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ALEX v. HENRY S. CONREY

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 30, 1974

EDWARD J. ALEX t/a E. J. ALEX CONSTRUCTION COMPANY
v.
HENRY S. CONREY, INC.

The opinion of the court was delivered by: NEWCOMER

FINDINGS OF FACT

 Newcomer, District Judge.

 This case involves an oral contract between plaintiff and defendant which contract required defendant to perform a survey for plaintiff in order that plaintiff could lay a foundation for the erection of a certain parabolic antenna for use by the University of Pennsylvania. An error in the survey caused the direction of the antenna to be off by six (6) degrees requiring plaintiff to expend an additional sum of money to correct the problem. The question as to the amount of said additional expenditure provides us with the subject of this law suit. Accordingly, we make the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a):

 1. Plaintiff, Edward J. Alex, is an individual citizen of the Commonwealth of Massachusetts trading under the name of E. J. Alex Construction Co.

 2. Defendant Henry S. Conrey, Inc., is a Pennsylvania corporation having its principal place of business at 159 Lancaster Avenue, Paoli, Pennsylvania.

 3. The amount in controversy exceeds the sum of $10,000 dollars, exclusive of costs.

 4. At all times pertinent to this action, plaintiff, Edward J. Alex, t/a E. J. Alex Construction Co., has been engaged in the general contracting business, specializing in steel and concrete work including antennae and antenna foundations.

 5. At all times pertinent to this action, defendant Henry S. Conrey, Inc., has been a registered land surveying firm with Henry S. Conrey being the licensed professional engineer for the firm, and with the firm being engaged in the business of performing land surveys.

 6. On or about April 30, 1968, plaintiff entered into an oral contract with defendant whereby defendant was to perform a land survey at a site in Valley Forge, Pennsylvania to provide the azimuth direction of a radio tower to be erected at the site by plaintiff pursuant to plaintiff's contract with the University of Pennsylvania.

 7. The purpose of the survey to be performed by defendant pursuant to the oral contract referred to in the preceding finding of fact was to provide precise orientation (azimuth) in a true north-south direction for the parabolic transmitting antenna to be erected by plaintiff so that transmissions from the antenna in Valley Forge would hit a receiving antenna located on Wallups Island, Virginia.

 8. Plaintiff has performed all conditions required of him necessary to permit defendant to perform its obligations under the oral contract previously referred to.

  9. The radio antenna to be erected by plaintiff consisted, essentially, of three parts: a concrete foundation pedestal on which it was anchored; the steel tower itself which rose approximately 30 feet in the air; and a parabolic aluminum dish on top of the tower, which dish was approximately 50 feet in diameter.

 10. Under its contract with the University of Pennsylvania, plaintiff was obliged to supply an antenna which would transmit on a direct line from Valley Forge to Wallups Island.

 11. Defendant was informed, prior to entering into the contract with plaintiff referred to above, that plaintiff was erecting an antenna that had to be faced toward Wallups Island, Va. and that defendant's survey was required in order that the foundation for the antenna would be precisely oriented in the proper direction.

 12. The parabolic antenna dish on top of the tower could not be rotated or moved from side to side; hence, an error in the orientation/azimuth of the tower meant that transmissions from the antenna in Valley Forge would not hit the receiving antenna on Wallups Island.

 13. On or about May 23, 1968, defendant informed plaintiff that defendant had completed the land survey and advised plaintiff that plaintiff could rely on the accuracy of defendant's survey.

 14. Specifically, defendant had performed its survey by observation of the star Polaris and had performed mathematical calculations and drawn survey lines, and had placed stakes in the ground where the front two piers of the antenna foundation were to be placed by plaintiff.

 15. In reliance upon defendant's placement of the stakes in the ground -- called a base line -- plaintiff dug the holes and made necessary preparations for placement of the concrete foundation pedestal.

 16. Thereafter, plaintiff further inquired of defendant as to the accuracy of defendant's survey and, acting in reliance upon defendant's renewed assurances that the survey was accurate in all respects, plaintiff poured the concrete footings, installed the foundation steel, completed the foundation and erected the steel radio tower itself.

