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PENNSYLVANIA GAS & WATER CO. v. NENNA & FRAIN (09/09/83)

filed: September 9, 1983.

PENNSYLVANIA GAS & WATER CO., APPELLANT,
v.
NENNA & FRAIN, INC. V. BOROUGH OF DICKSON CITY



No. 208 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED JANUARY 7, 1982 IN THE COURT OF COMMON PLEAS OF LACKAWANNA COUNTY, CIVIL NO. 329 SEPTEMBER TERM, 1979

COUNSEL

Perry J. Shertz, Howard M. Levinson and Richard A. Russo, Wilkes-Barre, for appellant.

John E. Freund, III, Allentown, for Nenna, appellee.

John P. Pesota, Scranton, for Dickson, appellee.

Cirillo, Johnson and Montemuro, JJ.

Author: Cirillo

[ 320 Pa. Super. Page 294]

This is an appeal from the order of the Court of Common Pleas of Lackawanna County dated January 7, 1982 which granted appellees' motions for summary judgment and denied appellant's motion for partial summary judgment.

The action underlying this appeal arises out of a storm sewer construction project in the Borough of Dickson City. The project was funded by a grant from the Federal

[ 320 Pa. Super. Page 295]

Government. The Borough of Dickson City contracted with Nenna and Frain, Inc. for the construction of a portion of the project known as The Storrs Street Sewer Project. Paragraph 8 of the contract between Dickson City and Nenna and Frain provided:

8. Any and all utility relocation that shall be required to make room for the storm sewer system and appurtenances shall be the responsibility of the contractor. The contractor shall make all arrangements with the utility companies as to the scheduling, maintenance of traffic and payment. The contractor shall submit a certified copy of the utility company's invoice for relocations, to the Borough of Dickson City and the contractor will be reimbursed for the amount of the utility company's invoice.

As construction progressed, it frequently became necessary to have Pennsylvania Gas and Water Company (hereinafter PG & W) relocate certain of its utility lines and mains. Each time a relocation became necessary a representative of Nenna and Frain went to PG & W and executed a job order requesting the work to be done. PG & W often required Nenna and Frain to make deposits to cover the cost of the relocations. PG & W then relocated its lines and prepared an invoice detailing the costs incurred. PG & W sent the invoice to Nenna and Frain, who paid PG & W for the work and forwarded the invoice to Dickson City. The invoices were accepted by Dickson City, who in turn reimbursed Nenna and Frain for the amount of the invoice. This procedure was followed in each of the numerous relocations until at some point, Dickson City informed Nenna and Frain that no further payments for utility relocations would be made. Nenna and Frain subsequently refused to make any further payments to PG & W.

On August 8, 1980 PG & W filed a complaint in two counts, trespass and assumpsit, against Nenna and Frain. The trespass count has been settled. In the assumpsit count PG & W sought to recover $27,851.37, the balance of the cost of relocating its utility lines. Appellant based its

[ 320 Pa. Super. Page 296]

    claim on the job orders executed by Nenna and Frain. In its Answer, Nenna and Frain alleged that it had not made the requests for relocations on its own behalf but on behalf of Dickson City, and that PG & W was aware of that fact. As New Matter, Nenna and Frain alleged that it had never undertaken to bear the obligation of paying for the relocations but was merely acting as a vehicle or agent of Dickson City. Nenna and Frain further alleged that PG & W was required as a matter of law to relocate its lines at its own expense and was not entitled to reimbursement. In the alternative, Nenna and Frain alleged that if anyone was obligated to pay the cost of the relocations, it was Dickson City. In its Reply, PG & W alleged that Nenna and Frain had undertaken to bear the obligation of paying PG & W for relocating its lines and that it was without sufficient knowledge or information to form a belief as to the truth of Nenna and Frain's allegation that it was acting merely as an agent of Dickson City in requesting the relocations.

On December 4, 1980, Nenna and Frain joined Dickson City as an additional defendant. Nenna and Frain alleged that Dickson City was liable to PG & W for the cost of the relocations, and, in the alternative, if Nenna and Frain was liable to PG & W, Dickson City was liable over to it and it was entitled to reimbursement under paragraph 8 of the construction contract. In its Answer, Dickson City alleged that the project was closed, full payment had been made, and it was not responsible for any further invoices submitted by Nenna and Frain after the close of the project. As New Matter, Dickson City alleged that final payment having been made by it and accepted by Nenna and Frain, it was released from any further liability under a provision in the contract. In its Answer to Dickson City's New Matter, Nenna and Frain alleged that Dickson City was aware that the ...


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