Exton Drive-In, Inc. v. Home Indem. Co.

• Decision Date: 28 November 1969
• Docket Number: INC,DRIVE-I
• Citation: 261 A.2d 319,436 Pa. 480
• Parties: EXTON, Appellant, v. The HOME INDEMNITY CO. and W. Arnold Blythe, Ind. & t/a Blythe Contractors.
• Court: Pennsylvania Supreme Court

Page 319

261 A.2d 319

436 Pa. 480

EXTON DRIVE-IN, INC., Appellant, v.The HOME INDEMNITY CO. and W. Arnold Blythe, Ind. & t/a Blythe Contractors.

Supreme Court of Pennsylvania.

Nov. 28, 1969.

Rehearing Denied Feb. 17, 1970.

Harry Norman Ball, Carl K. Zucker, Philadelphia, for appellant.

Herbert A. Barton, Swartz, Campbell & Detweiler, Philadelphia, for appellee, The Home Indemnity Co.

David N. Rosen, Philadelphia, for appellee, W. Arnold Blythe, Ind. & t/a Blythe Contractors.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

This action was commenced in 1956 when Exton Drive-In, Inc.(Exton) filed a complaint in assumpsit against The Home Indemnity Co.(Home) seeking damages under a performance bond in which Home and W. Arnold Blythe(Blythe) had bound themselves jointly and severally to Exton in the sum of $52,000.The bond was conditioned on the full and prompt performance by Blythe of a contract between him and Exton for the grading and paving of a site for an outdoor motion picture theater.Exton alleged that this contract had not been fully and promptly performed and claimed damages in the amount of $42,500, being the profits allegedly lost because of delay in performance plus the estimated cost of remedying the defects in performance.Because the bond was a joint undertaking of Blythe as principal and Home as surety, Home impleaded Blythe as an additional defendant asserting joint and several liability.In his answer to the third party complaint, Blythe denied that he had breached the contract and brought a counterclaim against Exton for the unpaid balance of the contract price and for payment for certain additional work he had performed, allegedly at the request of Exton.

The case came on for trial before a judge sitting without a jury in May, 1960.Not until June, 1967, Over seven years after the trial was completed, did the judge enter his decision in this case.This decision was in the form of a verdict in favor of defendants Home and Blythe on plaintiff's original complaint and a verdict for Blythe on his counterclaim against Exton in the sum of $13,692.49; there were no findings of fact or conclusions of law.Exton filed numerous exceptions to this decision, which were overruled by the court En banc in June, 1968.This appeal followed.Not until April 18, 1969, seventeen days before this appeal was argued, did the trial judge file an opinion explaining the overruling of Exton's exceptions.

Judicial Delay

Appellant contends that the lower court's failure to order a new trial Sua sponte because of the inordinate delay between trial and decision was an abuse of discretion.

Appellant is correct that the court below had the power to grant a new trial Sua sponte, if in its opinion justice so required.Getz v. Balliet, 431 Pa. 441, 446, 246 A.2d 108(1968);Fisher v. Brick, 358 Pa. 260, 262, 56 A.2d 213(1948).The question, then, is whether the court abused its discretion by failing to do so.

Nothing in the record indicates that any party was responsible for this delay; the fault appears to have been that of the trial judge.Such dereliction flouts the proud promise of the Magna Carta: 'to none will we deny justice, to none will we delay it.'It contravenes the guarantee of the Constitution of this Commonwealth that '* * * every man * * * shall have * * * right and justice administered without sale, denial or delay.'Article I, Section 11.It flies in the teeth of the statutory standard that the decision of a court sitting without a jury '* * * shall be filed * * * as early as practicable, not exceeding sixty days from the termination of the trial * * *.'¹The right to have justice administered without delay is a fundamental right which should not be infringed unless no other course is reasonably possible.Kelly v. Brenner, 317 Pa. 55, 59, 175 A. 845(1934).

We said in General Foods Corp., supra, that as a matter of judicial administration we would not condone an eighteen month delay but that we could understand it.A seven year delay we neither condone Nor understand; we can only deplore it.While there may have been extenuating circumstances of which we have no knowledge, we must express our sense of dismay and chagrin that a delay so protracted could occur in the courts of this Commonwealth in the 1960's.

