Opposition Brief — J. I. Hass Co. v. Gilbane Building Co.

f ; Supreme Court, US,

FILED

! JAN 23 1990

JOSEPH F. SPANIOL, JR

pennen eae

No. 89-1083

IN THE

Supreme Court of the United States

OctosBer TERM, 1989

J.I. HASS CO., INC.,

Petitioner.

- against —

GILBANE BUILDING COMPANY.

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

RicHARD L. ABRAMSON

PECKAR & ABRAMSON, P.C.

Attorneys for Respondent

Gilbane Building Company

70 Grand Avenue

River Edge, New Jersey 97661

(201) 343-3434

~ BEST AVAILABLE COPY

ok :

Tx Ret

TABLE OF CONTENTS

REFERENCE TO OFFICIAL REPORT

OF OPINION BELOW.

COUNTERSTATEMENT OF THE CASE.

SUMMARY OF ARGUMENT

POINT I

THERE ARE NO SPECIAL AND

IMPORTANT REASONS FOR GRANTING

A WRIT OF CERTIORARI IN THIS

es «+ « wee 6+ «6S

POINT II

THE OPINION IS LOGICALLY AND

LEGALLY CORRECT AND THE

PETITIONER'S ARGUMENTS TO

THE CONTRARY ARE WITHOUT

MERIT .. . las aa

CONCLUSION.

PAGE

10

12

17

27

ii

TABLE OF AUTHORITIES

PAGE

Cases Cited

Baltimore & Carolina Line v._

Redman, 295 U.S. 654, 55 ee

296, 79 L.Ed. 603 (1935)... « « 15

Banco Urban Renewal Corp. v.

Housing Authority of City of

Atlantic City, 674 F.2d 1001,

1008 (3rd Cir. 29G2Z)3 6« © © @ ®@ 25

Coleman v. C.1I.R., 791 F.2d 68

(7th Cir. 1986) oer 15

Cox v. City of Freeman, Mo., 321

F.2d 887 (8th Cir. 1963). .-+ e 16

Diederich v. American News Co.,

128 F.2d 144 (10th Cir. 1942) . 14

Friedman v. Tappan Development

Corp., 22 N.J. 523, 531, 126

A.20 646, 650 (1956). . - + «s+» 25

Galloway v. United States

Products Co. v. Champlin,

283 U.S. 494, 51 S.Ct. 513,

76 2.84. 11806 (193a)6 © « *# 2 2 15

Gray _v. Joseph J. Brunetti

Construction Co., 266 F.2d 809,

813, 814 (3rd Cir. 1959). .-.+-: - 14

iii

TABLE OF AUTHORITIES

(continued)

PAGE

J.I. Hass Co. vs. Gilbane

Bldg. Co., 881 F.2d 89,

wees fora Cir. 1988) ...... i3

Kearny PBA Local -21 v. Town of

Kearny, 81 N.J. 208, 221, 405

moage S92, 400 (1979). ...... 25

King v. United Benefit Fire Ins.

Co., 377 F.24 728 (10th 1967)

cert. denied, 389 U.S. 857,

88 S.Ct. 99, 19 L. Ed.24

ee 16

n .. es » Sl, N.J. Super.

31, 38, 143 A.2d 256, 260 (App. .

i ae 26

Merchants Indemnity Corp. v.

Eggleston, 37 N.J. 114, 130-131,

179 A.24 505, 513 (1962) .... 22,23

Newark Publishers Ass'n v. Newark

Typographical Union, 22 N.J. 419,

427, 126 A.2d 348, 353 (1956) .. 14

Paley v. Barton Savings and Loan

Ass'n, 82 N.J. Super 75, 83, 196

A.2d 682 (App. Div. | | Ee 19

Rice v. Sioux City Memorial Park

Cemetary, Inc., 349 U.S. 70,

75 S.Ct. 614 99 L.Ed. 894

MS eG tt tw

iv

TABLE OF AUTHORITIES

(continued)

Slatton v. Martin K. Eby Constr.

