The opinion of the court was delivered by: POLLAK
The case at bar is a diversity suit tried to the court. This opinion constitutes the court's findings of fact and conclusions of law.
The controversy arose out of the construction of a large office building in center-city Philadelphia in the early 1980s. The building -- One Logan Square -- is located just south of the Four Seasons Hotel and about two blocks from the Cathedral of Saints Peter and Paul. The general contractor for this large project was Turner Construction Company ("Turner"). Turner, in the spring of 1981, selected Carson Construction Corporation ("Carson"), a Pennsylvania corporation, as subcontractor for the entire reinforced concrete superstructure -- the poured-in-place concrete flooring, vertical columns, and so-called "core area" containing elevator shafts, from the first floor to the top. Carson in turn subcontracted to The Ceco Corporation ("Ceco"), a Delaware corporation headquartered in Illinois, the concrete formwork for all areas of the superstructure other than the "core area." It was contemplated that Ceco would utilize an expeditious and innovative mode of formwork with which it had considerable familiarity: in lieu of the conventional practice, under which separate sets of wooden forms are fabricated and assembled for each floor of a building, Ceco was to employ "flying forms" which are moved by crane from floor to floor as the pouring proceeds.
Ceco began its work in mid-July of 1981 and completed it in mid-October of 1982.
The Carson-Ceco subcontract price was $ 1,826,000. Certain change orders raised that figure to $ 1,964,079. Carson has paid Ceco $ 1,540,744.26, leaving a balance of $ 423,334.74.
In 1984 Carson advised Ceco that Turner had backcharged Carson $ 421,587 for the correction of work Turner had determined to have been improperly performed; Carson, in its turn, was holding Ceco accountable for the entire sum. Of these backcharges, $ 398,046 were said to reflect the cost of correcting the placement, on the perimeters of the poured concrete floors, of upwards of four hundred metal inserts (approximately one-third of the total) on which were hung the granite slabs that formed the outer facings of the building. Ceco denied that it was to blame for the mis-siting of the inserts. Ceco did accept responsibility for $ 22,000 of other backcharges -- the cost of realigning certain vertical columns. Subtracting that $ 22,000 from the $ 423,334.74 withheld by Carson from the contract price, Ceco claims -- and continues to claim -- $ 401,334.74 to be due and owing as the net unpaid balance for performance of the subcontract.
Also in 1984, Ceco advised Carson that it was claiming $ 430,277 in delay damages because (1) performance of the subcontract had taken several months longer than Ceco and Carson had anticipated, and (2) (so Ceco asserted) Carson and others -- but not Ceco -- were responsible for the delays. With respect to these delay claims, Carson's position was and is that (1) Ceco was, and Carson was not, responsible for much of the time lost on the job; (2) quite apart from who was to blame, the aggregate delay was not undue; and (3) in any event, Carson had made no contractual commitment to Ceco to protect it from delay.
With matters at impasse, Ceco in 1985 initiated this suit against Carson. Ceco seeks (1) the unpaid contract balance of $ 401,334.74 plus prejudgment interest; (2) delay damages (in the Joint Final Pretrial Order Ceco claimed $ 310,735; in its post-trial submission Ceco seeks $ 245,000); and (3) attorneys' fees and other litigation-related expenses.
Carson denies that delay damages or attorneys' fees and kindred expenses are owing. Moreover Carson has filed a counter-claim which, if sustained, would substantially wash out Ceco's claim for the unpaid contract balance. The counterclaim is the $ 421,587 backcharge claim referred to above. Of that figure, Ceco, as already noted, has acquiesced in $ 22,000, and Ceco's calculation of the unpaid contract balance as $ 401,334.74 takes account of that $ 22,000 credit to Carson. The great bulk of Carson's backcharges are the $ 398,046 for the allegedly mis-sited metal inserts -- a claim Ceco continues to dispute. As for the remaining $ 1541 in backcharges, Carson has not undertaken to document them in its post-trial proposed findings of fact; therefore, that aspect of the backcharge claims is deemed abandoned. In effect, then, the backcharges counterclaim amounts to $ 398,046.
