Canuso v. City of Philadelphia

• Citation: 192 A. 133,326 Pa. 302
• Decision Date: 17 May 1937
• Docket Number: 84,105
• Parties: Canuso et al. v. Philadelphia, Appellant
• Court: United States State Supreme Court of Pennsylvania

192 A. 133

326 Pa. 302

Canuso et al. v. Philadelphia, Appellant

Nos. 84, 105

Supreme Court of Pennsylvania

May 17, 1937

Argued April 14, 1937

Appeals, Nos. 84 and 105, Jan. T., 1937, from judgment of C.P. No. 5, Phila. Co., Dec. T., 1932, No. 8289, in case of Francis A. Canuso, Sr., et al., trading as Francis A. Canuso and Son, v. City of Philadelphia. Judgment affirmed.

Assumpsit on written contract. Before LAMBERTON, J., without a jury.

The opinion of the Supreme Court states the facts.

Adjudication filed entering verdict for defendant. Exceptions by plaintiff sustained by court en banc, verdict for defendant set aside and judgment entered for plaintiff. Plaintiff and defendant each appealed.

Errors assigned, among others, related to the conclusions of law of the court below, its action sustaining the various exceptions by plaintiff, and the entry of final judgment.

Judgment affirmed as above directed.

James W. MacIntosh, with him Wm. E. Lingelbach, Jr., Francis B Bracken and Morgan, Lewis & Bockius, for plaintiffs (appellees No. 84, appellants No. 105).

G. Coe Farrier, with him Herman N. Schwartz, Assistant City Solicitors, and Joseph Sharfsin, City Solicitor, for defendant (appellant No. 84, appellee No. 105).

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE DREW:

Early in 1930 the plaintiff contractors entered into a contract with the defendant municipality for the construction of a stone faced concrete arch highway bridge on the line of Henry Avenue over Wissahickon Creek in the city of Philadelphia. Detailed specifications and plans were included in the contract, which also provided for the erection by plaintiffs of the temporary false work or centering necessary to support the arches of the bridge during construction. It was specifically provided that all the plans for the false work were to be submitted to the engineers representing the city for approval. The work was to be done under the general direction of the Director of Public Works of the city of Philadelphia, whose decision "on any questions arising in connection with the performance of [the] contract shall be binding and conclusive upon the parties." It was further provided that the "total amount to be paid for the . . . work to be performed and such materials to be supplied . . . shall in no event exceed the sum of $1,770,000."

In execution of the contract plaintiffs engaged a steel fabricating corporation to erect the false work; defendant employed independent engineers to direct and supervise the entire construction. Plans for the false work were prepared by the fabricators and submitted to the engineers. The latter noted various changes, conferences were held, and the general plans and detail drawings were revised accordingly. Notable in the changes originating with the engineers was the requirement of expansion joints in place of rigid joints. These expansion joints involved the use of a toggle joint, including a gusset plate, or kind of bracket, or angular piece of steel, used for strengthening angles.

It is undisputed that in the fabrication and erection of the false work plaintiffs strictly followed the plans as finally approved by the engineers. Upon completion of the temporary work the construction of the bridge itself was begun. During the construction certain gusset plates, not sufficient to carry the superimposed weight of the permanent structure, yielded, and a portion of the false work buckled. Immediate steps were taken to reinforce the weakened structure and to obviate the dangerous condition. This done, a controversy arose over the responsibility for the collapse and the liability for the cost of repairs necessary to the false work prior to further construction of the permanent structure. The director was unwilling to make an immediate decision of the question. Three months later a temporary arrangement was effected and plaintiffs were instructed by letter from the director to "furnish the additional steel needed for reinforcement of the false work . . . You will bill in the regular way for your estimate. This order is given to you without prejudice." It was understood that the cost of the extra work be borne by the party ultimately determined to be responsible for the collapse. Pursuant to this arrangement plaintiffs reinforced the false work. From time to time, during the reconstruction of the false work, bills were submitted to defendant covering the work.

During the reconstruction and subsequent thereto the director proceeded with his inquiry to determine the responsibility for the failure of the structure. In the course of his investigation, he met with the interested parties, including plaintiffs and their counsel, the engineers, representatives of the city Bureau of Engineering and Surveys and the City Solicitor. He also had access to all plans and documents pertaining to the bridge and the false work. Finally, after several months of inquiry, replying to the request of plaintiffs' counsel that he state the result of his investigation, the director stated that it was his opinion that there was no liability on the part of plaintiffs. It was his conclusion that the error was chargeable to the engineers who had approved the plans, and who were the city's agents. To quote from his letter: "I would also state that, at no time have I ever received any complaint regarding the contractors, . . . either as regards the manner of their work or of any refusal on their part to comply with any orders given by agents of the city. [The engineers], as agents for the city, approved all plans for the false work and this approval, in my opinion, exonerates the contractors from liability for the collapse of the false work and makes [the engineers] liable for any proper extra cost that may have accrued."

On July 19, 1932, the value of all the work was finally estimated and determined by the director, acting in conjunction with the engineers. The final approved estimate showed $1,688,878.85 due plaintiffs for normal work under the contract. That amount having been paid and further liability disclaimed by defendant, the present action of assumpsit was instituted to recover the value of the work necessitated as a result of the collapse, $100,794.58. The case was tried by the court without a jury. The trial judge found in defendant's favor. Subsequently the court en banc sustained plaintiffs' exceptions, the trial judge dissenting, and entered judgment for plaintiffs for $81,121.15, being the difference between the $1,688,878.85, which the contractors had already received, and $1,770,000, the contract limit for expenditures. The court en banc held that the decision of the director was binding upon the parties, that plaintiffs were not responsible for the loss occasioned by the collapse, and that they were entitled to recover for the extra work, being limited, however, by the maximum amount specified in the contract. The trial judge dissented upon the ground that the approval of the engineers did not relieve the contractors, that there had been no valid arbitration and award in favor of plaintiffs and against the city, and that the contractors had been paid the full contract price. Both parties have...