*1 admission as to liability and appellant at no time attempted dispel to the court’s perception with respect to this issue. it Again, is therefore seemingly disingenuous for appellant complain to now of the court’s refusal to instruct the jury regard with liability theories of when in fact appellant induced the court to consider liability a nonissue.
Nevertheless,
respect
waiver with
to any challenge to the
charge
court below results from appellant’s failure to
265-66;
raise a timely objection.
id. at
Dilliplaine
See
v.
Lehigh
Trust
Valley
Company, 457 Pa.
Based upon foregoing, we affirm the order of court entering judgment. below
Order affirmed. COMPANY, UNITED PLATE GLASS DIVISION OF CHRO CORPORATION, Appellant, MALLOY AMERICAN INDUSTRIES, METAL TRIMS and the INC. Company. Travelers Insurance Superior Pennsylvania. Court of
Argued Oct.
Filed Feb. *2 Bobinis, Pittsburgh, appellant. for E. Charles Scott, appellee. for Pittsburgh, A. David HESTER, JJ. WIEAND, DEL SOLE and Before SOLE, Judge: DEL Appel- dismissal of the trial courts follows appeal
This directing judgment an filed to order exceptions lant’s Appellees. of both and favor Appellant against dispute a which devel- underlying action concerned Pittsburgh the construction a result of oped as The Common- Center, project. works public Convention Services, as of General Department wealth of (Brisco) as Company Brisco owner, Frank with contracted agreement an Brisco then entered “prime contractor”. Industries, (Metal) whereby Inc. Trims Metal Appellee, with window all metal and install supply obligated Metal was walls, doors, frames, glass, and for glazing project. Thereafter, Metal subcontracted some of its Appel- work to Appellee, (Travelers) lant. Travelers Indemnity Company provided performance payment bond in favor of the Services, Department required General Public Work Contractors’ Bond In seq. Law. et July 1982, Appellant brought against suit both Metal and $41,541.22, for alleged Travelers the amount to be the contract, unpaid plus balance under the interest and costs. A trial held non-jury was and the court found favor of Appellees. Subsequently, Appellant’s exceptions both were denied and the entered from judgment was which this appeal was filed. timely
Because the instant raises an issue involving the of a regulates statute which subdivisions, of political the affairs municipalities, local public authorities or corporation, we find that it is appropri- *3 ate to transfer this case to the Common- wealth Court. applicable
The section of the Judicial Code which estab- the jurisdiction provides: lishes of Commonwealth Court Appeals from the of Common Pleas Courts § (a) (b), General in Except provided subsection Rule.— the Commonwealth Court shall have exclusive jurisdic- appeals tion of from final orders of the courts of common in the pleas following cases: (4) government Local criminal civil and matters.— (i) All actions or in proceedings ... where is drawn question application, interpretation or enforcement of any;
(A) regulating political statute the affairs of subdivi- sions, and other local municipality authorities or other officers, public corporations employees or of the or agents thereof ... 762(a)(4)(i)(A).
42 Pa.C.S.A. added. Emphasis of Metal and in in favor entering judgment The trial court decision, finding that part, its in on its Travelers based statute of applicable by claim was barred Appellant’s limitations, to written supply that failed Appellant date the from the days notice to contractor within required by furnished as labor or materials was last 194(b). 8 P.S. Bond Public Works Contractors’ of the Bond Law The and/or interpretation Valley Forge Industries question was also drawn A.2d 1312 Const., Armand considering that specifically court was Valley Forge contained a statute of Bond portion of the Law limitations, and the court stated: Bond Law contains
The Public Works Contractors’ relationships between constructed set carefully executed works contracts parties public various to The law of this Commonwealth. governmental units First, protect it is purposes. designed main serves two assuring performance faithful contracting body by Second, reme- provides the law substitute the contract. who and materials supply for subcontractors labor dy by the protections from the who are excluded afforded omitted) An (citations Mechanics’ Lien Law of 1963. necessarily scheme will statutory of this required by act. existing and future bonds affect both Bond Works Contractors’ conclude that the Public We regulating the Assembly Law is an ‘act the General subdivisions, and other municipality of political affairs or the offi- public corporations local authorities or other *4 thereof, acting in their official cers, or agents employes ’ meaning Appel- 402 of the the of capacity, ... within § Thus, over this Act. lant Court Jurisdiction Court. the Commonwealth appeal properly lies with 58, 59, A.2d at 1315. 248 at 374 appli- which concern contains two issues The instant case of Appellant’s the question of Bond First is cation law. 8 P.S. requirements the notice compliance with § 232
Secondly, this case also requires application of the statute of limitations previously contained in the Bond Law.
