No. 1138 PITTSBURGH, 1980, No. 1161 PITTSBURGH, 1980, Appeal from an Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 77-14927.
Robert F. McCabe, Pittsburgh, for appellants at No. 1138 and for appellees at No. 1161.
Michael J. Seymour, Pittsburgh, for Solomon, appellants at No. 1161 and for appellees at No. 1138.
Alan Berman, Pittsburgh, for Anjo et al., appellees.
Hester, Beck and Van der Voort, JJ.
[ 304 Pa. Super. Page 121]
Appellant, Peerless Insurance Company, has appealed the order of the Court of Common Pleas of Allegheny County, sitting as a Court en banc composed by Finkelhor, J. and Barry, J., affirming the adjudication of Finkelhor, J., and dismissing exceptions filed to the adjudication. The facts involved are not in dispute.
Solomon & Teslovich is a partnership engaged in the business of trucking and excavating. A Julian, Inc. rented trucks and drivers from Solomon and Teslovich (hereinafter "S & T"), as part of a state highway project, for which Anjo Construction Company acted as the general contractor. S & T supplied trucks and drivers to Julian from August 19, 1974 through November 19, 1974.
Peerless provided A. Julian, Inc. with a Labor and Material Payment Bond for a contract dated June 28, 1974 between Julian and Anjo. Pursuant to the terms of said bond, Peerless agreed to guarantee the payment of the labor and material provided to A. Julian, Inc. in connection with this construction contract.
On July 1, 1977, S & T filed suit in assumpsit, claiming the balance due for said services in the amount of $27,721.00.
S & T's claim against Anjo was based on a theory of unjust enrichment. S & T also filed suit against Transamerica Insurance Company, the bonding company for Anjo. Transamerica filed preliminary objections raising the bar of the statute of limitations, which objections were sustained by the lower court on October 18, 1977. No appeal was taken from this order. Peerless neither filed preliminary objections nor raised a statute of limitations defense in its New Matter filed on August 27, 1977.
[ 304 Pa. Super. Page 122]
There is no dispute that Julian owes the sum claimed. However, on the day of trial, Julian filed a voluntary petition in bankruptcy, and all proceedings were ...