Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, No. 1856, in case of Lampl Asphalt Paving Company, Inc., t/a Highway Ready-Mix Company v. Huber, Hunt and Nichols, Inc.
Richard S. Crone, with him Crone and Zittrain, for appellant.
Carl A. Eck, with him Mayer, Darragh, Buckler, Bebenek & Eck, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J.
[ 227 Pa. Super. Page 390]
This is an appeal from an order of the Court of Common Pleas of Allegheny County, Civil Division, denying plaintiff's motion to remove judgment of a compulsory non-suit.
This was a case in assumpsit involving an agreement between Lampl Asphalt Paving Company, Inc., t/a Highway Ready-Mix Company (hereinafter referred to Lampl) and Huber, Hunt and Nichols, Inc. (hereinafter referred to as Huber), to provide concrete at a unit price per cubic yard. The concrete was to be used on a construction project of General Motors Corporation. The concrete to be so furnished by Lampl was to be in accordance with concrete mix designs created and provided by Michigan Testing Engineers, an independent testing laboratory, acting for General Motors and in accordance with the contract. Lampl alleged that the concrete mix designs resulted in an overyielding of concrete in excess of 27 cubic feet per cubic yard or 8% more per cubic yard for every cubic yard billed and seeks to collect $248,967.45.
An offer was made to prove these facts setting forth in detail the proof to be provided by a list of witnesses. The court below sustained objections to the offer of Lampl and as no other testimony was available, a compulsory non-suit was granted. Lampl moved to remove the non-suit and this appeal followed.
The court below in an able opinion by Judge Silvestri pointed out the problem presented by Lampl's offer by saying:
"Here we are not dealing with a specific breach of a contract but with a claim to the effect that there was an express written contract and Huber received more concrete under that contract than it paid for. The
[ 227 Pa. Super. Page 391]
claim is not predicated on any accident, mutual mistake, or fraud on the part of Huber but instead is bottomed on a recalculation of materials with variable factors using a proper theoretical design mix for concrete.
"Lampl, in its pleadings, set forth the existence of an express contract between it and Huber, one of the terms being that Lampl '. . . was obligated to furnish ready-mix concrete in accordance with concrete mix designs created and provided by an independent testing laboratory acting on behalf of ...