Guy M. Cooper v. East Penn School Dist.
| Decision Date | 26 July 2006 |
| Citation | 903 A.2d 608 |
| Court | Pennsylvania Commonwealth Court |
| Parties | GUY M. COOPER, INC., Appellant v. EAST PENN SCHOOL DISTRICT v. Bilt-Rite Contractors, Inc., United States Fidelity & Guaranty Company, and The Architectural Studio and O'Brien-Kreitzberg & Associates, Inc. Guy M. Cooper, Inc. v. East Penn School District v. Bilt-Rite Contractors, Inc., United States Fidelity & Guaranty Company, and The Architectural Studio and O'Brien-Kreitzberg & Associates, Inc. Appeal of East Penn School District. |
Richard W. Hunt, Marlton, NJ, for appellant, Guy M. Cooper, Inc.
Domenic P. Sbrocchi, Bethlehem, for appellee, East Penn School District.
Patrick R. Kingsley, Philadelphia, for appellee, United States Fidelity & Guaranty Company.
Maura Zajac McGuire, Easton, for appellee, The Architectural Studio.
Jeffrey P. Wallack, Blue Bell, for appellee, Bilt-Rite Contractors, Inc.
BEFORE: COHN JUBELIRER, Judge, SIMPSON, Judge, and McCLOSKEY, Senior Judge.
OPINION BY Judge SIMPSON.
In the first of two consolidated appeals arising out of construction of the East Penn Middle School (Project), Guy M. Cooper, Inc. (Mechanical Contractor) contends the Court of Common Pleas of Lehigh County (trial court) erred by granting summary judgment in favor of East Penn School District (School District) on Mechanical Contractor's breach of contract and unjust enrichment claims. In the second appeal, a protective appeal, School District contends the trial court erred by granting judgments in favor of Bilt-Rite Contractors, Inc. (General Contractor), United States Fidelity & Guaranty Company (Surety) and The Architectural Studio (Architect) on School District's claims over against General Contractor, Surety and Architect. Discerning no error, we affirm.
Prior to June 1997, School District solicited bids for construction of a new middle school. Relevant to these appeals, School District awarded General Contractor the overall construction contract and Mechanical Contractor the heating, ventilation and air-conditioning contract (HVAC). School District hired Architect to design the Project, and O'Brien-Kreitzberg & Associates, Inc., as its Project Manager. Surety issued a performance bond for General Contractor naming School District as Obligee.1
The Contract Documents between School District and its prime contractors, including General and Mechanical Contractors, include: Standard Form of Agreement between Owner and Contractor (Standard Form); General Conditions of the Contract for Construction (General Conditions); Supplementary Conditions of the Contract for Construction (Supplementary Conditions); Project Manual and other state-required documents. Of particular import here, Supplementary Condition 15.8.1 of the Contract Documents provides:
[School District] shall not be liable to contractor or any subcontractor for claims or damages of a monetary or any other nature caused by or arising out of delays contemplated or not contemplated at the signing of the contract. The sole remedy against [School District] for delays shall be the allowance to claimant of additional time for completion of work.
Reproduced Record (R.R.) at 73a.
The various construction contracts required completion of the Project within 460 days of issuance of the notices to proceed. On June 6, 1997, School District issued notices to proceed to all contractors. Therefore, the Project was to be completed by September 9, 1998.
As construction progressed, delays became apparent. In November 1998, two months after the original Project completion date, School District terminated General Contractor for a six-week period.2 General Contractor ultimately returned to the Project, and School District and General Contractor set a new substantial completion date in August 1999. Delays continued, and the Project was substantially completed on January 27, 2000, 505 days beyond the original completion date.
In September 2002, Mechanical Contractor filed its original complaint against School District. School District filed preliminary objections. Mechanical Contractor filed a second amended complaint, after which School District joined General Contractor, Architect, and Surety as Additional Defendants. Architect then joined Project Manager.
In its third amended complaint, Mechanical Contractor sets forth two counts. In Count I it alleges School District breached its contract with Mechanical Contractor by, in essence, failing to ensure construction proceeded without delay or interruption.3 In Count II it alleges School District retained the benefit of Mechanical Contractor's additional labor and materials resulting from the delays without compensating Mechanical Contractor for its added expenses.
In its complaint joining additional defendants, School District alleges Mechanical Contractor's harm, if any, resulted from General Contractor's and Architect's breach of contract or negligence. The joinder complaint further alleges that Surety is liable for General Contractor's delays by virtue of the performance bond.4
Discovery ensued. Afterwards, all parties except Mechanical Contractor filed motions seeking judgment, either on the pleadings or as summary judgment. On November 7, 2005, the trial court entered five orders granting the judgment motions. As a result, Mechanical Contractor was out of court.
