Grimme Combustion, Inc. v. Mergentime Corp.

867 A.2d 602, 2005 Pa. Super. 30, 2005 Pa. Super. LEXIS 27
CourtSuperior Court of Pennsylvania
DecidedJanuary 24, 2005
StatusPublished
Cited by2 cases

This text of 867 A.2d 602 (Grimme Combustion, Inc. v. Mergentime Corp.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grimme Combustion, Inc. v. Mergentime Corp., 867 A.2d 602, 2005 Pa. Super. 30, 2005 Pa. Super. LEXIS 27 (Pa. Ct. App. 2005).

Opinion

OPINION BY

FORD ELLIOTT, J.:

¶ 1 This is an appeal brought by Insurance Company of North America, Inc. (“INA”), and Travelers Casualty & Surety Company (“Travelers”) as successor in interest to United Pacific Insurance Company (“United Pacific”). The issue this appeal presents is whether the trial court erred when it found that a supersedeas bond Mergentime Corporation (“contractor”) and INA procured in 1995 from United Pacific remained in force in December of 2000 under the facts this case presents. Finding no error, we affirm. In order properly to address the issues this appeal raises, we find it prudent first to set forth the lengthy procedural history of the case.

Plaintiff/Appellee Grimme Combustion, Inc. instituted the action in July of 1987 to recover damages for alleged breaches of contract by defendant/Appellant Mergentime, a general contractor retained by the Pennsylvania Department of Transportation (PennDOT) to undertake a highway construction project. Appellee was to provide repair and reconstruction services for deteriorated concrete substructures supporting portions of the Schuylkill Expressway. In February of 1985, after submitting four proposals, Appellee obtained the contract to supply the necessary labor, equipment and materials at three locations. Appellant Mergent|me’s work, and thus Appellee’s, was to be performed in stages between March 1,1985, and May 30, 1986. Appellant Insurance Company of North America (INA) acted as surety in providing a payment bond covering the whole project for Appellant Mergentime, who was alleged to have caused delays and otherwise interfered with Appellee’s operation, which, as a result, was not completed until December 19,1986.
Prior to trial, Appellants appealed to this Court on the basis that the trial court improperly overruled their preliminary objections. The appeal was quashed as interlocutory, and the Pennsylvania Supreme Court denied Appellants’ Petition for Allowance of Appeal. (Grimme / ).[Footnote 1] Thereafter, Appellants answered Appellee’s complaint, also filing new matter and a counterclaim. After Appellee replied, Appellants sought to dismiss the Complaint for lack of subject matter jurisdiction and failure to join an indispensable party, PennDOT. The trial court agreed and dismissed the case, but was reversed by this Court on appeal. (Grim-me //).[Footnote 2] Again the Pennsylvania Supreme Court denied allocatur, and the matter returned to the trial court for disposition on the merits.
After rendering a verdict for $688,699.94[Footnote 3] in favor of Ap-pellee, the court added prejudgment interest in the amount of $339,161.05 for a total award of $1,027,860.99. Appellants’ post trial motions were denied, and they appealed for the third time to this Court, which vacated in part, and remanded' for further proceedings. (Grimme III ).[Footnote 4] Specifically, in addressing Appellants’ claims on appeal, we ruled that: 1) the surety, Appellant INA, should not be held liable for any delays caused by Mergentime; 2) [605]*605although Mergentime ‘failed to perform an essential matter necessary to the prosecution of the work,’ id. at 18, specifically ‘its duty to coordinate with PennDOT to ensure that the sounding and marking of repair areas was completed in a timely and orderly fashion,’ id., Mergentime was not required under the terms of the contract to allow Appel-lee access to worksites from the roadbed as part of its duty to provide reasonable access, id. at 18; 3) the trial court did not err in relying on the total cost method to compute damages; 4) the contract provision concerning ‘no delay damages’ was inoperative because of Mergen-time’s dereliction with regard to Penn-DOT; and 5) the trial court ‘failed to demonstrate that it applied the proper legal standard or to explain the circumstances it considered in [awarding prejudgment interest on the entire verdict.]’ Id. at 20. We remanded so that the trial court might apply the proper standard to its award of prejudgment interest, that is, the standard enunciated in Frank B. Bozzo, Inc. v. Electric Weld Division of Fort Pitt Division of Spang, [345 Pa.Super. 423,] 498 A.2d 895 (1985), ‘make findings of fact and conclusions of law as to the delay, and determine whether compensation for that delay should be part of the final award.’ Grimme III, supra, at 21.
[Footnote 1] Grimme Combustion, Inc. v. Mergentime Corporation and Insurance Company of North America, [385 Pa.Super. 260,] 560 A.2d 793 (1989), appeal denied, [528 Pa. 611,] 596 A.2d 157 (1989).
[Footnote 2] Grimme Combustion, Inc. v. Mergentime Corporation and Insurance Company of North America, [406 Pa.Super. 620,] 595 A.2d 77 (1991), appeal denied, [530 Pa. 644,] 607 A.2d 254 (1992).
[Footnote 3] Of this sum, $47,630.96 and $17,736.64, representing the unpaid contract balance and a 10% escalation clause respectively, were liquidated damages, while the balance was unliqui-dated.
[Footnote 4] Grimme Combustion, Inc. v. Mergentime Corporation and Insurance Company of North America, 695 A.2d 443 (Pa.Super.1997) (unpublished memorandum), appeal denied, [550 Pa. 706,] 705 A.2d 1309 (1998).

Grimme Combustion, Inc. v. Mergentime Corporation and Insurance Company of North America, Nos. 138 and 844 EDA 2001, unpublished memorandum at 2-4 (Pa.Super. filed February 13, 2002)1 (“Grimme IV”), appeal denied, 571 Pa. 707, 812 A.2d 1230 (2002).

¶ 2 Specifically, the order this court entered in Grimme III provided:

We vacate the judgment to the extent that it included (1) damages against the surety for increased labor and materials costs occasioned by Mergentime’s alleged delay, (2) damages against Mer-gentime for breaching its duty to provide Grimme with reasonable access [to the construction site from the roadbed], and (3) prejudgment interest. We remand for proceedings consistent with this memorandum.

Grimme III at 22-23.

In December of 1998, the trial court filed an opinion pursuant to the remand instructions. In February of 2000, the trial court filed a Supplemental Opinion in response to Appellants’ ‘Motions for Post Trial Relief,’ challenging the December 1998 Opinion, and in November of 2000, the trial court filed a second [606]*606supplement to address yet more ‘post trial motions’ challenging the February 2000 Opinion. A Notice of Appeal was lodged following the consistent depial of these motions.[Footnote 5]
[Footnote 5] On June 6, 2001, the trial court filed yet a fourth Opinion, this time in response to an appeal filed by Appellee from the denial of its Application to Enforce Liability on the appeal bond issued by Appellant INA. This appeal was consolidated with the instant one filed by Appellants Mergentime and INA. Appellee concedes in its Brief the accuracy of the trial court’s ruling that the matter is not ripe for review, and states its intention not to pursue the appeal.

Grimme IV, Nos.

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867 A.2d 602, 2005 Pa. Super. 30, 2005 Pa. Super. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grimme-combustion-inc-v-mergentime-corp-pasuperct-2005.