Appeal, No. 133, Jan. T., 1963, from judgment of Court of Common Pleas of Clearfield County, Sept. T., 1959, No. 1, in case of Joseph Barnyak, trading as Barnyak and Bechtel Construction Co., v. Headwaters Construction Co., Inc., Mitana Co., Inc., Harry W. Findley et al. Judgment modified and affirmed and case remanded.
F. Cortez Bell, Jr., with him Bell, Silberblatt & Swoope, for appellant.
Henry A. Morrow, Jr., with him James K. Nevling, and Thorp, Reed & Armstrong, and Nevling & Davis, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Joseph Barnyak, trading as the Barnyak and Bechtel Construction Company (hereinafter referred to as Barnyak), entered into a contract with the Pennsylvania Department of Highways, in November, 1958, to construct a certain highway in Clearfield and Elk Counties. On February 15, 1959, Barnyak contracted with the Headwaters Construction Company, whereby the latter agreed to supply equipment and move earth, necessitated by cuts and fills.
When Barnyak encountered difficulties in obtaining the customary contractor's bonds required by the Commonwealth, a Harry W. Findley agreed to indemnify the Fidelity and Deposit Company of Maryland for any loss suffered on bonds issued by that Company to cover
the construction. The Fidelity Company accordingly issued the required bonds.
A dispute arose between Barnyak, the contractor, and Headwater, the subcontractor, and the former initiated an action in equity against the latter by a writ of foreign attachment on equipment being used by Headwaters on the construction job. The equipment, however, was held on the job location under the foreign attachment until April 5, 1960, when it was released from attachment.
In the meantime, Barnyak had followed up the writ of foreign attachment with a complaint which was served on Headwaters on October 23, 1959. In his complaint Barnyak sought recovery of certain amounts alleged to be due and owing him as a result of Headwater's default in the performance of its obligations.
Harry W. Findley (the indemnitor on the labor and material bond posted by Barnyak with the Pennsylvania Department of Highways), petitioned to intervene in the action as a party plaintiff to protect himself against any claims Headwaters might bring against Barnyak for which Fidelity & Deposit Company of Maryland, surety on the bond, or Mr. Findley as indemnitor of the bond, would be liable under the bond. Findley's petition to intervene was ...