Loading...
HomeMy WebLinkAbout93-0026 CivilROGELE, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - EQUITY E & B ENTERPRISES, INC., Defendant NO. 26 EQUITY 1993 IN RE: ADJUDICATION BEFORE OLER, J. DECREE NISI AND NOW, this 7t4 day of September, 1993, upon consideration of Plaintiffs Complaint and following a nonjury trial, the Court finds in favor of Plaintiff and against Defendant in the amount of $32,939.73, with interest at the legal rate of 6% from February 8, 1993. IF NO MOTION for post -trial relief is filed within 10 days, the Prothonotary shall upon praecipe enter this decree nisi as the final decree, with judgment in the amount indicated in favor of Plaintiff.* BY THE COURT, . Wesley Oler, *See Pa. R.C.P. 227.1, 227.4 Charles W. Rubendall, II, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiff Geoffrey V. Seay, Esq. Robinson Building Suite 1600 42 South 15th Street Philadelphia, PA 19102 Attorney for Defendant :rc ROGELE, INC., Plaintiff V. E & B ENTERPRISES, INC., Defendant Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 26 EQUITY 1993 IN RE: ADJUDICATION BEFORE OLER, J. OPINION AND DECREE NISI This case in equity arises out of a contract between a general contractor, E & B Enterprises, Inc. (Defendant), and a subcontractor, Rogele, Inc. (Plaintiff), for certain work at the Navy Ships Parts Control Center in Mechanicsburg, Pennsylvania. Plaintiff subcontractor has sued for payment of the balance of its bill for performing the work; Defendant contractor has defended on the ground that the work was defective, resulting in various expenses which should be deducted from its obligation to Plaintiff.' A nonjury trial was held in this matter before the undersigned judge on Wednesday, September 1, 1993. Based upon the evidence and stipulation of counsel presented at the trial, the following Findings of Fact, Discussion and Decree Nisi are made and entered: FINDINGS OF FACT 1. Plaintiff is Rogele, Inc., a corporation specializing in construction work, having offices at 1025 South 21st Street, Harrisburg, Dauphin County, Pennsylvania. 1 The relief initially sought by Plaintiff also included an injunction to prevent Defendant from incurring such expenses and to permit amelioration of any defects by Plaintiff itself. However, this aspect of the case became moot by virtue of Defendant's having completed the corrective work. No. 26 Equity 1993 2. Defendant is E & B Enterprises, Inc., a corporation also specializing in construction work, having offices at 3316 Fairmount Avenue, Philadelphia, Pennsylvania. 3. On July 28, 1992, the Officer in Charge of Naval Facilities Contracts solicited sealed bids for certain construction work on the grounds of the Navy Ships Parts Control Center in Mechanicsburg, Cumberland County, Pennsylvania. 4. The Project Title of this work was "Repair Storm Water Inlets, Navy Ships Parts Control Center, Mechanicsburg, PA." 5. The General Description of the work was given as follows: The work includes the removal of deteriorated sections of inlets, grates and frames; install new inlet boxes with grated top unit and install proper lengths of new intersecting drainage pipe; disposal off Government property of removed materials; re -construction of adjacent items of work as shown on the contract drawings and incidental related work. 6. The Estimated Price Range for the work was given as "[b]etween $25,000.00 and $100,000.00," and the solicitation noted that "[t]his acquisition is set-aside for small disadvantaged business." 7. Bids were opened on August 27, 1992. 8. On September 17, 1992, Defendant E & B Enterprises, Inc., was awarded the contract, with a bid of $72,032.00. 9. The contract was to commence on September 17, 1992, and to be completed 2 No. 26 Equity 1993 by January 29, 1993. 10. Basically, Defendant E & B Enterprises, Inc., had contracted with the federal government to replace 38 storm water inlets at the aforesaid Mechanicsburg naval facility. 11. Defendant purchased new inlets, which were prefabricated, or "precast," from an affiliate of Plaintiff Rogele, Inc. 12. On October 19, 1992, Defendant engaged Plaintiff Rogele, Inc., as a subcontractor to install the new inlets, the plan being that Defendant would remove the old ones. 13. Defendant commenced work on or about October 26, 1992, and eventually succeeded in removing eight of the 38 inlets; however, it found that this operation on its part was proceeding too slowly in view of the contract deadline. 14. Accordingly, Defendant arranged with Plaintiff Rogele, Inc., to perform the removal of the remaining 30 inlets, at an additional price. 15. However, this arrangement appears to have been unsatisfactory to the federal government, because it would have resulted in too small a portion of the project being done by the "small disadvantaged business" which had been awarded the contract. 16. Accordingly, a purchase order involving Defendant contractor and Plaintiff subcontractor was effected on December 17, 1992, whereby Plaintiff would remove the No. 26 Equity 1993 remaining 30 inlets, but would not be responsible for a certain portion of the project — i.e., the removal in the spring of 1993 of a temporary winter patch in the area of each inlet (known as a "cold patch") and installation of permanent, concrete material in its place; this portion of the project would be Defendant's responsibility. 17. Plaintiff Rogele, Inc., largely completed its portion of the project by the end of January, 1993 (although some additional work, such as seeding and certain adjustments, was done by Plaintiff in May of 1993). 18. Satisfactory compaction, or density, test results were obtained by an independent laboratory retained by Plaintiff Rogele, Inc., with respect to "fill" placed in the area of each inlet. 19. Defendant has to date paid Plaintiff Rogele, Inc., the sum of $11,500.00 for its work. 20. By stipulation of counsel, it is agreed that an additional sum of $38,567.88, less any amount necessary to correct deficiencies in the work, plus interest at the rate of six percent per annum from February 8, 1993, is due Plaintiff from Defendant. 