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PENSTAN SUPPLY v. PENNSYLVANIA STATE UNIVERSITY (07/19/79)

decided: July 19, 1979.

PENSTAN SUPPLY, INC., APPELLANT
v.
THE PENNSYLVANIA STATE UNIVERSITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Penstan Supply, Inc. v. The Pennsylvania State University, No. GD 78-08507.

COUNSEL

Joseph E. Schmitt, with him Stonecipher, Cunningham, Beard & Schmitt, for appellant.

Charles C. Brown, Jr., with him McQuaide, Blasko & Brown, Inc., for appellee.

Judges DiSalle and MacPhail, sitting as a panel of two. Opinion by Judge DiSalle.

Author: Disalle

[ 44 Pa. Commw. Page 348]

Penstan Supply, Inc. (Appellant), appeals the decision of the Court of Common Pleas of Allegheny County which sustained the preliminary objections of The Pennsylvania State University (Penn State) to Appellant's complaint in trespass. We affirm.

Penn State entered into a contract with B. J. Tamasy & Sons, Inc., the prime contractor, for a job at its University Park campus. Appellant supplied materials to the prime contractor but has not been paid for these goods. The prime contractor has since filed for bankruptcy. The controversy presented by the instant appeal stems from the fact that the prime contractor failed to provide a payment bond as required by Section 3(a)(2) of the Public Works Contractors' Bond Law of 1967 (Bond Law).*fn1 Appellant

[ 44 Pa. Commw. Page 349]

    contends that Penn State was duty bound to require the payment bond before awarding the contract and that its failure to do so in this case rendered it negligent per se. The lower court determined, however, that it was not the purpose of the statute to impose liability on a contracting body for default by the prime contractor.

Section 3(a)(2) pertinently provides that:

(a) Before any contract exceeding five thousand dollars ($5,000) for the construction, reconstruction, alteration or repair of any public building or other public work or public improvement, including highway work, of any contracting body is awarded to any prime contractor, such contractor shall furnish to the contracting body the following bonds, which shall become binding upon the awarding of said contract to such contractor:

(2) A payment bond. . . . (Emphasis supplied.)

A reading of this statutory language reveals that the burden of providing this bond falls clearly on the prime contractor. Furthermore, we cannot conclude, as Appellant would have us do, that the legislature intended the contracting body to assume responsibility to ...


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