The opinion of the court was delivered by: MUIR
Envirex, Inc. (Envirex) filed this action against Ecological Recovery Associates, Inc. (ERA) and Maryland Casualty Company, a bonding company, seeking payment for materials which it had delivered to ERA in connection with the construction of a sewage treatment plant in Lock Haven, Pennsylvania. ERA filed a counterclaim for damages based upon Envirex's alleged failure to deliver the goods in a timely fashion and failure of the goods to meet the contract specifications. The case was tried to a jury from March 17, 1978 through March 30, 1978. The jury returned answers to two sets of special verdict questions propounded to it under F.R.Civ.P. 49(a), one relating to liability and the other relating to damages, and on April 12, 1978, the Court directed the entry of judgment on the special verdict in favor of Envirex in the amount of $92,087.75. A copy of those questions answered by the jury is attached as an appendix to this opinion. Because of the jury's answers to those questions, other numbered questions were not considered by the jury and are not reproduced here. On April 21, 1978, ERA and Maryland Casualty filed motions for judgment notwithstanding the special verdicts, to amend or alter the judgment, and for a new trial. Supporting briefs were filed on May 30, 1978. Envirex filed a brief in opposition to all of the motions on June 9, 1978. As of the date of this Order, no reply briefs have been filed.
ERA asserts the following 20 grounds in support of its motion for a new trial:
(1) That the Court erred in admitting page 18 of the Sales Contract between Envirex and ERA into evidence,
(2) That the jury's answers to special verdict questions 2, 3 and 25 are inconsistent,
(3) That the jury's answers to special verdict questions 2, 3, 29 and 25 are inconsistent,
(4) That the Court erred in ruling that ERA was bound by the conditions found on page 18 of the Sales Contract,
(5) That the Court erred in prohibiting proof of delay damages,
(6) That the Court erred in ruling that the conditions on page 18 of the Sales Contract prevented recovery for delay damages,
(7) That the Court erred in ruling that the conditions on page 18 of the Sales Contract prevented recovery for repairs not authorized by Envirex in writing,
(8) That the Court erred in refusing to instruct the jury in accordance with the Act of April 6, 1953, P.L. 3, § 2-719, reenacted October 2, 1959, P.L. 1023, § 2, 12A Pa. Stat. Ann. § 2-719(2) (hereinafter the Uniform Commercial Code, or UCC),
(9) That the Court erred in refusing to instruct the jury that Envirex could not benefit from provisions of the contract which it breached,
(10) That the Court erred in refusing to instruct the jury regarding an implied waiver of contractual provisions from the silence of Envirex,
(11) That the Court erred in instructing the jury that the burden of proof respecting the issue of waiver was on ERA by clear, ...