The discussion that follows sorts out Ceco's claims and Carson's counterclaim. The starting point is an undisputed indebtedness of $ 401,334.74 running from Carson to Ceco. The first question to be considered is whether Carson also owes Ceco delay damages -- and, if so, the amount of those damages; that question is addressed in Part I of this opinion. Part II addresses the question whether Ceco is liable to Carson for backcharges -- and, if so, in what amount. Part III considers questions relating to interest and also to attorneys' fees and kindred expenses.
The Ceco Claim For Delay Damages
A. Does the Carson-Ceco Subcontract Protect Ceco Against Delays ?
Ceco's delay claims center on the discrepancy between, on the one hand, the performance timetable Carson and Ceco allegedly agreed upon and, on the other hand, the actual timetable. According to Ceco, the parties to the subcontract contemplated that Ceco's work would get under way on June 1, 1981, and would be completed in February of 1982, whereas in fact Ceco did not get the green light until the middle of July, 1981, and did not finish until the middle of October, 1982. Ceco contends that these delays (a) were not of its own making and (b) increased its performance costs substantially. Ceco seeks to recover pursuant to Condition 2, the second of twenty-six pre-printed "Conditions" which comprise the last two pages of a seven-page Ceco document entitled "Proposal and Contract," also known as "Form 110E." The first five pages of Form 110E are typed, not pre-printed, and cover in some detail a number of matters having particular reference to Ceco's role in the One Logan Square project.
The caption headings are "SCOPE," "EXCLUSIONS," "SPECIFIC PROVISIONS," "PLAN REFERENCE," "OSHA," "PRICE," AND "TERMS." Two of these particularized provisions (paragraph 6 of SCOPE and paragraph 14 of SPECIFIC PROVISIONS) expressly supersede two of the pre-printed Conditions. Condition 2 -- the pre-printed Condition relied on by Ceco -- is captioned "Delay." It reads as follows:
Ceco will not be responsible for delays in performance caused by delays due to strikes, jurisdictional disputes, disputes between union and non-union personnel, shortages of materials and equipment, fires, acts of nature, wars, or other circumstances reasonably beyond Ceco's control. In the event of delays beyond Ceco's reasonable control, the time set for performance shall be extended for a period equivalent to the period of delay, and Ceco shall not be liable for damages for such delay. In the event of substantial delay in the progress of the work, for which Ceco is not responsible, Ceco shall have the right to remove its equipment upon two weeks' notice. If, as a result of circumstances beyond its reasonable control, Ceco is delayed in, or prevented from, performance of this contract until a date substantially beyond the date contemplated for performance, and thereby incurs expense or suffers loss or damage, there shall be a reasonable increase in the contract price.
Carson denies responsibility for the delays, lays some of the blame at Ceco's door, and challenges Ceco's calculation of consequential damages. Also, Carson denies that there was agreement on a June-1981-to-February-1982 timetable. But Carson further contends that Ceco's delay claim founders at the outset for the reason that nothing in the Carson-Ceco subcontract undertook to assure Ceco that costs incurred as the result of delays for which Ceco was not responsible would be borne by Carson. Specifically, Carson contends that neither Condition 2, nor any other part of Form 110E, is part of the Carson-Ceco subcontract. To that threshold question we now turn.
(1) Is Form 110E Part Of The Carson-Ceco Subcontract ?
Ceco contends that the Carson letters of June 8, 1981, and September 14, 1981, are only half of the contract equation. The other half of the written contract, according to Ceco, is Form 110E, copies of which were sent by Ceco to Carson on April 30, 1981, five-and-a-half weeks before Carson sent Ceco its June 8, 1981 letter of intent. Ceco emphasizes that (1) in a June 30, 1981 letter of assent to Carson's letter of intent Ceco noted that acceptance was "subject to all provisions of our Proposal and Standard Contract Agreement," and (2) in November of 1981, when acknowledging and agreeing to Carson's September 14, 1981 letter, Ceco expressly keyed acceptance to its "attached . . . Proposal & Contract 1-35-15002 Rev. October 14, 1981" and "to attached letter" which in turn stated that "we are accepting your letter/Order form subject to all provisions of our Proposal & Contract (Form 110E) revised. . . ."