Ca., ine., $06 F.2G 305

(8th 1974), cert. denied, 421

Z.8. 321, 96 &.€t. 1657,

44 L.Ed 2d 88 (1975)

PAGE

15

Texas v. New Mexico, 482 U.S. 124,

107 S.Ct. 2279, 2284, 96 L.Ed. 2d

105, 114 (1987) s 8%

Whitesell v. Alexander, 229 F.2d

47, cert. denied, 351 U.S.

932, 76 S.Ct. 783, 100 L.Ed. 1461

(1956). Peet MENT) ee

Fed.R.Civ.P. 50(b).

Fed.R.Civ.P. 59(b).

Supreme Court Rule 17

rem rt Rule 28,1

1 Corbin, Contracts ts

page 400 (1963) :

19

16

14

29

19

TABLE OF AUTHORITIES

(continued)

PAGE

R men f n ntr P

§380 and §380 Comments “a”

Oe "a Ceeeee « 3-6 & eee «oe 23

Restatement of Restitution,

§64 and §68 Cee ¢ See Se 4% oe 23

REFERENCE TO OFFICIAL

REPORT OF OPINION BELOW

The Opinion of the United States Court

of Appeals for the Third Circuit from which

Petitioner seeks review of this Court is

officially reported as J.I. Hass Co. v.

ilbane Bl , 881 F.2d 89 (3rd Cir.

1989).

COUNTERSTATEMENT OF THE CASE

The facts relevant to this matter are

substantially those set forth in the Opinion

of the Court of Appeals. See Appendix E of

the Petition.

Basically, Petitioner Hass entered

into a Subcontract with Respondent Gilbane

(sometimes referred to as “the Base

Subcontract”) wherein Hass agreed to perform

painting work in specifically identified

building locations being constructed at a

Miller Brewery for $295,000. Hass also

entered into a change order to the Base

Subcontract ("Change Order Number 1")

agreeing to perform painting work at other

specifically identified building locations

at the Miller Brewery for an additional

$753,000.

Both the Base Subcontract and Change

Order Number 1 referenced a particular Room

Finish Schedule for each building location

and required Hass to paint the building

systems designated for painting in the

applicable Room Finish Schedules. The Base

Subcontract Room Finish Schedules only

required Hass to paint the architectural and

structural portions of the applicable

buildings while the Change Order Number 1

Room Finish Schedules, which were issued at

a more advanced stage in the design of the

Project, required Hass to paint the building

’

mechanical systems? as well as the

architectural and structural portions of the

applicable buildings.

The Subcontract contained a typical

provision for additional compensation to

Hass for the performance of extra work. It

was under this provision that Change Order

Number 1 was issued.

During performance of the work, a

dispute arose between Gilbane and Hass as to

whether Hass was obligated to paint certain

building mechanical systems under Change

Order Number 1. Hass subsequently performed

some of the disputed work under protest and

Submitted a claim for additional

compensation under the extra work provisions

of the Subcontract in the sum of

1 “Mechanical systems" is a collective reference to

the building heating, ventilating and air

conditioning systems, fire protection systems,

plumbing systems, electrical systems and

miscellaneous metallic surfaces.

—— ———————————————

$144,682.°

Thereafter, Hass continued to

perform the work under the Subcontract and

Change Order Number 1, entered into many

more change orders not in dispute,

requisitioned for payments under the

Subcontract and received payments under the

Subcontract through to completion of the

work as Hass viewed it.

After completion of the Project, Hass

commenced this action in the district

court. Hass contended, for the first time,

in the First Count of the Complaint, that no

contract existed because there was “no

2 The claimed extra work concerned four items of

building mechanical painting each in a separate

building location. Three of them were part of Change

Order Number 1 and the Room Finish Schedules

applicable to each of them specifically required Hass

to paint the disputed work. The fourth item was for

painting of some ductwork in the Brewhouse which was

@ Base Subcontract Building and which was not shown

on the applicable Room Finish Schedules referenced in

the Base Subcontract. However, Hass concedes that it

painted these ducts on its own and not pursuant to

any request by Gilbane. See Appendix below, A2111.33

and A.2111.34.

meeting of the minds” as to the Hass

obligation to paint Change Order Number 1

building mechanical systems. Based upon the

total absence of a contract, Hass claimed

quantum meruit total cost damages that

exceeded its Subcontract balance and its

claim for the disputed Change Order Number 1

building mechanical painting by more than

$800,000 of alleged cost overruns which were

not recoverable under the Subcontract.

