Appeal from judgment of Court of Common Pleas of Washington County, Sept. T., 1964, No. 90, in case of Joseph Barati et al. v. M. S. I. Corporation et al.
Richard S. Crone, with him Robert L. Ceisler, and Crone and Cohen, for appellants.
Howard E. Goldfarb, with him Goldfarb & Goldfarb, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.
[ 212 Pa. Super. Page 537]
This was an action in assumpsit brought by a materialman against a general contractor and its surety on a bond. Judgment was entered for the materialman in the lower court. The facts necessary for an understanding of the case may be set out as follows:
On or about December 7, 1962, defendant, M.S.I. Corporation, entered into a contract with the Monongahela Area Joint School Authority for the construction of a school building. M.S.I. Corporation, as general contractor, entered into a bond with defendant, American Casualty Company of Reading, Pennsylvania as surety, which guaranteed payment for all labor and material used in construction. The bond included within the definition of "labor and material" the rental of equipment directly applicable to the contract.
M.S.I. Corporation then entered into a contract with one Stanford Kalla to do excavating. Stanford Kalla
[ 212 Pa. Super. Page 538]
rented equipment from plaintiff, Barati. Barati was not paid in full and brought suit within one year from the date his equipment was last used against M.S.I. Corporation and the American Casualty Company.
The bond in question contained a requirement that a claimant not having dealings with the principal and seeking to recover under the bond must give written notice within ninety days of the last date on which he performed work or furnished material for which the claim was made. This notice must be given to any two of the three following persons: the principal, the owner or the surety.
It is admitted that plaintiff did not give the required ninety days notice. Plaintiff contends, however, that he was not required to give notice because the Municipal Authorities Act of May 2, 1945 (53 P.S. 312), governs all such actions and permits him to bring suit within one year. He argues that the surety required something more restrictive, i.e., notice, and that this conflicted with the above statute. The lower court, therefore, correctly stated the relevant question to be "whether the 90 day notice requirement in the bond conflicts with the statute which allowed plaintiff a period of one year within which to bring suit on the bond."
The statute, in pertinent part, provides: "No contract shall be entered into for construction or improvement or repair of any project or portion thereof, unless the contractor shall give an undertaking with a sufficient surety or sureties approved by the Authority, and in an amount fixed by the Authority, for the faithful performance of the contract. All such contracts shall provide among other things that the person or corporation entering into such contract with ...