19 of the
foregoing reply to new matter as if set forth in full at this
place.
21. Denied. After reasonable investigation, plaintiff is
without knowledge or information sufficient to form a belief as
to the truth of the averments of paragraph 21, and strict proof
thereof is demanded at trial, if releYant.
22. Denied. After reasonable investigation, plaintiff is
without knowledge or information sufficient to form a balief as
to the truth of the averments of paragraph 22, and strict proof
thereof is demanded at trial, if relevant.
23. Denied. Plaintiff denies any responsibility for the
condition of defendants' piano. After reasonable investigation,
plaintiff is without knowledge or information sufficient to form
a belief as to the truth of the ayerments that there is excessive
heat in defendants' home, or that defendants' piano has been
damaged, and strict proof thereof is demanded at trial, if
relevant. By way of further reply, plaintiff avers that
defendants knew or should have known that lack of humidity <not
heat) may affect a piano; and, long before plaintiff installed a
new furnace, defendants should haYe placed a pan of water or a
portable humidifier near the piano during the heating season if
-5-
they were truly concerned ahout keeping it in good working
condition.
24. Denied. Plaintiff denies any responsibility for the
condition of defendants' piano. After reasonable investigation,
plaintiff is without knowledge or information sufficient to form
a belief as to the truth of the ayerments that there is excessive
heat in defendants' home, or that defendants' piano has been
damaged, and strict proof thereof is demanded at trial, if
relevant. By way of further reply, plaintiff ayers that
defendants' piano could not "continue to be damaged" by any
excessive heat allegedly attributable to the furnace installed by
plaintiff, because the furnace would have been shut off at the
end of the last heating season.
25. Denied. After reasonable investigation, plaintiff is
without knowledge or information sufficient to form a belief as
to the truth of the averments of paragraph 25, and strict proof
thereof is demanded at trial, if releYant.
26. Denied. After reasonable investigation, plaintiff is
without knowledge or information sufficient to form a belief as
to the truth of the ayerments of paragraph 26, and strict proof
thereof is demanded at trial, if relevant.
27. Denied. After reasonable inyestigation, plaintiff is
without knowledge or information sufficient to form a belief as
-6-
to the truth of the averments of paragraph 27, and strict proof
thereof is demanded at trial, if relevant.
28. Denied. After reasonable inyestigation, plaintiff is
without knowledge or information sUfficient to form a belief as
to the truth of the averments of paragraph 28, and strict proof
thereof is demanded at trial, if releyant.
29. Denied. The averment that defendants have sustained
damages due to plaintiff's acts or omissions constitutes a legal
conclusion, to which no response is required. After reasonable
investigation, plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the remaining
ayerments of paragraph 29, and strict proof thereof is demanded
at trial, if relevant.
30. Denied. The aYerments of this paragraph constitute
legal conclusions, to which no response is required.
WHEREFORE, plaintiff prays that jUdgment be entered in its
favor and against defendants on defendants' counterclaim, that
the counterclaim be dismissed with prejudice, and that plaintiff
be awarded its costs of suit, attorney's fees, and such other and
further relief as the Court deems fair and just.
-7-
Count III
31. Plaintiff incorporates by reference paragraphs 1
through 4 of its complaint and paragraphs 5 through 30 of the
foregoing reply to new matter as if set forth in full at this
place.
32. Denied. The averments of this paragraph constitute
legal conclusions, to which no response is required.
33. Denied. The averments of this paragraph constitute
legal conclusions, to which no response is required.
34. Denied. The averments of this paragraph constitute
legal conclusions, to which no response is required.
35. Denied. The averments of this paragraph constitute
legal conclusions, to which no response is required.
36. Denied. The averments of this paragraph constitute
legal conclusions, to which no response is required.
37. Denied. The ayerments of this paragraph constitute
legal conclusions, to which no response is required.
WHEREFORE, plaintiff prays that judgment be entered in its
favor and against defendants on defendants' counterclaIm, that
the counterclaim be dismissed with prejudice, and that plaintiff
be awarded its costs of suit, attorney's fees, and such other and
further relief as the Court deems fair and just.
-8-
NEW MATTER IN RESPONSE TO COUNTERCLAIH
38. plaintiff incorporates by reference paragraphs 1
through 4 of its complaint and paragraphs 5 through 37 of the
foregoing reply as if set forth in full at this place.
