No. 01709 Philadelphia 1983, Appeal from the Order entered June 13, 1983 in the Court of Common Pleas of Delaware County, Civil No. 80-10135.
Eugene F. Jarrell, III, Media, for appellants.
Thomas L. Kelly, Media, for appellees.
Cirillo, Olszewski and Montgomery, JJ.
[ 339 Pa. Super. Page 149]
This is an appeal from a lower court's order dismissing both a motion to remove a compulsory non-suit and a motion for a new trial.*fn1
[ 339 Pa. Super. Page 150]
Appellants contend that the trial judge erred in granting appellee's motion for compulsory non-suit. Appellants claim that they produced sufficient evidence at trial to invalidate exculpatory language in the contract, thereby overcoming the appellee's motion for compulsory non-suit.
In reviewing the grant of a compulsory non-suit, the appellant must be given the benefit of every fact and reasonable inference arising from the evidence and all conflicts must be resolved in the appellant's favor. McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 719 (1982). The testimony from below, read in the light most favorable to the appellant reveals the following.
In the Summer of 1977, the appellee, Borough of Ridley Park ("Ridley Park"), advertised for bids from contractors for the excavation of Ridley Park Lake. Bid documents were made available to potential bidders. These documents included Specifications for Removal of Silt and Debris from Ridley Park Lake. (R. 234a).*fn2 A clause contained in these specifications stated:
The lake has been drained and shall remain in the drawdown condition until all silt debris removal work has been completed. The contractor shall remove silt and debris from areas as herein and shown on the plan.
Prior to bidding on the job, John Fallon, operating engineer for the appellants Coatesville Contractors and Engineers, Inc. ("Coatesville"), read all the bid documents and made an independent site inspection. (R. 51a, 52a). In the fall of 1977, Ridley Park awarded the job to Coatesville. The bid documents were incorporated into the final contract between the parties. See Appendix I. Testimony further revealed that at no time did Mr. Fallon or any other Coatesville official ever inquire as to what the phrase "drawdown"
[ 339 Pa. Super. Page 151]
condition meant or how Ridley Park intended to keep the lake in such a condition. (R. 108a, 109a, 117a). In November of 1977, Mr. Fallon made a second site inspection. He testified at trial that on both occasions he found the site to consist of a lake bed with a small stream running through it. (R. 52a-58a).
In March of 1978, Ridley Park noticed Coatesville to commence work. Mr. Fallon and Mr. Reid, a Coatesville on-site supervisor, both testified that when Coatesville arrived at the site, the lake was full of water. (R. 63a, 177a, 178a). The situation was brought to the attention of Mr. Damon, engineer for the Borough. (R. 63a). Yet despite the condition of the lake, Coatesville commenced work on the project and in fact completed 85% of the job by May of 1978. In August of 1978 Coatesville left the work site over a dispute whether the job had been completed to specifications. After negotiations, Coatesville returned to the site in 1979, completed certain work and received final payment on the contract.
Coatesville later brought an action against Ridley Park seeking to recover additional compensation over and above the contract price which it alleged was caused by Ridley Park's failure to keep the lake in a "drawdown" condition. At trial, Mr. Fallon testified that he read and understood the bid documents including the following exculpatory provisions:
The contractor shall not be entitled to demand or receive payments for any work as extra work, unless ordered in writing by the committee to do the same as such, and at a price fixed by them previous to its commencement.
Article III, Paragraph 2.
The contractor agrees that he has satisfied himself by his own investigation and research regarding all of the conditions affecting the work to be done and labor and material needed, and that his conclusion to execute this contract is based on such investigation and research, and not on the estimate of the quantities or other information prepared
[ 339 Pa. Super. Page 152]
by the engineer and that he will make no claim against the municipality because of any of the estimate tests or representations of any kind affecting the work made by any agent of the municipality may prove to be in any respect erroneous.
The contractor shall not be entitled to any claims for damages from any hinderance or delay from any cause whatever in the progress of the work, or any portion thereof, but when such hinderance or delay results from causes entirely beyond the control of the contractor, said hinderance or delay, excepting such as may from time to time result from ordinary and not unusual weather conditions for the season of the year when he is at work may entitle the contractor to such an extension of time for completing the contract as may be determined by the committee, provided the contractor shall have given notice in writing of the cause of detention.
All loss or damages arising out of the nature of the work to be done under the contract, or from any unforeseen obstructions or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from encumbrances on the line of work, shall be sustained by the contractor.
Following Coatesville's presentation of its case, the trial court granted Ridley Park's motion for compulsory non-suit. This appeal followed the lower court's refusal to remove the compulsory non-suit.