Alternatively, the Hass complaint sought a

Subcontract balance in the sum of $431,130

and additional compensation in the sum of

$144,682 for the Change Order Number 1

building mechanical painting performed by

Hass under the extra work provisions of the

Subcontract.

Notwithstanding Gilbane's motion for a

directed verdict upon the First Count of the

Complaint based upon the existence of a

contract as a matter of law regardless of

the scope of work dispute, the trial judge

submitted the case to the the jury upon jury

instructions and written interrogatories

which required the jury to decide whether or

not a contract existed between Gilbane and

Hass in the first instance. The jury

instructions and interrogatories then

required the jury to pass over all of the

contract claims, upon concluding that no

contract existed, and simply determine Hass’

entitlement to quantum meruit total cost

Gamages. The first question put to the jury

read as foliows:

1. Has plaintiff proven that there

was no contract between plaintiff Hass

and defendant Gilbane?

Yes___No

At the end of the first day of

deiiberations, the jury submitted the

following communication to the trial court:

Re Question no.l. We agree that the

base contract existed and we agree

that there was no meeting of the minds

on change order no. 1. Confusion

arises as to the wording of Question

no. 1. Based on what we agree on, is

the answer yes or no to Question no. 1?

Gilbane urged the trial judy to

accept the foregoing communication as a jury

determination that there was a contract

between Hass and Gilbane and instruct the

jury to proceed with a determination of the

contract claims. Conversely, Hass argued ©

that the Court below should respond to the

question by instructing the jury to continue

their deliberations with regard to question

number 1 and make a determination as to

whether, considering the work as a whole,

there was or was not a contract.

Over Gilbane'’s objection, the Court

below responded to the jury question as

follows:

I can only answer that at this time as

follows: Considering the evidence and

the Court's instructions as a whole

and considering all of the work

together, you must determine as a

whole whether Hass has proven that

their was no contract between the

plaintiff Hass and the defendant

Gilbane.

Thereafter, the jury returned with a

verdict answering Question number 1 in the

affirmative, i.e., that there was no

contract between Hass and Gilbane. In

accordance with the Court's instructions the

jury found that Hass was entitled to quantum

meruit total cost damages. This resulted in

an award to Hass of substantial claimed cost

overruns without any determination of

contractual or other legal entitlement.

Thereupon, Gilbane moved for judgment

notwithstanding the verdict pursuant to

Fed.R.Civ.P. 50(b) and for a new trial

pursuant to Fed.R.Civ.P. 59(b), both of

which were denied by the trial judge.

The Statement of the Case in the Hass

Petition consists largely of self-serving

contentions taken out of context. In many

cases, Hass alleges facts that are not even

supported by the Record. ~

In any event, most of the facts

asserted in the Hass Petition deal with

alleged communications predatirg the

execution of the Base Subcontract and Change

Order Number 1 which Hass contends evidence

an intent to exclude building mechanical

painting from Change Order Number .* As

such, they are irrelevant to the holdings

set forth in the Opinion of the Court of

Appeals which are based, in the first

instance, upon the existence of a

contract regardless of the scope of work

dispute and, in the second instance, upon

the unambiguous provisions of the contract

regarding scope of work. They are also

irrelevant in light of Hass’ conceded

knowledge that Change Order Number 1

included painting of the building mechanical

systems before entering into the Change

3 In fact, most of the Hass factual allegations

consist of inadmissible parol evidence. In footnote

4 of the Opinion of the Court of Appeals, the Court

specifically states that it is unnecessary to even

address the admissibility issue because the

underlying factual allegations are irrelevant to its

ruling.

Order. A877, A961, A962, A993 and A994.7

This latter fact was conveniently omitted

from the Hass Statement of the Case.

SUMMARY OF ARGUMENT

There are no special and important

reasons for granting a writ of certiorari in

this case.

