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CLUETT, PEABODY & CO. v. CAMPBELL

January 31, 1980

CLUETT, PEABODY & CO., INC.
v.
CAMPBELL, REA, HAYES & LARGE, C.F. King, Inc., and Long-Service Co., Inc; LONG-SERVICE CO., INC. v. CERTAIN-TEED PRODUCTS CORP., National Surety Corp., Owens-Corning Fiberglas Corp., Lexsuco, Inc. and John J. Albarano, d/b/a Penn State Construction.



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

This matter comes before the court on defendants' summary judgment motions. Plaintiff, Cluett, Peabody & Co., Inc. (Cluett), seeks the cost of replacing the roof on a warehouse that it had formerly leased. Defendants, the architect, general contractor and roofing contractor involved in building the warehouse, contend (a) that the applicable statute of limitations bars this suit, and (b) that the real party in interest on any claim for the cost of replacing the allegedly defective roof is not the tenant of the warehouse, Cluett, but its owner, the Shamokin Area Industrial Corporation (SAIC). *fn1"

 Defendants' motions will be granted in part and denied in part. I conclude that plaintiff's claims concerning the construction of the roof had accrued more than six years prior to the commencement of this action and are therefore barred by the Pennsylvania six year statute of limitations, Pa.Stat.Ann. tit. 12, § 31 (1953) (Purdon). *fn2" Plaintiff's claim that the roof must be replaced because defendants failed to exercise reasonable care in attempting to repair the roof, however, accrued less than six years prior to the institution of this law suit and is therefore timely. Finally, since under the lease Cluett was obligated to replace the roof, it is a real party in interest to this action. *fn3"

 I. THE FACTS

 On August 19, 1965, Cluett and SAIC executed a written 20 year lease for a tract of land situated in Ralpho Township, Northumberland County, Pennsylvania. Under the terms of the lease SAIC agreed to construct by September 1, 1966 a warehouse containing approximately 250,000 square feet of floor space. (Sections 1.1 and 2.2 of the Lease) In addition to payment of rent, Cluett agreed, inter alia, to maintain the warehouse and leased realty and "make all necessary repairs, interior and exterior, structural and non-structural, ordinary and extraordinary, foreseen and unforeseen." (Section 6.1 of the Lease)

 The warehouse to be leased by Cluett was designed by defendant Campbell, Rea, Hayes & Large (hereinafter referred to as the architect). Under the terms of the agreement with SAIC dated April 22, 1965, the architect undertook to perform for SAIC professional services "consist(ing) of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings for architectural, structural, plumbing, heating, electrical, and other mechanical work; assistance in the drafting of forms of proposals and contracts; the issuance of Certificates of Payment; the keeping of accounts, the general administration of the construction contracts, and supervision of the work." (Article 1 of the Architect's Contract) In consideration for the performance of such services SAIC agreed to pay the architect in installments a basic fee amounting to 4 percent of the cost of the project. (Article 3 of the Architect's Contract) The architect's contract did not specify a date on which the architect would be released from his contractual commitments.

 The contract for the general construction work on the warehouse, which included construction of the roof, was let on August 27, 1965 to defendant C. F. King, Inc. (hereinafter referred to as the general contractor). Under the terms of this agreement, the general construction work was to be completed by February 1, 1966, unless the architect granted an extension of time, (Article 2 of the general contractor's agreement) and the general contractor was obligated to remedy any defects due to faulty materials or workmanship that appeared within one year from either the date of final payment or the date of substantial usage or occupancy of the warehouse, whichever was earlier. *fn4" (Article 20 of the General Conditions, incorporated by reference into the general contractor's agreement) Payments to the general contractor were to be made under "certificates for payments" issued periodically by the architect upon application by the general contractor. No termination date was set out in the general contractor's agreement.

 The general contractor on September 15, 1965 sub-let the construction of the warehouse roof to defendant Long Service Co., Inc. (hereinafter referred to as the roofing contractor). This agreement provided, inter alia, that "guarantees on sheet metal work and on all types of roofing . . . are limited to one year from date of completion." The roofing contractor was to be paid on a monthly basis with the final payments due thirty days from completion of the roofing sub-contractor's work. This agreement, like the architect's and general contractor's, contained no termination date.

 The roof designed for the Cluett warehouse, sometimes described by the parties as a built-up roof, was constructed in layers. The bottom layer was a ribbed or fluted steel deck. A thin plastic-like sheet or vapor barrier made by third-party defendant Lexsuco was anchored to the roof deck by an adhesive also manufactured by Lexsuco. One and one-half inch thick fiberglas roof insulation, a product of third-party defendant Owens-Corning, was attached to the vapor barrier by the Lexsuco adhesive. Steep asphalt was then applied on top of the first layer of insulation board and a second layer of fiberglas roof insulation was laid. A layer of asphalt was placed on top of the insulation board and four layers of felt, a product of third-party defendant Certain-Teed, were then applied. Coal tar pitch was spread between each layer of felt and on top of the last layer of felt. The last layer of coal tar pitch was covered with gravel. The roof was constructed in six sections with each section separated by an expansion joint.