Although the trial court ruled that the suit was untimely filed, 42 citing 5523(4), Pa.C.S.A. the appropriate statute § of limitations is that which was contained in the Bond Law. Co., In Manganas Printing Inc. v. Bucheit & Joseph Sons Co., 776, 1985, 601 F.Supp. D.C. it was held that a contrac- tors which incorporated bond Public 1967, Works Contractor’s Bond Law of seq., P.S. et § incorporated provision statutory they existed at the time If bond was executed. is bond executed after June 27, 1978, 5523, effective date of Pa.C.S.A. the one § year controls, statute of limitation found therein and the proceeding action or is if brought barred not within one from the time the year cause of action accrued. if However 27, is prior bond executed to June 1978 the application of (now 8 P.S. repealed) question, would be called into and the statute of limitations begin would to run as of the day performed last labor was or material supplied. was Bond this case specifically incorporates the 1967, however, Bond Law of the trial finding court made no as to the date the Bond was executed and the copy Nevertheless, Bond contained in the record is not dated. attached to the corporate Bond is the acknowledgement the Vice-President of Brisco. The acknowledgment is nota aby notary public 9, rized whose expired May commission 1978. This leads us to conclude that the document was prior executed some time to May Lending support to this conclusion is the of Attorney Power attached to the document, Bond April which was executed 1976. Since prior repeal we find that the Bond was executed to the of 8 therein, the statute of limitations contained that no provided action could be commenced after the expiration year of one from the on the last day which labor performed was or material controls. supplied, was
Although conclude that raises issues we involving application of the Bond an act whose
233 for the is a matter interpretation properly and application exer- Court we have considered whether Commonwealth since nei- powers to the case discretionary our decide cise con- jurisdiction. has to our We have objected party ther transferred; (1) already the case has been whether sidered and might develop;1 (2) conflicting authority line of whether legislatively (3) disrupt the transfer would the whether Karpe Borough v. Strouds- division of labor. ordained of burg, 185, Pa.Super. 315 transferred, this previously has not this case been
While recognize the for we not resolve matter factor alone does of this case that the transfer in the resolution delay the Valley However, by noted the court necessitates. Const., supra, Industries v. Armand Forge considering guard must Public Works Contractors’ Bond we the of inconsistent lines authori- possibility that two against the (See subject matter. might develop concerning same ty Rexnord, 20, Travelers v. 246 also: 389 A.2d 37 Pa.Cmwlth. 197). Finally 8 we conclude (1978), considers which court and our sister of labor between this that division if the disrupted rather than Common- court would be served involving appeals Court heard all wealth Public Works Contrac- tors’ Bond Law. to Commonwealth Court.
Case transferred WIEAND, J., dissenting opinion. files WIEAND, dissenting: Judge, party object- Because neither has respectfully I dissent. Court, has been jurisdiction of this our ed to 42 opinion held that Recently, panel our Court filed an by municipal liability injuries precluded caused for Pa.C.S.A. municipality’s person property acts on under the criminal of third Borough Camp Geiger Casey ownership and control. Hill, (1985) (Hoffman, dissenting). J. 499 A.2d earlier, opinion which Court filed an month the Commonwealth One SEPTA, opposite 91 Pa.Cmwlth. result. Johnson v. seems to reach concurring). (1985), dissenting); (Barry, (Craig, J. J. 498 A.2d transferring case. problem hope we to avoid It is this sort of perfected. 741(a). Pa.R.A.P. true, It is course, that we nevertheless have discretion to decide the case on its merits or transfer it to Commonwealth Court. 752(a). Pa.R.A.P. *6 However, I believe interests of parties would best be served by retaining jurisdiction and deciding the appeal on its merits. One of the issues raised on appeal presents question of pure law, i.e., contract whether all of preconditions payment appellant on its subcontract limitations, have been satisfied. The issue, statute of more- over, does not contain the potential for a interpreta- novel tion of a legislatively adopted statute of limitations. The resolution of the issue depends upon a relatively straight- forward, factual determination regarding lapse time; and our sole responsibility is to determine whether the facts found the trial court are supported by the evidence.
I would retain jurisdiction and decide the on its merits. Skinner, Mary
William J. SKINNER and his wife, Appellants, FLYMO, INC.; Randall, Darwin Eckstrom and Jonathan indi- vidually trading Company; as Eckstrom-Randall Outdoor Institute, Equipment Inc.; Co.,
Power Testing United States Inc.; Institute, Inc., Appel- and American National Standards lees.
Superior Pennsylvania. Court of
Argued Oct.
Filed Feb.