39. Defendants' counterclaim fails to state a claim upon
which relief may be granted.
40. On May 27, 1994, plaintiff installed the furnace and
ductwork called for by the agreement between the parties, which
consisted of an oral commitment over the telephone confirmed by a
written purchase order.
41. Plaintiff's work substantially complied with the terms
of the agreement.
42. Defendants paid the $1,500.00 purchase price for the
new furnace as follows: $400.00 on August 1l, 1994; $100.00 on
October 31, 1994; $250.00 on December 2, 1994; and $750.00 on
January 4, 1995.
43. Defendants have not paid for the duct work or accrued
interest (service charges).
44. Defendants' counterclaim is barred by acceptance of the
furnace and duct work.
45. Defendants' damages, if any, are limited to the
difference in value of the heating system they bargained for and
the value of the heating system they allegedly received.
-9-
46. Defendants' recovery, if any, must be diminished
because of their failure to mitigate their damages.
47. Defendants knew or should haye known that lack of
humidity (not heat) may affect a piano; and, long before
plaintiff installed a new furnace, defendants should haye placed
a pan of water or a portable humidifier near the piano during the
heating season if they were truly concerned about keeping it in
good working condition.
48. Defendants' counterclaim is barred due to their failure
to provide timely and adequate notice of any alleged deficiencies
in the furnace and duct work installed by plaintiff.
49. It was not until plaintiff threatened to file suit to
collect the unpaid balance due on defendants' account, which was
long after the work was completed and several months into the
fall/winter heating season, that defendants raised any purported
concerns about the furnace or duct work.
50. Defendants' counterclaim is barred by the doctrine of
laches due to their failure to provide timely and adequate notice
of any alleged deficiencies in the furnace and duct work
installed by plaintiff, or to provide plaintiff with the
opportunity to make any adjustments or corrections to the
installation.
5l. Defendants failed to timely reject the subject furnace
and duct work.
-10-
41, Denied. The answer to paragraph 40 is incorporated
herein by reference as if set forth at length.
42. Denied, The monies paid by Defendants were good faith
payments toward the total invoice price. Defendants notified
Plaintiff that they were dissatisfied with the nature and quality
of Plaintiff's work. Plaintiff did not respond and Defendants
informed Plaintiff that they were withholding further payment
until plaintiff completed the work in a workmanlike manner,
43. Denied. The response to paragraph 42 is incorporated
herein by reference as if set forth at length,
44. Denied. paragraph 44 contains a conclusion of law to
which no responsive pleading is required,
45, Denied. paragraph 45 contains a conclusion of law to
which no responsive pleading is required.
46. Denied. paragraph 46 contains a conclusion of law to
which no responsive pleading is required.
47. Denied. Paragraph 47 contains a conclusion of law to
which no responsive pleading is required, To the extent a
response is required, Defendants al\~ays kept a pan of water under
their piano in the normal course of care for their piano and
prior to Plaintiff's installation of the new furnace in
Defendants' home Defendants did not have a problem with excessive
heat or lack of humidity affecting their piano,
48. Denied. Paragraph 48 contains a conclusion of law to
which no responsive pleading is required,
49, Denied. The answer to paragraph 42 is incorporated
herein by reference as if set forth at length.
50. Denied, Paragraph 50 contains a conclusion of law to
which no responsive pleading is required.
51. Denied. Paragraph 51 contains a conclusion of law to
which no responsive pleading is required,
52, Denied. Paragraph 52 contains a conclusion of law to
which no responsive pleading is required.
53, Denied. The averments contained in Defendants' New
Matter and Counterclaim are incorporated herein by reference as
if set forth at length.
54. Denied. The averments contained in Defendants' New
matter and Counterclaim are incorporated herein by reference as
if set forth at length.
55. Denied. The averments contained in Defendants' New
Matter and Counterclaim are incorporated herein by reference as
if set forth at length.
56. Denied, The averments contained in Defendants' New
Matter and Counterclaim are incorporated herein by reference as
if set forth at length,
57. Denied, The averments contained in Defendants' New
Matter and counterclaim are incorporated herein by reference as
if set forth at length,
.
