Frank B. Bozzo, Inc. v. Electric Weld Division of Ft. Pitt Bridge Division of Spang Industries, Inc.
| Decision Date | 04 August 1980 |
| Citation | 423 A.2d 702,283 Pa.Super. 35 |
| Parties | , 29 UCC Rep.Serv. 100 FRANK B. BOZZO, INC., a Corporation v. ELECTRIC WELD DIVISION OF the FORT PITT BRIDGE DIVISION OF SPANG INDUSTRIES, INC., a Corporation, Appellant. |
| Court | Pennsylvania Superior Court |
James H. McConomy, Pittsburgh, for appellant.
Richard S. Dorfzaun, Pittsburgh, for appellee.
Before PRICE, HESTER and CAVANAUGH, JJ.
An action in assumpsit was commenced in the court below by Frank B. Bozzo, Inc. (appellee) for an alleged breach of the contract entered into between appellee and Electric Weld Division of the Fort Pitt Bridge Division of Spang Industries, Inc. (appellant) on or about March 14, 1973. Under the contract, appellant was to furnish approximately 120,000 square yards of steel mesh to the appellee for delivery in 1973 through 1975. The steel mesh was to be used in concrete paving on a section of highway to be built in Elk County, Pennsylvania. Appellee alleged in its Complaint that the appellant failed to deliver all of the material ordered and as a consequence, it incurred increased labor, equipment, and material costs. The case was tried before Farino, J., and a jury in a trial lasting six days. The jury returned a verdict in favor of the plaintiff-appellee and against defendant-appellant in the amount of $150,640.10 plus 6% interest. Appellant's motions for new trial and for judgment non obstante veredicto were denied and it has appealed to this court.
In order to understand this complex case, the factual background must be explained in some detail. Appellant was for many years engaged in concrete paving work on highways in western Pennsylvania. The company was a small one having only eight to ten permanent employees and when required on a given job, it used union employees as operating engineers, carpenters, cement masons, teamsters, laborers, and pile drivers. The number of employees could range from about forty to one hundred twenty-five people depending on the paving contract involved. On some jobs, appellee worked as a general contractor and on others, as a subcontractor installing the concrete paving for the general contractor.
Early in 1973, the appellee learned that the Pennsylvania Department of Transportation (PennDOT) was going to bid for construction of a highway in St. Marys, Elk County. Appellee reviewed the plans and specifications which it received from PennDOT and its representatives visited the job site. Appellant furnished the appellee with a quotation of the prices of the steel mesh and steel accessories which would be required for the job. Appellee submitted its bid to PennDOT and was awarded the contract as the low bidder. Appellee then contacted appellant and the parties discussed appellant's furnishing the steel mesh and accessories to be used on the job. On this job, the steel mesh was to be composed of longitudinal and transverse steel rods that are machine welded to form a sheet. The sheet or grid is placed in the concrete bed of the highway about 21/2 inches below the finished surface to strengthen the road and make the concrete more durable.
The job on which appellee was the successful bidder involved constructing four miles of highway in Elk County and was to take three construction seasons to complete. Appellee intended to use what is known as a slip-form paving train in the construction of the highway. This is a machine which consists of several pieces of equipment used in road construction which permits the paving of a highway without the placing of forms for the laying of the concrete. Another type of machinery used in road construction is form-riding equipment which necessitates the use of side forms to hold up the concrete. The slip-form paving train and the form-riding equipment do basically the same job in road construction except side forms are not required in using the slip-form paving train which can also pave a wider road bed than can be done with the form-riding equipment.
In March, 1973 when appellant and appellee entered the contract in question, the appellee did not own a slip-form paving train but did acquire one later in 1973 after it was awarded the contract for the St. Marys' project. The new slip-form paving train which appellee purchased was considerably more expensive than the form-riding equipment that it already owned.
