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COMMONWEALTH PENNSYLVANIA v. COLLINGDALE MILLWORK COMPANY (01/21/83)

decided: January 21, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, PLAINTIFF
v.
COLLINGDALE MILLWORK COMPANY, DEFENDANT



Original jurisdiction in case of Commonwealth of Pennsylvania, Department of General Services v. Collingdale Millwork Company.

COUNSEL

Henry J. Costa, Jr., Assistant Counsel, with him Thadeus A. Tanski, Chief, General Litigation Unit, and Anthony P. Krzywicki, Chief Counsel, for plaintiff.

Jeffrey L. Pettit, with him Alan V. Vaska, Hepburn, Willcox, Hamilton & Putnam, for defendant.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 71 Pa. Commw. Page 287]

Before us is the motion of the Department of General Services (DGS) and also the cross-motion of Collingdale Millwork Company (Collingdale) for summary judgment.*fn1

The stipulation of facts submitted by the parties reveals the following complicated chronology of

[ 71 Pa. Commw. Page 288]

    events. The plaintiff, DGS, formerly the General State Authority, awarded a contract to Atoms Construction Corporation (Atoms) on July 25, 1974 for the performance of general construction in erecting a garage and maintenance building at Cheyney State College, Cheyney, Pennsylvania. On or about April 1, 1976, Atoms was declared in default of the aforesaid contract and completion of the contract was undertaken by Atoms' bonding company, United States Fidelity and Guaranty Company (USF&G). Unrelated to the Cheyney State contract, defendant Collingdale had supplied material to Atoms during the period of March 31 to April 14, 1975, for work being performed at the 12th Floor, Lewis Tower Building, Philadelphia, Pennsylvania. Atoms failed to pay Collingdale for such materials supplied and Collingdale consequently instituted an action in assumpsit against Atoms to collect the $2,391.51 unpaid balance plus tax and interest in the Court of Common Pleas of Philadelphia County. Collingdale obtained a judgment against Atoms in the sum of $2,788.63 which was soon docketed. Believing that the DGS held a sum of money payable to Atoms, it then filed in the aforesaid court of common pleas a praecipe for a writ of execution in attachment and summons against the DGS as a garnishee on July 21, 1976.

Collingdale then served interrogatories in attachment to DGS which the DGS answered. Subsequently Collingdale served supplemental interrogatories upon the DGS which were not answered. Collingdale's counsel and counsel for the DGS agreed that Collingdale would refrain from entering judgment against the DGS for failing to respond provided the payment of judgment against Atoms plus accrued interest was paid to Collingdale on or before January 15, 1979. Counsel for the DGS then advised Collingdale's counsel

[ 71 Pa. Commw. Page 289]

    that, of the $50,000 which had been set aside to be paid to Atoms, $3,000 would be held to satisfy Collingdale's judgment against Atoms. In furtherance of this conversation, counsel for the DGS instructed the comptroller's office to place a "hold" on the funds of Atoms, by reason of a claim by Collingdale, Atoms' subcontractor. On January 19, 1979, a different DGS attorney advised the comptroller's office that all funds due and owing under the contract between Atoms and the DGS were the property of USF&G, as completing surety, and, on the same day, the first-mentioned DGS counsel (the one who had dealt with Collingdale) informed Atoms by letter that the DGS intended to satisfy Collingdale's judgment against Atoms. On March 6, 1979, upon a praecipe filed by Collingdale, the prothonotary of Philadelphia County entered judgment against the DGS in the amount of $4,990.19, and, in response to a request by the DGS as to evidence of Collingdale's claim, Collingdale's counsel forwarded a copy of the docket entries to the counsel for the DGS. He also advised that judgment had been entered. The counsel for the DGS then directed the comptroller to issue a check to Collingdale from Atoms' account in the amount of $4,990.19. Subsequently, Collingdale's counsel sent a copy of the complaint to the comptroller of the DGS. On March 19, 1979, counsel for Collingdale forwarded the complaint, the judgment, and a copy of ...


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