United States v. Merritt-Chapman & Scott Corporation, Civ. A. No. 5487.
| Decision Date | 27 July 1960 |
| Docket Number | Civ. A. No. 5487. |
| Citation | 185 F. Supp. 381 |
| Parties | UNITED STATES of America for the use of McGREGOR ARCHITECTURAL IRON CO., Inc., Plaintiff, v. MERRITT-CHAPMAN & SCOTT CORPORATION et al., Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Welles & Mackie, Scranton, Pa., for plaintiff.
John W. Bour, O'Malley, Morgan, Bour & Gallagher, Scranton, Pa., for defendants.
This matter having come on for hearing without a jury, I make the following
1. Under date of May 27, 1952, the defendant, Merritt-Chapman & Scott Corporation, entered into a contract with the United States of America known as Contract No. DA-36-109 eng.-2901 for the construction of buildings, utility systems and site improvements for the Signal Corps Depot, Tobyhanna, Monroe County, Pennsylvania. The said contract was to be performed and executed at Tobyhanna, Monroe County, which is in the Middle District of Pennsylvania.
2. Under date of May 27, 1952, the defendant, Merritt-Chapman & Scott Corporation as principal and the other defendants as sureties entered into a payment bond in accordance with the Miller Act, 40 U.S.C.A. §§ 270a and 270b, in the penal sum of $2,500,000 conditioned for payment to all persons supplying labor and material in the prosecution of the work provided for in said contract.
3. John T. Evanick & Company was a subcontractor on the job under the Frederick Raff Company which, in turn, was a subcontractor under the defendant, Merritt-Chapman & Scott Corporation.
4. The plaintiff, McGregor Architectural Iron Co., Inc. (hereafter referred to as "McGregor") entered into a contract (hereafter referred to as the "bunker contract") under date of October 3, 1952, to furnish and erect a coal bunker for John T. Evanick & Company at a price of $24,850.
5. On the same date, the plaintiff, McGregor, entered into a second contract (hereafter referred to as the "Sauerman contract") with John T. Evanick & Company to erect a stiff-leg head post and three bridle posts similar to Sauerman drawings.
6. The labor to be performed or materials to be furnished or supplied under the plaintiff's contracts with John T. Evanick & Company were a part of the labor to be performed or the materials to be furnished or supplied under the contract of John T. Evanick & Company with the Frederick Raff Company.
7. Suit was instituted on December 9, 1955, against the prime contractor, Merritt-Chapman & Scott Corporation, and the sureties on the payment bond given under the Miller Act.
8. The plaintiff, McGregor, performed the last labor and furnished and supplied the last materials on the bunker contract around January 1, 1954.
9. The plaintiff, McGregor, performed the last labor and furnished and supplied the last materials on the Sauerman contract during the early part of 1954.
10. The attention of McGregor havgin been called to certain errors and omissions such as missing bolts, in the work performed under the bunker contract, had two ironworkers work one hour each on June 9, 1955, to correct these defects.
11. The attention of McGregor having been called to certain errors and omissions consisting of missing bolts and the failure to close some holes which had been burned into the posts for erection purposes, under the Sauerman contract, had two ironworkers work four hours each on June 20, 1955, to correct such defects.
12. The correction of errors in the work performed by McGregor and completed in early 1954 and which consisted in supplying some missing bolts and closing some holes in the head posts, which had been overlooked, was pursuant to an inspection made in 1955 followed by notice thereof and not part of the original performance of the contract.
13. On June 22, 1955, the plaintiff, McGregor, sent by registered mail to Merritt-Chapman & Scott Corporation a letter demanding payment of the balance then owing on the bunker contract with John T. Evanick & Company, and the Sauerman contract with John T. Evanick & Company.
14. No charge was shown to have been made by McGregor for the ten hours of labor on June 9 and 20, 1955, for the correction of defects.
15. Said notice of June 22, 1955, was not given within ninety days of the date on which the plaintiff, McGregor, performed its last labor or furnished or supplied its last materials under its contracts.
1. This is an action under the Miller Act, 40 U.S.C.A. §§ 270a and 270b.
2. The plaintiff, McGregor, did not comply with the provisions of the Miller Act with respect to notice.
3. The defendants are entitled to have judgment entered in their favor.
No findings have been made as to the amount...
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...the discovery of defects in construction over a year or more after completion.... United States ex rel. McGregor Architectural Iron Co. v. Merritt-Chapman & Scott Corp., 185 F.Supp. 381, 383 (M.D.Pa.1960). In United States for Use of Billows Electric Supply Co. v. E.J.T. Construction Co., 5......
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...may not in this manner extend the time for the running of the ninety day period. United States ex rel. McGregor Architectural Iron Co. v. Merritt-Chapman & Scott Corp., 185 F.Supp. 381, 383 (M.D.Pa.1960). Thus, the issue for this court's determination is whether the work performed by Balf o......
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