No. 1551 April Term, 1978, Appeal from Order of November 20, 1978 of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Divison at No. GD 75-6424.
James H. McConomy, Pittsburgh, for appellant.
Richard S. Dorfzaun, Pittsburgh, for appellee.
Price, Hester and Cavanaugh, JJ. Hester, J., files a concurring and dissenting statement.
[ 283 Pa. Super. Page 38]
An action in assumpsit was commenced in the court below by Frank B. Bozzo, Inc. (appellee) for an alleged breach of the contract entered into between appellee and Electric Weld Division of the Fort Pitt Bridge Division of Spang Industries, Inc. (appellant) on or about March 14, 1973. Under the contract, appellant was to furnish approximately 120,000 square yards of steel mesh to the appellee for
[ 283 Pa. Super. Page 39]
delivery in 1973 through 1975. The steel mesh was to be used in concrete paving on a section of highway to be built in Elk County, Pennsylvania. Appellee alleged in its Complaint that the appellant failed to deliver all of the material ordered and as a consequence, it incurred increased labor, equipment, and material costs. The case was tried before Farino, J., and a jury in a trial lasting six days. The jury returned a verdict in favor of the plaintiff-appellee and against defendant-appellant in the amount of $150,640.10 plus 6% interest. Appellant's motions for new trial and for judgment non obstante veredicto were denied and it has appealed to this court.
In order to understand this complex case, the factual background must be explained in some detail. Appellant was for many years engaged in concrete paving work on highways in western Pennsylvania. The company was a small one having only eight to ten permanent employees and when required on a given job, it used union employees as operating engineers, carpenters, cement masons, teamsters, laborers, and pile drivers. The number of employees could range from about forty to one hundred twenty-five people depending on the paving contract involved. On some jobs, appellee worked as a general contractor and on others, as a subcontractor installing the concrete paving for the general contractor.
Early in 1973, the appellee learned that the Pennsylvania Department of Transportation (PennDOT) was going to bid for construction of a highway in St. Marys, Elk County. Appellee reviewed the plans and specifications which it received from PennDOT and its representatives visited the job site. Appellant furnished the appellee with a quotation of the prices of the steel mesh and steel accessories which would be required for the job. Appellee submitted its bid to PennDOT and was awarded the contract as the low bidder. Appellee then contacted appellant and the parties discussed appellant's furnishing the steel mesh and accessories to be
[ 283 Pa. Super. Page 40]
used on the job. On this job, the steel mesh was to be composed of longitudinal and transverse steel rods that are machine welded to form a sheet. The sheet or grid is placed in the concrete bed of the highway about 2 1/2 inches below the finished surface to strengthen the road and make the concrete more durable.
The job on which appellee was the successful bidder involved constructing four miles of highway in Elk County and was to take three construction seasons to complete. Appellee intended to use what is known as a slip-form paving train in the construction of the highway. This is a machine which consists of several pieces of equipment used in road construction which permits the paving of a highway without the placing of forms for the laying of the concrete. Another type of machinery used in road construction is form-riding equipment which necessitates the use of side forms to hold up the concrete. The slip-form paving train and the form-riding equipment do basically the same job in road construction except side forms are not required in using the slip-form paving train which can also pave a wider road bed than can be done with the form-riding equipment.
In March, 1973 when appellant and appellee entered the contract in question, the appellee did not own a slip-form paving train but did acquire one later in 1973 after it was awarded the contract for the St. Marys' project. The new slip-form paving train which appellee purchased was considerably more expensive than the form-riding equipment that it already owned.
On or about March 14, 1973, appellant and appellee reduced to writing their agreement under which basically appellant was to furnish 120,000 square yards of steel mesh and related accessories to appellee. Unfortunately, the written contract is lacking in the quality of definiteness which is so important to a lawyer in preparing a contract but which is often overlooked by businessmen. The written agreement which underlies the dispute in this case states, inter alia:
[ 283 Pa. Super. Page 41]
FORT PITT BRIDGE WORKS SUBSIDIARY
P. O. Box 151 Canonsburg, Pa.
PROPOSAL CONTRACT Date: March 14, 1973
To: Frank B. Bozzo, Inc. Project: PennDOT Letting 3-2-73
Bridgeville, Pa. 15017 L. R. 99-A06
We propose to furnish subject to prompt acceptance and conditions on both sides of this proposal sheet, the following described ...