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HIGGINS ERECTORS & HAULERS, INC. v. E.E. AUSTIN &

June 5, 1989

HIGGINS ERECTORS & HAULERS, INC.,
v.
E.E. AUSTIN & SON, INC., v. HAMMERMILL PAPER COMPANY, v. SANDWELL INTERNATIONAL, INC.; SWAN WOOSTER ENGINEERING, INC.; and their successors, SCHUCHART & ASSOCIATES INC.; SANDWELL SWAN WOOSTER, INC. (a Canadian corporation); and SANDWELL SWAN WOOSTER, INC. (a Georgia corporation), v. J.C. WILLIAMSON COMPANY, CONSOLIDATED WITH HIGGINS ERECTORS & HAULERS, v. HAMMERMILL PAPERS GROUP, a division of HAMMERMILL PAPER COMPANY, v. E.E. AUSTIN & SON, INC.; SANDWELL INTERNATIONAL, INC.; and their successors, SCHUCHART & ASSOCIATES, INC.; SANDWELL SWAN WOOSTER, INC. (a Canadian corporation); and SANDWELL SWAN WOOSTER, INC. (a Georgia corporation)



The opinion of the court was delivered by: WEBER

 We are herein confronted with a classic example of what is commonly referred to as "passing the buck." The particular "buck" with which we are concerned has been passed no less than seven times. The opportunity has now come for us to step in and determine where the buck stops.

 I. Facts

 The basic facts upon which these cases arise are fairly simple, and begin in May, 1984. Hammermill Paper Company selected E.E. Austin & Sons, Inc. as the prime contractor for some construction work in Erie, Pennsylvania. E.E. Austin in turn subcontracted some of the work out to Higgins Erectors & Haulers, Inc. Pursuant to the terms of the subcontract, Higgins was to complete performance of its work prior to November, 1984. This work, however, was not completed until April 2, 1985.

 II. Procedural History

 A. Higgins v. E.E. Austin - C.A. 87-237E

 Unfortunately, the procedural history of this case is not as simple as its basic facts. Higgins initiated the chain of buck passing by filing a complaint against E.E. Austin. The complaint alleges that E.E. Austin breached the subcontract through a number of acts and omissions which delayed the completion of construction. These include the failure to timely furnish necessary equipment, machinery and materials, and the failure to provide Higgins timely access to certain areas of the project. As a result of E.E. Austin's acts and omissions, Higgins claims to have sustained damages in the amount of $ 216,105.46. These damages primarily consist of added costs due to the extended construction period.

 Refusing to accept responsibility for the delayed construction, E.E. Austin opted to pass the buck in two separate directions. First, it filed a counterclaim alleging that Higgins breached the subcontract thereby causing the delay in construction. The alleged breach of the subcontract included undermanning of certain aspects, lack of timeliness in completing work activities, inefficiencies in accounting, and poor work quality. In the counterclaim, E.E. Austin alleges damages of $ 75,052.00 caused by the delay.

 The second manner in which E.E. Austin attempts to pass the buck is through a third party complaint against Hammermill, based upon a claimed breach of the prime contract. There, E.E. Austin alleges, inter alia, that the delays were caused by Hammermill's failure to: provide equipment and machinery on a timely basis; provide access to the premises; and timely provide drawings and specifications. Higgins thereby seeks contribution and/or indemnity from E.E. Austin.

 Not wishing to be outdone, Hammermill filed a counterclaim against both Higgins and E.E. Austin alleging that their acts and omissions caused Hammermill to suffer $ 264,600.00 in damages, due to the resultant delay in starting up its new pulp producing system. In addition, Hammermill claims $ 6,300.00 in damages against Higgins, based upon an alleged breach of an entirely separate contract "to move a 'dearator tank' into service."

 In response to Hammermill's counterclaim against it, E.E. Austin deemed it necessary to jump on the bandwagon for a second ride by filing a crossclaim against Higgins for contribution and/or indemnity should E.E. Austin be found liable for any damages claimed by Hammermill.

 Hammermill, apparently concerned that not enough people had been invited to the party, also prepared an invitation list of its own joining the following as fourth party defendants: Sandwell International, Inc.; Swan Wooster Engineering, Inc.; and their successors, Schuchart & Associates, Inc.; Sandwell Swan Wooster, Inc. (a Canadian corporation); and Sandwell Swan Wooster, Inc. (a Georgia corporation). We will not attempt to embark upon an explanation of the interrelationships of these corporations. We will instead treat them as one entity which we will refer to as "Sandwell." Sandwell was retained by Hammermill to perform engineering services relative to the project in which E.E. Austin was the prime contractor. The basis of the fourth party complaint is the allegation that Sandwell's delay in providing Hammermill with drawings and specifications is the reason for Hammermill's delay in supplying them to E.E. Austin.

 Finally, our cast of characters becomes complete with the filing of a fifth party complaint by Sandwell against J.C. Williamson Company. Williamson had a separate contract with Hammermill which included providing design drawings and certain conveyor belts. Sandwell alleges that Williamson's negligent delays in providing these to Hammermill led to Sandwell's own delays in providing drawings and specifications for the foundation supports for the Williamson conveyors.

 B. Higgins v. Hammermill - C.A. 87-127E

 Apparently believing that the waters had yet to be muddied enough by the ongoing proceedings in its action against E.E. Austin, Higgins also initiated a separate cause of action directly against Hammermill. In its complaint, Higgins places the blame for the delayed construction upon Hammermill. Because, however, Higgins had no direct contractual relationship with Hammermill on the project, Higgins has pled a cause of action for unjust enrichment. Hammermill responded by filing a counterclaim identical to the one filed in C.A. 87-237E. It also filed a third party complaint against E.E. Austin and the Sandwell group, ...


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