The Court of Appeals simply applied

settled principles of appellate review to

the trial court's denial of Respondent's

motion for a directed verdict and for

judgment n.o.v., aS well as basic principles

of New Jersey contract law, all of which are

fully enunciated in the Opinion. In fact,

the Petitioner does not even challenge the

principles of law enunciated by the Court of

Appeals. Rather, Petitioner's arguments are

4 Reference is to Appendix below. Citations to the

Appendix below for the other facts contained in thi:

Counterstatement of the Case are substantially

contained in the reproduction of the unreported

Opinion of the Court of Appeals set forth as Append.

E in the Petition.

all based upon the application of the law to

the particular circumstances of this case.

Consequently, the issues raised in the

Petition totally lack the special importance

to the public, as distinguished from the

parties, necessary for granting a writ of

certiorari pursuant to the Rules and policy

of this Court.

The Opinion of the Court of Appeals is

simply a recognition that Gilbane and Hass

entered into a contract and they are bound

by its terms. As such it is legally and

logically unassailable. It is grounded upon

settled principles of New Jersey contract

law that are cited in the Opinion.

The Hass Petition is nothing more than

a restatement of confusing rationalizations

that do not even contradict the existence of

a contract between the parties when placed

under scrutiny.

The Petitioners attempt to elevate the

determinations of the Court of Appeals to a

denial of Hass' Seventh Amendment right to

trial by jury is totally without merit. The

Seventh Amendment only entitles a civil

litigant to have disputed issues of fact

tried by a jury. The determinations of the

Court of Appeals were entirely grounded upon

questions of law within the exclusive

province of the trial judge pursuant to

governing New Jersey law.

POINT I

THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING A WRIT OF

CERTIORARI IN THIS CASE -

A writ of certiorari will only be

granted by this Court when there are special

and important reasons to do so. Supreme

Court Rule 17. The special and important

reasons required for granting a writ of

certiorari are with respect to the public in

general as distinguished from the parties

alone. Rice v. Sioux City Memorial Park

Cemetary, Inc., 349 U.S. 70, 75 S.Ct. 614 99

L.Ed. 894 (1955). No such special and

important reasons exist in this case.

Rather, the Petition merely seeks plenary

review of an unfavorable decision of the

Court of Appeals.

The Court of Appeals simply applied

settled principles to appellate review to

the District Court's denial of Respondent's

motion for a directed verdict and judgment

n.O.v., aS well as basic principles of New

Jersey contract law, all of which were

enunciated in the Opinion. See, J.I. Hass

Co, vs. Gilbane Bldg. Co., 881 F.2d 89,

92-94 (3rd Cir. 1989). Petitioner does not

even challenge the statement of governing

law by the Court of Appeals. Rather,

Petitioner's arguments are all based upon

the application of the law to the particular

circumstances of this case and, thereby,

lack the requisite public importance for

granting a writ of certiorari.

Petitioner mischaracterizes its

arguments for review in terms of a denial of

its constitutional right to a jury trial in

an effort to create special and important

reasons for granting certiorari. In fact,

the jury determination in this-matter was

limited to the non-existence of a contract

between the parties which should have been

decided by the trial judge as a matter of

law. The same holds true with respect to

the unambiguous terms of the contract as

stated in the Opinion of the Court of

Appeals which were also questions of law

within the exclusive province of the trial

judge pursuant to New Jersey law. See, Gray

Vv. h Brun i nstr ion ~» 266

F.2d 809, 813, 814 (3rd Cir. 1959); Newark

P ish Ass'n v. Newark raphical

Union, 22 N.J. 419, 427, 126 A.2d 348, 353

(1956).

The Seventh Amendment only entitles a

Civil litigant to have disputed issues of

fact tried by a jury. See, U.S. Const.

Amend VII. The power of a judge to pass

upon questions of law is just as much an

essential part of the “jury trial"

guaranteed by the Seventh Amendment as the

power of the jury to pass on questions of

fact. Diederich v. American News Co., 128

F.2d 144 (10th Cir. 1942). It is well

settled that the Seventh Amendment does not

require a jury trial where there are no

facts in dispute. Coleman v. C.I.R., 791

F.2d 68 (7th Cir. 1986).

