Preferred Fire Protection, Inc. v. Joseph Davis, Inc.

954 A.2d 20, 2008 Pa. Super. 162, 2008 Pa. Super. LEXIS 1949, 2008 WL 2815517
CourtSuperior Court of Pennsylvania
DecidedJuly 23, 2008
Docket445 WDA 2007
StatusPublished
Cited by3 cases

This text of 954 A.2d 20 (Preferred Fire Protection, Inc. v. Joseph Davis, Inc.) 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
Preferred Fire Protection, Inc. v. Joseph Davis, Inc., 954 A.2d 20, 2008 Pa. Super. 162, 2008 Pa. Super. LEXIS 1949, 2008 WL 2815517 (Pa. Ct. App. 2008).

Opinions

OPINION BY

BOWES, J.:

¶ 1 Preferred Fire Protection, Inc. (“Preferred”) appeals from the August 8, 2006 order granting the motion for summary judgment in favor of Liberty Mutual [22]*22Insurance Company (“Liberty”), the commercial surety that posted a Labor and Materialmen’s Payment Bond (“Bond”) on behalf of Joseph Davis, Inc. (“JDI”), the general contractor, in connection with a contract between Preferred and JDI for the installation of a fire protection sprinkler system for a parking garage project. We reverse and remand.

¶ 2 The trial court provided the following factual and procedural history in this matter:

The case was commenced by Preferred filing a complaint against Joseph Davis, Inc. (hereinafter “JDI”) alleging breach of contract, and Liberty, as it had posted a Labor and Materialmen’s Payment Bond (hereinafter “Bond”) on behalf of JDI. Preferred entered into a sub-contract with JDI on February 9, 2001, pursuant to which Preferred agreed to install a fire protection [sprinkler] system in the Northshore parking garage (hereinafter “parking garage”) located in the Northside area of Pittsburgh, Pennsylvania. JDI entered into a prime contract with the owner of the parking garage, the Sports and Exhibition Authority of Pittsburgh and Allegheny County (hereinafter “SEAP”). Under the terms of its agreement, JDI obtained a payment bond from Liberty. Thereafter, by way of a subcontract order, hereinafter referred to as “purchase order” dated February 9, 2001, Preferred agreed to be the subcontractor for JDI and furnish labor, materials, equipment and design drawings to install a sprinkler system in the parking garage as a subcontractor to JDI for a total cost of $79,500. Simultaneously, with the execution of the purchase order, Preferred and JDI entered into a construction contract (hereinafter “subcontract”) which incorporated the purchase order and delineated the terms and conditions of the agreement.
Prior to the commencement of work on the parking garage and sprinkler system, Preferred was required to, and did obtain a sprinkler permit from the City of Pittsburgh Bureau of Building Inspection. Both the application and the sprinkler permit specifically indicate that the location of Preferred’s work would be on the ground through the eighth floor of the parking garage. It also clearly indicated on the sprinkler permit that Preferred was responsible for scheduling a final inspection by the Bureau of Building. Inspection and failure to do so could result in a substantial fine.
Based on the payment application that was submitted by Preferred to JDI on March 15, 2001, Preferred commenced work on the parking garage’s sprinkler system on about February 2001, and had completed its scope of work under the subcontract at the time the payment application was submitted. Specifically, this payment application included payment in full for the amount of the original contract sum of $79,500 and one change order. On March 27, 2001, Preferred submitted another payment request to JDI requesting payment for change orders numbers 2-5. Preferred’s own documentation establishes that [another change order] was discovered on September 21, 2001, six months after submitting its initial payment application. Preferred then submitted a second payment application solely requesting payment on change orders numbers 2-6 in the amount of $36,433.90. Once again this payment application clearly indicates that Preferred had completed its initial scope of work under the subcontract and work relevant to change orders 1-6 and was entitled to be paid in full by JDI prior to or at that time. Moreover, it is impor[23]*23tant to note that all of the change orders were requested by Preferred through the period of March 15, 2001 through April 3, 2001. On October 16, 2001, Preferred finally received a partial payment from JDI in the amount of $71,550. Apparently this payment was only for the original contract sum and did not account for any change order work that the Preferred had requested to be paid for, which totaled $43,093. On May 14, 2002, Preferred then submitted a statement to JDI that reflected the October 16, 2001 payment and requested payment for the unpaid change orders. On February [28], 2003, Preferred sent a letter to Liberty stating that the substantiated date of completion of the project was October 4, 2001. The complaint was then filed May 18, 2004.
Liberty brought a Motion for Summary Judgment alleging that Preferred’s complaint against Liberty was time barred and should be dismissed with prejudice as a matter of law. We agreed and entered our Order on August 8, 2006[, granting summary judgment in favor of Liberty]. Neither party appealed our Order at that time. On February 16, 2007, a praecipe for default judgment as to JDI was filed. On March 21, 2007, [Preferred] filed their Notice of Appeal.

Trial Court Opinion, 6/21/07, at 1-3.

¶ 3 In holding that Preferred’s action against Liberty was time-barred, the trial court relied on Section 194 of the Public Works Contractors’ Bond Law (“Bond Law”), 8 P.S. § 194(a),1 and our Supreme Court’s decision in Centre Concrete Co. v. AGI, Inc., 522 Pa. 27, 559 A.2d 516, 518 (1989), which held that the aggrieved party “had one year from the expiration of the statutory ninety day waiting period to bring suit” on the payment of the bond claim. The trial court noted that Preferred alleged “that the cause of action accrued on June 18, 2003, when it contends it last performed work when the sprinkler system was re-tested and re-inspected.” Trial Court Opinion, supra at 5. The court, however, concluded that pertinent documentation, including Preferred’s February 28, 2003 letter to Liberty, indicated that the date of substantial completion was October 4, 2001, and that “the need for retesting was a result of the delay in renting the adjoining space and had nothing to do with Preferred performing any type of work.” Id. at 6. The court held, “Preferred’s cause of action accrued on or before October 4, 2001, when the work was substantially completed” and accordingly, must have been filed on or before January 4, 2003. Id. at 5-6. As Preferred initiated this lawsuit on May 18, 2004, the trial court granted summary judgment in favor of Liberty.

¶ 4 On appeal, Preferred raises the following two issues:

[24]*241. Did the trial court err by entering summary judgment in favor of Liberty Mutual Insurance Company (“Liberty Mutual”), despite the presence of genuine material issues of disputed fact concerning the date on which work was completed by appellant on the bonded construction project for purposes of the limitation of actions provision contained in the liberty mutual payment bond?
2. Did the trial court err by failing to construe the limitation of actions provision contained in the Liberty Mutual payment bond most strongly against Liberty Mutual as a contract surety in the business of providing such bonds for compensation?

Preferred’s brief at 4.

¶ 5 Our review focuses on whether the trial court properly granted summary judgment, and our standard is well-settled.

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Preferred Fire Protection, Inc. v. Joseph Davis, Inc.
954 A.2d 20 (Superior Court of Pennsylvania, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
954 A.2d 20, 2008 Pa. Super. 162, 2008 Pa. Super. LEXIS 1949, 2008 WL 2815517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preferred-fire-protection-inc-v-joseph-davis-inc-pasuperct-2008.