J-A25043-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

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 
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§ 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.”). 
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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.
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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.