Fairview Park Excavating Co. v. Al Monzo Construction Co.,

560 F.2d 1122 (3rd. Cir. 1977)

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Nature of the Case

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Facts

Fairview (P) was a sub that provided labor and materials to the general contractor, Monzo (D) for Robinson Township. P is an Ohio corporation. D is a Pennsylvania corporation. Robinson Township (D2) is a citizen of Pennsylvania. Maryland Casualty (D1) is the surety for D. P completed its works for D but never received payment. P then sued in diversity. D2 denied liability, as there was no contractual privity. D and D1 denied liability and cross-claimed against D2 and D2 counterclaimed against D1 for damages for defective work. The district court granted D2's motion that P's complaint against it be dismissed on grounds that there was no privity. The court also dismissed D's cross-claim against D2 as there was no diversity. As for P's claim against D; judgment was entered for P. D appealed; the court erred in dismissing its cross-claim against D2 on jurisdictional grounds.