Our unhappiness with this delay is not, however, a sufficient ground for ordering a new trial, for such an order would still further defer the end to this litigation.If the facts of this case support the decision as rendered, we would compound the injustice by requiring the parties to return to their pre-1960 positions and begin anew the trial of this case.Accordingly, we hold that the lower court's failure to grant a new trial solely because of the long-delayed decision was not an abuse of discretion.

Standard of Review

Appellant further contends that a new trial is necessary because the evidence contradicts rather than supports the decision of the court below.That decision, as mentioned above, is in the form of a naked verdict for Blythe and Home on the original complaint and for Blythe on his counterclaim; there are no findings.²In such a casewe must make an independent review of the record.Idell v. Falcone, 427 Pa. 472, 473--474, 235 A.2d 394(1967);Ballinger v. Howell Mfg. Co., 407 Pa. 319, 180 A.2d 555(1962).Cf.Yoo Hoo Bottling Co. of Pa. Inc. v. Liebowitz, 432 Pa. 117, 119, 247 A.2d 469(1968).

In reviewing this record we must evaluate the contentions of Exton that there were four material breaches of the contract by Blythe and that the verdict was against the evidence.The material breaches alleged by Exton are: (1) failure to complete the contract work within the time period specified in the contract; (2) failure to make the paved surface impervious to water as required by the contract; (3) failure to use the required minimum quantities of materials; and (4) failure to grade and pave the area to allow proper drainage.

Timely Performance

The contract between Blythe and Exton specified that time was of the essence and required Blythe to complete the grading and paving of the drive-in theater site within thirty-eight working days of the contract date.This provision as to timely performance gave Blythe notice that a delay in completion of the contract would delay the opening of the theater and result in losses for Exton.Losses caused by Blythe's failure to make timely performance were accordingly foreseeable.The Restatement, Contracts, § 346(1932) provides as follows:

'(1) For a breach of one who has contracted to construct a specified product the other party can get judgment for compensatory damages for all unavoidable harm that the builder had reason to foresee when the contract was made, less such part of the contract price as has not been paid and is not still payable, determined as follows * * * (b) For any delay fairly chargeable to the builder, the plaintiff can get judgment for the value of the use of the product, if it was being constructed for use.'

We believe this rule is proper and sound.Cf.Lever v. Lagomarsino, 282 Pa. 110, 114, 127 A. 452(1925).Its application in the present case would permit Exton to recover damages from Blythe for the difference between the losses caused by delay in the use of the theater and the unpaid balance of the contract price, provided only that Exton proved (a) a failure of timely performance, and (b) resulting damages which were sufficiently certain to permit recovery.

From the evidence adduced at trial, we believe Exton did establish a failure of timely performance.Even adopting Arguendo Blythe's definition of 'working day', viz., a day on which site and weather conditions were favorable, we are persuaded that the evidence supports the conclusion that there were more than thirty-eight such days between the date of the contract (April 11, 1956) and the date upon which Blythe himself contends the work under the contract was completed (August 29, 1956).

We cannot agree, however, with appellant's contention that he proved attendant losses with sufficient certainty to permit recovery.This Court has held that a party seeking damages for breach of contract 'must be able to prove such damages with reasonable certainty.'Wilcox v. Regester, 417 Pa. 475, 484, 207 A.2d 817, 822(1965).See alsoNakles v. Union Real Estate Co. of Pittsburgh, 415 Pa. 407, 411, 204 A.2d 50(1964).'Compensation for breach of contract cannot a justly refused because proof of the exact amount is not produced * * *.(T)he law does require * * * that the evidence shall with a fair degree of probability establish a basis for the assessment of damages.'Massachusetts Bonding & Ins. Co. v. Johnston & Harden, Inc., 343 Pa. 270, 280, 22 A.2d 709, 714(1941).

This rule is in accord with the Restatement, Contracts, § 331(1932) which specifies:

'(1) Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.(2) Where the evidence does not afford a sufficient basis for a direct estimation of profits, but the breach is one that prevents the use and operation of the property from which profits would have been made, damages may be measured by the rental value of the property or by interest on the value of the property.'

Considered in the light of these principles, we think it clear that appellant was not entitled to damages because of Blythe's belated performance.The evidence shows that Blythe's delay in completing the work did not delay the theater opening.Since the motion picture screen itself was not installed until a few days before the scheduled opening, the theater could not have opened sooner than it did.

Exton contends, however, that because of the unfinished condition of the theater when it opened...