Appeal from the Judgment entered February 7, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 3300 July Term, 1977
Jon A. Baughman, Philadelphia, for Reliance, appellant in No. 712 and appellee in No. 713.
Gregory M. Harvey and Richard W. Hopkins, Philadelphia, for Trident, appellant in No. 713 and appellee in No. 712.
Cavanaugh, McEwen and Cercone, JJ.
[ 350 Pa. Super. Page 144]
This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant Trident Corporation's (Trident) Motion for a New Trial, denying appellee, Reliance Insurance Company (Reliance), its cross-appeal Motion for Judgment Notwithstanding the Verdict and to Conform Judgment, and granting appellee, Simkiss Agency, Inc. (Simkiss), its Motion for Judgment Notwithstanding the Verdict. The order appealed from entered judgment in favor of Trident Corporation against Reliance Insurance Company for $177,518.48.
[ 350 Pa. Super. Page 145]
This action was brought in contract and tort*fn1 by the Trident Corporation a construction company, against Reliance, an insurance and surety company, Simkiss, an insurance and bonding broker, and John A. Simkiss, Jr.,*fn2 the President of Simkiss Agency.
Trident's principal source of business was governmental contracts. To secure a government contract, a contractor is required to submit, with its bid, a bid bond issued by a qualified surety or insurance company. A bid bond guarantees that if the contractor is the lowest responsible bidder on a particular contract the contractor will accept the government's offer to perform in accordance with the contract. The bond provides that the surety will pay set damages in the event the contractor does not accept the offer. When Trident sought to establish a relationship with a bonding company, it engaged the services of Simkiss, the insurance and bonding broker. Simkiss sought and secured bid and performance bonds for Trident from Reliance, the insurance company.
Trident alleged that Simkiss breached its duty to use its "best efforts" to provide Trident with its bonding requirements. This claim was based on Trident's "broker of record" letter to Simkiss by which Trident gave Simkiss all of its insurance business. Trident also asserted that once Simkiss had obtained Reliance as the surety for Trident, Reliance wrongfully failed to issue a number of bid and/or performance bonds requested by Trident. Finally, Trident alleged that Simkiss and/or Reliance wrongfully rescinded a bid bond which had been issued to Trident on the Willow Grove project, allegedly causing Trident to lose the contract. The defendants denied all of these charges.
Although Trident was awarded $177,518.40, Trident raises two multi-faceted questions on appeal. The first is
[ 350 Pa. Super. Page 146]
whether the lower court erred in determining that Trident presented insufficient evidence to allow all except one of its contractual claims to go to the jury.
The lower court disallowed Trident's claim against Simkiss on the ground that Trident never properly asserted in its complaint or amended complaint that Simkiss breached its duty to use "best efforts". We agree and, therefore, that issue is not properly before us. See Pa.R.A.P. 302.
The trial court also ruled that Trident failed to present sufficient evidence to support its claim that Reliance breached a written contract, as orally modified, by failing to issue requested bid bonds on many occasions.*fn3 The only evidence submitted by Trident to prove the existence of an orally modified contract was a letter written by Reliance to Trident and a subsequent conversation. The letter, as relevant, reads:
Allow this letter to serve as your bonding line of credit of $400,000.00 for a single job size and $1,800,000.00 for a total work program.
This line is contingent upon the following conditions:
1. As a whole the work in progress as revealed by quarterly work in progress ...