Carson responds that Ceco's attempts to trammel its acceptance of Carson's letter proposals with references to Form 110E must be deemed to have no legal effect.
To assess these competing contentions, it will be necessary to consider the various exchanges between Carson and Ceco from April through November in some detail. The following facts have been stipulated:
6. In 1980 or early 1981, Turner Construction Company (hereinafter "Turner") was acting as the general contractor in the construction of a high-rise office building at One Logan Square, 18th Street and Logan Circle, Philadelphia, Pennsylvania. The construction of this office building is hereafter referred to as "the Project."
7. The governing plans and specifications for the Project required its superstructure to be constructed of reinforced poured-in-place concrete, consisting of vertical columns, a concrete "core area" housing the elevator shafts, and 33 stories of concrete flooring.
8. On or about April 6, 1981, Turner received bids from potential subcontractors, including defendant Carson, to provide to Turner the concrete superstructure for the Project.
10. On or about April 21, 1981, Turner awarded the superstructure concrete contract to Carson. Turner further stated that a formal contract would be prepared at a later date. Carson so notified Ceco and Carson and Ceco thereupon began to negotiate terms under which Ceco would provide to Carson the concrete superstructure formwork on all areas outside the "core area."
11. On or about April 29, 1981, Carson and Ceco agreed to the general scope of the work and set an initial price of $ 1,775,000.00 as the contract price. This verbal agreement assumed the building's owner, and not Ceco, would provide certain insurance which otherwise would have to be provided by Ceco at an additional cost of $ 51,000.00.
12. On April 30, 1981, Ceco sent three copies of its revised Proposal and Contract (including Ceco's standard detailed contract conditions) to Carson. Ceco's transmittal letter enclosing this Proposal and Contract stated "If you [Carson] prefer, you may use the enclosed form as a guide in preparing your purchase order."
13. On June 8, 1981, Carson sent a "letter of intent" to enter into a sub-contract with Ceco. The letter briefly outlined the scope of Ceco's work, restated the agreed price of $ 1,775,000 (plus an extra $ 51,000 if Ceco was to provide the necessary insurance), and stated that a formal contract would be issued upon receipt of Carson's subcontract from Turner Construction Company.
14. By a letter dated June 30, 1981, Ceco stated that Ceco accepted Carson's June 8, 1981 letter of intent. The letter further stated that Ceco's acceptance was "subject to all provisions of our Proposal and Standard Contract Agreement." The letter was signed for Ceco by an officer in Ceco's Illinois home office.
15. In or about August 1981, Turner issued its formal contract to Carson.
16. On September 14, 1981, after receiving its written subcontract from Turner, Carson sent to Ceco a brief letter which it stated "is to serve as a Contract between The Ceco Corporation and Carson Concrete Corporation for the scope of work as listed in our June 8, 1981 letter of intent." The letter stated a final lump sum price of $ 1,826,000 (which included the requirement that Ceco provide the extra insurance). The last sentence of the letter read "All other terms and conditions of our June 8, 1981, letter of intent remain unchanged."
17. The September 14, 1981 letter was signed by Howard Cohen, Vice President of Carson. At the bottom left of the letter was a line calling for Ceco's signature. Mr. Cohen's letter requested that Ceco indicate its acceptance by signature thereon and return to Carson.
18. On November 10, 1981, Ceco returned to Carson a signed copy of the September 14, 1981 "letter contract" to Carson together with a copy of its revised Proposal and Contract dated October 14, 1981. The Ceco signature was that of a Ceco Vice President in Ceco's home office in Illinois. Typed over the signature line for Ceco were the added Ceco words "All in accordance with attached Ceco's Proposal & Contract 1-35-15002 Rev. October 14, 1981." Also typed over the Ceco signature line were the added Ceco words "Accepted subject to attached letter."
19. Ceco's cover letter accompanying the signed "letter contract" stated "Please note we are accepting your letter/Order subject to all provisions of our Proposal and Contract (Form 110E) revised in addition to M.E. Kersten's letter of June 30, 1981 acknowledging your letter of intent."