The Opinion of the Court of Appeals in

this case was grounded entirely upon

questions of law and, therefore, the right

to a jury trial guaranteed by the Seventh

Amendment never comes into play. Coleman v.

Cut aR.- JG.

This Court has long since sanctioned

the principles of appellate review applied

by the Court of Appeals in this case and

upheld the judicial application of directed

verdict and judgment n.o.v. procedures

against Seventh Amendment challenges.

Baltimore & Carolina Line v. Redman, 295

U.S. 654, 55 S.Ct. 296, 79 L.Ed. 603 (1935);

llow Vv ni ates Pro se

Champlin, 283 U.S. 494,

16

$3 8.Ct.. Sl3, 73 bbe. Lise (1932). See,

also Slatton v. Martin K. Eby Constr. Co.,

Inc., 506 F:2d 505 (8th Cir. 1974), cert.

denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed

2d. 88 (1975); King v. United Benefit Fire

Ine. Co,, 377 F.2€ 728 (Oth 1967) cert.

denied, 389 U.S. 857, 88 S.Ct. 99, 19 L.

Ed.2d 124 (1967); Cox v. City of Freeman,

Mo., 321 F.2d 887 (8th Cir. 1963); Whitsell

v. Alexander, 229 F.2d 47, cert. denied, 351

U.S . 932, 76 S.Ct. 783, 100 L.Ed. 1461

(1956).

This would be a terrible case under

any circumstances for the United States

Supreme Court to make important

constitutional pronouncements. The Hass

quantum meruit claim based upon the

non-existence of a contract did not result

from a good faith effort to fashion a remedy

for the scope of work dispute upon which it

is purportedly based. Rather, it was simply

an effort to circumvent the express terms of

a contract and attempt to recover damages

17

having nothing to do with scope of work

without even proving that Gilbane committed

any wrongdoing.

POINT Il

THE OPINION IS LOGICALLY AND LEGALLY

CORRECT AND THE PETITIONER'S ARGUMENTS

TO THE CONTRARY ARE WITHOUT MERIT.

The balance of tke Hass Petition is

mainly a restatement of parol evidence and

other collateral allegations that are

irrelevant to the Opinion of the Court of

Appeals. In fact, the Opinion is entirely

grounded upon the following elementary

determinations that are not even in dispute:

1. The parties entered into a valid

Base Subcontract, the terms of which are not

disputed. Even the jury found this to be

true.

2. With full knowledge of the scope

of work dispute regarding Change Order

Number 1, Hass affirmed the Change Order and

elected to pursue its remedies under the

extra work provisions of the Subcontract.

The logic of prohibiting a subsequent

recission is inescapable.

3. Change Order Number 1 clearly and

unambiguously required Hass to paint three

of the four building mechanical systems in

question. In this regard, the testimony of

the Hass Project Executive as to the

requirements of Change Order Number 1 was

identical to the findings set forth in the

Opinion. A838, 839, 850 and 859.

18

Placed in its most favorable light,

the Hass Petition presents factual and legal

arguments that may bear tangentially upon

whether Change Order Number 1 required Hass

to paint building mechanical systems and

whether Hass was entitled to recover

additional compensation totaling no more

than $144,682 for the performance of extra

work. However, the Hass Petition hardly

addresses the primary holding that there was

a contract between the parties regardless of

the scope of work dispute. Nor does Hass

explain how a dispute about a change order

can negate the existence of the underlying

contract that is not even in dispute and

that was specifically found to exist by the

jury.

It is academic that a court should

never frustrate the intention of the parties

to be bound by a contract unless necessary

to bring about a fair and just result to a

particular controversy. See Paley v. Barton

Savings and Loan Ass‘n, 82 N.J. Super 75,

19

83, 196 A.2d 682 (App. Div. 1964) . See,

also 1 Corbin, Contracts §895, page 400

(1963). The foregoing principle was

recently confirmed by this Court in Texas v.

