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LURIA ENGINEERING COMPANY v. AETNA CASUALTY AND SURETY COMPANY ET AL. (09/16/65)

decided: September 16, 1965.

LURIA ENGINEERING COMPANY
v.
AETNA CASUALTY AND SURETY COMPANY ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas of Northampton County, April T., 1961, No. 158, in case of Luria Engineering Company v. The Aetna Casualty and Surety Company et al.

COUNSEL

Arthur Silverblatt, with him James B. McGiffert, and James, Harris, Silverblatt & Townend, and Fackenthal, Teel & McGiffert, for appellants.

Edward J. Danser, with him Danser, Brose & Poswistilo, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 206 Pa. Super. Page 334]

The Northampton Area Joint School Authority, in early 1958, entered into contracts for the erection of a high school building. The general contract was awarded to Luria Engineering Company, appellee herein, and hereinafter referred to as "Luria". The heating contract was given to John F. Miles. The plumbing contract was given to George F. DeLallo, and the electrical contract was given to William A. Donmoyer Company. On April 1, 1958, Luria entered into a written subcontract with the appellant, General Roofing & Insulation Co., Inc., hereinafter referred to as "General Roofing", by the terms of which General Roofing was to erect the roof on the new high school building for the sum of $30,914.00. On April 22, 1958, the other appellant, The AEtna Casualty and Surety Company, hereinafter referred to as "AEtna", executed a performance bond on behalf of General Roofing in the amount of $30,914.00.

[ 206 Pa. Super. Page 335]

On September 3, 1958, work on the high school ceased as a result of a labor dispute stemming from the fact that Donmoyer employed nonunion labor. The site was picketed and Luria's employees, as well as all the other union members on the job, refused to cross the picket line. At the time work stopped General Roofing had not commenced to perform any of the work called for in its contract, nor had Luria's work progressed to the point where it would have been possible to place the roof on the building. Work on the high school did not resume until September 10, 1959, after an injunction was granted.

In May, 1959, General Roofing wrote a letter to Luria stating that the material and labor costs on which its contract was based had increased by $6,600.00 since the date of the contract and asked that its contract price be increased by this amount or, if that was not possible, that it be released from its contract because of the delay. Apparently this letter was not answered but in June, 1959, representatives of Luria and General Roofing discussed the possibility of buying back General Roofing's contract. No decision was made. On October 1, 1959, Luria directed General Roofing to have its superintendent on the job site on October 2, 1959, and to be ready to commence work on October 5, 1959. General Roofing did not respond affirmatively and on October 5, 1959, Luria notified General Roofing that unless General Roofing had workmen on the job site within forty-eight hours Luria would engage another contractor to perform the work and would give notice to General Roofing's bonding company. General Roofing then replied, on October 6th, that it would proceed with the contract if Luria would agree to pay its advances in costs either as claimed by it or to be determined by some method such as arbitration; otherwise it would consider the agreement discharged. On October 7, 1959, Luria notified AEtna that General

[ 206 Pa. Super. Page 336]

Roofing was in default. On October 22, 1959, Luria entered into a written subcontract with another roofing company which agreed for $36,875.00 to perform the work which General Roofing had agreed to perform.

This suit was brought by Luria to recover the difference between the contract price agreed to by General Roofing and the price paid to the subsequent roofing contractor, which difference has been stipulated to be $5,961.00. Suit was originally started against AEtna which joined General Roofing as additional defendant and it was stipulated that General Roofing is liable over to AEtna on the cause of action if AEtna is liable to the plaintiff. The case was tried before Judge Clinton Budd Palmer of the Court of Common Pleas of Northampton County without a jury. Judge Palmer entered a verdict in favor of the plaintiff in the amount of $5,961.00. Exceptions were filed to the trial judge's findings of fact and conclusions of law all of which were dismissed by the court en banc except one requesting that interest be given on the verdict. An order was entered by the court en banc sustaining the verdict of the trial judge sitting without a jury and directing that judgment be entered in favor of the plaintiff and against both defendants in the sum of $5,961.00 together with interest thereon at the rate of 6% from October 22, 1959. It is from that judgment that an appeal has been taken to this court.

First we note that nothing in the contract between General Roofing and Luria excuses General Roofing's refusal to perform. Section 3 of the contract provided that the subcontractor "agrees to begin said work within five (5) days after he is notified to do so and to carry it forward and complete it as directed." No conditions appear in the contract limiting General ...


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