Defendants have moved this Court to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). According to the Complaint, Defendant, Dick Enterprises, Inc., was hired by the Pennsylvania Convention Center Authority (PCCA) as the prime contractor for the exhibit hall of Pennsylvania's Convention Center in Philadelphia. Defendants, American Casualty Company and Continental Casualty Company, were sureties to Dick for the construction.
In 1991, Dick entered into a subcontract agreement with Plaintiff, Allied Fire and Safety Equipment Company, whereby Plaintiff agreed to supply and install part of the fire protection systems for the Convention Center. Plaintiff is a New Jersey contractor engaged in the business of constructing fire protection systems. According to the Complaint, the Subcontract, among other things, required Dick or its subcontractors to construct ceilings from which Plaintiff was to hang the fire protection system, as well as walls through which Plaintiff would pass the system. The Complaint alleges that Plaintiff was only to construct the fire protection system in areas completed and released to it by Dick.
The Complaint alleges that in 1991, Plaintiff began work on the Convention Center, but Dick's coordination of Plaintiff's work was such that Plaintiff was forced to work in a sporadic, untimely, out of sequence, and otherwise unreasonable manner. Further, the Complaint alleges that the unreasonable requirements Dick had for Plaintiff hindered, interfered with, impeded, delayed, interrupted and disrupted Plaintiff's performance, which caused various damages to Plaintiff.
The Complaint alleges seven counts against all three Defendants. These counts are: (1) breach of contract, (2) quasi-contract, (3) negligence, (4) loss of bonding capacity, (5) final payment entitlement, (6) payment for extras and (7) declaratory judgment. Defendants move to dismiss the Complaint on the ground that, as a matter of law, Plaintiff cannot state a claim under any of the counts.
In considering a 12(b)(6) motion to dismiss, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). We shall address each of Plaintiff's claims in turn.
COUNT ONE -- BREACH OF CONTRACT
1. Coordination Responsibilities
Defendants' primary argument why Count One must be dismissed is based on the face of the Subcontract. Defendants argue that the Subcontract demonstrates that Plaintiff has no claim, and therefore, there is no set of facts upon which relief could be granted. Jacksonville Newspaper Printing Pressmen & Assistants' Union v. Florida Publ. Co., 340 F. Supp. 993, 995 (M.D. Fla. 1972), aff'd, 468 F.2d 824 (5th Cir. 1972), cert. denied, 411 U.S. 906, 36 L. Ed. 2d 196, 93 S. Ct. 1531 (1973). Defendant points to language in the Subcontract which states, the "subcontractor shall coordinate his work with the work of other trades." Subcontract, art. 1, P 7.
Because of this language, Defendants assert, Dick plainly had no duty to coordinate Plaintiff's work. Because Count One alleges that the damages Plaintiff suffered were caused by Dick's failure to coordinate Plaintiff's work, Defendants argue that the Count must be dismissed.
Plaintiff supports Count One with the argument that Dick had both express and implied duties to ensure that Plaintiff had reasonable access to its work areas and to see that the work of others did not unduly hinder, delay or render more expensive the performance of Plaintiff's work. Plaintiff finds support for its express duty argument in the terms of the prime contract between Dick and the PCCA. That contract specifically requires that the "Contractor shall ensure that all Subcontractors work in a harmonious and efficient manner and shall coordinate the work of all Subcontracts," and that the "Contractor shall also be responsible for the coordination of the work of the Trades, Subcontractors, Suppliers and Materialmen." Contract, art. 13(A & B).
Plaintiff supports its implied duties argument with case-law holding that "the prime contractor implicitly promises to provide such working conditions as may be necessary to allow its subcontractor to carry out its obligations under the contract." See e.g. United States v. William F. Klingensmith, Inc., 216 U.S. App. D.C. 408, 670 F.2d 1227, 1230 (D.C. Cir. 1982); E.C. Ernst, Inc. v. Koppers, Co., 476 F. Supp. 729, 754-56 (E.D. Pa. 1979), aff'd in part, rev'd in part on other grounds, 626 F.2d 324 (1980). In contrast, Defendants argue that this Court cannot imply any duties into the contract when the contract includes express provisions to the contrary. USX Corp. v. Prime Leasing, Inc., 988 F.2d 433, 438 (3d Cir. 1993) ("one can invoke 'implied' terms only when there are no express terms in the contract relating to the particular issue").
We find that Plaintiff could prove a set of facts to demonstrate that Dick had an implied duty not to hinder Plaintiff's work, and that Dick did, in fact, hinder the work to Plaintiff's detriment. By so finding, we do not imply a term that is already covered by an express term. This is because the express term on which Defendant relies concerns coordination of work, whereas this Court would imply a term imposing affirmative duties not to interfere. The fact is that these two duties are not coextensive. It is easy to imagine a situation where, for example, a contractor would coordinate a subcontractor's work to take place after all necessary items have been installed, yet could still hinder that subcontractor's work by, for example, preventing access to the work site.
Likewise, several courts interpreting government contracts have expressly addressed the situation where the contractor's contract requires it to coordinate its work with those of other contractors, yet these courts have found the owner liable, nonetheless, for hindering the contractor's work. In re Jacobson & Co., GSBCA No. 5605, 1980 Westlaw 3281 (June 18, 1980, BCA); In re Pierce Assoc., GSBCA No. 4163, 1977 Westlaw 1976 (Aug. 18, 1977 BCA); Paccon, Inc. v. United States, 399 F.2d 162, 185 Ct. Cl. 24 (Ct. Cl. 1968). For these reasons, we do not dismiss Count One for failure to state a claim upon which relief can be granted.
2. EXCULPATORY CLAUSES
Dick argues that the Subcontract includes an exculpatory clause that serves to relieve it of any liability arising from delays. This clause, in full, states:
If the Subcontractor is delayed in the prosecution of its work due to the acts of the Owner and/or its agents and the Subcontractor suffers delay damages therefrom, the Contractor agrees to transmit to the Owner any claims submitted to it by the Subcontractor. The Owner's decision regarding such claims will be final and binding upon Subcontractor. It is agreed that in no event will the Contractor be liable for Subcontractor's claims for delay; the Contractor under this paragraph merely acts as a conduit to provide the Subcontractor access to the Owner to seek reimbursement for damages incurred for delays caused by the Owner and/or its agents.