Mechanical Contractor now appeals the trial court's order granting summary judgment in favor of School District. In its protective appeal, School District challenges the trial court's orders granting General Contractor's, Architect's and Surety's judgment motions.5
On appeal, in reviewing the trial court's grant of summary judgment, we are limited to determining whether the trial court committed an error of law or abused its discretion. Salerno v. LaBarr, 159 Pa. Cmwlth. 99, 632 A.2d 1002 (1993). Summary judgment is appropriate only when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.6
In Mechanical Contractor's appeal of the trial court's order granting summary judgment in favor of School District, it contends the trial court erred because: it offered sufficient evidence School District failed to act on an essential matter necessary for the prosecution of its work and, therefore, the contract's "no damages for delay" clause should be set aside; its claim for damages was timely; and, it offered sufficient evidence to establish Mechanical Contractor provided additional labor and materials benefiting School District for which it was not compensated. For the following reasons, we disagree.
In its first argument, Mechanical Contractor contends the trial court erred by granting summary judgment where it provided sufficient evidence to prove School District failed to act on an essential matter necessary to the prosecution of its work and, therefore, the "no damages for delay" clause should be set aside.
At the outset, we note a contract must be construed according to the meaning of its language. Empire Sanitary Landfill, Inc. v. Riverside Sch. Dist., 739 A.2d 651 (Pa.Cmwlth.1999). Where the terms of a contract are clear and unambiguous, courts are required to give effect to that language. TIG Specialty Ins. Co. v. Koken, 855 A.2d 900 (Pa.Cmwlth.2004), aff'd, 586 Pa. 84, 890 A.2d 1045 (2005). Where parties mutually agree to a term at the time of contracting, the term will be generally enforced. Lapio v. Robbins, 729 A.2d 1229 (Pa.Super.1999).
As previously stated, the "no damages for delay" clause provides School District is not liable to Mechanical Contractor for monetary claims arising out of delays. Rather, the contract provides a different remedy for construction delays: additional time to complete the work.
Generally, "no damages for delay" clauses are enforceable. However, Pennsylvania law recognizes exculpatory provisions in a contract cannot be raised as a defense where (1) there is an affirmative or positive interference by the owner with the contractor's work, or (2) there is a failure on the part of the owner to act on some essential matter necessary to the prosecution of the work. Henry Shenk Co. v. Erie County, 319 Pa. 100, 178 A. 662 (1935). Thus, affirmative or positive interference sufficient to overcome the "no damages for delay clause" may involve availability, access or design problems that pre-existed the bidding process and were known by the owner but not by the contractor. Coatesville Contractors & Eng'rs, Inc. v. Borough of Ridley Park, 509 Pa. 553, 506 A.2d 862 (1986) (); Commonwealth of Pa., Dep't of Highways v. S.J. Groves & Sons Co., 20 Pa.Cmwlth. 526, 343 A.2d 72 (1975) (). Similarly, an owner cannot insulate itself from a delay damage claim where it fails to perform an essential contractual duty. Gasparini Excavating Co. v. Pa. Tpk. Comm'n, 409 Pa. 465, 187 A.2d 157 (1963) (); Commonwealth of Pa., State Highway & Bridge Auth. (Penn-DOT) v. Gen. Asphalt Paving Co., 46 Pa.Cmwlth.114, 405 A.2d 1138 (1979) ().
Here, Mechanical Contractor alleges School District breached its contract by failing to...
To continue reading
Request your trial
-
Zachry Constr. Corp. v. Port of Hous. Auth. of Harris Cnty.
...Terreri & Sons, Inc. v. Mahoning Cty. Bd. of Comm'rs, 152 Ohio App.3d 95, 786 N.E.2d 921, 928 (2003) ; Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 613–614 (Pa.Commw.Ct.2006) ; Ayers–Hagan–Booth, Inc. v. Cranston Hous. Auth., No. C.A. 74–2897, 1975 WL 174130, at *2–5 (R.I.Super.......
-
Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cnty., 12-0772
...E. Terreri & Sons, Inc. v. Mahoning Cty. Bd. of Comm'rs, 786 N.E.2d 921, 928 (Ohio Ct. App. 2003); Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 613-614 (Pa. Commw. Ct. 2006); Ayers-Hagan-Booth, Inc. v. Cranston Hous. Auth., No. C.A. 74-2897, 1975 WL 174130, at *2-5 (R.I. Super. ......
-
Davis v. Septa
...there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 612-13 (Pa.Cmwlth.2006) (citation omitted). The appellate standard of review is de novo when a reviewing court considers ques......
-
James Corp. v. North Allegheny Sch. Dist.
...Where the terms of a contract are clear and unambiguous, courts are required to give effect to that language. Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608 (Pa.Cmwlth.2006), appeal denied, 591 Pa. 706, 918 A.2d 748 (2007). Where parties mutually agree to a term at the time of cont......