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R. W. SIDLEY, INC. v. UNITES STATES FIDELITY & GUARANTY CO

January 13, 2004.

R.W.SIDLEY, INC., Plaintiff
v.
UNITES STATES FIDELITY & GUARANTY COMPANY, Defendants



The opinion of the court was delivered by: KIM GIBSON, District Judge

PRETRIAL ORDER (JURY TRIAL)

AND NOW, this 7th day of January, 2004, the Court HEREBY ORDERS as follows:
A. Final Pretrial Orders:
1. Jury Selection & Trial. Jury selection and trial are set for the 15th of March, 2004, at 9:00 a.m., 104 Penn Traffic Building, 319 Washington Street, Johnstown, PA 15901.
2. Exchange of Witness Lists and Exhibits.
a. Plaintiff shall serve and submit to the Court its list of trial witnesses, listing separately the witnesses it will call and the witnesses it may call if needed (other than purely for impeachment). For each witness listed, Plaintiff shall provide an offer of proof explaining the substance of the testimony of the witness. The offers of proof shall be no more than one (1) double-spaced page with twelve (12) point font. Plaintiff's witness list and offers of proof shall be due one (1) month before trial
b. Defendant shall serve and submit to the Court its list of trial witnesses, listing separately the witnesses it will call and the witnesses it may call if needed (other than purely for impeachment). For each witness listed Defendant shall provide an offer of proof explaining the substance of the testimony of the witness. The offers of proof shall be no more than one (1) double-spaced page with twelve (12) point font. Defendant's witness list and offers of proof shall be due three (3) weeks before trial.
c. All exhibits must be exchanged and marked in advance of trial. Copies are to be provided for the Court in binders properly labeled ("Plaintiff's Exhibits" and "Defendant's Exhibits") at least two (2) days in advance of trial, unless otherwise ordered by the Court. In addition, counsel shall be prepared to compile and agree to a single exhibit binder ("Joint Exhibit Binder") containing the most significant exhibits that will be submitted to the jury at the close of trial. Counsel shall plan to submit twelve (12) copies of the Joint Exhibit Binder (eight (8) for the jury and four (4) for the Court). Each Joint Exhibit Binder shall contain twenty (20) lined sheets of lined notebook paper provided for the jury to take notes.
d. Voluminous data shall be presented by summary exhibits pursuant to Fed.R.Evid. 1006, and voluminous exhibits shall be redacted to eliminate irrelevant material (which shall remain available for examination by opposing counsel). Where copies of documents are offered, the originals shall be available for examination, unless waived by stipulation.
3. Designation of Discovery Excerpts to be Offered at Trial. The parties shall submit designation of excerpts from depositions, interrogatory answers, and responses to requests for admission to be offered at trial (other than for impeachment) at least two (2) weeks before trial.
4. Motions. The parties shall file all motions in limine, including motions under Fed.R.Evid. 104(a) and motions to limit or sever issues, together with supporting briefs or memoranda of law at least two (2) weeks before trial. Responses shall be filed at least ten (10) days before trial. All briefs supporting or opposing such motions are limited to five (5) pages.
5. Proposed Jury Instructions & Verdict Slips. Counsel shall meet in an attempt to agree on a joint set of proposed jury instructions. After said meeting, and on or before 1st of March, 2004, counsel shall file a unified (meaning one) combined set of proposed instructions, along with computer disk/CD containing the instructions in WordPerfect format. The filed set of instructions shall include both the agreed upon instructions and the proposed instructions to which the parties have not agreed. Each agreed upon instruction shall include the following notation at the bottom: "This proposed instruction is agreed upon by the parties." Each instruction to which the parties have not agreed shall indicate at the bottom the name of the party proffering the instruction, Proposed instructions by different parties shall be grouped together.
A charging conference will be held, at which time a ruling will be made on each point for charge and a copy of the Court's proposed charge will be supplied to counsel. Counsel are required to state objections to the proposed charge at the charging conference and to supply the alternate language, together with case authority.
The Court generally will not accept separate proposed jury instructions from the parties.
6. Proposed Voir Dire. Counsel are permitted to supplement the standard questions provided that the proposed supplemental voir dire questions are submitted to the Court in writing at least ten (10) days before trial. Any supplemental voir dire questions approved by the Court will be asked by the Courtroom Deputy.
7. Joint Stipulations. The parties shall file joint stipulations at least ten (10) days before trial. All possible stipulations shall be made as to:
a. Facts;
b. Issues to be decided;
c. The authenticity and admissibility of exhibits;
d. Expert qualifications and reports;
