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Independence Excavating, Inc. v. Joseph McCormick Construction Co., Inc.

Superior Court of Pennsylvania

November 8, 2013

INDEPENDENCE EXCAVATING, INC., Appellee
v.
JOSEPH MCCORMICK CONSTRUCTION COMPANY, INC., Appellant
v.
PRESQUE ISLE DOWNS, INC., and HENRY T. WELKA & ASSOCIATES, LLC, APPEAL OF: JOSEPH MCCORMICK CONSTRUCTION COMPANY, INC. INDEPENDENCE EXCAVATING, INC., Appellee
v.
JOSEPH MCCORMICK CONSTRUCTION COMPANY, INC., Appellant
v.
PRESQUE ISLE DOWNS, INC., and HENRY T. WELKA & ASSOCIATES, LLC, APPEAL OF: PRESQUE ISLE DOWNS, INC.

NON-PRECEDENTIAL DECISION

Appeal from the Judgment entered December 7, 2012, in the Court of Common Pleas of Erie County, Civil Division, at No(s): 14604-2008

John F. Mizner, Esquire Joseph M. Kanfer, Esquire Counsel for Joseph McCormick Construction Company, Inc.

Richard A. Lanzillo, Esquire Neal R. Devlin, Esquire Counsel for Presque Isle Downs, Inc.

BEFORE: FORD ELLIOTT, ALLEN and COLVILLE, [*] JJ.

MEMORANDUM

ALLEN, J.

In this civil action, defendant Joseph McCormick Construction Company, Inc. ("McCormick") appeals, and defendant Presque Isle Downs, Inc. ("Presque Isle") cross appeals, from the trial court's order and ultimate judgment. After careful review, we affirm on the trial court opinion authored by the Honorable Ernest J. DiSantis, Jr.

The parties' dispute arises from a construction project attendant to the Presque Isle casino and racetrack in northwestern Pennsylvania. Presque Isle contracted with McCormick, as general contractor, and Independence Excavating, as subcontractor. The parties became embroiled in a contract dispute. On September 23, 2008, plaintiff Independence Excavating filed a complaint against McCormick, who in turn filed a third party complaint against Presque Isle. During October of 2012, the trial court convened a non-jury trial on McCormick's claims against Presque Isle, and Presque Isle's counterclaims. On October 18, 2012, the trial court rendered a decision finding in favor of each party against the other. The net effect was an award to McCormick in the amount of $140, 211.56. Both parties filed motions for post-trial relief. On December 7, 2012, the trial court denied Presque Isle's motion for post-trial relief, and denied in part and granted in part McCormick's post-trial motion by awarding 1% interest per month, "to begin on the date McCormick Construction paid Independence Excavating, Inc…." Both parties appealed.

Our scope of review on appeal from a non-jury trial is limited to whether the findings of fact are supported by competent evidence and whether the trial court committed an error of law. Roman Mosaic & Tile Co. v. Thomas P. Carney, Inc., 729 A.2d 73, 76 (Pa.Super. 1999). Questions of credibility and conflicts in evidence are for the trial court to resolve, and the reviewing court should not reweigh the evidence; additionally, the evidence is reviewed by this Court in the light most favorable to the verdict winner. John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 703 (Pa.Super. 2003).

Mindful of the foregoing, we have reviewed the record, heard oral argument, considered the applicable law, and concluded that the trial court committed no error of law. Furthermore, the Honorable Ernest J. DiSantis, Jr., sitting as the trial court, has issued an articulate, thorough and well-reasoned opinion, dated February 19, 2013, which we adopt as our own. Judge DiSantis has ably analyzed the parties' claims, such that further commentary by this Court would be redundant.

Judgment affirmed.

Judgment Entered.

IN THE COURT OF COMMON PLEAS OF ERIE COUNTY PENNSYLVANIA CIVIL DIVISION

No. 14604 of 2008

Dated: February 20, 2013

MEMORANDUM OPINION

Ernest J. DiSantis, Jr., Judge

Appellant, Joseph McCormick Construction Company, Inc. ("McCormick") and Cross-Appellant, Presque Isle Downs, Inc. ("Presque Isle"), appeal from the judgment entered on December 7, 2012 on this Court's Decision dated October 18, 2012 and the Order of December 7, 2012 denying Presque Isle's Motion for Post-Trial Relief and granting in part and denying In part McCormsck's Motion for Post-Thai Relief. Based upon the following, this Court respectfully requests that judgment be affirmed.

I. BACKGROUND OF THE CASE

This case involves a construction project related to a horse racing track known as "Presque Isle Downs Phase Two Highway Occupancy Permit Roadway Improvements" (the "Project"). The Project involved widening of, and improvements to, State Route 97 and the widening of the on and off ramps of Interstate 90. The Project also involved the construction of drainage facilities, relocation of sewer and water lines, construction of traffic signals, and other incidental work. (NT. Trial (Day 1), 10/09/12, at 14-15). The substantial completion date was set for September 1, 2007. (Id., at 15-16). The parties involved in the Project and relevant to this case are: (1) Presque Isle as Owner; (2) McCormick as general contractor; (3) Independence Excavating, Inc., McCormick's subcontractor, who was responsible for building storm sewers and relocating sanitary sewers and water lines; (4) Henry T. Welka & Associates, LLC ("Welka") as the surveyor/engineer from initial survey through design and construction; (5) Herbert, Rowland & Grubic, Inc. ("HRG") as engineer; (6) Shelane Buehler, from RB Architects, Inc., as architect; and, (7) Turner Construction Company ("Turner") as construction consultant.

In March of 2007, HRG circulated an Invitation to Bid to general contractors, including McCormick, for the Project. The bid documents provided to McCormick included a proposed Construction Contract, instructions to bidders, a bid form, and a preliminary plan and profile drawings. (See, Project Manual for the Project, McCormick's Exhibit "1). The bid form contained several different line items, including one line item related to the relocation of sewer and water lines. That line item provided, "Sewer and Water Line Relocations as shown on drawings provided by Henry T. Welka & Associates" as one lump sum (NT. Trial (Day 1), 10/09/12, at 18; McCormick's Exhibit "1"). The Welka drawings, dated December 13, 2005, were provided to bidders. [1]

In connection with the Project, McCormick solicited bid proposals from subcontractors, including Independence, for excavation, sewer and waterline relocation, and other related services at the Project (collectively, "the Work"). On April 3, 2007, independence submitted its bid to McCormick. (NT. Trial (Day 1), 10/09/12, at 20; Presque Isle Exhibit "T"). Independence relied on the Welka ...


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