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Tedesco Excavating & Paving, Inc. v. FWH LLC, 2024. Pa. Super LEXIS 253 (S. Pa. Ct. June 24, 2024)

Tedesco Excavating & Paving, Inc. V. FWH Development, LLC, Superior Court of Pennsylvania, decided June 24, 2024.


In this construction-contract dispute, the Defendant, FWH Development, LLC, appeals from the $678,238.31 judgment that the trial court entered, after a jury verdict in favor of Tedesco Excavating & Paving, Inc. Because FWH anticipatorily repudiated the contract, and Tedesco sued before FWH invoked a termination provision in that contract, we affirm.

This is an anticipatory refutation of a contract case.

The doctrine of anticipatory repudiation has existed in Pennsylvania for at least 175 years. In Campbell v. Gates, 10 Pa. 483 (1849), on November 1, 1845, the parties entered into a five-year contract that Gates would mine, properly clean, and haul iron ore to Campbell’s furnace. Gates delivered iron ore until the following August and Campbell sent him a letter complaining that the ore was “of an inferior sort . . . which renders it very unproductive” in the furnace. Id. at 484. Campbell’s letter then stated he would not accept future deliveries of ore unless it was pure. When Gates attempted another delivery, Campbell’s agent rejected the ore. Gates immediately sued Campbell for breaching the entire contract.

This opinion relies upon Professor Murray whom the SGI committee utilized in drafting the contract instructions. If a party wishes to avail itself of a cancelation provision in a contract, they must do so before it anticipatorily repudiates a contract. Jury is free to accept projections of percentage profit of a job in considering damages. The court had awarded an additional $277,092.31 for interests, attorney’s fees, and legal cost. The court did it’s under CASPA which was permitted. We hold that, where (1) a party anticipatorily repudiates a construction contract (2) the contract (subcontract) demands final payment if it’s lost overhead in profits; (3) the repudiating party refuses to pay the demanded sum where CASPA applies. It applies here.

Tedesco did not fulfill conditions precedent to submit application. Tedesco may recover under CASPA. It is the only prevailing party.

In sum, Tedesco offered sufficient evidence to defeat FWH’s motions for judgment as a matter of law. By unequivocally announcing to Tedesco, first, that it could not and, later, that it would not pay Tedesco for the Route 228 work, FWH anticipatory repudiated the May 19, 2015 contract. Upon FWH’s repudiation, Tedesco, the innocent obligee, could and did treat the repudiation as a material breach by filing suit. Like the trial court, we hold that the filing of the Complaint negated FWH’s ability to terminate the contract thereafter. Thus, FWH may not escape liability for its repudiation under Article 15.4 of the repudiated contract.

Moreover, a case of anticipatory repudiation is actionable under CASPA. Where an innocent obligee demands final payment for its expectation interest in a repudiated contract, the repudiator’s refusal to meet that demand exposes it to CASPA liability, just as if the repudiator had allowed the obligee to perform the contract in full. We agree with the trial court’s decision to award Tedesco 1% monthly interest, attorneys’ fees, and legal costs.