No. 02059 PHILADELPHIA, 1983, Appeal from an Order Entered June 30, 1983 in the Court of Common Pleas, Civil Division, of Lackawanna County, No. 82 Civ. 1330.
John J. Dunn, Sr., Scranton, for appellant.
John R. Lenahan, Sr., Scranton, for Housing, appellee.
William W. Warren, Jr., Scranton, for Old Forge, appellee.
Tamilia, Johnson and Hester, JJ.
[ 334 Pa. Super. Page 74]
This appeal arises from a dispute which occurred during the construction of a thirty-one unit public housing project in Dickson City, Lackawanna County, Pennsylvania. On December 18, 1980, appellant entered into a Subcontract
[ 334 Pa. Super. Page 75]
Agreement with the prime contractor and developer of the project, C.J. Pettinato Realty and Development Company, Inc., (hereinafter referred to as "Pettinato"). This subcontract provided for appellant to perform excavation and other construction-related services on the project. Appellant was to be paid two hundred twenty-four thousand two hundred ninety-five dollars ($224,295.00). Payments were to be made as the work progressed, and were to be based upon the percentage of work completed. The subcontract stated that for appellant to receive these payments, it was to submit requests for payments to Pettinato by the 24th of each month in which the work was performed. Those requests were to be incorporated into Pettinato's request for payment to appellee, Old Forge Bank on the 29th of each month. Appellant then was to receive its payment within five days from the date Pettinato received payment from appellee. Payment by appellee to Pettinato was to be made by the 30th of the following month.
Regarding the final payment to appellant which was to be the balance due on the contract, appellant was to receive its payment within seven days after Pettinato received its final payment from the purchaser, the Housing Authority of Lackawanna County.
On October 20, 1981, appellant submitted a request for payment in the amount of seventy-nine thousand seven hundred ninety-five dollars and four cents ($79,795.04).*fn1 Pettinato declined appellant's request for payment alleging it was untimely. Pettinato further advised that no payment would be forthcoming to appellant and that appellant would also not be paid the remaining monies due on the subcontract, $161,521.63.
Sometime following this dispute between appellant and Pettinato, additional contractors were hired to complete the work which was to have been performed by appellant.
[ 334 Pa. Super. Page 76]
On March 5, 1982, appellant instituted suit against Pettinato, the Housing Authority and appellee. Appellant's present counsel were appointed on January 18, 1983 to represent it by the United States Bankruptcy Court for the Middle District of Pennsylvania. The suit itself contained the following allegations against appellee:
21. Defendant, the Old Forge Bank, contrary to the fiduciary relationship existing for the benefit of the subcontractors herein including Plaintiffs and contrary to the approval and inspections of its duly authorized agents intentionally, recklessly and/or negligently disregarded the welfare and interest of the Plaintiff by refusing to provide payment to, or protection of payment or surety of payment for services and work performed and material and equipment supplied pursuant to the ...