Appeal from Order of the Court of Common Pleas, Civil Division, of Union County, No. 576, 1982.
H. William Koch, Milton, for appellants.
Anthony Stefanon, Harrisburg, for appellee.
Wieand, Beck and Watkins, JJ. Beck, J., files a dissenting opinion.
[ 359 Pa. Super. Page 515]
This appeal from a judgment entered in favor of a materialman and against a corporate surety on a payment bond requires that we interpret and apply the language of the bond requiring prompt notice of claims for unpaid materials.
On March 11, 1981, Pursel Construction Company (Pursel) entered into a contract with Lewisburg Elderly Associates for the construction of a housing project known as Lewisburg Elderly Housing in the Borough of Lewisburg, Union County. On the same date, Pursel delivered to Lewisburg Elderly Associates a payment bond which had been executed by Pursel, as principal, and Pennsylvania National Mutual Casualty Insurance Company (Penn National), as surety, and which guaranteed payment to subcontractors and materialmen. Pursel entered a subcontract with Long Electric, Inc. (Long) for the electrical work on the project. This subcontract provided, inter alia, that Long would be responsible for installing an emergency call and intercom system in the housing units. In accordance with the contract, Long issued a purchase order to Morefield Communications, Inc. (Morefield) for an emergency call and intercom system at a price of $6,458. Shop drawings, which Morefield agreed to supply and which consisted of lists and
[ 359 Pa. Super. Page 516]
diagrams of equipment making up the system, were submitted and approved early in 1981. On April 29, 1981, Long also requested a change which was made and which resulted in a price increase of $250.
By a series of shipments between July 29, 1981 and November 4, 1981, Morefield delivered to Long all of the equipment required by the purchase order. Sometime thereafter, Long abandoned the project. In December, 1981, Charles Pursel, the president of Pursel Construction Company, requested Morefield's salesman to supply him with "authentication diagrams" for the stated purpose of assisting another subcontractor in installing the system. The diagrams were supplied early in January, 1982.
On February 9, 1982, Morefield presented a claim for the unpaid price of the equipment to Penn National. Notice was also given to Pursel. Both Pursel and Penn National refused to pay the claim. They contended that they were relieved of liability by Morefield's failure to give notice of the claim within ninety (90) days of final delivery, as required by the bond. Morefield then filed an action in assumpsit for $7,118.77, which allegedly was the price which Long had agreed to pay for the emergency call and intercom system. The trial court, following trial without jury, dismissed the claim against Pursel but allowed recovery against Penn National.*fn1 Post-trial motions were denied, and this appeal followed by Penn National.
The payment bond executed by Pursel and Penn National contained the ...