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FRAMLAU CORPORATION v. KLING ET AL. (03/31/75)

decided: March 31, 1975.

FRAMLAU CORPORATION, APPELLANT,
v.
KLING ET AL.



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, No. 1536, in case of Framlau Corporation v. Vincent G. Kling, Albert J. Huber, Joseph Marzella, John Rutkowski, Robert A. Kear, Eric Chong, Lewis M. Eisenstadt, M. Elliott Carroll, Vincent G. Kling, Jr., Walter C. Taylor, Jr., Frederick G. Roth, Dan P. Kopple, William B. Hayward, John F. Larkin, Jonathan P. Naylor, B. Lee Hutchinson, Individually and as co-partners t/a Vincent G. Kling & Partners.

COUNSEL

Jon C. Sirlin, with him Stephen R. Bolden, and Fell, Spalding, Goff & Rubin, for appellant.

Arthur E. Newbold, III, with him Frank J. Ferro, and Dechert, Price & Rhoads, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 233 Pa. Super. Page 177]

The appellant contends that the trial court erroneously granted the appellee's motion for summary judgment under Rule 1035, Pa. R.C.P. The lower court ruled that appellant's cause of action was barred by the statute of limitations.

In June, 1963, appellee, Vincent G. Kling, a noted Philadelphia-based architect*fn1 (hereinafter "Architect"), entered into an agreement with the Upper Dublin School Authority, Montgomery County (hereinafter, "Authority"), for the design of the Sandy Run Elementary School. On March 24, 1964, appellant, Framlau Corporation (hereinafter, "Corporation"), submitted a bid based on plans prepared by the Architect. On April 20, 1964, the Corporation contracted with the Authority to build the school.

Thereafter, a dispute arose between the Authority and the Corporation over a clause in the construction contract concerning the amount of the interior of the building that was to be finished with brick instead of cinder block. The Corporation completed construction consistent with the Authority's reading of the contract, but subsequently, on October 5, 1965, submitted its claim to arbitration as

[ 233 Pa. Super. Page 178]

    provided in Article 31 of the contract: "Should either party to the contract suffer damages because of any wrongful act or neglect of the other party or of anyone employed by him, claim shall be made in writing to the party liable within a reasonable time of the first observance of such damage and not later than the final payment, except as expressly stipulated otherwise in the case of faulty work or materials, and shall be adjusted by agreement or arbitration."

The arbitrators denied the Corporation's claim against the Authority. The Montgomery County Court of Common Pleas set aside the judgment of the arbitrators and the Authority appealed to this Court. We reversed and reinstated the original award of the arbitrators. Framlau Corporation v. Upper Dublin School Authority Board, 219 Pa. Superior Ct. 369, 281 A.2d 464 (1971).

On June 12, 1972, the present suit was brought by the Corporation against the Architect in the Court of Common Pleas of Philadelphia County. The Corporation's complaint alleges several counts of negligence on the part of the Architect. The gravamen of the complaint is that the Architect's drawings prepared after the Corporation's bid was accepted were inconsistent with the original plans.

On January 3, 1974, the Architect filed a motion for a summary judgment on the theory that the Corporation's suit was barred by the statute of limitations. The motion was ...


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