New Mexico, 482 U.S. 124, 107 S.Ct. 2279,

2284, 96 L.Ed. 2d 105, 114 (1987) which

reasoned as follows:

But good faith differences about the

scope of contractual undertakings do

not relieve either party from

performance. A court should provide a

remedy if the parties intended to make

a contract and the contract's terms

provide a sufficiently certain basis

for determining both that a breach has

in fact occurred and the nature of the

remedy called for. Restatement

(Second) of Contracts §33(2), end

Comment b (1981). There is often a

retroactive impact when courts resolve

contract disputes about the scope of a

promissor's undertaking; parties must

perform today or pay damages for what

a court decides they promised to do

yesterday and did not.

In the instant case, there was

absolutely no reason to even consider the

non-existence of a contract. Assuming a

legitimate dispute as to Hass‘ obligation to

paint the Change Order Number 1 building

mechanical systems, the extra work

20

provisions of the Subcontract afforded the

appropriate vehicle for complete relief. In

fact, that is the customary manner for

resolving scope of work disputes in the

construction industry and the manner chosen

by the parties themselves before the

posturing of this litigation.

Even viewing the scope of work dispute

in the context advanced by Hass, the issue

of “a meeting of the minds” applies only to

the Hass obligation to paint building

mechanical systems under Change Order Number

1. Therefore, if quasi-contractual relief

were necessitated to achieve "a fair and

just result” such relief should have been

limited to the building mechanical work

actually performed by Hass rather than the

entire contractual relationship. This would

have afforded Hass complete relief with

respect to the scope of work dispute without

otherwise depriving Gilbane of its rights

under the Subcontract. This is exactly what

the Court of Appeals instructed the trial

21

court to do in the event that the jury were

to find that the Hass painting of ductwork

in the Brewhouse was not intended to be

dealt with pursuant to the extra work

provisions of the Subcontract.

The fact that the parties continued to

perform in every respect under the

Subcontract for more than a year after the

scope of work dispute was unquestionably

known to both of them, oan they even treated

the dispute as coming under the extra work

provisions of the Subcontract, makes the

denial of contract existence even more

absurd. Hass does not even deny its own

affirmance of the Subcontract which

constitutes an election of remedies and

precludes the contrary position that no

contract existed after performance was

rendered. See, Merchants Indemnity Corp. v.

Eggleston, 37 N.J. 114, 130-131, 179 A.2d

505, 513 (1962). See also, R men

Second of Contracts, §380 and §380 Comments

"9" end “Bb” €i979);: RB men f

Restitution, §64 and §68 (1937).

22

The Opinion of the Court of Appeals

cites Merchants Indemnity Corp. v.

Eggleston, supra, as expressing the

governing law of New Jersey with respect to

election of remedies. The Hass Petition

does not -even dispute the applicable

principles of law expressed by the New

Jersey Supreme Court in Merchants

mnity. Rather, the Hass efforts to

distinguish Merchants Indemnity are based

solely upon the fact that it concerned an

insurance contract and not a construction

contract which has nothing to do with the

applicable legal principles expressed.

The Hass Petition references a Change

Order Number 1 Room Finish Schedule as

Causing confusion because it was issued

after Hass estimated the Change Order Number

l work. However, Hass omits to disclose

that all the other Change Order Number 1

Room Finish Schedules, which required the

painting of building mechanical systems,

were issued prior to estimating Change Order

23

Number 1. A4lll, A4112, A4146 and A4114.

Additionally, the Change Order Number 1 Room

Finish Schedule, that Hass complains about,

was issued to Hass with a Request for Change

Quotation long before Change Order Number 1

was entered into. A2641-A2650, A3441 and

A3451.

The Hass propensity for confusing

rationalization is typified by its reference

to trial Exhibit P76 as consisting of two

charts prepared by Gilbane and purportedly

depicting the scope of Gilbane's painting

obligation to Miller and Hass’ painting

obligation to Gilbane. However, there was

no testimony in the Court below as to who

prepared these charts, the circumstances of

their preparation and what they purport to

show.

All of the comments in the Hass

Petition regarding the scope of work dispute

suffer the same infirmity as the contentions

specifically addressed above. When placed

under scrutiny they have nothing to do with

24

the scope of Hass‘ contractual undertaking.

