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MEYERS PLUMBING AND HEATING SUPPLY COMPANY v. WEST END FEDERAL SAVINGS AND LOAN ASSOCIATION (09/27/85)

filed: September 27, 1985.

MEYERS PLUMBING AND HEATING SUPPLY COMPANY, A PENNSYLVANIA PARTNERSHIP, APPELLANT,
v.
WEST END FEDERAL SAVINGS AND LOAN ASSOCIATION, ALBERT VOROBYOV, INDIVIDUALLY AND TRADING AND DOING BUSINESS AS ALBERT'S COMPANY, HARVEY D. SHIPKOVITZ, AND DONALD THINNES, APPELLEES



Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 82-20408.

COUNSEL

Martha O. Wolf, Pittsburgh, for appellant.

Alan D. Levy, Pittsburgh, for Shipkovitz and Thinnes, appellees.

Rowley, Olszewski and Del Sole, JJ.

Author: Rowley

[ 345 Pa. Super. Page 561]

OPINION OF THE COURT

This is an appeal from an Order granting summary judgment in favor of appellees, Shipkovitz and Thinnes, who are owners of properties in Pittsburgh. Appellant subcontractor supplied materials used in the renovation of appellees' property. This appeal is concerned solely with the owners' liability to appellant for unpaid materials as summary judgment was granted only to them. The action is still pending against the other defendants.

The owners entered into a building construction contract with appellee Vorobyov, the general contractor, for renovation of their properties. The contract provided that Vorobyov was to furnish all labor and materials, including plumbing and heating materials. The owners and Vorobyov also entered into a Non-Lien Agreement which stipulated that no claim for work or materials would be made against the owners except as provided in their building construction contract. In addition, Vorobyov signed a Contractor Warranty which provided, inter alia, that he would protect, defend and indemnify the owners from any claims for unpaid work, labor or materials and that final payment would not be made until he delivered to the owners a complete release of all liens arising out of Vorobyov's performance.

The owners entered into a Construction Loan Agreement with appellee West End Federal Savings and Loan to finance the construction and renovation. Pursuant to the request of Vorobyov and to satisfy any misgivings of appellant, West End Federal sent a letter to appellant informing him that disbursement checks payable jointly to Vorobyov and appellant would be issued in amounts necessary to cover materials purchased and work performed and further, that disbursements would not be made until work was

[ 345 Pa. Super. Page 562]

    completed and West End Federal had in its possession a satisfactory inspection report.

A dispute arose between the owners and Vorobyov, and the owners instructed West End Federal to stop all construction payments. Appellant filed suit against all parties for plumbing and heating materials ordered by and sold to Vorobyov, and not yet paid for.

The owners filed a Motion for Summary Judgment which the trial court granted. The court found that there was neither a direct contractual relationship between the owners and appellant for purposes of paying for the materials supplied by appellant, nor any provision in the contract between the owners and Vorobyov creating in appellant a third party beneficiary status. In addition, the trial court found that there was no genuine issue of fact as to whether any ...


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