Driscoll/Intech II v. Scarborough

3 Pa. D. & C.5th 279
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 12, 2008
Docketno. 1094
StatusPublished

This text of 3 Pa. D. & C.5th 279 (Driscoll/Intech II v. Scarborough) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Driscoll/Intech II v. Scarborough, 3 Pa. D. & C.5th 279 (Pa. Super. Ct. 2008).

Opinion

SHEPPARD JR., J,

Presently before the court are preliminary objections filed by Edmund C. Scarborough, International Bonding & Construction Services Inc. (IBCS), and First Mountain Bancorp (FMB) (collectively defendants) seeking dismissal of all counts in the complaint except Count II (breach of bond) against Scarborough. For the reasons discussed, defendants’ preliminary objections are sustained, in part, as to Count I (as to IBCS and FMB), and Counts II, IV, V, VI, VII, and VIII.

BACKGROUND

On October 31,2005, plaintiff Driscoll/Intech II (D/I)1 entered into a subcontract agreement with Larry C. Mc-Crae Inc. McCrae was to be the electrical subcontractor on a project known as “Symphony House Mixed Use Facility” (project). The subcontract required that McCrae [281]*281provide D/I with a performance and payment bond in the amount of $6,414,323, the value of the subcontract.

On March 15,2006, defendant Scarborough2 provided D/I with the contractually required bond on behalf of McCrae. The bond lists Scarborough as the surety,3 Mc-Crae as the principal, and D/I as the owner/obligee. The bond provides that McCrae and Scarborough are jointly and severally bound to D/I for the performance of the subcontract.4 As a condition to the bond taking effect, a trust was to be created in the amount of the bond. Thus, Scarborough pledged $6,414,323 worth of assets in an irrevocable trust as collateral, with FMB5 serving as trustee.

In March of 2007, D/I discovered that McCrae experienced financial difficulty and had not paid for labor and materials for its work on the project, which violated the subcontract. In response, D/I informed McCrae, Scarborough, and IBCS6 that a breach of the subcontract had occurred and that D/I was considering declaring McCrae in default under the subcontract. Upon notification, Scarborough and IBCS authorized payments to McCrae of the remaining subcontract funds in order to continue work on the project.

[282]*282After continuous financial difficulty resulting in defaults on the subcontract by McCrae, D/I negotiated a liquidating agreement, and later two amendments,7 to the subcontract. Scarborough and IBCS were provided notice and did not object to any agreements or amendments. Under the second amendment, D/I had the option to advance funds, after payment by the owner, to McCrae for some or all of the “cost events”8 so as to allow Mc-Crae to remain viable on the project. Ultimately, D/I did advance certain funds to McCrae as per this agreement.

Finally, on July 31, 2007, D/I issued a formal notice to McCrae, Scarborough, Scarborough’s counsel, and IBCS of default on the subcontract, due to McCrae’s continuous financial difficulty. And on August 8, 2007, D/I issued a formal notice of termination effective August 11, 2007 to McCrae, Scarborough, and FMB.

After providing these notices, D/I requested a meeting with Scarborough on August 13, 2007, to discuss plans for completion of the surety’s obligations. However, D/I alleges that the meeting was unilaterally cancelled by Scarborough in order to allow him time to “investigate the causes” surrounding the default and termination of McCrae.

IBCS also alerted D/I via letter of its commencement of an investigation into the claim on behalf of Scarborough. D/I alleges that IBCS’ letter contained gross and [283]*283intentional factual errors and improper conclusions, all in an attempt to deceive and extract money from D/I.9 Finally, on September 10,2007, the surety denied liability under the bond and no payments were made to D/I.

D/I instituted this litigation on September 25, 2007, alleging breach of contract, breach of bond, fraudulent misrepresentation, negligent misrepresentation, violation of good faith and fair dealing, alter-ego liability, and requesting equitable relief. On October 26,2007, defendants filed the preliminary obj ections that are now before the court, seeking dismissal of the complaint based upon the legal insufficiency of Counts I, II, VI, VII, and VIII and the “gist of the action” doctrine for Counts IV and V.10

DISCUSSION

In considering preliminary objections, “[A] 11 material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review.”11 “The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.”12 Any doubts as to whether a demurrer should be sustained, shall be resolved in favor of overruling it.13 “In ruling on preliminary objections, the focus of the inquiry is the [284]*284pleadings as a court must sustain preliminary objections only where it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief.” 14

I. IBCS and FMB Are Not Parties to the Subcontract

In Count I, D/I asks the court to find that the subcontract, bond agreement, and trust agreement merge together as a single agreement in order to hold the defendants, all of which are not parties to the subcontract itself, obligated to D/I under the subcontract. The court agrees that the subcontract, bond agreement, and trust merge into one overall agreement, but refuses to hold certain parties accountable for obligations not bargained for (contemplated by such parties).

“If contracting parties choose, they may express their agreement in one or more writings and, in such circumstances, the several documents are to be interpreted together, each one contributing (to the extent of its worth) to the ascertainment of the true intent of the parties.”15 Section 1 of the performance bond states:

“The contractor (McCrae) and the surety (Scarborough), jointly and severally, bind themselves, their heirs; executors, administrators, successors and assigns to the Owner (D/I) for the performance of the construction contract (subcontract), which is incorporated herein by reference.” (parenthetical and emphasis added)

[285]*285Because the subcontract itself specifically required a performance and payment bond and said bond includes the above provision, specifically referencing the underlying subcontract, the court finds that the subcontract is incorporated into the bond. Although the trust is not “created” in the bond agreement itself, but is merely listed as a requirement for the bond’s effectiveness,16 the court finds that the trust is incorporated into the bond itself because of the interdependence and interrelatedness between the two agreements.

Having established integration, the court now addresses which parties are held liable under the terms of the subcontract. Under ¶1 of the performance and payment bond, Scarborough obligated himself to D/I for McCrae’s performance under the subcontract. However, the same is not true for IBCS and FMB. IBCS is merely listed in the “affidavit of individual surety”17

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Bluebook (online)
3 Pa. D. & C.5th 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driscollintech-ii-v-scarborough-pactcomplphilad-2008.