April 18, 1955
COMMONWEALTH, TO USE OF PANDOLFO, APPELLANT,
Appeal, No. 62, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 707, in case of Commonwealth of Pennsylvania to the Use of Sam Pandolfo, trading as Pandolfo Excavating v. The Pavia Company and Continental Casualty Company. Judgment affirmed.
John B. Nicklas, Jr., with him Walter O. Howarth and McCrady & Nicklas, for appellant.
James M. McCandless, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
[ 381 Pa. Page 489]
OPINION BY MR. JUSTICE BELL
This appeal involves a very narrow question. Is a surety liable for unpaid rental on a power shovel which was leased to defendant contractor by the use plaintiff, and used by defendant contractor in the construction of a portion of the state highway in Allegheny County?
Pursuant to the Act of June 1, 1945*fn* contractors engaged in state highway construction must furnish a surety bond for completion and a surety bond conditioned for the prompt payment of all material furnished and labor supplied in connection with the prosecution of the work. The bond which was furnished in accordance with the exact terms of the Act provided: "... principal shall and will promptly pay ... for all material furnished and labor supplied or performed in the prosecution of the work, whether or not the said material or labor enter into and become component parts of the work. ..."
Plaintiff, as above indicated, brought an action in assumpsit on the surety bond for unpaid rental on the power shovel which it leased to defendant and which was used in the highway construction. The lower Court sustained preliminary objections in the nature of a statutory demurrer. This was correct: Lancaster, to Use v. George et al., 315 Pa. 232, 172 A. 686; Commonwealth,
[ 381 Pa. Page 490]
bonds and thus show a public policy to include all machinery used in the prosecution of the work irrespective of whether the machinery entered into and became a component part of the work. These statutes cannot aid appellant for two reasons. The first is that "'Where words of a later statute differ from those of a previous one on the same subject they presumably are intended to have a different construction ...'": Panik v. Didra, 370 Pa. 488, 88 A.2d 730. Secondly, the provisions of a statute cannot be read into a bond to include a condition which was not set forth therein: Commonwealth, to Use v. Stryker et al., 109 Pa. Superior Ct. 137, 167 A. 459.
This Court said in Commonwealth, to Use v. Fidelity & Deposit Co., 355 Pa. 434, at page 437: "'A bond given pursuant to a contract incorporated in the bond, will be construed in the light of the terms of the contract and the attendant circumstances, but "the obligation of a bond cannot be extended beyond the plain import of the words used": Lancaster v. Frescoln, 192 Pa. 452, 457, 43 A. 961, 962; Erie v. Deifendorf, 278 Pa. 31, 122 A. 159'; Fleck-Atlantic Company v. Indemnity Insurance Company of North America, 326 Pa. 15, 19, 191 A. 51, 53. Obligations not imposed by the terms of the bond cannot be created by judicial construction or interpretation which extends the terms beyond their normal meaning: City of Pittsburgh v. Parkview Construction Company, 344 Pa. 126, 23 A.2d 847, 848."
The Judgment entered in the Order of the lower Court sustaining preliminary objections is affirmed.