20. Carson never raised any written objection, or took written exception, to Ceco's letter of November 10, 1981.
Carson contends that Ceco's attempts, in its communications to Carson of June 30, 1981, and November 10, 1981, to key acceptance of the subcontract to its Form 110E are a legal nullity and should therefore be disregarded. In advancing this contention, Carson places strong reliance on Reaction Molding Technologies v. General Electric Co., 588 F. Supp. 1280 (E.D. Pa. 1984), a diversity case which, like the case at bar, arose under Pennsylvania law. The issue which there confronted my colleague, Judge Lord, was whether the recital on the buyer's purchase order that "Acceptance of this order is expressly limited to the conditions of purchase printed on reverse side" was effective to incorporate the buyer's form conditions into the bargain. The issue, Judge Lord determined, was governed by Section 2-207 of the Uniform Commercial Code, which is part of the statute law of Pennsylvania (12A P.S. § 2-207):
(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.
(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless:
(a) the offer expressly limits acceptance to the terms of the offer;
(b) they materially alter it; or
(c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.
(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this Act.
Judge Lord concluded, on the facts before him, that the buyer's statement of acceptance was not one in which, within the intendment of section 2-207(1), "acceptance [was] expressly made conditional on assent to the additional or different terms," and hence it "operate[d] as an acceptance." Judge Lord's reasoning was as follows (588 F. Supp. at 1288):
The clause in the present case states that acceptance is expressly limited to the conditions printed on the reverse side. Although at first blush the clause appears to fit within the proviso, upon closer examination of the wording of the clause and the commercial context in this case, I conclude that the proviso does not apply. First, the clause states that acceptance is "expressly limited" rather than "expressly conditional." More importantly, the clause states that acceptance is limited to the different terms and conditions on the reverse side, rather than stating that acceptance is conditional on the offeror's "assent" to the different or additional terms. Furthermore, the clause was preprinted on a form contract, rather than typed or written into the contract. This same clause appeared in the purchase orders for the 1980 contracts between plaintiff and defendant, the subjects of Count II. Thus, plaintiff must have reasonably believed in 1982, that defendant intended to proceed with the transaction in spite of the language in the clause.
The foregoing paragraphs have taken as their premise that the dispute between Ceco and Carson is governed by the UCC. But it is not. As Carson acknowledges, the Carson-Ceco contract, whatever documents and conversations it may consist of, is not a sales contract. Carson contends, however, that "Pennsylvania case law suggests that the Uniform Commercial Code can be looked to for contract interpretation notwithstanding that the contract at issue is not one of a sale of goods." Reply Memorandum of Carson Concrete to the Requests for Findings of Fact and Conclusions of Law of The Ceco Corporation 2. If the meaning of this submission is that Pennsylvania courts would import into the adjudication of non-sales-contract disputes the special rules prescribed by UCC section 2-207 relating to acceptances linked to the specification of additional terms, the cases relied on by Carson lend scant support for the proposition contended for.
In Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10 (1968), the Pennsylvania Supreme Court had before it a dispute arising under a construction contract; in rejecting the contention "that the chancellor erred in not enforcing the contract provision that extra would not be paid for unless done pursuant to a written, signed change order," the court said, "unless a contract is for the sale of goods, see the Uniform Commercial Code-Sales, the Act of April 6, 1953, P.L. 3 § 2-209(3), as amended, 12A P.S. § 2-209(2), it appears undisputed that the contract can be modified orally although it provides that it can be modified only in writing." 244 A.2d at 15. In Magar v. Lifetime, 187 Pa. Super. 143, 144 A.2d 747, 748 (1958), the Superior Court cited the Restatement of Contracts and Corpus Juris Secundum as authority for its holding that a limitation of liability clause in a construction contract "was valid and enforceable," and then referred to a cognate provision of the UCC "by way of analogy." Bethlehem Steel v. Litton Industries, 321 Pa. Super. 357, 468 A.2d 748 (1983), is, according to Carson, a case in which "the Superior Court resorted to the Uniform Commercial Code to supply missing terms in the parties' contract without ruling whether or not the contract at issue was a contract for the sale of goods." Reply Memorandum of Carson Concrete, quoted supra, at 2. But examination of Judge Wickersham's opinion in Bethlehem Steel does not confirm that reading of the case. The case was one in which Bethlehem Steel sued Litton Industries for the latter's failure to honor what Bethlehem Steel regarded as an irrevocable five-year option to order from one to five large ore-carrying vessels. What Bethlehem Steel viewed as a contract -- an exchange of letters between the parties -- was viewed by Litton Industries as so imprecise with respect to terms of crucial importance as, in the words of the trial court, not to "constitute a contract, but at most . . . an agreement to agree." 468 A.2d at 751. The trial court noted that, "one of the contentions of Bethlehem is that these agreements come within the Uniform Commercial Code and, therefore, gaps (if any appear in the documents), may be filled in by the Court . . . . Even if the Uniform Commercial Code is applicable, the Court must first find that there was intent to enter into a contract by the two letters . . . . Because of the nature of the gaps as has been discussed in this Opinion, it would appear that only the parties are the exclusive entities capable of filling in the gaps. Because these gaps are so wide, the Court cannot make a new contract for the parties." Id. at 756-8. The Superior Court, sitting en banc, affirmed. Speaking through Judge Wickersham, the majority held
Id. at 758. In short, Bethlehem Steel v. Litton Industries is not a case in which the court applied provisions of the UCC without first determining that the transaction at issue was a sales transaction. Rather, it is a case in which the court found it unnecessary to characterize the transaction as a sales transaction or not because, assuming arguendo the applicability of the UCC, the Code's generous "gap-filling" provisions nonetheless would not have sufficed to create a contract out of a sow's ear.
Recognizing the possibility that this court may be "uncomfortable in applying the Uniform Commercial Code, Carson respectfully suggests that Section 2-207 of the Code is the mirror image of §§ 59 and 61 of the Restatement (Second) of Contracts." Reply Memorandum of Carson Concrete, quoted supra, at 3. Application of sections 59 and 61 would, so it is contended, thus lead to the result arrived at in Reaction Molding.
The difficulties with this contention are two-fold. The first is that, if one assumes that the Code section and the Restatement sections are "mirror images," Reaction Molding would not govern this case because, as explained above, they are factually dissimilar. The second difficulty is that the UCC and Restatement provisions are similar but not identical; and the lack of identity relates to one of the elements figuring strongly in Judge Lord's analysis in Reaction Molding. Thus, section 2-207(1) specifies that:
A definite and seasonable expression of acceptance . . . operates as an acceptance even though it states terms additional to or different from those offered . . . unless acceptance is expressly made conditional on assent to the additional or different terms. (emphasis added)
Section 61 of the Restatement (Second) provides:
An acceptance which requests a change or addition to the terms of the offer is not thereby invalidated unless the acceptance is made to depend on an assent to the changed or added terms. (emphasis added)
And section 59, the obverse of section 61, provides:
A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer. (emphasis added)
Significantly lacking from the Restatement formulations is the UCC specification that a reply purporting to agree to an offer but stating additional or different terms is treated as an acceptance unless the offeree's acceptance is " expressly made conditional on [the offeror's] assent" (emphasis added) to the new terms. And this aspect of section 2-207(1) was of crucial importance in Reaction Molding, 588 F. Supp. at 1288: "The clause in the present case states that acceptance is expressly limited to the conditions printed on the reverse side. Although, at first blush, the clause appears to fit within the proviso, upon closer examination of the wording of the clause and the commercial context in this case, I conclude that the proviso does not apply. First, the clause states that acceptance is 'expressly limited' rather than 'expressly conditional.' More importantly, the clause states that acceptance is limited to the different terms and conditions on the reverse side, rather than stating that acceptance is conditional on the offeror's 'assent' to the different or additional terms."
What the UCC and Restatement provisions have in common is that both are concerned with how to handle the injection into an about-to-be-consummated bargain of "terms additional to or different from those offered." In the case at bar, the document variously entitled "Proposal and Contract" and "Form 110E" was the first written document placed on the table by either of the parties -- sent by Ceco to Carson on April 30, 1981, the day after the parties reached an oral understanding in which they "agreed to the general scope of the work and set an initial price of $ 1,775,000.00 as the contract price" [Stipulated Fact 11]. Ceco sent the same document again on June 30, 1981, in responding affirmatively to Carson's June 8, 1981, letter of intent. And so, when Ceco in November sent its up-dated Form 110E to Carson as part of its acceptance of Carson's letter of September 14, 1981, Carson had seen the document twice before.