21. This figure results from the original October 19, 1992, purchase order for $22,800.00; the second purchase order on December 17, 1992, for $25,000.00; and incidental charges of $2,267.88; less the $11,500.00 payment. 22. Over the winter, a certain amount of settling in the inlet areas occurred, with the result that a number of personnel at the Navy Parts Ships Control Center 4 No. 26 Equity 1993 were alarmed and contacted the office of Michael Paquette, construction representative and project manager at the Control Center. 23. In view of the amount of settling involved, Mr. Paquette initially suspected that the laboratory retained by Plaintiff Rogele, Inc., to perform density testing had falsified the data; he has since concluded otherwise. 24. Upon being informed by Mr. Paquette's office of suspected improprieties in connection with Plaintiff's work, Defendant employed its own independent testing lab to perform density testing at the inlets. 26. On June 14, 1993, the new lab tested the fill at two inlets and found that neither was sufficiently compacted to meet the 95% degree of density required by the contract specifications; one tested at 86.8% and one at 87.1%. 26. The new lab made the following note and recommendation: The Contractor [E & B Enterprises, Inc.] compacted existing crushed stone modified backfill at inlet #82. The material compacted an additional 4"-6". Requested Declan Phillips (Ambric [new lab] Engineer) for additional recommendation. To properly achieve the compaction requirement, all backfill material should be removed and recompacted to assure future settlement would not occur. Advised Contractor (E & B Enterprises, Inc.) of recommendation and they said they would comply with recommended procedure at several locations as a trial. 27. On June 16, 1993, the new lab tested the fill at 17 other inlets and found the compaction levels below specifications in all cases. 28. During eight days between June 14, 1993, and June 26, 1993, from one to 5 No. 26 Equity 1993 three employees of Defendant — supervisors and laborers — worked with a representative of the new lab and brought the compaction degrees at the inlets up to specifications; in the process, eight sites were excavated and completely recompacted. 29. According to Defendant's records, the supervisors spent 65 hours and the laborers spent 114 hours during those days. 30. On another day during this period, three employees of Defendant — a supervisor and two laborers — picked up equipment in the form of a "bob cat" machine and "tampers." 31. According to Defendant's records, the supervisor spent 6 hours and the laborers spent 12 hours on that day. hour. 32. Defendant pays its laborers $18.10 per hour and its supervisors $27.15 per 33. At those rates, Defendant incurred expenses for the aforesaid eight days for supervisors and laborers of $3,828.15, and expenses for the aforesaid one day of equipment pickup for a supervisor and laborers of $380.10. 34. Defendant was charged $1,700-00 by the new lab. 35. Defendant also claims additional expenses for hotel accommodations for its employees and for equipment rental, but these have not been substantiated. 36. Defendant has recently submitted a backcharge to Plaintiff for the allegedly defective work in the amount of $13,759.26. n No. 26 Equity 1993 37. Plaintiff's president testified that in his opinion a fair price for excavation and recompaction in the area of a given inlet requiring such treatment would be about $130.00, including testing fees. 38. Plaintiff also complains that it was not given an opportunity by Defendant to repair any deficiencies in the work itself. 39. In view of the initial suspicion on the part of the government project manager of improprieties in connection with compaction of fill at the inlets, the Court finds that the decision of Defendant to employ a second testing lab and not to utilize Plaintiff to bring compaction levels up to specifications was not unreasonable. 40. The $1,700.00 bill of the new lab, which is an expense incurred by Defendant in attempting to deal with governmental complaints about the work done by Plaintiff, is found to be reasonable under the circumstances and fairly chargeable to Plaintiff. 41. The fair and reasonable cost for bringing the inlet fill areas up to specifications is found to have been $3,928.15. DISCUSSION In the present case, the Court believes that some remedial work was necessary with respect to Plaintiff's performance on its subcontract with Defendant. On the other hand, it also appears that the initial reaction of the government may have exaggerated the seriousness of the deficiencies, precipitating an immediate, and less 7 No. 26 Equity 1993 than completely efficient, response on the part of Defendant. Although the Court has found that the Defendant's refusal to rely upon Plaintiff to correct the deficiencies was defensible,' only a fair and reasonable amount for correction of the work can be backcharged. This amount, in the Court's view, has not been shown to exceed $5,628.15, including testing fees. DECREE NISI AND NOW, this `day of September, 1993, upon consideration of Plaintiff's Complaint and following a nonjury trial, the Court finds in favor of Plaintiff and against Defendant in the amount of $32,939.73, with interest at the legal rate of 6% from February 8, 1993. IF NO MOTION for post -trial relief is filed within 10 days, the Prothonotary shall upon praecipe enter this decree nisi as the final decree, with judgment in the amount indicated in favor of Plaintiff.* BY THE COURT, J. W6 -ley Oler, Jr. J. *See Pa. R.C.P. 227.1, 227.4 ' See generally Johnson v. Fenestra, Inc., 305 F.2d 179 (3d Cir. 1962). N. No. 26 Equity 1993 Charles W. Rubendall, II, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorney for Plaintiff Geoffrey V. Seay, Esq. Robinson Building Suite 1600 42 South 15th Street Philadelphia, PA 19102 Attorney for Defendant :rc m