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FRANK B. BOZZO v. ELECTRIC WELD DIVISION FORT PITT DIVISION SPANG INDUSTRIES (09/13/85)

filed: September 13, 1985.

FRANK B. BOZZO, INC., A CORPORATION
v.
ELECTRIC WELD DIVISION OF THE FORT PITT DIVISION OF SPANG INDUSTRIES, INC., A CORPORATION, APPELLANT



No. 00403 PITTSBURGH 1983, Appeal from the Order in the Court of Common Pleas of Allegheny County, Civil No. GD75-6424

COUNSEL

Beth A. Frailey, Pittsburgh, for appellant.

Richard S. Dorfzaun, Pittsburgh, for appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ.

Author: Spaeth

[ 345 Pa. Super. Page 426]

This is an appeal from a judgment entered in an action for breach of contract. The judgment includes an award of interest from the date of the breach. Appellant argues that the award is improper to the extent that it included interest on sums that were not fixed or ascertainable. We hold that with respect to such sums, compensation for delay in the nature of interest may nevertheless be awarded if in the circumstances of the case justice so requires. We therefore reverse and remand with instructions to the trial court to apply this standard, and to enter an award accordingly.

The action arose on appellee's claim that appellant had breached a contract to deliver a particular sort of steel mesh for appellee to use in paving a road. After trial, in 1978, judgment was entered in appellee's favor. On appeal, we affirmed the judgment as to liability but reversed and remanded for a new trial on damages. Bozzo v. Electric Weld, 283 Pa. Super. 35, 423 A.2d 702 (1980), aff'd 495 Pa. 617, 435 A.2d 176 (1981). At the trial on damages the jury awarded appellee $96,646.10, of which $47,774.93 was for increased overhead and administrative costs, $25,592.23 for increased equipment costs, $15,657.37 for increased steel mesh costs, and $2,872.28 for increased material costs. The trial court then molded the verdict to add $43,049.19, representing 6% interest from the date on which the contract was breached.

Appellant accepts the jury's award of damages but challenges the trial court's addition of interest. Appellant argues that in a breach of contract action, prejudgment

[ 345 Pa. Super. Page 427]

    interest is recoverable only where the "damages . . . awarded were ascertainable at the time of the breach in accordance with the two prerequisites to the running of interest, i.e., a debt liquidated with some degree of certainty and a fixed duty to pay." Brief for Appellant at 20. Applying this proposition, appellant concludes that the only prejudgment interest to which appellee is entitled is interest on such amount as represents "the difference in cost between F mesh and J mesh . . . because these damages are ascertainable by mathematical computation from established market prices for mesh." Id. at 23. "The trial court", appellant states, "properly added interest on that amount." Id. Otherwise, in appellant's view, the court erred, for the other damages awarded by the jury were neither liquidated nor ascertainable. Id. at 24.

The contract here in question represented a transaction in "goods" within the Uniform Commercial Code, 13 Pa.C.S. §§ 2101 et seq. Id. §§ 2102, 2105. Although the U.C.C. does not expressly provide whether interest may be awarded as compensation for delay, it does provide the damages available to a buyer for breach of contract. These damages include "incidental and consequential damages." See 13 Pa.C.S. § 2712 (buyer that has covered "may recover . . . any incidental or consequential damages . . . ."); id. § 2713 (measure of damages for non-delivery or repudiation is "difference between the market price . . . and the contract price, together with any incidental and consequential damages . . . ."); id. § 2714 (where buyer has accepted non-conforming goods, "[i]n a proper case any incidental and consequential damages . . . may also be recovered"). The U.C.C. defines a buyer's incidental and consequential damages as follows:

§ 2715. Incidental and consequential damages of buyer

(a) Incidental damages. -- Incidental damages resulting from the breach of the seller include:

[ 345 Pa. Super. Page 428]

(1) expenses reasonably incurred in inspection, receipt, transportation and care and custody of ...


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