On or about March 14, 1973, appellant and appellee reduced to writing their agreement under which basically appellant was to furnish 120,000 square yards of steel mesh and related accessories to appellee. Unfortunately, the written contract is lacking in the quality of definiteness which is so important to a lawyer in preparing a contract but which is often overlooked by businessmen. The written agreement which underlies the dispute in this case states, inter alia:
"ELECTRIC WELD DIVISION
FORT PITT BRIDGE WORKS SUBSIDIARY
P.O. Box 151 Canonsburg, Pa
PROPOSAL CONTRACT Date: March 14, 1973
To: Frank B. Bozzo, Inc. Project: PennDOT Letting 3-2-73
P.O. Box 128 Elk County
Bridgeville, Pa. 15017 L.R. 99 A06
St. Marys, Pa
We propose to furnish subject to prompt acceptance and conditions on both sides of this proposal sheet, the following described material required for the above project.
FOR 1973 DELIVERY 9" R. C. C. Pavement
------------------------ ----------------------
Approx. 50,000 S.Y. Type "F" .............. at $0.8075/S.Y
Approx. 9,800 L.F. Saw Joint ............. at $1.20/L.F
Approx. 4,500 Pcs. Hook Bolts or Dowels .. at $0.45/EACH
FOR 1974-1975 DELIVERY
------------------------
Approx. 70,053 S.Y. Type "F" .............. at $0.83/S.Y.
Approx. 13,420 L.F. Saw Joint ............. at $1.25/L.F.
Approx. 6,225 Pcs. Hook Bolts or Dowels .. at $0.50/EACH
The above prices do not include the present 6% Pennsylvania Sales Tax.
This proposal subject to approval by our Credit Department.
'This quotation may be withdrawn by us if not accepted by you within thirty days from date.' "
The contract was signed by duly authorized representatives of the appellant and by the appellee as the purchaser.
At the time the contract was entered into, there was a discussion between the parties as to when the steel mesh would be needed. Road construction started shortly after the contract was entered into and during 1973 the appellant made timely delivery to the appellee of all the steel mesh and related accessories that it required. Since the written contract was silent as to the dates of delivery and the amounts of steel mesh to be delivered on any given date, delivery terms were orally agreed to by the parties as was customary in the industry. All went well in 1973, and appellant delivered the 50,000 square yards of mesh ordered for 1973.
Appellant procured the steel mesh which it sold to the appellee from the United States Steel Corporation. Appellant was advised in 1973 by United States Steel that the supply of steel mesh would be critical in 1974 and it was advised that United States Steel's customers would be put on an allocation for the first three-quarters of 1974. Although the appellant contended that it contacted appellee (as well as other customers) and advised it of the expected shortage of steel mesh which it was to obtain from United States Steel, appellee denied learning of the shortage until August, 1974.
Construction on the St. Marys project ceased in the fall of 1973 when the weather became too cold to continue with the paving and appellee planned to resume paving on the St. Marys job in May, 1974 or as soon as the weather was satisfactory. Appellee planned on using the slip-form paving train on the St. Marys job in May and June of 1974 and then transfer the train to another job site and return it to the St. Marys project in August, 1974 to complete the project. Appellee requested that appellant deliver the balance of the steel mesh to the St. Marys project in June, 1974 and advise the appellant that it would take delivery any time that the steel mesh was available. Beginning in March, 1974, the appellee constantly reminded the appellant of its need of the balance of the steel mesh to complete the St. Marys project. By July, 1974, the material was still not delivered to the project and in August, 1974, appellee advised appellant that its job in Donora, Pennsylvania was completed and that it was returning the paving train to Elk County. Appellee had to complete the Elk County project in August, 1974 if it was going to use the paving train as it needed the train in Pittsburgh in September, 1974 to do work at the Greater Pittsburgh Airport on a paving job.
In August, 1974, appellant advised appellee for the first time that it could not deliver the steel mesh to the St. Marys project in August as appellant was not then able to obtain the steel mesh from United States Steel. Since the steel mesh needed by the paving train was not on hand at the St. Marys project, appellee had to move its form-riding equipment to the St. Marys job and this equipment only constructs a single lane of highway. Appellee had not intended to use form-riding equipment for the St. Marys project when the contract was entered, although it is not clear that was communicated to appellant.
On August 12, 1974, counsel for appellee wrote to appellant and stated that appellant had breached the contract of March 14, 1973 to furnish the steel mesh and related materials and that the appellee would "exercise all available legal recourse to protect itself from this breach of contract and the substantial losses which will occur by reason thereof." The letter also stated that: "Certainly, it is clear that the losses, in totality, will be well into the hundreds of thousands...
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