Matthew-Landis Co., Inc. v. Housing Authority of Chester County

• Citation: 361 A.2d 742,240 Pa.Super. 541
• Parties: MATTHEW-LANDIS CO., INC., Appellee, v. HOUSING AUTHORITY OF the COUNTY OF CHESTER, Appellant.
• Decision Date: 28 June 1976
• Court: Pennsylvania Superior Court

361 A.2d 742

240 Pa.Super. 541

MATTHEW-LANDIS CO., INC., Appellee, v. HOUSING AUTHORITY OF the COUNTY OF CHESTER, Appellant.

Superior Court of Pennsylvania.

June 28, 1976.

Lawrence E. Wood, West Chester, for appellant.

Duane Morris & Heckscher, Frank L. White, Jr., Paoli, for appellee.

Before WATKINS, President Judge, and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

WATKINS, President Judge.

This is an appeal from an Order of the Court of Common Pleas of Chester County, Pennsylvania, Civil Action, Law Division, entering judgment on the pleadings in favor of the plaintiff-appellee Matthew-Landis Co., Inc., and against the Housing Authority of the County of Chester, the defendant-appellant.

This action in assumpsit was commenced by a complaint alleging that the appellant-defendant, the Housing Authority of the County of Chester, and the appellee, Matthew-Landis Co., Inc., entered into a written escrow agreement on June 11, 1974. The terms of the agreement were that the appellant was to withhold $10,000, otherwise due and payable by it to the appellee, to protect the appellant against claims which might be made against it by the appellee's employees or employees of appellee's subcontractors by and through the Labor Relations Division of the Department of Housing and Urban Development on the employees' behalf. According to the terms of the agreement, if no claims were made on or before October 11, 1974, the escrow agreement would terminate and the funds, or remaining funds, were to be delivered to the appellee.

The complaint, filed on November 13, 1974, alleges that there was no claim made against the fund within the agreed time period which averment was admitted by the appellant. In fact, the appellant admitted all the averments of the complaint. However, it did allege in new matter in its answer, that it did not release the funds to the appellee '. . . because it (defendant) was so instructed by the Department of Housing and Urban Development, the organization which funds Defendant.' The appellee replied that the foregoing averment was irrelevant and made a motion for the entry of judgment on the pleadings in its favor. The motion was granted by the lower court and the instant appeal ensued. The appellant, for the first time on appeal, tenders the proposition that its defense is based upon the Davis-Bacon Act, Act of March 3, 1931, c. 411, § 1, 46 Stat. 1494, as amended, 40 U.S.C. § 276a. The appellant did not raise this alleged statutory defense in its pleadings, nor was it apparently raised at the time of the argument for the motion for judgment on the pleadings. Since this alleged statutory defense was not raised below either in the pleadings or in argument we may not consider it here. Riverside Iron and Steel Corporation v. City of Monongahela, 7 Pa.Cmwlth. 269, 273, 298 A.2d 918, 920 (1972); Consolidated Cigar Corp. v. Corbin, 285 Pa. 273, 283, 132 A. 364 (1926); Pa.R.C.P. 1032. However, even if we were to consider this defense, it appears that it would afford the appellant no relief since there is no allegation that the United States nor the District of Columbia was a party to the contract in question as required by the Davis-Bacon Act, Supra. Therefore, our scope of review is limited to whether the judgment on the pleadings was properly entered. Shepherd v. General Telephone and Electronics Corp., 411 Pa. 49, 190 A.2d 895, 896 (1963).

Under Pa.R.C.P. 1034, a motion for a judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is essentially in the nature of a demurrer since the opposing parties well-pleaded allegations are viewed by the court as being true. Bata v....