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FORMIGLI CORP. v. FOX

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 12, 1972

FORMIGLI CORPORATION
v.
William L. FOX, Individually and t/a Foxcroft Square Company, et al.

Hannum, District Judge.

The opinion of the court was delivered by: HANNUM

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.

 

c. -- The parties did not agree upon the price adjustments, if any, to be made for items 3B, 4, 5 and 13B of Exhibit P-3, which are referred to in paragraphs 14 to 17 below.

 14. Item 3B of Exhibit P-3 is a claim by Formigli for an addition to the contract price in the amount of $3,296 for "Add four spandrel beams and four one-story columns to enclose garage where ramp was eliminated." The contract drawings showed a circular garage ramp most of which was inside the perimeter of the rear of the garage and some of which was outside the perimeter of the garage. The contract price included the precast concrete components for that ramp. Formigli offered Foxcroft a credit of $30,000 if Foxcroft would provide at its expense a poured-in-place circular ramp at the same location. Eventually, Foxcroft changed the design of and relocated the garage ramp so that a void was left in the perimeter of the garage. To complete the structure at that place where the ramp had been removed, Formigli supplied four additional beams and four additional columns. Formigli and Foxcroft agreed that Foxcroft was entitled to a credit of $30,000 (which has been included in the calculation of items not in dispute set forth in paragraph 13a, above). The value of the four additional beams and four additional columns furnished by Formigli was $3,296. Formigli is entitled to an increase in the contract price in that amount.

 15. Item 4 of Exhibit P-3 is a claim by Formigli for an addition to the contract price in the amount of $10,599 for "Use of dish-shaped panels in lieu of channel-shaped wall panels in center bay front and building ends." Up to the time that the written agreement was entered into and thereafter to mid-August 1965, the parties had expected to use exterior wall panels of the same so-called "channel shape" across the entire front and ends of the office building tower. About August 18 or 19, 1965, Foxcroft's architect changed his design to specify a different type of exterior wall panel (one with a circular dish-shaped depression) for the two ends and an area in the center of the front of the office tower. The revised design also omitted several windows thereby increasing the area for which Formigli was to supply wall panels. The change increased the cost of the panels for the affected areas by $10,599. Formigli is entitled to an increase in the contract price in that amount.

 16. Item 5 of Exhibit P-3 is a claim for an addition to the contract price in the amount of $6,814 for "Change in size of two exterior stair towers. A. -- Increased area of wall panels. Add: $6,530. B. -- Additional beam length. Add: $284. The locations of two exterior fire stair towers were changed by Foxcroft from the locations shown on the contract drawings. The change in location resulted in an overall increase in the area of exterior wall panels and length of beams furnished by Formigli. The increase in cost attributable to the increase in materials was $6,814. Formigli is entitled to an increase in the contract price in that amount.

 17. Item 13B of Exhibit P-3 is a claim for an addition to the contract price in the amount of $1,500 for "Additional engineering time". Speyer's original contract with Formigli contemplated payment by Formigli to Speyer of a fee of $10,000. However, because of changes made by Foxcroft's architect in the location and shape of the building that required Speyer to make revisions of his then-completed structural drawings and to make additional calculations, Speyer charged Formigli the additional $1,500 for his additional engineering time. Formigli is entitled to an increase in the contract price in that amount.

 Billings and Payments

 18. The written agreement provided that Formigli would be paid 90% of the value of work as the work progressed on approval of the building architect. The remaining 10% was to be paid 120 days after completion of the work and acceptance of it by the building architect. 19. Formigli submitted invoices to Foxcroft for work performed under the written agreement on or about the dates and in the amounts set forth below: Retainage Net amount Invoice Invoice on Invoice Billed on No. Date Amount Amount Invoice date 1989 10/29/65 $ 25,200.00 $ 2,252.00 $ 22,680.00 1996 11/10/65 14,192.40 1,419.24 12,773.16 2064 2/2/66 9,074.00 907.40 8,166.60 2256 9/30/66 141,203.60 14,120.36 127,083.24 2275 10/31/66 248,030.00 24,803.00 223,227.00 2309 11/30/66 145,900.00 14,590.00 131,310.00 2325 12/30/66 145,900.00 14,590.00 131,310.00 2348 1/31/67 245,500.00 24,550.00 220,950.00 2366 2/28/67 119,250.00 11,925.00 107,325.00 2387 3/31/67 72,950.00 7,295.00 65,665.00 2411 4/28/67 218,850.00 21,885.00 196,965.00 2433 5/19/67 14,590.00 1,459.00 13,131.00 2504 7/31/67 58,360.00 5,836.00 52,524.00

19720912

© 1992-2004 VersusLaw Inc.



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