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VACUUM CONCRETE CORPORATION AMERICA v. BERLANTI CONSTRUCTION COMPANY (11/10/65)

decided: November 10, 1965.

VACUUM CONCRETE CORPORATION OF AMERICA
v.
BERLANTI CONSTRUCTION COMPANY, INC., APPELLANT



Appeals from judgments of Court of Common Pleas of Delaware County, June T., 1961, No. 2399, in case of Vacuum Concrete Corporation of America v. Berlanti Construction Company, Inc.

COUNSEL

Robert B. Greer, with him Butler, Beatty, Greer and Johnson, for appellant.

William C. Archbold, Jr., with him Louis A. Bloom, Leonard L. Creskoff, and Kassab, Cherry, Curran and Archbold, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 206 Pa. Super. Page 549]

Plaintiff-appellee Vacuum Concrete Corporation of America (Vacuum Concrete) in an action of assumpsit recovered a judgment against the defendant-appellant Berlanti Construction Company, Inc. (Berlanti) following a non-jury trial before Hon. Francis J. Catania. In the same action a counterclaim filed by Berlanti was dismissed. These appeals by Berlanti followed.

The basic facts are not seriously in dispute and may be recited as follows. In October, 1958, the City of Newark, New Jersey, invited bids for the construction of a dam forming part of its Charlotteburg Reservoir Project. The specifications prepared by its engineers,

[ 206 Pa. Super. Page 550]

Parsons, Brinckerhoff, Quade and Douglas, included the use of a patented method or process*fn1 of Vacuum Concrete or an approved equal, in finishing certain areas of the dam. Following this invitation for bids Vacuum Concrete, Inc. (now Vacuum Concrete Corporation of America, by merger) distributed a memorandum to prospective bidders on the project in which it stated, inter alia:

"1. Vacuum Concrete Inc. will make available through the Furnival Machinery Company for a period not to exceed one month -- Op. (1) Vacuum pump and sufficient Vacuum processing mats, hose lines, Vacuumtest cylinders, fittings, etc. to make the Vacuum process operative, transportation of equipment to and from Philadelphia to the job site, all for the sum of $1,775.00.

"2. If the equipment is retained on the project for a period in excess of one (1) month, an additional charge of $250.00 per week will be made. All equipment remains the property of the Furnival Machinery Company.

"3. Vacuum Concrete Inc. will provide a qualified Vacuum Concrete supervisor at the job site at the rate of $275.00 per week. One week of supervision usually is sufficient to properly train the contractor's forces in the use of Vacuum processing.

"4. Compensation for design and engineering by Vacuum Concrete Inc. -- $2000.00.

"5. For Vacuum processing the following crew is normally required:

1 -- Vacuum Pump Operating Engineer

2 -- Laborers

1 -- Cement Finisher

[ 206 Pa. Super. Page 551]

"Fuel for the Vacuum Pump at approximately $8.00 per day will be furnished by the contractor.

"It should be noted that the only personnel furnished by this company is the Vacuum supervisor, who will instruct the contractors' men in the proper application of the Vacuum Concrete processes.

"This office will also furnish technical advice and general suggestions as to recommended procedures to assist the contractor on the job."

Berlanti was awarded the contract by the City of Newark and shortly thereafter, on July 30, 1959, it issued the following purchase order to Vacuum Concrete, which order was accepted by Vacuum Concrete in January of 1960:

"Date 7/30/59

Vacuum Concrete Inc.

1010 Girard Trust Bldg.

Philadelphia 2, Penna.

Attention -- Mr. Jacob J. ...


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