[ 339 Pa. Super. Page 153]
Appellants contend that the compulsory non-suit should not have been granted because sufficient evidence had been presented at trial to overcome the exculpatory contractual language which the lower court claimed barred Coatesville's recovery. The law regarding compulsory non-suits is clear. A compulsory non-suit is warranted only in clear cases where the facts and circumstances have as the only conclusion the absence of liability. McNally v. Liebowitz, Page 153} supra. Similarly, a non-suit is proper when facts constituting an affirmative defense are so established by uncontradicted testimony in the plaintiff's case that any reasonable possibility of an inference to the contrary is excluded. Plummer v. Wesner, 217 Pa. Super. 24, 268 A.2d 144, 145 (1970). Therefore, in the instant case, Coatesville must have shown by a preponderance of the evidence that it was not bound by the contract's exculpatory language. Because if, as a matter of law, there was insufficient evidence to prove this, then Coatesville was bound by the contractual language and the non-suit was properly granted.
Pennsylvania courts have frequently held that exculpatory provisions will not work as a defense where there has been an affirmative or positive interference by a party or a failure to act in some essential matter necessary to the prosecution of the work. Gasparini Excavating Co. v. Pa. Turnpike Commission, 409 Pa. 465, 187 A.2d 157 (1963), Commonwealth Department of Highways v. S.J. Grover and Sons Co., 20 Pa. Commw. 526, 343 A.2d 72 (1975). Appellants contend that Ridley Park affirmatively interfered with the prosecution of its work by ordering them to commence work while the lake was not in a "drawdown" condition and by not discovering what was causing the lake to retain the water. Appellants, further contend that Ridley Park failed to act in some essential matter necessary for the prosecution of the work by not putting the lake in a "drawdown" condition as required in the bid specifications. This Court concludes that the testimony from the proceedings below supports neither of appellants' contentions.
We agree with the lower court's conclusion that Coatesville offered insufficient evidence to support its claim that Ridley Park affirmatively interfered with its efforts to complete the excavation work. Neither Mr. Fallon nor Mr. Reid testified that anyone associated with Ridley Park took any steps to interfere with Coatesville's work. In fact Mr. Fallon testified that he "never came up and said that the Borough of Ridley Park is not holding up their end of the
[ 339 Pa. Super. Page 154]
contract by getting the water out of the lake . . . ." (R. 74a). Moreover, although evidence was presented that borough personnel worked on the lake's drainage valve, this activity was never characterized by Coatesville as any type of interference with their work. Coatesville cites the Gasparini case in support of its claim that Ridley Park interfered with its work efforts. This case is inapposite. In Gasparini, the plaintiff was physically denied access to the work area. In the case at bar, there was no such denial as is evidenced by testimony that (1) Coatesville immediately began work even though the work site was covered by water; and (2) after two months the project was 85% completed.
We turn now to Coatesville's claim that Ridley Park failed to perform an essential matter under the contract by not keeping the lake in the "drawdown" condition. Here again we agree with the lower court's determination that Coatesville did not present sufficient evidence on this point. At trial Mr. Fallon testified that he read and understood both the "drawdown" provision and the exculpatory provisions contained in the bid documents. (R. 122a, 123a, 126a). In addition, no evidence was presented that Coatesville ever challenged any of these contractual provisions either at the time of bidding or when Coatesville arrived at the work site in March of 1978. Finally, Coatesville never utilized the contract's protective provision. This provision, namely Article IV, paragraph 2 (supra) allowed a contractor to submit written notice of any work delay or hindrance to a committee for resolution. Evidence from the proceeding below reveals that this was never done. Instead Coatesville elected to proceed with the job at its own risk.
Since Coatesville failed at trial to prove either an affirmative interference or a failure to act on an essential matter, the contract's exculpatory language was not invalidated. We therefore conclude that the lower court properly denied appellants' motion for removal of the compulsory
[ 339 Pa. Super. Page 155]
non-suit. Accordingly, the order of the lower court is affirmed.
REMOVAL OF SILT AND DEBRIS
H. Gilroy Damon Associates, Inc.
Sealed bids will be received by the Members of Council for the Borough of Ridley Park, Delaware County, Pa., until 7:30 p.m. (Eastern Daylight Saving Time), Tuesday, September 27, 1977, when Council will convene in regular session in the Council Chamber of the Borough Hall, Ward and Cresswell Streets, Ridley Park, Pa., and all bids received will be publicly opened and read aloud for the following: -
Removal of Silt and Debris (all ...