David A. Martino, Bangor, for appellant.
Louis Sager, Pottstown, for defendant, Structural Foam, Inc.
Domenic P. Sbrocchi, Bangor, for additional defendant, Carl W. Shindle.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 257]
This is an appeal by the plaintiff in an action of assumpsit and trespass from a judgment entered in favor of the defendants on their counterclaims.
The action was filed in 1972 to recover damages which plaintiff-appellant alleged he suffered from defective material and labor supplied by defendants in the construction of a home. The materials included a special product known as styrofoam, reinforced with concrete, offered for sale by the corporate defendant and installed by Shindle the individual defendant. Exhibit A attached to plaintiff's amended complaint, and referred to therein as the contract between the parties (plaintiff and Structural Foam, Inc.) is not for the construction of a home, but is an itemized list of materials to be supplied. Shindle is not named therein, which raised the question whether he was merely an agent of Structural or an independent contractor. However, he was named as additional defendant in the amended complaint.
Exhibit A contains two lists of material, one totaling $4,862.51, and another one $2,409.10 or a total of $7,271.61 plus a 5% selling commission of $363.85 or a grand total of
[ 255 Pa. Super. Page 258]
$7,635.42. Plaintiff's amended complaint alleged a payment on account of $1,800.00 which is admitted.
Both defendants filed answers containing counterclaims. Structural claimed $5,835.42 as the balance due ($7,635.42 less $1,800.00), and Shindle claimed $1,600.00 for services or a total of $7,435.42.
The lower court found against plaintiff and in favor of defendants on the following findings: viz.
"(1) Plaintiff, Kurt Zuhlke, and defendant, Structural Foam, Inc., (SFI) entered a contract for the construction of a home (including ...