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THOMAS M. DURKIN & SONS v. NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY AND H. GILROY DAMON AND H. GILROY DAMON ASSOCIATES (04/29/83)

filed: April 29, 1983.

THOMAS M. DURKIN & SONS, INC., A PENNSYLVANIA CORPORATION
v.
NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY AND H. GILROY DAMON AND H. GILROY DAMON ASSOCIATES, INC. AND HAAG AND D'ENTREMONT. APPEAL OF NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY



No. 2727 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County at No. 5409 of 1973.

COUNSEL

George W. Thompson, Upper Darby, for appellant.

Dale A. Betty, Media, for Durkin, appellee.

Peter A. Dunn, Media, for Gilroy, appellee.

Bruce D. Lombardo, Philadelphia, for Haag and D'Entremont, appellee.

Hester, Johnson and Popovich, JJ. Johnson, J., files a dissenting opinion.

Author: Popovich

[ 314 Pa. Super. Page 133]

Thomas M. Durkin & Sons, Inc., appellee, brought an action in assumpsit against the Nether Providence Township School Authority, appellant, seeking compensation for extra work required for site development in the construction of a high school. Appellant joined as additional defendants H. Gilroy Damon and H. Gilroy Damon Associates, Inc., (Damon), the engineering firm which had surveyed the site. Damon, in turn, joined Haag and D'Entremont, (Haag), the architectural firm that originally prepared the job site plans, as an additional defendant. A jury trial was held in May, 1979, and appellant moved for a compulsory non-suit at the end of appellee's case. The motion was

[ 314 Pa. Super. Page 134]

    refused and appellant rested without presenting any testimony to rebut appellee's claim. At this time, Damon withdrew its claim against Haag, and Damon and Haag moved for compulsory non-suits which were granted. The jury awarded appellee $32,856.10. Appellant subsequently filed post-trial motions seeking a new trial, judgment n.o.v., or the removal of the non-suits granted the additional defendants. On October 1, 1979, the trial court denied all three post-trial motions, and appellant took an appeal to this court. On October 16, 1981, the appeal was quashed because the order denying appellant's post-trial motions had not been reduced to judgment and docketed. See Thomas M. Durkin, etc. v. Nether Providence, etc., 291 Pa. Super. 402, 435 A.2d 1288 (1981). The procedural defect having been promptly cured,*fn1 we now reach the merits of this appeal.

Appellant contends that, by the terms of the contract, orders for additional work cannot be made without written approval by the board. Appellant maintains further that this requirement was not met and could not be waived. Moreover, appellant asserts that the contract required appellee to inspect the site prior to bidding and that appellee's failure to do so forecloses any chance of recovery. Alternatively, appellant argues that where appellee has proved that extra work was necessary, the trial court should not have entered non-suits in favor of the additional defendants.

We find that appellant's arguments lack merit and, accordingly, affirm the judgment entered.

[ 314 Pa. Super. Page 135]

In considering a request for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). The court must find and consider only that evidence which supports the verdict, and all conflicts must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965). See Page 135} Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 643-4, 359 A.2d 440, 441 (1976).

Viewed in this manner, the evidence showed that in June, 1968, shortly after appellee was awarded a contract by appellant, appellee discovered certain discrepancies between topographical contour lines depicted on the site plans and the actual topographical conditions existing at the job site. Appellee also discovered that the job site plans did not accurately reflect the need to clear an additional 3/4 of an acre of ground located on the job site. A dispute developed as to whether appellee would be required under the contract to provide the extra work necessary to clear the above referenced 3/4 of an acre and also to raise or lower the ground level in order to complete the job in conformity with ground contours shown on the job site plans.

Appellant, under separate contract, retained the services of a consulting firm known as Wigton-Abbot to manage the performance of the contract by various sub-contractors including appellee. Appellee's claim for additional compensation was submitted to Wigton-Abbot in late June of 1968 for resolution. The record revealed that Wigton-Abbot investigated appellee's claim by directing the survey engineering firm, Damon, to re-examine the topographical surveys which it had prepared under separate contract with appellant during the initial preparation of job site plans. The job site plans were originally prepared by the architectural firm, Haag, which had utilized topographical surveys performed by Damon in the design of the job site plans.

After Damon completed a reevaluation of its topographical surveys, adjustments were made in the contour lines shown on the job site plans in order to provide additional soil so that appellee could raise the contour of the ground to satisfactory levels while utilizing materials available on the job site.

The contract provided that the contractor should make an examination of the work site and that the contractor would be responsible for determining the true amount of cut and fill and for supplying all the earth fill that may be required.

[ 314 Pa. Super. Page 136]

Therefore, even though the contract incorrectly estimated that the cut and fill on the combined east and west tracts were approximately equal, appellant consistently maintained that the discrepancies in the plans did not give rise to extra work outside the contract.

Appellee sent a letter notifying appellant that it refused to proceed until the dispute over the contested items was resolved. This prompted a letter from the school board dated April 29, 1969, which instructed appellee to proceed with the site work and that the disagreement with respect to certain facts could only be resolved later. Appellee then completed the work in a good and workmanlike manner but did so under threat of default. After the work was completed, a job meeting was held to resolve claims for extra work submitted by appellee. The meeting was conducted by Vernon Pharis, construction manager for Wigton-Abbot, and attended by two representatives of the school authority, Mr. Hill and Mr. Ruza, and a representative of the architect. At this meeting, authorization was given to the architect to prepare five written change orders covering the work claimed by appellee. These change orders were signed by the architect, forwarded to appellee, and then forwarded to appellant for final payment. Appellee received payment on only one of the change orders in the amount of $350.00, the cost of removing a large tree from the job site.

Appellant argues that appellee never claimed that the change orders constituted written approval under the contract. The record belies such an argument. Appellant points to the statement made by appellee's attorney to the trial judge concerning the change orders: "That is right. They were never approved by the board. And that is why we are here." (N.T. p. 127). This comment was made during a conference in the retiring room away from the hearing of the jury. Although this statement can support appellant's theory that the change orders were not written authorizations, it can just as easily be interpreted as a recitation of case history. That is, had appellant honored and paid the change orders it authorized, the litigation

[ 314 Pa. Super. Page 137]

    would not have arisen. Further, appellant argues that the following comment by the trial judge during his charge to the jury proves that the change orders could not be considered written authority: "The plaintiff has argued that, yes, he got authorization in various ways, that representatives of the defendant were at their meetings, knew what the claims were, and they approved the claims although there were no written authorizations." (N.T. p. 180). This excerpt from the record was made during an explanation to the jury of the argument appellant was making. Namely, that the change orders were of no effect whatsoever until approved ...


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