 17. Thereafter, following a third inquiry of defendant by plaintiff as to the accuracy of defendant's survey -- at a time when the sole remaining construction activity with respect to the tower was placement of the parabolic dish on top of the tower -- defendant resurveyed the orientation of the tower and informed plaintiff that defendant had made a six (6) degree error in its calculation of the orientation azimuth.

 18. Defendant has admitted, both in pre-trial discovery, and at trial, its mistake in the survey and the effect of that survey on the orientation of the tower saying for example:

 

". . . Mr. Conrey will state for the record that Mr. Conrey's engineering firm made an error in locating the base of the tower. There was a 6-degree error in azimuth, so that the tower was not pointed to Wallups Island as it should have been. . . ." (N.T. 8)

 19. As a result of defendant's error in its survey, and the resulting misdirection of the tower, transmissions from the Valley Forge site would not be received by the Wallups Island tower.

 20. A failure in transmission as described in the foregoing finding of fact constituted a breach by plaintiff of its contract with the University of Pennsylvania which, if uncorrected, would cause plaintiff to forfeit its right to payment under that contract and expose plaintiff to the other legal consequences of a breach of contract.

 21. Because of the error, the plaintiff employed Dr. Sidney Shore, a professor at the University of Pennsylvania, for the purpose of determining how the error should be corrected.

 22. The defendant employed a mechanical engineer, Mr. Raymond LeBer, an assistant professor of Villanova University, for the purpose of studying the problem and to confer with Dr. Shore as to what steps could and should be taken to correct the problem.

 23. Pursuant to his employment Mr. LeBer went to the site and examined the tower erected as well as the antenna dish which was to be placed thereon.

 24. Mr. LeBer calculated that the tower would not support the antenna dish.

 25. At a meeting by and between Mr. LeBer and Dr. Shore on or about August 7, 1968, Mr. LeBer advised Dr. Shore as to the inadequacy of the tower.

 26. Dr. Shore never communicated to Mr. Alex the information received from Mr. LeBer regarding the inadequacy of the tower.

 27. Defendant made no suggestion to plaintiff as to any method whereby the misdirection of the radio antenna due to defendant's surveying error could be corrected. *fn1"

 28. Dr. Shore recommended, essentially, three possible methods to correct the misdirection of the antenna resulting from defendant's surveying error: (a) modification of the already erected tower by twisting it to correct the direction in which it faced; (b) erection of a new tower with the twist built into it so as to give the proper direction; or (c) correction of the concrete foundation pedestal either by modifying the already built pedestal or by installation of a new pedestal at a new location.

 29. Plaintiff, in consultation with representatives of the University of Pennsylvania for whom he was building the tower, made the choice as to which of the alternative methods suggested by Dr. Shore to correct the misdirection would be employed.

 30. Although plaintiff was willing to modify the already erected tower, the representatives of the University of Pennsylvania for whom plaintiff was erecting the tower refused to accede to a correction of the misdirection by modification of the already erected tower for the reasons that: (a) the tower was not owned by the University but was, rather, merely borrowed from the Radio Corporation of America and (b) building a twist into the already erected tower would create an unsightly "Rube Goldberg" appearance which the University considered to be unacceptable in the scientific community and in connection with the federal National Science Foundation grant under which the University was to use the tower upon completion of the erection. *fn2"

 31. In connection with erection of a new tower with a correctional six (6) degree twist in it, plaintiff was required to obtain a new land survey which was done by Yerkes Engineering at a cost of $200.00.

 32. In connection with erection of a new tower with a correctional six (6) degree twist in it, plaintiff was required to obtain the expert services of Dr. Shore both for consultation and for preparation of the design of the new tower at a cost of $2750.00 Dollars.

 33. In connection with erection of a new tower with a correctional six (6) degree twist in it, plaintiff was required to contract for the fabrication of the steel tower with Belmont Iron Works at a cost of $7498.00 Dollars. 34. In connection with erection of a new tower with a correctional six (6) degree twist in it, plaintiff was required to rent a crane to dismantle the existing tower and to erect the new tower, such crane being rented from Falls Equipment Co. and Chester County Crane Service at the following costs to plaintiff: Chester County Crane $ 514.64 Falls Equipment $1,077.28 Falls Equipment $1,150.64

19740730

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