Pennsy Supply, Inc. v. American Ash Recycling Corp.

Facts

The Northern York County School District entered into a construction contract for the Project with Lobar, a general contractor. Lobar subcontracted the paving of driveways and a parking lot to Appellant. The contract between Lobar and the District included Project Specifications for paving work that required Lobar, through its subcontractor, to use certain base aggregates. The Project Specifications permitted the substitution of the aggregates with an alternate material known as AggRite. Additionally, the Specifications included a “notice to bidders” of the availability of Aggrite at no cost from Appellee, an AggRite supplier. Lastly, the Specifications also had a letter to the Project architect from Appellee confirming the availability of AggRite.

Appellant contacted Appellee and told them that it would need 11,000 lbs of AggRite. Appellant picked up the AggRite and used it for the paving work. However, after completing the paving work in Dec. 2001, the pavement developed extensive cracking in Feb. 2002. The District notified Lobar, who in turn told Appellant to fix the defections. Appellant performed the work at no cost to the District. The scope and cost of the remedial work included the removal and disposal of the AggRite, which the Pennsylvania Department of Environmental Protection classifies as a hazardous waster material. Appellant requested Appellee to arrange for the removal and disposal of the AggRite, but Appellee refused to do so.