Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Rexnord, Inc. v. Travelers Indemnity Company, No. 133 of 1975.
Frank J. Kernan, with him Plowman and Spiegel, for appellant.
Gary P. Caruso, with him Shire, Bergstein & Caruso, for appellee.
Judges Mencer, Rogers and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.
On January 15, 1975, Rexnord, Inc. (Rexnord), a supplier of materials for use in the construction of a sewage treatment plant for the Mid-Mon Valley Water Pollution Control Authority, filed this action in assumpsit against Travelers Indemnity Company (Travelers), surety on the labor and materialmen's payment bond. The case was consolidated for trial with an earlier action brought by Rexnord against N. Victoria, Inc. (Victoria), the contractor on the job and the principal on Travelers' bond. The case, as
consolidated, was submitted to the Court of Common Pleas of Westmoreland County, to be decided on the pleadings and a stipulation of facts. By order dated April 15, 1977, the court below entered judgment for Rexnord and against Travelers and Victoria. Travelers thereupon appealed to this Court.*fn1
Travelers' principal contention is that the action against it was not timely brought and should, therefore, have been barred. In order to assess the validity of this argument, a chronological recitation of the facts is necessary.
The labor and material payment bond was issued by Travelers on January 28, 1972. Included in the terms of that bond is the provision:
[T]hat no such suit shall be commenced prior to ninety (90) days from the date upon which said person, co-partnership, association or corporation furnished, supplied or performed the last of the material or labor for which the said claim is made, and every such suit shall be commenced not later than one (1) year from the date when the cause of action accrued.
On February 10, 1972, after preliminary negotiations had been concluded, Victoria ordered certain materials from Rexnord. As set forth in the purchase order, the terms of payment required ninety per cent of the purchase price due on delivery, with the remaining ten per cent due ninety ...