e. Deposition testimony to be read into the record; and
f. A brief statement of the claims and defenses to be read to the jury to introduce the trial.
Counsel shall meet at a mutually convenient time and place to produce the joint stipulation in time for filing as ordered.
8. Final Pretrial Conference. A final pretrial conference shall be held at least one (1) week before trial at 104 Penn Traffic Building, 319 Washington Street, Johnstown, PA 15901.
9. Courtesy Copies. Courtesy copies of all items required to be filed and served pursuant to this order shall be delivered to chambers forthwith.
B. Trial Procedure
1. Hours. Court is in trial session, unless otherwise ordered by the Court, Monday through Friday, 9:30 a.m. to 4:30 p.m. with breaks where appropriate. All counsel are expected to be in their seats and ready to commence at the appointed times.
2. Exhibits. Because counsel will have previously marked and exchanged all exhibits and provided a copy to the Court, it will not be necessary during the trial to show exhibits to opposing counsel prior to using them.
3. Approaching the Witness. It will not be necessary for counsel to request permission to approach a witness.
4. Opening and Closing Statements. Up to one hour is permitted to each side for opening and closing statements, depending on the complexity of the case. Normally not more than one-half hour is required for each side. Counsel may use exhibits or charts in opening argument provided that the same have been provided to opposing counsel beforehand and either agreement was reached or the Court has ruled upon the matter.
5. Side Bar Conferences. The Court believes that counsel should be considerate of the jurors' time. Consequently side bar conferences are highly disfavored because they waste the jury's time and unduly extend the length of the trial Counsel will meet with the Court at 9:00 a. m. each day (or earlier if necessary to ensure that trial commences on time) to raise points of evidence or other issues that would otherwise necessitate a side bar conference. Failure to raise the issue at that time will generally result in a disposition of the in-court objection in the presence of the jury, If necessary, counsel and the Court may amplify their objections and rulings on the record after the jury has been excused for a break, for lunch or for the day.
In addition, it is expected that counsel will anticipate evidentiary issues requiring lengthy argument and will take up such matters out of the presence of the jury. The Court will be available at 9:00 a.m. each morning to address such issues. It is the responsibility of counsel to notify other counsel of the need for a conference at 9:00 a.m. and all other counsel will be expected to be there at the appointed time for argument. THE COURT WILL NOT DELAY THE PROCEEDINGS TO RESPOND TO LAST MINUTE REQUESTS FOR CONFERENCES TO DISCUSS MATTERS WHICH, IN THE EXERCISE OF REASONABLE DILIGENCE, COULD HAVE BEEN HEARD AT THE MORNING CONFERENCE.
6. Witness List. Prior to the commencement of the trial, counsel shall provide opposing counsel with a complete witness list, and shall provide opposing counsel throughout the trial with the actual list of the next day's witness by 5:30 p.m. in the order they are expected to be called. The same procedure will be employed by both sides at the end of each trial day. Counsel should be sure PGPage 7 that they have adequate witnesses to fill the time allotted each day.
7. Note Taking. The jury shall be permitted to take notes.
8. Juror Questions. Jurors are permitted to ask questions of witnesses during the trial. Jurors are instructed that if they have any questions they are to write them on a piece of paper, fold the paper so that the question cannot be read by any other juror, and pass the question to the Juror in seat number one. The Juror in seat number one is to raise his/her hand to alert the Court that a question exists, Once examination of a witness is complete, the Judge will hold a brief side bar meeting with counsel to review the question. Any objections are noted for the record. The Judge will either grant an objection and excuse the witness or ask the witness the question. The question is then filed and made part of the record. Followup questions by counsel will be permitted.
9. Jury Questions During Deliberations. During deliberations all written questions submitted by the jury are supplied to counsel. Counsel and the Court will meet to discuss and hopefully agree on a reply. The jury is then summoned to the Courtroom in most cases and the verbal reply is given to them. A written reply is provided where appropriate.
10. 10. Jury Instructions. A copy of the jury instructions shall be provided to the jury for use during its deliberations.
11. 11. Jury Access to Exhibits. Unless otherwise advised by counsel, it will be assumed that all admitted exhibits will be sent out with the jury. Page 1

  MEMORANDUM OPINION AND ORDER

  This case comes before the Court for consideration of Defendant's Motion for Partial Summary Judgment (Document No. 23) and Plaintiff's Reply in Opposition to Defendant's Motion for Partial Summary Judgment (Document No. 27). For the following reasons, Defendant's Motion for Partial Summary Judgment is granted.