Indeed, Carson had not only seen the document before, Carson had built on it in drafting its June 8, 1981, letter of intent. The first sentence of paragraph 7 of the letter of intent
draws on the first sentence of the second subparagraph of Form 110E's paragraph 14
and on Form 110E's paragraph 20.
The second sentence of paragraph 7 of the letter of intent
derives from the "PLAN REFERENCE" portion of Form 110E.
And paragraph 8 of the letter of intent
substantially tracks the first sentence of Form 110E's "OSHA" provision.
In short, Form 110E was an integral part of the two months of written interchange running from Ceco's letter to Carson of April 30, 1981 to Ceco's June 30, 1981 letter accepting Carson's letter of intent -- two months which preceded Ceco's actually starting to work under the subcontract. Furthermore, in November of 1981, over three months after Ceco had commenced performance, Ceco, in transmitting its signed acceptance of Carson's letter of September 14, 1981, sent Carson an updated version of Form 110E, reiterating over the Ceco signature "all in accordance with attached Ceco's Proposal & Contract . . ." In this context, the contention that Carson, at any time after it sent Ceco its letter of intent on June 8, 1981, could reasonably have regarded Form 110E as "terms additional to or different from those offered," is not persuasive. If Carson entertained reservations about particular provisions of Form 110E, the prudent and legally effective course for Carson to pursue would have been to bring those disagreements to Ceco's attention.
Cf. Restatement (Second) of Contracts, § 69(1)(c).
(2) Does Condition 2 Of Form 110E Support Ceco's Delay Claim ?
The foregoing discussion has established that Form 110E is part of the Carson-Ceco subcontract. The next question is whether Condition 2, on which Ceco relies in pressing its delay claim, frames a cognizable cause of action.
(a) What Does Condition 2 Provide ?
Since the parties are in disagreement as to the legal effect of Condition 2, it will be helpful to set it forth again in full text:
Ceco will not be responsible for delays in performance caused by delays due to strikes, jurisdictional disputes, disputes between union and non-union personnel, shortages of material and equipment, fires, acts of nature, wars, or other circumstances reasonably beyond Ceco's control. In the event of delays beyond Ceco's reasonable control, the time set for performance shall be extended for a period equal to the period of delay, and Ceco shall not be liable for damages for such delay. In the event of substantial delay in the progress of the work, for which Ceco is not responsible, Ceco shall have the right to remove its equipment upon two weeks' notice. If, as a result of circumstances beyond its reasonable control, Ceco is delayed in, or prevented from, performance of this contract until a date substantially beyond the date contemplated for performance, and thereby incurs expense or suffers loss or damage, there shall be a reasonable increase in the contract price.
Ceco contends that it undertook the subcontract on the understanding that its work would be completed by approximately February 15, 1982; that in fact completion of its work took until the middle of October; that the delays were not of Ceco's own doing; that the delays required Ceco to incur additional and unanticipated costs for labor, material and the use of equipment; and hence that it is entitled, under the last sentence of Condition 20, to "a reasonable increase in the contract price."
Carson argues for a different reading of Condition 20. Carson says that "exclusive of the last sentence . . . the balance of this provision is . . . what is commonly known as a 'no damage' clause . . . . When a contractor has a 'no damages' clause in its contract together with provisions that the contractor shall be entitled to an extension of time to perform, it has been held that the extension of time for performance is the sole remedy that the contractor may pursue." Carson Concrete's Proposed Findings of Fact, Conclusions of Law and Points of Authorities in Support Thereof 69-70.