ARGUMENT
In making findings of fact in this matter, Your Honorable
Court determined that while there was no evidence to support that
the furnace installed in Defendants' home was the wrong furnace,
there was evidence to show that, in addition to Plaintiff's
failure to install a new thermostat, there are problems with the
operation of the furnace in Defendants' home. However,
adjustments to the furnace will make it suitable for their home,
The expenses to Defendants to obtain the corrective work are
direct damages to Defendants.
While Defendants did not pay the entire amount invoiced,
they did make installments to Plaintiff which constituted sixty-
five percent (65%) of the outstanding balance, In addition, this
amount, evidenced by Plaintiff's pleadings and testimony
presented at trial, represented payment in full for the furnace
itself, Payment in full was made for the furnace; the
outstanding bill was for ductwork. The furnace was under
warranty by Plaintiff who refused to correct defects.
The furnace was installed in late spring of 1994,
Defendants did not operate the furnace until that winter. It was
at that time that they notified Plaintiff that there were
problems. Plaintiff refused to even inspect the furnace.
While no case law directly on point has been discovered by
Defendants' counsel, this case can be analogized to landlord and
tenant case law wherein the landlord's duty to keep a premises
habitable is not voided by a tenant's failure to pay rent. ~
Pugh v, Holmes, 486 Pa, 272, 405 A.2d 897 (1979), Tenants may
raise as a defense to an action for rent arrearages the
landlord's breach under the implied warranty of habitability.
~. Even a partial breach by a landlord entitles a tenant to a
reduction in any amount owed. ~,
Likewise, in the case at bar, Plaintiff had a duty under the
warranty it provided on the furnace to inspect the furnace and
correct any deficiencies. Defendants should be entitled to raise
Plaintiff's breach of its duty as a defense to Plaintiff's action
and accordingly, should be credited for any amount necessary to
install the thermostat and modify the furnace to their home.
Regardless of whether Defendant had a duty in January 1995,
to return to Defendants' home, Pennsylvania case law is clear
that Defendants are entitled to a set-off against Plaintiff's
claim. In Formiqli Corooration v. Fox, 348 F. Supp. 629 (E.D.
Pa, 1972) citinq Sxton Drive-In. Inc, v, Home Indemnitv Co., 436
Pa, 480, 261 A.2d 319 (1969) and applying the guidelines set
forth in the Restatement of Contracts, Sections 274 and 275, the
court concluded that the defendant, who had not paid the
plaintiff in full, was still entitled to a set-off against the
amount owed to the plaintiff, who had substantially completed its
work under a contract between the parties,
ARGUMENT
In making findings of fact in this matter, Your Honorable
Court determined that while there was no evidence to support that
the furnace installed in Defendants' home was the wrong furnace,
there was evidence to show that, in addition to Plaintiff's
failure to install a new thermostat, there are problems with the
operation of the furnace in Defendants' home. However,
adjustments to the furnace will make it suitable for their home.
The expenses to Defendants to obtain the corrective work are
direct damages to Defendants,
While Defendants did not pay the entire amount invoiced,
they did make installments to Plaintiff which constituted sixty-
five percent (65\) of the outstanding balance. In addition, this
amount, evidenced by Plaintiff's pleadings and testimony
presented at tr.ial, represented payment in full for the furnace
itself. payment in full was made for the furnace; the
outstanding bill was for ductwork, The furnace was under
warranty by Plaintiff who refused to correct defects.
The furnace was installed in late spring of 1994.
Defendants did not operate the furnace until that winter. It was
at that time that they notified Plaintiff that there were
problems. Plaintiff refused to even inspect the furnace.
While no case law directly on point has been discovered by
Defendants' counsel, this case can be analogized to landlord and
tenant case law wherein the landlord's duty to keep a premises
habitable is not voided by a tenant's failure to pay rent, ~
Puqh v, Holmes, 486 Pa, 272, 405 A,2d 897 (1979). Tenants may
raise as a defense to an action for rent arrearages the
landlord's breach under the implied warranty of habitability.
LQ, Even a partial breach by a landlord entitles a tenant to a
reduction in any amount owed. 19,
Likewise, in the case at bar, Plaintiff had a duty under the
warranty it provided on the furnace to inspect the furnace and
correct any deficiencies, Defendants should be entitled to raise
Plaintiff's breach of its duty as a defense to Plaintiff's action
and accordingly, should be credited for any amount necessary to
install the thermostat and modify the furnace to their home.
