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SPANG INDUS. v. C.J. LANGENFELDER & SON

August 20, 1973

SPANG INDUSTRIES, INC., FORT PITT BRIDGE DIVISION, a corporation, Plaintiff,
v.
C.J. LANGENFELDER & SON, INC., a corporation, Defendant


Marsh, Chief Judge.


The opinion of the court was delivered by: MARSH

Marsh, Chief Judge.

 The plaintiff, Spang Industries, Inc., Fort Pitt Bridge Division (Fort Pitt), a Pennsylvania corporation, with its principal place of business in Butler, Pennsylvania, brought this diversity action against C.J. Langenfelder & Son, Inc. (Langenfelder), a Maryland corporation, with its principal place of business in Baltimore, Maryland, to recover $46,007.21 as money had and received. Langenfelder counterclaims for an attorney fee of $11,501.80.

 On December 29, 1964, Langenfelder, as general contractor, entered into a contract with the State of West Virginia (State), acting through its State Road Commission, for the construction of three-tenths of a mile of highway and bridges thereon located near Wheeling on a section of Interstate Route 70 (PX G, Exhibit A).

 On March 19, 1965, Langenfelder entered into a subcontract with Fort Pitt wherein the latter was to "furnish and deliver structural steel and drainage items in connection with --- * * * steel superstructures" for the lump sum of $1,164,094.00 (DX 38). The steel was delivered in 1966. However, work on the project had been delayed by the actions and inactions of the representatives of the State Road Commission resulting in extensive damage to Langenfelder and its subcontractor Fort Pitt.

 In October and December, 1965, Fort Pitt notified Langenfelder that delays were causing increased costs and it should be reimbursed (DX 32, PX C). In February, 1967, Fort Pitt sent Langenfelder an itemized claim totaling $55,204.01 (PX D). Without admitting its validity, Langenfelder forwarded this claim to the Road Commission (PX E). The damage claims of both Langenfelder and Fort Pitt presented to the Road Commission by Langenfelder proved to be fruitless.

 In November, 1967, Langenfelder advised that Fort Pitt's claim would be submitted to the "newly formed" Court of Claims *fn1" (PX F). By letter dated August 11, 1969, Fort Pitt inquired of Langenfelder as to the status of its claim in the Court of Claims. By letter dated August 13, 1969, Langenfelder replied that the claim would be heard before the Court of Claims and that a hearing date was being awaited (PX H and I). By letter dated October 13, 1969, and mailed October 14th, Langenfelder notified Fort Pitt that the Court of Claims had fixed Monday, October 20th, as a hearing date (PX J). This letter received by Fort Pitt on October 16th or 17th (PX J-1; Tr., pp. 107, 120) stated that Fort Pitt had "not authorized our counsel to represent you insofar as your claims are involved." This was a fact, and Fort Pitt sent its attorney and two witnesses from Butler, Pennsylvania, to Charleston, West Virginia, to attend the hearing on October 20th.

 On July 8, 1968, Langenfelder had engaged Frank A. Sinon, Esq., of Harrisburg, Pennsylvania, to file three claims it had against the State. Attorney Sinon engaged Philip J. Graziani, Esq. of Charleston, West Virginia, as associate counsel. It was agreed between Langenfelder and Attorney Sinon that the fee should be 25% contingent upon the recoveries. Messrs. Sinon and Graziani agreed to share the fee equally (DX 2, 3, 4). *fn2"

 The "Petition for Allowance and Payment of a Claim Against the State" at Claim No. 120 was prepared by Attorney Sinon and an associate (PX G). This claim was filed in October, 1968; it alleged total damages of $224,768.11, which included the claim of Fort Pitt for $62,867.98. *fn3" , *fn4" A copy of this "Petition" was not sent to Fort Pitt (Tr., pp. 103, 106; see letter of Official Reporter, dated Agust 17, 1973, and filed August 20, 1973.)

 On October 17, 1968, three days before the hearing, Langenfelder filed an amendment increasing its claim by $366,829.56, or a total claimed loss of $528,729.69 (Tr., pp. 45-46). The amendment is attached to PX G. The amendment had nothing to do with Fort Pitt's claim. Langenfelder was not successful in establishing this increment set forth in the amendment to its claim.

 Prior to the hearing, Attorneys Sinon and Graziani interviewed Langenfelder's witnesses. They did not ask to interview Fort Pitt's witnesses (Tr., pp. 107-108). No report was sent to Fort Pitt by Langenfelder's attorneys (Tr., pp. 114-115, 117).

 Fort Pitt's two witnesses and Attorney Marsh travelled from Butler, Pennsylvania, to attend the hearing in Charleston, West Virginia, on October 20th; on that day they also visited the law offices of Attorney Graziani and notified him and Attorney Sinon that Attorney Marsh would examine Fort Pitt's witnesses at the hearing. There was no objection. At the hearing the next afternoon, Attorney Marsh presented Fort Pitt's claim and examined its witnesses. Subsequently, he submitted a five-page memorandum in support of Fort Pitt's claim to the Court of Claims.

 Attorneys Sinon and Graziani opposed the State's motion to dismiss the claims, established the State's liability, conducted legal research, examined Langenfelder's witnesses and prepared memoranda. The hearing lasted three days.

 The Court of Claims published its Opinion and Award at D-120 on January 26, 1971 (PX L) and sent a copy to Attorney Marsh (PX M). The Court awarded Langenfelder $145,694.21 and awarded Fort ...


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