The cases cited as so holding are Siefford v. Housing Authority, 192 Neb. 643, 223 N.W.2d 816 (1974), and Ericksen v. Edmonds School District, 13 Wash. 2d 398, 125 P.2d 275 (1942). These decisions of the Supreme Courts of Nebraska and Washington stand for the proposition that a provision in a construction contract exempting the owner from liability to the contractor for delay damages will be enforced even where the owner is responsible for the delay. The tenor of the decisions is reflected in the Siefford court's summary of Ericksen, whose reasoning it found persuasive: ". . . The court held that where the contract stated positively that the building contractor should not be entitled to damages on account of delays from any cause and stated that, if delays were occasioned by any act or omission of the owner, additional time for completion of the work should be allowed contractor, if contractor should give written notice, contractor was not entitled to recover from owner for damages sustained because owner allegedly retarded the progress and performance of the work in its proper order and sequence, irrespective of any notice to owner for an extension of time, and further that the provision intended that an extension of time was the contractor's sole remedy for delays encountered in the performance of the contract." Siefford, 223 N.W.2d at 823. It is not readily apparent in what way decisions enforcing contract provisions that expressly preclude the recovery of delay damages militate against enforcement of a contract provision expressly providing for delay damages.
(3) Was There An Agreed Timetable For The Carson-Ceco Subcontract ?
As of June 10, 1981, Turner and Carson had reduced to writing certain understandings which, some weeks later, were embodied in the formal Turner-Carson subcontract. One of these understandings, which authoritatively confirmed both the mode of construction of the superstructure and the time the job was expected to take, was as follows:
Time is of the essence and lump sum price includes a four (4) day cycle for typical decks with approximately 190 working days total.
The Turner-Carson understanding validated the provisional Carson-Ceco arrangements which, as of April 29, had contemplated a four-day pouring cycle. The Turner-Carson expectation that Carson would finish the superstructure in 190 working days meant to Anthony J. Samango, Carson's president, and Benjamin Botti, Ceco's district manager, that Ceco would be at the job site about ten days fewer than Carson. Initially, it was anticipated that Ceco's portion of the job would get under way by June 1, with a target completion date of mid-February 1982. Problems with the foundation prevented Ceco from starting until mid-July. Although the foundation problems were in no sense Ceco's fault (indeed, the foundation was also a Carson responsibility, under another Turner-Carson subcontract), Ceco was aware of and may be taken to have acquiesced in the later starting date -- a change which in turn implied a later completion date, namely, April 1, 1982. In fact, Ceco's work was not done until mid-October of 1982, approximately six-and-a-half months beyond the revised target date.
(4) Were The Delays Compensable Under Condition 20 ?
Condition 20 of Form 110E provides for a "reasonable increase in [Ceco's] contract price" to cover expenses incurred in consequence of delays "beyond its reasonable control." The six-and-half months' delay at issue here stemmed from manifold causes. The most prominent cause, and the one to which most testimony was directed, was the Carson decision, when construction of the superstructure reached the ninth floor, to forego the four-day per-floor pouring cycle in favor of a five-day cycle. Carson adduced many good reasons for the decision -- most especially, the bitter cold of the 1981-82 winter which, in addition to slowing Carson's core area work, severely aggravated problems of safety and morale. However, none of these was a problem for which Ceco had responsibility. Nor was Ceco responsible for other problems which delayed completion of Ceco's phase of the work: difficulties with the foundation which, at the very inception of Ceco's work, impeded real progress until well into August of 1981; the sporadic unavailability of the cranes which were critical to Ceco's flying-form process; lack of materials, or of needed assembly spaces; design changes; reversal by Carson of the agreed direction of pouring (east-to-west, rather than west-to-east), etc. In sum, the problems which slowed Ceco by upwards of six months were "beyond its reasonable control."
(5) Given The Additional Expenses Incurred By Ceco Because Of The Delays, What Is A "Reasonable Increase In The Contract Price ?"
Ceco has established that the six-and-a-half month delay in completion of its subcontract caused it to incur additional expenses in three respects: First, a wage increase for union construction workers in the Philadelphia area went into effect in May of 1982; this prospective increase had not been factored into Ceco's pricing of the Carson-Ceco subcontract, since it was anticipated that the job would be done well before the wage increase. Second, extending the project for six months required Ceco to provide for certain additional supervisory personnel. Third, Ceco was required to maintain at the job site for six ...