Regardless of whether Defendant had a duty in January 1995,
to return to Defendants' home, Pennsylvania case law is clear
that Defendants are entitled to a set-off against Plaintiff's
claim. In Formiqli Corooration v, Fox, 348 F. Supp, 629 (E,D.
Pa, 1972) citing Exton Drive-In, Inc. v, Home Indemn~ty Co., 436
Pa, 480, 261 A.2d 319 (1969) and applying the guidelines set
forth in the Restatement of Contracts, Sections 274 and 275, the
court concluded that the defendant, who had not paid the
plaintiff in full, was still entitled to a set-off against the
amount owed to the plaintiff, who had substantially completed its
work under a contract between the parties,
ARGUMENT
In making findings of fact in this matter, Your Honorable
Court determined that while there was no evidence to support that
the furnace installed in Defendants' home was the wrong furnace,
there was evidence to show that, in addition to Plaintiff's
failure to install a new thermostat, there are problems with the
operation of the furnace in Defendants' home. However,
adjustments to the furnace will make it suitable for their home.
The expenses to Defendants to obtain the corrective work are
direct damages to Defendants.
While Defendants did not pay the entire amount invoiced,
they did make installments to Plaintiff which constituted sixty-
five percent (65\) of the outstanding balance. In addition, this
amount, evidenced by Plaintiff's pleadings and testimony
presented at trial, represented payment in full for the furnace
itself. Payment in full was made for the furnace; the
outstanding bill was for ductwork. The furnace was under
warranty by Plaintiff who refused to correct defects.
The furnace was installed in late spring of 1994.
Defendants did not operate the furnace until that winter. It was
at that time that they notified Plaintiff that there were
problems. Plaintiff refused to even inspect the furnace.
While no case law directly on point has been discovered by
Defendants' counsel, this case can be analogized to landlord and
tenant case law wherein the landlord's duty to keep a premises
habitable is not voided by a tenant's failure to pay rent. ~
Puqh v, Holmes, 486 Pa, 272, 405 A.2d 897 (1979), Tenants may
raise as a defense to an action for rent arrearages the
landlord's breach under the implied warranty of habitability,
rg, Even a partial breach by a landlord entitles a tenant to 3
reduction in any amount owed, rg,
Likewise, in the case at bar, Plaintiff had a duty under the
warranty it provided on the furnace to inspect the furnace and
correct any deficiencies. Defendants should be entitled to raise
Plaintiff's breach of its duty as a defense to Plaintiff's action
and accordingly, should be credited for any amount necessary to
install the thertnostat and modify the furnace to their home,
Regardless of whether Defendant had a duty in January 1995,
to return to Defendants' home, Pennsylvania case law is clear
that Defendants are entitled to a set-off against Plaintiff's
claim. In Fortnigli Corporation v. Fox, 348 F. Supp, 629 (E.D.
Pa, 1972) citinq Exton Drive-In, Inc. v, Home Indemnity Co., 436
Pa, 480, 261 A.2d 319 (1969) and applying the guidelines set
forth in the Restatement of Contracts, Sections 274 and 275, the
court concluded that the defendant, who had not paid the
plaintiff in full, was still entitled to a set-off against the
amount owed to the plaintiff, who had substantially completed its
work under a contract between the parties,
In the case at bar, Plaintiff argues that it has
substantially completed its installation of the furnace in
Defendants' home. Implicit in that argument is the concession
that the job is yet to be complete. Accordingly, Defendants are
entitled to a set-off against any amount owing to Plaintiff.
The amount of the set-off is the amount required to adjust
the furnace to make it suitable for Defendants' home, which
includes "downfiring" the furnace, adjusting the fan speed, the
installation of an additional return air vent and the
installation of the thermostat, This amount is reasonably
estimated to be $200.00.
CONCLUSION
For the foregoing reasons, Defendants respectfully request
your Honorable Court to set-off the amount owed by Defendants to
Plaintiff in the amount it deems just taking into consideration
the expense involved in downfiring the furnace, adjusting the fan
speed, installing an additional return air vent and installing a
thermostat. This amount is reasonably estimated to be $200.00,
lly submitted,
.;J~
Stephen c. Nudel, Esquire
Attorney rD #41703
Tracy L, McNamara, Esquire
Attorney rD #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Date:ld-4 -9<;
Attorneys for Defendants