Rather, their ultimate purpose is to confuse

the fact that Change Order Number 1, on its

face, clearly required Hass to paint

building mechanical systems and that those

requirements were fully known to Hass when

Change Order Number 1 was entered into.

Additionally, all of the Hass factual

contentions consist of parol evidence

seeking to contradict the terms of an

integrated agreement and should have been

excluded from evidence by the Court below.

It is well settled in New Jersey law,

properly recognized by the Court of Appeals

in its Opinion, that the objective intent of

parties manifested by their written

agreement governs the interpretation of a

contract. Ban rban Renewal r Vv

Housing Authority of City of Atlantic City,

674 F.2d 1001, 1008 (3rd Cir. 1982); Kearny

PBA Local 21 v. Town of Kearny, 81 N.J. 208,

221, 405 A.2d 393, 400 (1979). Friedman v.

Ta n Developmen 4 » £22 Baas Bees Dede

25

126 A.2d 646, 650 (1956) ; Leitner v. Braen,

51 N.J. Super. 31, 38, 143 A.2d 256, 260

(App. Div. 1958). Hass does not even

disagree with this principle.

However, Hass does not identify anything in

the Subcontract documents inconsistent with

the holding in the Opinion of the Court of

Appeals that Change Order Number 1 included

the painting of building mechanical systems

or consistent with Hass' position to the

contrary. Rather, Hass continues to rely

entirely upon extraneous factors in support

of its position. Also, aside from a few

confusing and somewhat incomprehensible

rationalizations, Hass virtually ignores the

Room Finish Schedules which the Project

Specifications reference as defining the

scope of Hass‘ work (A3336 and A3337) and

the testimony of its own Project Executive

to that effect (A838-A839, A850 and A859).

The Hass Petition similarly fails to

reconcile its admitted knowledge when Hass

entered into Change Order Number 1 that it

26

required the painting of building mechanical

wreteiin (A877, A961-A962, A993 and A994).

Contrary to the confusing

characterizations in the Hass Petition, the

scope of painting work is not difficult to

discern from the Subcontract documents. The

Base Subcontract and Change Order Number 1

each identify the but idises to be painted

and refer to Rider “A” for the particular

painting requirements for each building.

A4155, A3466. In each case, Rider "A"

references a Room Finish Schedule for each

building and Section 9F of the Project

Specifications directs Hass to paint the

building elements designated for painting on

the Room Finish Schedules. See specifically

A3336, Section 1.1.3. This is exactly how

it was described by the Hass Project

Executive (A838-839, A850 and A859) and in

the Opinion of the Court of Appeals.

The fact that Hass was not obligated

to paint building mechanical systems under

the Base Subcontract but was obligated to

27

paint building mechanical systems under

Change Order Number 1, and that Hass knew

it, is independently verified by the

exclusions listed in the Pre-Award Meeting

Minutes applicable to each of them. See

Rider "B", Section 20 of A4093, A3453 and

A2981-2992.

Finally, the fact that the Base

Subcontract and Change Order Number 1 were

physically executed on the same day is

meaningless. The essential underpinnings of

the Opinion of the Court of Appeals remain

the same, i.e., a valid Base Subcontract was

entered into and Hass affirmed Change Order

Number 1 with full knowledge of the scope of

work dispute and elected to pursue its

remedies under the extra work provisions of

the Subcontract.

CONCLUSION

For the reasons set forth herein and

in the Opinion of the Court of Appeals from

which review is being sought, Respondent

28

Gilbane Building Company” respectfully

requests that the Petition for a Writ of

Certiorari of J.I. Hass Co., Inc. be denied.

DATED: River Edge, New Jersey

January 22, 1990

Respectfully submitted,

RICHARD L. ABRAMSON

PECKAR & ABRAMSON

A Professional Corporation

Attorneys for Respondent

Gilbane Building Company

5 Pursuant to Supreme Court Rule 28.1. there are no

parent companies or subsidiary companies (except

wholly owned subsidiaries) of Respondent Gilbane

Building Company and the only affiliate of said

corporation is B.T. Equipment Company, Inc.