FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER
HANNUM, District Judge.
FINDINGS OF FACT
The Parties and Jurisdiction
1. Plaintiff, Formigli Corporation, is incorporated in Delaware and is successor by merger to Formigli Corporation, which at the time of commencement of this action was incorporated in New Jersey and had its principal place of business in New Jersey ("Formigli").
2. Defendants are William L. Fox, Irwin C. Fox and Dorothy Kotin (Mrs. Edward Kotin), and Foxcroft Square Company, which is the partnership of which the individual defendants are partners. Messrs. Fox and Mrs. Kotin are all residents and citizens of Pennsylvania. (William L. Fox is referred to as "Fox" and all of the defendants are collectively "Foxcroft".)
3. The amount in controversy, exclusive of interest and costs, is a sum in excess of $10,000.00.
The Contract Between the Parties
4. This is a suit on a contract between Foxcroft, which is a building contractor and Formigli, which was one of Foxcroft's subcontractors, arising out of the construction of a multi-story building in Abington Township, Pennsylvania. The building is known as the Benjamin Fox Pavilion and contains retail stores in its lower levels and seven stories of offices.
5. Formigli entered into a written agreement with Foxcroft dated June 21, 1965, in which Formigli agreed to furnish certain labor and materials, including all precast concrete work for the Benjamin Fox Pavilion, for a price of $1,459,000 ("the written agreement").
6. The engineering design necessary for the work to be done by Formigli for the Benjamin Fox Pavilion was provided by Irwin J. Speyer, an independent professional engineer who was commissioned and paid by Formigli for this project. Speyer is a structural engineer with approximately 20 years of experience. Since 1953 he has specialized in the design of structures made with prestressed precast concrete. Speyer participated in the preparation of the American Concrete Institute requirements for the design of concrete structures.
7. The engineering design provided by Speyer was based on architectural plans prepared by George S. Idell, an architect who acted for Foxcroft with respect to the work at the Benjamin Fox Pavilion. Speyer's design was submitted to and approved by Idell.
8. Based upon architectural drawings prepared by Idell and drawings and calculations furnished by Speyer, Formigli's drafting department prepared "shop drawings", according to which the precast concrete elements (including columns, beams, Spancrete (a precast concrete planking) and exterior wall panels) were fabricated, and "erection drawings", according to which the precast concrete elements were erected.
9. The Formigli shop and erection drawings were submitted to and approved by Speyer, Idell and Foxcroft prior to the start of fabrication.
10. Substantially all the precast concrete elements for the Benjamin Fox Pavilion were fabricated by Formigli and delivered to the jobsite.
11. Substantially all the precast concrete elements for the Benjamin Fox Pavilion were erected at the jobsite by Berry-Baschoff, Inc., a subsidiary of Formigli.
Changes In The Scope Of The Work
12. With respect to changes in the scope of the work, the written agreement provided: "There shall be no extra charges to complete work called for under this contract. However, the party of the first part (Foxcroft), without invalidating the Contract, may order extra work or make changes by altering, adding to, or deducting from the work, the Contract Sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract."
13. With respect to additions, omissions and changes in the work as called for by the written agreement:
a. -- Items which were not in dispute, when set off, result in a net decrease in the contract price of $27,921.00.
b. -- To narrow the issues to be tried the parties agreed to compromise certain other items which, when set off, result in an increase in the contract price of $21,359.60.