38 Pa. Commw. 603 | Pa. Commw. Ct. | 1978
Opinion by
This case involves the interpretation and application of Section 7 of the Public Works Contractors’ Bond Law of 1967 (Bond Law), Act of December 20, 1967, P.L. 869, 8 P.S. §197.
The facts are not in dispute. On October 3, 1972, Valley Forge Industries, Inc. (Appellant), entered
Armand defaulted on payment of the remaining $6,699.99 due under the original billing and, on May 31, 1974, Appellant filed a complaint in assumpsit against Armand and United Surety and Financial Guarantee Co., the surety on Armand’s labor and material bond. The lower court determined that the one-year limitation contained in Section 7 of the Bond Law barred Appellant from recovering on the bond.
The pertinent language of Section 7 of the Bond Law provides:
*605 (b) No such action may be commenced after the expiration of one year from the day on which the last of the labor was performed or material was supplied for the payment of which such action is brought by the claimant.
[Being] solely for the protection of claimants supplying labor or materials to the prime contractor to whom the contract was awarded, or to any of his subcontractors, in the prosecution of the work provided for in such contract, and shall be conditioned for the prompt payment of all such materials furnished or labor supplied or performed in the prosecution of the work.
Given this intent, we view the operative language— “the day on which the last of the labor was performed or material was supplied” — as broad enough to include work performed upon the demand of the contracting body to correct defects in the work as origi
In the instant case, the official inspector testified that he reported to his superiors that the work was not satisfactory and that Appellant was then directed to correct the work. The engineer for the Borough of Macungie Sewer Authority testified that he refused to approve the work and that he ordered the deficiencies he corrected. He also stated that approximately fifty percent of the roadway needed some additional work. Both men testified that the requested corrections were made and that they were completed in June of 1973. It is clear, therefore, that the repair work was substantial and was not a sham or device employed by Appellant to extend the period of limitation. Until these defects were remedied, Appellant had not fulfilled its obligations under the contract, and could not have demanded payment in full nor successfully prosecuted an action for payment.
We determine, therefore, that this action was timely filed. Accordingly, we reverse.
Order.
And Now, this 28th day of November, 1978, the order of the Court of Common Pleas of Northampton County, dated November 17, 1975, is hereby reversed and the ease is remanded for further proceedings.
The parties agreed that this was the only issue to be decided by the court below, which heard the case without a jury pursuant to Pa. K.C.P. No. 1038.