No. 107 Philadelphia, 1983, No. 108 Philadelphia, 1983, No. 109 Philadelphia, 1983, No. 110 Philadelphia, 1983, Appeals from Order of the Court of Common Pleas, Civil Division, of Northampton County, Nos. 1980-C-421 and 1980-C-428.
C. Steven Miller, Allentown, for Brookhaven, appellant (at 107 and 108) and for appellee (at 109 and 110).
Michael Prokup, Allentown, for Legare, appellant (at 109 and 110) and for appellee (at 107 and 108).
Wieand, Olszewski and Popovich, JJ. Popovich, J., files a concurring and dissenting statement.
[ 337 Pa. Super. Page 480]
Brookhaven Residential Sales, Inc. (Brookhaven) contracted with LeGare, Inc. (LeGare) to construct eight condominium-type residences on a development tract of land owned by LeGare and known as Kinderwood in Easton, Northampton County. The written agreement provided for periodic
[ 337 Pa. Super. Page 481]
payments and required that construction be completed in accordance with a time schedule therein set forth. Completion of the project was late by approximately a year. LeGare commenced an action for damages allegedly caused by the delay; and Brookhaven filed a separate action to recover the balance due according to the terms of the contract. The two actions were consolidated for trial and tried without jury before the Honorable Richard D. Grifo. The court found that Brookhaven was entitled to recover a balance due under the contract in the amount of $53,054.70. It also found that LeGare had sustained damages because of Brookhaven's late performance in the amount of $53,415.74. Exceptions filed by both parties were dismissed by the court en banc, and separate judgments were entered on the verdict in the amounts found by the court. Both parties appealed from the two judgments. Brookhaven contends that the trial court erred in finding that it was liable for delay which, it argues, was caused either by LeGare's inaction or conditions beyond Brookhaven's control. LeGare argues that the trial court erred in refusing to award damages for lost profits caused by changed market conditions.
"[T]he findings of fact of a trial judge, sitting without a jury, sustained by the court en banc, have the force and effect of a jury's verdict, and, if based on sufficient evidence, will not be disturbed on appeal." Girard Trust Bank v. Sweeney, 426 Pa. 324, 330, 231 A.2d 407, 411 (1967). See also: In re Miller, 301 Pa. Super. 511, 515, 448 A.2d 25, 27 (1982). We focus, therefore, on whether the trial court's findings were supported by competent evidence.
The plan of Kinderwood called for residences to be built on the side of a wooded, rocky and steep hill overlooking the Delaware River. Brookhaven's representatives, with site plan in hand, had made an inspection of the site before entering the construction agreement. Paragraph 16 of the agreement provided as follows:
[ 337 Pa. Super. Page 48216]
. The work to be performed under this agreement shall be commenced within ten (10) days notice after execution of this agreement, and the first unit shall be ready for occupancy within 240 calendar days thereafter with each subsequent unit to be completed within fourteen (14) day intervals thereafter, unless the Contractor is delayed at any time in the progress of the work by any act or neglect of the Owner or by unavoidable casualties or any causes beyond Contractor's control.
The first unit was scheduled for completion on or before February 15, 1978. Although the work started promptly, Brookhaven encountered rock, cold weather, lack of maneuverability for its equipment, and a lack of space in which to store excavated rock until it could be used in the construction of residence foundations. Although all contributed to the delay, it was the rock which posed the greatest problem. The court, after reviewing the entire contract, concluded that the presence of rock had been anticipated by the parties, that Brookhaven had assumed the risk of removing the rock within the ...