Weldon & Kelly Co. v. Pavia Co.

• Decision Date: 16 April 1946
• Docket Number: 3927
• Parties: Weldon & Kelly Company, Appellant, v. Pavia Company
• Court: Pennsylvania Supreme Court

46 A.2d 466

354 Pa. 75

Weldon & Kelly Company, Appellant, v. Pavia Company

No. 3927

Supreme Court of Pennsylvania

April 16, 1946

Argued March 27, 1946

Appeal, No. 28, March T., 1946, from order of C.P., Allegheny Co., Oct. T., 1945, No. 2738, in case of Weldon & Kelly Company v. The Pavia Company. Order affirmed.

Proceeding in common pleas upon motion to modify or correct award of arbitrators.

Order entered confirming award, opinion by EGAN, J. Plaintiff appealed.

Order affirmed; costs to be divided between the parties.

Gifford K. Wright, with him Alter, Wright & Barron, for appellant.

John E. Evans, Sr., with him Evans, Evans &amp Spinelli, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.

OPINION

MR. JUSTICE HORACE STERN

This is an appeal from an order of the court below confirming an award of arbitrators to whom the parties had submitted their differences.

On June 23, 1942, Weldon & Kelly Company entered into a written contract with the Housing Authority of the City of McKeesport to perform the plumbing work in connection with the E. R Crawford Village Extension. On July 11, 1942, it entered into a written agreement with The Pavia Company whereby it sub-contracted to the latter the construction of the storm and sanitary sewers and the digging and back-filling of the water-line and gas-line trenches; the bid of The Pavia Company, upon which this contract was based, was $21,000 for the sewers and $2,715 for the trenches; these amounts were subsequently changed to $20,925 and $2,790 respectively. The contract called for completion of the work on or before the 24th day of September, 1942, which was the same date as that stipulated in the principal contract between Weldon & Kelly Company and the Housing Authority.

The Pavia Company started performance immediately, bringing upon the premises for that purpose an air-compressor and mechanical shovels. By the latter part of October it had substantially completed the construction of the sewers and was ready to proceed with the digging of the trenches but could not go ahead until Weldon & Kelly Company furnished the pipe to be installed. As Weldon & Kelly could not supply the pipe because of inability to obtain the necessary priority ratings from the War Production Board, The Pavia Company removed its equipment to the site of another government operation. Some months later Weldon & Kelly Company obtained the pipe and, on April 12, 1943, wrote a letter to The Pavia Company calling upon it to proceed with the work. A conference was thereupon held between Domenick Pavia, Secretary of The Pavia Company, and Earle F. Young, Superintendent of Weldon & Kelly Company. According to the testimony of Pavia, he told Young that he was occupied on another job and did not have the necessary labor available; Young said to him "You have got to help up out... we are in awful fix over there". Young told Pavia that they had put their own force on the job; as a matter of fact Weldon & Kelly Company had had men digging the trenches for a week or two prior to this conference but they had run into solid slag which could not be removed by hand labor. Young stated that if The Pavia Company would bring back and operate the mechanical equipment Weldon & Kelly Company would have its own men do the rest of the excavation work but would nevertheless pay The Pavia Company the full amount originally agreed upon. Pavia assented to this proposition and accordingly The Pavia Company brought over the equipment, and, together with the labor employed by Weldon & Kelly Company, finally completed the work.

On May 25, 1943, Weldon & Kelly Company wrote to The Pavia Company that it intended to charge the latter with the wages it was paying for the hand laborers; it subsequently fixed this charge at $3,617.13, which it claimed as a set-off against the balance then due The Pavia Company. This claim being rejected, the dispute between the parties was referred, first, to the architect, and then to three arbitrators under the provisions of the Arbitration Act of April 25, 1927, P.L. 381. The arbitrators disallowed the counter-claim of Weldon P. Kelly Company ^[*] and made an award to The Pavia Company of $6,415.71, which included the full sum of $2,790 for the excavation and back-filling of the trenches. The court below confirmed the award.

The Arbitration Act of April 25, 1927, P.L. 381, section 11(b), provides that the court may modify or correct an award of the arbitrators only "Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict."

The first question here presented is whether the contract of July 11, 1942, between Weldon & Kelly Company and The Pavia Company was abrogated as a result of the former's delay in supplying the pipe. The contract, calling as it did for performance by September 24, 1942, had obviously contemplated a prompt and speedy operation. While the delay in obtaining the pipe was not due to any wilful default on the part of Weldon & Kelly Company, The Pavia Company could scarcely have been expected to keep its equipment idle on the job for a protracted and indefinite period, especially in the midst of the war when...