Roban Construction, Inc. v. Housing Authority

67 Pa. D. & C.2d 130, 1974 Pa. Dist. & Cnty. Dec. LEXIS 387
CourtPennsylvania Court of Common Pleas, Luzerne County
DecidedJune 12, 1974
Docketno. 5679 of 1973
StatusPublished

This text of 67 Pa. D. & C.2d 130 (Roban Construction, Inc. v. Housing Authority) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Luzerne County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roban Construction, Inc. v. Housing Authority, 67 Pa. D. & C.2d 130, 1974 Pa. Dist. & Cnty. Dec. LEXIS 387 (Pa. Super. Ct. 1974).

Opinion

HOURIGAN, J.,

This case comes before the court on preliminary objections to plaintiff’s complaint. The Housing Authority of the City of Hazleton and Bellante, Clauss, Miller & Nolan, each filed separate preliminary objections in the nature of a demurrer, a motion to strike and a motion for more specific pleading.

Defendant housing authority in its demurrer states:

“4. Plaintiff’s complaint in both assumpsit and trespass fails to state a cause of action because it fails to connect or attach any injury to the alleged acts of the defendant Authority.”

Defendant architects separated their objections as to assumpsit action and trespass action: (1) As to assumpsit actions, defendants allege that there was no contract between plaintiff and defendant architects; and (2) as to trespass actions, defendants allege that plaintiff failed to set forth any facts alleging defendant owes a common-law duty which it breached.

[133]*133Plaintiff’s complaint contains seven counts. From a review of the first count, the following appears:

On or about February 27,1968, plaintiff, Roban Construction, Inc., a general contractor, entered into a contract with defendant, housing authority, for construction of a building and dwelling known as Hazleton Housing Project, Project PA. 44-1. Defendant, Bellante, Clauss, Miller & Nolan were the designated architects on said contract, and were acting as the agent, servant and employe of the authority and within the scope of its employment with the authority. During the course of its work, plaintiff discovered that there were latent physical soil conditions which differed from those indicated in the contract. Plaintiff notified defendants of these conditions on May 27, 1968, and requested change orders. Apparently, there were questions relative to the validity of the claim of the latent soil conditions and no approval of change orders was obtained for two years. During this time, plaintiff repeatedly requested defendant, housing authority, to make a decision. Plaintiff asserts that delay was unreasonable and was a breach of contract which caused plaintiff to lose the use of working capital, and claims as damages interest on the working capital.

Count II, a trespass claim which incorporates most of the allegations in count I, alleges a duty to approve changes in reasonable time, and breach of that duty, claiming the same damages as in count I. Counts III and IV are similar to the first two counts except each relates to a change order for curbing and sideways to comply with the Hazleton City Building Code, and count IV alleges architects were negligent in preparing plans and specifications containing differences from the Hazleton Building Code.

Counts V and VI are also similar as I and II except that they refer to a change order for a water distribu[134]*134tion system and sanitary systems, and, additionally, allege that defendants’ plans were inadequate and that defendants failed to exercise due care in drafting said plans because said plans did not comply with requirements of the sewer and water authorities of the city. However, plaintiff’s claim for damages on these counts includes claim for loss on contract, loss of profits, loss on two concurrent contracts, loss of bonding capacity, and loss of reputation. Count VII is solely against the housing authority alleging completion of contract and failure to make final payment claiming loss of interest and bonding capacity as damages.

DEMURRER — HOUSING AUTHORITY

As one of its reasons for its demurrer to plaintiff’s complaint, defendant, housing authority, states:

“No. 4. Plaintiff’s complaint in both assumpsit and trespass fails to state a cause of action because it fails to connect or attach any injury to the alleged acts of the defendant Authority.”

Plaintiff’s complaint in counts I and II alleges delays in approving the change orders for latent soil conditions and the acts of the authority which caused it.

Section 10(c) (p. 32) of the contract with the authority (attached as Exhibit “a” to the complaint) states:

“Except in an emergency endangering life or property, no change shall be made by the Contractor unless he has received a prior written order from the Local Authority, approved on its face by the PHA, authorizing the change, and no claim for an adjustment of the Contract price or time shall be valid unless so ordered.”

The above contract provision requires any change order in the contract to be approved by the PHA (defined as Public Housing Administration under the [135]*135contract), not defendants. In addition, paragraphs 18 and 22 of plaintiff’s complaint quote minutes of the housing authority showing that defendant was indeed in contact with HUD (PHA) discussing the merits of approval of the change orders.

“Where any inconsistency exists between the allegations of a complaint and a written instrument, to-wit, the contract documents in this case, the latter will prevail and in this context a demurrer does not admit the truth of averments in a complaint conflicting with the exhibits.” Framlau Corp. v. Delaware Co., 223 Pa. Superior Ct. 272, 277 (1972).

Plaintiff claims any unreasonable delay in approval of change orders constituted a breach of contract or breach of duty by defendant housing authority. Assuming that the delay in approving the change orders was unreasonable, there is no allegation that the delay was the fault of defendant or that it was within defendant’s control.

“A cause of action does not consist of fact, but of the unlawful violation of a right which the facts show . . . The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. “The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince.” ’ Chobanian v. Washburn Wire Co., 33 R. I. 289, 302, 80 Atl. 394, Ann. Cas. 1913D, 730”. Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927).

Since plaintiff has not pleaded that defendant committed any wrong with respect to change orders, it has not alleged a cause of action in counts I or II of its complaint and the demurrer must be sustained as to those counts.

[136]*136Count III contains allegations similar to count I but alleges that the change order was necessary to comply with the City Building Code. In count IV, the trespass counterpart to count III, plaintiff alleges, in addition to delay in approving change orders, negligence of defendant’s architects in preparing plans and specifications which did not comply with the Hazleton City Building Code.

Counts V and VI are similar to counts III and IV. However, in counts V and VI plaintiff alleges that the plans and specifications were inadequate, and the failure to exercise due care in drafting of plans and specifications. There was a delay in these counts in obtaining change orders to meet the requirements of the water and sewer authorities.

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Bluebook (online)
67 Pa. D. & C.2d 130, 1974 Pa. Dist. & Cnty. Dec. LEXIS 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roban-construction-inc-v-housing-authority-pactcomplluzern-1974.