1. Notice Provisions
First, the PCCA claims that Allied failed to follow Article 49 of the Prime Contract, which requires Allied to submit claims within ten days of the events giving rise to the claims. According to the PCCA, Allied submitted a letter on February 12, 1993, and the claims associated with this letter were for events occurring in 1991. The PCCA also claims that Allied stated that it would supply additional documentation but did not do so for more than seventeen months.
Nevertheless, we have already determined that Allied was not obligated to supply additional documentation when it was in bankruptcy, and that there is a factual issue as to whether Allied may have had difficulty supplying the documentation because of Dick's alleged interference. However, we have also held that Allied was required to adhere to the notice provisions when it was not in bankruptcy and not hindered by Dick. Accordingly, we hold that if Allied submitted claims before it went into bankruptcy, but the claims were for events occurring more than ten days prior to the submission of the claims, in violation of the notice provisions, those claims will be barred; however, this issue will be resolved at trial.
The PCCA claims that it entered into two releases with Dick and that these releases bar Dick from seeking indemnification from the PCCA for Allied's claims. The PCCA also claims that Allied accepted final payment in settlement of its claims and therefore this bars Allied from suing Dick.
With respect to the releases between it and Dick, the PCCA points to two documents, "Modification No. 1" and "Modification No. 2." Modification No. 1 was executed before Allied sued Dick but after Allied had apparently initiated some of its CORs. Modification No. 1 is apparently intended to release the PCCA from liability to Dick on all of Allied's claims except CORs 709D and 793D. Modification No. 2 was executed after Allied initiated its lawsuit against Dick and expressly notes that CORs 709D, 793D and 473D are unresolved. Therefore, the PCCA claims, after Modification No.2, only these three CORs, and an unidentified COR for Allied's sleeve claim, remained unresolved.
Dick responds to these arguments by stating that Allied collapsed all its claims into CORs 709D and 793D when it sued Dick, and therefore the PCCA is required to indemnify Dick for all Allied's claims since Modification No. 2 expressly excludes CORs 709D and 793D. Dick also cites deposition testimony of its Project Manager who states that the PCCA was aware of what Allied had done. See First-Part Def.'s Mem. in Resp. to PCCA's Partial Summ. Judg. Mot. at 16.
At first glance, it seems highly unlikely that the PCCA would first receive a release from Dick as to almost all of Allied's claims in Modification No. 1, and then knowingly re-assume the risk of liability as to those same claims in Modification No. 2, by assuming responsibility for a couple CORs in which Allied had subsequently collapsed previously released claims. Nevertheless, Dick does present testimony to this effect and it is possible that Dick refused to execute Modification No. 2 once it realized the magnitude of Allied's claims. The PCCA could then have agreed to Modification No. 2 so that it could at least settle other unresolved claims between it and Dick. Accordingly, we cannot construe the effect of the modifications as a matter of law and the PCCA cannot receive summary judgment on this ground.
The PCCA also argues that Allied released all its claims when it accepted monthly progress payments. The monthly progress payments contained a waiver of all claims arising before the date of the payment and since Allied did not modify the releases, the PCCA argues that Allied has waived its claims "with the exception of outstanding change order requests." The problem with the PCCA's argument is that its exception swallows the rule it would have us follow; the very problem is that none of the parties agree on which CORs were submitted before or after January 22, 1993, and which CORs were outstanding at which time. Accordingly, we cannot determine which claims Allied allegedly waived. We must therefore deny the PCCA's motion for summary judgment.
We have dismissed Allied's quasi-contract and negligence claims but the breach of contract and loss of bonding capacity claims remain.
With regard to Allied's breach of contract claims, we hold that Dick is not liable for Allied's sleeve installation costs, nor Allied's damages caused by Dick's failure to follow the schedule. Nevertheless, Allied may pursue claims for the delays caused by Dick's insistence that it submit additional drawings to PWI, if such insistence was an affirmative interference with the contract. Allied may also pursue its claims that Dick improperly received liquidated damages. However, in order to proceed with its breach of contract claims, Allied must show that it complied with the notice provisions, unless it was hindered in doing so by Dick, or was in bankruptcy at the time it was required to submit additional documentation.
With regard to Allied's loss of bonding capacity claim, we hold that Allied can assert this claim if it can show that these consequential damages resulted from the breach of the contract claims that have not been dismissed.
Finally, we hold that the PCCA is not entitled to summary judgment based on the releases it executed with Dick or the progress payments Allied accepted, since there are factual issues with regard to the scope of the releases and which CORs were outstanding at the time Allied accepted the progress payments.
An appropriate Order follows.
AND NOW, this 22nd day of August, 1997, upon consideration of Defendant Dick Enterprises, Inc.'s Motion for Summary Judgment, (Document # 76) and all the submissions of the parties thereto, it is hereby ORDERED as follows:
1. Count I of Allied Fire and Safety Equipment Company's Complaint is limited to Plaintiff's claim for delay damages and improperly withheld liquidated damages.
2. Counts II and III of Plaintiff's Complaint are DISMISSED.
FURTHER, upon consideration of the Third-Party Defendant, the Pennsylvania Convention Center Authority's Motion for Summary Judgment, and all the submissions of the parties thereto, said motion is hereby DENIED.
BY THE COURT:
J. Curtis Joyner, J.