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NICOLELLA v. PALMER (11/27/68)

decided: November 27, 1968.

NICOLELLA, APPELLANT,
v.
PALMER



Appeal from judgment of Court of Common Pleas of Washington County, Jan. T., 1967, No. 203, in case of Joseph Nicolella v. Nicholas R. Palmer et al.

COUNSEL

Frank C. Carroll, for appellant.

Paul P. Posa, with him Greenlee, Richman, Derrico & Posa, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: O'brien

[ 432 Pa. Page 503]

This is an appeal by the plaintiff, Joseph Nicolella, from the grant by the Court of Common Pleas of Washington County of defendant's motion for judgment on the pleadings.

[ 432 Pa. Page 504]

Appellant, a contractor, brought an action in assumpsit against the owners of a parcel of real estate. The action arose out of a contract calling for appellant to construct an addition to the food market located on that real estate. Appellant sought to recover the sum of $10,653.00 over and above the written contract price of $57,027.00.

For the purposes of this appeal from the grant of a motion for judgment on the pleadings, we must accept as true the factual allegations in plaintiff's Amended Complaint. Bata v. Central-Penn Nat. Bank of Phila., 423 Pa. 373, 378, 224 A.2d 174 (1966). Appellant alleged that some time in 1963 he was contacted by Nicholas Palmer, one of the appellees, relative to constructing the addition to the market. Plans and specifications were drawn by architects employed by the market on behalf of appellees, and these plans, dated December 27, 1963, were submitted to appellant. Based on these plans and specifications, appellant made his bid for construction of the addition. Between December 27, 1963 and August 31, 1965, when the contract which gave rise to this action was executed, there were two revisions of the original plan. At the time of the execution of the contract appellant inquired of the owners of the market and Nicholas R. Palmer, one of the appellees, whether the changes made in the plans (which appellant did not have time to examine) would materially affect the bid. According to the allegations of Paragraph Eight of the Amended Complaint: "8. . . . The defendant, Nicholas R. Palmer, wilfully, falsely and fraudulently told the plaintiff that no substantial changes had been made and that the original plans, which had been submitted to plaintiff and returned by plaintiff to Nicholas R. Palmer were not available, when in fact, the defendant, Nicholas R. Palmer well knew that substantial changes had been made and that the plans were available and

[ 432 Pa. Page 505]

    were being withheld deliberately from the plaintiff, all with the intent to fraudulently induce the plaintiff to enter into a contract, detrimental to plaintiff's interests."

Moreover Paragraph Nine went on to add: "9. Sometime before entering into the contract, Nicholas R. Palmer, one of the defendants herein wilfully and fraudulently stated that if there were any substantial changes, the contract price would be adjusted accordingly and urged plaintiff to enter into the contract and initiate the construction because of impending disfavorable weather conditions. The defendant, Nicholas R. Palmer, then and there well knowing that he had no intention of adjusting the contract price according to changes, all to the detriment of the plaintiff." [sic] Relying on these alleged statements, appellant executed the written contract and began construction.

On or about November 15, 1965, a fire occurred at the market and appellant was engaged to clean up the area affected. Appellant discovered the original plans dated December 27, 1963, and realized that the change in the square footage of the building amounted to an enlargement of one thousand three hundred forty (1340) square feet over and above the amount originally calculated. Appellant then went to see Palmer, confronted him with the plan and informed him that unless he made an adjustment, appellant would not continue with the work. Then, according to Paragraph Fifteen of the Amended Complaint: "15. Nicholas R. Palmer one of the defendants herein, wilfully, fraudulently and falsely told the plaintiff that adjustments would be made in the contract price and that he, the plaintiff, should immediately continue the ...


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