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Boro Construction, Inc. v. Ridley School Dist.

March 8, 2010

BORO CONSTRUCTION, INC.
v.
RIDLEY SCHOOL DISTRICT
v.
BORO CONSTRUCTION, INC.
APPEAL OF: BORO CONSTRUCTION, INC.
BORO CONSTRUCTION, INC.
v.
RIDLEY SCHOOL DISTRICT
v.
BORO CONSTRUCTION, INC.
APPEAL OF: RIDLEY SCHOOL DISTRICT



The opinion of the court was delivered by: Senior Judge Kelley

Argued: September 17, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Boro Construction, Inc. (Boro) and Ridley School District (District) have filed cross appeals from the orders entered in the Court of Common Pleas of Delaware County (trial court) denying their motions for post-trial relief and entering judgment in favor of the District and against Boro on the complaint, and in favor of Boro and against the District on the District's counterclaims. We affirm.

On June 7, 1999, Boro and the District entered into contracts for general construction and electrical construction of a new high school building. See Reproduced Record (RR) at 836a-841a, 858a-863a. The sum due for completion under the General Construction Contract totaled $5,411,800.00, and the sum due for completion under the Electrical Contract totaled $4,599,000.00. Id. at 837a, 859a. Both contracts indicated that Boro would achieve substantial completion of the entire work under the contracts by August 15, 2002. Id.*fn1

RR at 838a, 839a, 860a, 861a (emphasis in original).

In turn, Article 9 of the General Conditions provided, in pertinent part:

9.3.1 At least fifteen days before the date established for each progress payment, the Contractor shall submit to the Construction Manager an itemized Application for Payment for Work completed in accordance with the schedule of values..

9.3.1.1 Such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives but not yet included in Change Orders.

9.6.1 After the Construction Manager and Architect have issued a Project Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents..

9.10.1 Upon completion of the Work, the Contractor shall forward to the Construction Manager a written notice that the Work is ready for final inspection and acceptance and shall also forward to the Construction Manager a final Contractor's Application for Payment. Upon receipt, the Construction Manager will forward the notice and Application to the Architect who will promptly make such inspection. When the Architect, based on the recommendation of the Construction Manager, finds the Work acceptable under the Contract Documents and the Contract fully performed, the Construction Manager and Architect will promptly issue a final Certificate for Payment stating that to the best of their knowledge, information and belief, and on the basis of their observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Construction Manager's and Architect's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled.

9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the by failing to pay the final sums due under both the General Construction Contract and the Electrical Contract. In particular, Boro alleged that although the District had paid approximately $10,000,000.00 under the contracts, the District owed Boro the following additional sums: (1) a remaining balance due on the General Construction Contract totaling $44,237.06; (2) a remaining balance due on the Electrical Contract totaling $13,295.20; (3) approved change orders under the Electrical Contract totaling $6,444.60; (4) monies lost due to the improper disposal and use of dumpsters on site by other contractors totaling $64,157.92*fn2 ; (5) damages for delay in completion of the project totaling $40,026.83*fn3 ; (6) costs for cellular telephone usage on site totaling $2,890.05*fn4 ; (7) costs for revising the building locator maps due to changes in the high school's room numbers totaling $4,751.25; and (8) costs for the installation of theatrical wiring outside the scope of the contract work totaling $72,026.89. The case was transferred to the trial court at the District's request.

On May 19, 2005, the District filed an answer to the complaint with new matter and counterclaims. In the counterclaims, the District sought damages totaling $27,736.02 for the costs of reinstalling doors and door hardware that had been improperly installed by Boro. The District also sought credit change orders owed by Boro totaling $10,981.02. In addition, the District sought attorney fees pursuant to the "no damages for delay" clause of Section 8.3.4 of the Supplementary Conditions which provided that they could be recovered based on Boro's claim for delay damages. See RR at 947a.*fn5

A non-jury trial was conducted before the trial court on July 5 through July 7, 2006. On November 6, 2006, the trial court entered a verdict in favor of the District and against Boro on the complaint, and in favor of Boro ...


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