Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil at No. G.D.83-4813.
Russell C. Miller, Allison Park, for appellant.
Daniel J. Weis, Pittsburgh, for appellee.
Montemuro, Popovich and Hester, JJ.
[ 371 Pa. Super. Page 521]
This appeal concerns a judgment entered by the Court of Common Pleas of Allegheny County holding Fidelity & Deposit Company of Maryland ("Fidelity") liable to Uhl Construction Company, Inc. ("Uhl") and Transamerica Insurance Company ("Transamerica") in the amount of $13,490.00. The events leading to this appeal began when the
[ 371 Pa. Super. Page 522]
owners of the Reformed Presbyterian Home in Pittsburgh, Pennsylvania,*fn1 contracted with Uhl for structural restoration of the Reformed Presbyterian Home. Uhl acquired a labor and material payment bond from Transamerica. This bond named Uhl as principal and the owners of the Home as the obligee. By the specific terms of the bond, Transamerica, as surety, accepted joint and several liability with Uhl for the payment of both labor and material costs reasonably incurred by Uhl or any of Uhl's subcontractors in the completion of the restoration of the Home.
Uhl awarded a subcontract for the interior finishing work of the Home to Precision Building Systems, Inc. ("Precision"). Precision acquired a labor and material bond from Fidelity.*fn2 This bond named Precision as the principal and Uhl as the obligee. By the terms of this bond, Fidelity became the surety for payment of the labor and material costs incurred by Precision in the performance of its subcontract with Uhl for interior construction of the Home. During the course of its performance of the subcontract, Precision bought construction materials from Pittsburgh Builders Supply Company ("Pittsburgh"). The record before us contains copies of approximately forty-two sales invoices, dated between August and December of 1982, identifying with particularity the construction materials furnished by Pittsburgh to Precision for use in the Reformed
[ 371 Pa. Super. Page 523]
Presbyterian Home job.*fn3 Precision performed some of the interior finishing work on the Home but was unable to complete its subcontract with Uhl. As a result of Precision's default, Uhl undertook the completion of Precision's subcontract.
On March 22, 1983, Pittsburgh filed a complaint against Uhl and Transamerica, seeking $42,000.00 for construction materials supplied by Pittsburgh to Precision for the Presbyterian Home job. Pittsburgh's cause of action was based upon the labor and material payment bond which Transamerica had issued to Uhl. Uhl and Transamerica brought Precision and Fidelity into the lawsuit as additional defendants. Thereafter, Uhl paid the $42,000.00 claim to Pittsburgh and received an assignment of Pittsburgh's claim. Trial Ct. Order, 10/3/84. On December 18, 1985, a non-jury verdict was entered by the Allegheny Court of Common Pleas, holding Fidelity liable to Uhl and Transamerica in the amount of $55,490.00.*fn4 Fidelity filed a motion for post-trial relief, challenging its obligation to pay the $42,000.00 in construction material cost. Fidelity contended that the labor and material bond was ineffective due to lack of delivery and, in the alternative, that Pittsburgh had been fully paid by Precision for materials used in the Presbyterian Home job but had "misapplied the funds received from Precision Builders to other jobs rather than the job involved in this case to the prejudice of a surety." Appellee's Motion for Post-Trial Relief, 1/3/86.
On June 23, 1986, the trial court entered an amended non-jury verdict reducing Fidelity's liability to $13,490.00. In its memorandum opinion, the court concluded that Fidelity's labor and ...