J-A25043-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

FREY LUTZ CORPORATION,                     : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                  Appellant                :
                                           :
            v.                             :
                                           :
E.R. STUEBNER, INC.,                       :
                                           :
                  Appellee                 : No. 883 EDA 2014

              Appeal from the Order entered February 18, 2014,
                  Court of Common Pleas, Chester County,
                     Civil Division at No. 2013-03233-CT

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

CONCURRING MEMORANDUM BY DONOHUE, J.:                  FILED APRIL 07, 2015

      I agree with the learned Majority that Frey Lutz Corporation was a

third party beneficiary to the primary contractor contract between E.R.

Stuebner and the School District (“the Contract”). The Contract as a whole

is riddled with clauses setting forth the contractor’s obligations to other

contractors on the project and expressly anticipates litigation between prime

contractors.1 The most significant language is contained in section 6.1.1 of

the Contract, which states:



1
   See, e.g., §§ 3.10.2(3) (“The Contractor is financially responsible to other
prime contractors for undue delay caused by him to other prime contractors
on the Project.”), 4.8.1 (defining a “Claim,” in relevant part, as “a demand
or assertion by one of the parties seeking, as a matter of right … payment of
money … or other relief with respect to the terms of the Contract”), 4.8.4
(“If a Claim has not been resolved after consideration of the foregoing and of
further evidence presented by the parties or requested by the Architect, the
Architect will notify the parties in writing that the Architect’s decision will be
made within seven days, which decision shall be final and binding on the


*Retired Senior Judge assigned to the Superior Court.
J-A25043-14


           § 6.1.1 The Owner reserves the right to perform
           construction or operations related to the Project with
           the Owner’s own forces, which include persons or
           entities under separate contracts not administered
           by the Construction Manager.[] The Owner further
           reserves the right to award other contracts in
           connection with other portions of the Project or other
           construction or operations on the site under
           Conditions of the Contract identical or substantially
           similar to these including those portions related to
           insurance and waiver of subrogation. If the
           Contractor claims that delay or additional cost is
           involved because of such action by the Owner, the
           Contractor shall make such Claim as provided
           elsewhere    in   the    Contract    Documents.     If
           contractors performing work for the Owner
           under separate contracts for the[] Project
           cause Contractor increased costs or damages
           for delays, acceleration, hindrances, less of
           productivity or similar claims, Contractor shall
           not have a claim against the Owner for such
           costs or damages as provided in Article 8.3, but
           shall have a right to recover against the other
           contractor(s) causing such damages. The
           Owner shall provide the Contractor a right of
           recovery in the other contractor’s contract and
           will provide a reciprocal right in this Agreement
           for the benefit of the other contractors. In this
           regard,     Contractor      agrees      that    other
           contractors performing[] work for the Owner
           under separate contracts for the Project have a
           right of action against the Contractor to the


parties but subject to litigation.”), 6.2.3 (“Costs caused by delays or by
improperly timed activities or defective construction shall be borne by the
party responsible therefor.”), 6.2.5 (“Claims and other disputes and matters
in question between the Contractor and other Contractors shall be subject to
the provisions of Section 4.7 provided the other Contractors have reciprocal
obligations.”), 12.2.5 (“The Contractor shall bear the cost of correcting
destroyed or damaged construction, whether completed or partially
completed, of the Owner or other Contractors caused by the Contractor’s
correction or removal of Work which is not in accordance with the
requirements of the Contract Documents.”).


                                   -2-
J-A25043-14


            extent[] the Contractor causes the other
            contractor damages for delays, acceleration,
            hindrances, loss of productivity or similar
            damages.

The Contract, § 6.1.1 (emphasis added).

      There could not be a clearer indication of the parties’ intent to make

the other contractors on the project third party beneficiaries to the Contract.

See Kirschner v. K & L Gates LLP, 46 A.3d 737, 762 (Pa. Super. 2012)

(setting forth the two-part test for third party beneficiary status, “which

requires that (1) the recognition of the beneficiary’s right must be

appropriate to effectuate the intention of the parties, and (2) the

performance must satisfy an obligation of the promisee to pay money to the

beneficiary or the circumstances indicate that the promisee intends to give

the beneficiary the benefit of the promised performance.”) (citing Guy v.

Liederbach, 459 A.2d 744, 751 (Pa. 1983)). Although the contract at issue

generally contains the terms of the standard AIA contract, notably, neither

section 3.10.2(3) (see supra n.1) nor the highlighted portion of section

6.1.1 of the Contract appear in the standard AIA contract; rather, the record

reflects that the parties added this language to the Contract. See Additions

and Deletions Report, §§ 3.10.2(3), 6.1.1. These additional clauses serve to

insulate the School District from liability for claims made by other

contractors for delays on the Project.




                                     -3-
J-A25043-14


      It is uncontested that Frey Lutz is a prime contractor on the project.

Frey Lutz brought an action for damages against Stuebner based upon

construction delays allegedly caused by Stuebner, which caused Frey Lutz to

incur additional costs to complete the project. See Complaint, 4/9/13, ¶¶

15-24.   Pursuant to section 6.1.1 of the Contract, Frey Lutz is expressly

permitted to recover from Stuebner for damages it sustained as a result of

Stuebner’s delays in performing its obligations under the Contract. Pursuant

to section 3.10.2 of the Contract, Stuebner is financially responsible to Frey

Lutz for any proven undue delay. As such, I agree that the trial court erred

by granting Stuebner’s preliminary objections and dismissing the complaint.

      Judge Wecht joins this Concurring Memorandum.




                                    -4-
