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GIAMMETTA ASSOCS. v. J. J. WHITE

November 2, 1983

GIAMMETTA ASSOCIATES, INC.
v.
J. J. WHITE, INC.



The opinion of the court was delivered by: LORD

 Defendant entered into a construction contract with Gulf Oil Corporation and subcontracted to plaintiff certain portions of the work. Plaintiff has sued for breach of contract claiming that delays in receipt of materials and the resulting disruptions in plaintiff's construction work caused plaintiff to incur substantial damages.

 Defendant has moved for summary judgment, asserting that two provisions of the subcontract bar plaintiff's recovery. I shall deny defendant's motion.

 I. Article IV of the Subcontract Agreement

 Article IV of the subcontract (D-7) between plaintiff and defendant states in part:

 
If the Subcontractor shall be delayed in beginning, prosecuting or completing the Subcontract Work by the act, omission, neglect or default of the Contractor, the Architect, the Owner, or any contractor or subcontractor performing work upon the Project, or by any damage caused by fire or other casualty for which the Subcontractor is not responsible, or by general strikes or lockouts, then the time for the completion of the Subcontract Work shall be extended for such period of time as the time lost by reason of any of the aforesaid causes. Such an extension shall be the Subcontractor's sole and exclusive remedy for such delay and the Contractor shall not be responsible for any increased costs, charges, expenses or damages of any kind resulting from such delay.

 Defendant argues that this provision, combined with the statement by defendant's agent in his deposition that he understood the provision at the time he signed the subcontract limited plaintiff's remedies for damages caused by defendant's delay to an extension of time within which to complete its work. Defendant further supports its argument by noting that the subcontract between plaintiff and defendant incorporated Gulf's Invitation to Bid (D-21) which was circulated among potential general contractors, including J. J. White. Paragraph 11 of Gulf's Invitation to Bid provides that the owner will not be responsible for failure of suppliers to meet promised shipping dates and that the general contractor will adjust construction to the arrival of materials. (D-21 at 45). Mr. Gambino, the vice-president and general manager of the plaintiff, admits in his deposition that he was familiar with Gulf's Invitation to Bid when he signed the subcontract with J. J. White.

 Plaintiff argues that para. 11 of Gulf's Invitation to Bid on its face does not apply to Giammetta, but rather that it applies only to the contractual relationship between Gulf and J. J. White. Furthermore, plaintiff claims that Article IV of the subcontract does not apply as a matter of law to delays caused ultimately by the supplier. I agree with plaintiff *fn1" on both issues.

 In Pennsylvania, clauses such as Article IV that limit a party's right to sue are strictly construed against the drafter. Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966). By its terms, Article IV applies to delays caused by the contractor, architect, owner "or any contractor or subcontractor performing work upon the Project." Plaintiff's vice-president, Gambino, swears in his deposition that the delays in this case were caused by defectively manufactured materials and the failure of suppliers to deliver materials on time. Defendants have not countered Gambino's affidavit. Therefore, there is no factual dispute regarding the causes of the delays. Although the Invitation to Bid required Gulf (the owner) to order some of the supplies, Gulf is never identified as the supplier or the manufacturer of the materials. The terms of Article IV of the subcontract do not include delays caused by the supplier or the manufacturer.

 United States Industries v. Blake Construction Company, 217 U.S. App. D.C. 33, 671 F.2d 539 (D.C. 1982) is directly on point. In Blake, the contract included a much more explicit provision than the provision in the contract before me:

 
Contractor shall not be liable for any damages that may occur from delays or other causes on the part of other contractors or subcontractors involved in work, or the furnishing of materials, pertaining to this project.

 Because plaintiff contended that delays were caused by the supplier and the language of the contract did not mention suppliers, in spite of the inclusion of the language "the furnishing of materials," the Court of Appeals concluded that a strict construction of the contract would exclude supplier-caused delays from the exculpatory clause of the contract. Therefore, the Court found that summary judgment was inappropriate because the exculpatory clause was inapplicable. Pennsylvania's strict construction rule, like the District of Columbia rule interpreted in the Blake case, precludes me from construing Article IV to apply to suppliers and/or manufacturers of the materials. The exculpatory clause in question here does not apply to delays and disruptions caused by the supplier or manufacturer.

 II. Article XIII of the Subcontract: Release

 Defendant argues that even if Article IV does not apply in this case, Article XIII bars plaintiff's suit. ...


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