 The roofing contractor completed its construction work on the built-up roof on March 24, 1966 and the certificate of final payment was issued on September 12, 1966. (Lexsuco-Farrow deposition Ex. No. 2) Money was retained from the general contractor, however, until January of 1968 (Farrow, pp. 44-46, 139-143) *fn5" and the roofing contractor did not receive final payment on its agreement until January 19, 1968. (Long, Sr., pp. 14-15)

 This money had been withheld because of problems with the roof. (Farrow, pp. 44-46) Almost immediately after Cluett occupied the building in May or June of 1966 (Farrow, p. 19) the roof began to leak and blister. (Stanner, pp. 7, 8 and 12). The problems of leaks and blistering were known by a number of Cluett employees. Edward Stanner, employed in the Cluett maintenance department, observed roof leaks in various sections of the warehouse every time it rained in 1966 and reported all such leaks to Donald Turley, Cluett plant engineer and Stanner's superior. (Stanner, pp. 7-14) In August of 1966, Turley received authorization to meet with representatives of the defendants and to inspect the roof to determine the source of the leaks. (Bannon, pp. 29-32). Turley observed that in 1966 most of the leaks were located near smoke vents installed in the roof. Cluett plant superintendent William Bannon and the general manager of plant distribution, Albert Nock, were also aware of the leaks in 1966. (Bannon, p. 33; Nock, p. 9) In addition, Oscar Tyree, manager of plant engineering for Cluett, *fn6" twice inspected the roof in the summer of 1966 and discovered what he believed to be poor workmanship in soldered junctions of the expansion joints. (Tyree, p. 101)

 The architect contacted the general contractor who in turn informed the roofing contractor of these problems with the roof. The roofing contractor expended approximately 31 man hours in July, 1966 and 1041/2 man hours in September, 1966 attempting to remedy these matters. (Plaintiff Long, Jr. deposition Ex. No. 1)

 Such repair efforts proved to be ineffective. In fact, during 1967 the conditions worsened. Stanner, Turley and Bannon recalled that the roof leaked in various sections of the warehouse throughout 1967. (Stanner, pp. 17-28; Turley, pp. 43-44; Bannon, p. 35) In January of 1967, gravel was missing on certain spots of the roof, flashings had separated from their joints, and pitch pockets, which were the areas where equipment stands entered the roof, did not appear to be functioning properly. (Hornbaker, vol. I, pp. 133-134). Turley also observed that in the summer of 1967 there had been some movement in the roof, (Turley, pp. 53-54) and Stanner noted in the fall of "67 some movement in the roof away from the drains. Also in 1967 Stanner observed blisters on all six sections of the roof and these blisters appeared to be larger than the ones he had noticed in 1966. (Stanner, p. 71)

 By September of 1967, Tyree knew that the problems with the roof were serious. (Tyree, p. 121) In correspondence from the architect to third-party defendant Certain-Teed with a copy sent to Mr. Tyree the architect stated: "there is currently occurring a premature roof failure. . . . The problem of roof leaks has been a continual one. . . . There seem to be some differences of opinion as to the cause of the problem, which is taking considerable time to resolve." (Exhibit FFFF of Long's Second Request for Admissions) This concern for premature roof failure was repeated in a letter dated July 11, 1967 from the architect to third-party defendant Lexsuco with copies sent to Tyree, Bannon and Turley (exhibit 43 of Long's Third Request for Admissions) and in a letter dated August 8, 1967 from the architect to third-party defendant Certain-Teed with copies also sent to Tyree, Bannon and Turley. (Long Exhibit No. 10 of Tyree deposition) Furthermore, a letter drafted by Certain-Teed chemist Lyle C. Haack, and forwarded by the architect to Tyree, suggested that the roof may have to be replaced and a new built-up roof fastened more securely to the steel deck. (Ex. Nos. 45 and 46 to Long's Third Request) *fn7"

 Throughout 1967, the architect actively participated in efforts to make the roof water-tight. These efforts included corresponding with third-party defendant material suppliers and causing the general contractor to have the roofing contractor perform certain repair work. (Hornbaker deposition vol. I, pp. 148-150) In addition, a representative of the architect participated in at least two conferences held at the warehouse concerning the problems with the roof. (Plaintiff-Hornbaker deposition Ex. Nos. 9 and 10)

 These conferences were also attended by the roofing contractor and the general contractor. In March, May and August of 1967 the roofing contractor expended considerable amounts of time in corrective work at the behest of the architect and general contractor. (Plaintiff Long, Jr. deposition Ex. No. 1) On October 3, 1967, the architect wrote to Tyree, stating, in part, "I wish to state that (the roofing contractor) and (the general contractor) have apparently made all corrections on the roof with specific reference to the perimeter where the condition existed." (Plaintiff-Hornbaker deposition Ex. No. 22)

 
There appears to be holes or possible fissures in the built-up plies permitting the water to enter. Therefore, we would suggest that you again have the roofing contractor return to the site to either re-roof those areas where these leaks developed or install additional plies of built-up roof in order to seal the leak.
 
I am sure that you, as the Prime Contractor, and your roofing sub-contractor are just as anxious to see that this roof is placed in a water-tight condition as the Owner and this firm. I assure you that we will do all we can to help expedite the completion of the project; however, it will never be done as long as the water keeps leaking into the building.

 (Plaintiff-Hornbaker deposition Ex. No. 28)

 Because problems with the roof had subsisted through 1967, the architect believed that the roofing contractor should extend its roofing guarantee for an additional year. (Plaintiff-Hornbaker deposition Ex. No. 24) By letter dated October 17, 1967, the roofing contractor offered to extend an additional year on their roofing obligations and this proposal was accepted by the architect. (Plaintiff-Hornbaker deposition Ex. Nos. 25 and 26).

 The roof continued to leak throughout 1968. Stanner recalls that leaks appeared every time it rained in 1968. (Stanner, p. 42) In addition, the roof continued to blister and move. The number and size of the blisters again increased in 1968. (Stanner, p. 71) The roof appeared to move inward from the perimeter and away ...


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