  I. FACTUAL AND PROCEDURAL BACKGROUND

  Plaintiff, R.W. Sidley, Inc., filed this action against the Defendant, United States Fidelity & Guaranty Company("USF&G") on December 28, 2001. (Document No. 1). Plaintiff's claims arise out of a construction project undertaken in Allegheny Township, Altoona, Pennsylvania.

  In July of 2000, the general construction contractor, Lawruk Builders, Inc., a Pennsylvania corporation, entered into an agreement with Blair County Convention Center & Sports Facility Authority ("Authority") for the construction of a project known as the Blair County Convention Center Parking Garage ("Project"). (Document No. 5). Pursuant to the provisions of the agreement and the Public Works Contractors Bond Law of 1967 ("Act"), Lawruk was required to provide a payment bond. (Document No. 7). On July 26, 2000, Lawruk purchased a joint and several Payment Bond ("Bond") from Defendant, USF&G. (Document No. 7). USF&G acted Page 2 as a surety on the Project. Id.

  On September 12, 2000, Plaintiff entered into a Subcontract Agreement ("Subcontract") with Lawruk to supply materials and labor to Lawruk in the nature of precast concrete components and erection thereof in connection with the Project. (Document No. 5). The amount of the Subcontract Agreement between Plaintiff and Lawruk was the sum of $2,476,000.00. (Document No. 5).

  Plaintiff contends that the materials supplied for the Project were of good and merchantable quality, and Plaintiff further argues that the precast concrete components were erected in a timely, workmanlike manner. (Document No. 5). Conversely, Defendant alleges that Plaintiff supplied the materials in an untimely manner, and that the materials were not of good mercantile quality necessitating repairs and rework. (Document No. 7).

  At the time Plaintiff initiated this civil action, Plaintiff alleged that the remaining balance due Plaintiff from the general contractor, Lawruk, was $503,296.00. (Document No. 5). During the ongoing litigation of this civil action, however, Lawruk issued three separate payments to Plaintiff between May of 2002 and August of 2002. (Document No. 21). The total amount of these payments was $393,465.58. (Document No. 21). Plaintiff argues that Lawruk owes the remaining balance due on the Subcontract in the amount of $1 09, 830.62. (Document No. 21).

  On October of 2001, Plaintiff placed Defendant, USF&G, on notice that Lawruk failed to pay Plaintiff the requested amount alleged owed under the terms of the Subcontract. (Document No. 5). USF&G argues, however, that no sum is presently due Plaintiff because Lawruk incurred substantial backcharges as the result of Plaintiff's unsatisfactory job performance. (Document No. 7). Defendant has argued that no further payments are owing to Page 3 Plaintiff. (Document No. 22). To date, Lawruk made three subsequent payments to Plaintiff that were withheld as a result of backcharges allegedly incurred by Lawruk. Id. USF&G asserts that the payments not made to Plaintiff represent legitimate backcharges under the Subcontract. Id. Thereafter, Plaintiff initiated this civil action against USF&G.

  Plaintiff filed the following claims against USF&G pursuant to the Payment Bond: (1) Plaintiff is entitled to recover the full balance of its Subcontract with Lawruk totaling $109,830.62; (2) Plaintiff is entitled to recover damages for interest on the late payments at the rate of 1.5% per month and its unpaid Applications for Payment pursuant to the terms of the Subcontract between Lawruk and Plaintiff; (3) Plaintiff is entitled to recover a penalty amount at the rate of 1.0% per month on all outstanding amounts due pursuant to the Contractor and Subcontractor Payment Act, 73 P.S. § 501 et seq. ("Act") and/or the Commonwealth Procurement Code, 62 Pa.C.S.A. § 101, et seq. ("Code"); and (4) Plaintiff is entitled to recover attorneys' fees incurred in the course of this litigation pursuant to the Act and/or the Code. (Document No. 21).

  On July 15, 2003, Defendant filed a Motion for Partial Summary Judgment arguing that Partial Summary Judgment is proper for the following reasons:
First, under Pennsylvania law, [Plaintiff] may not recover from the surety under the payment bond "interest" or "finance charges" based on a provision of the subcontract between [Plaintiff] and the principal contractor, Lawruk. Second, a claim for attorneys' fees and interest penalties pursuant to the Pennsylvania Contractor and Subcontractor Payment Act is inapplicable to sureties, such as USF&G. Third, a claim for ...

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