The court speaks frankly in this breach of contract action:
Church contends: "In order to establish a cause of action for breach of a construction contract by a contractor, the owner must allow the contractor a reasonable time to rectify the alleged defects." Appellant’s brief at 11, citing Hood v. Meininger, 377 Pa. 342, 105 A.2d 126 (1954). Church contends the Tentarellis failed to establish they gave him the opportunity to cure after terminating him on July 22, 2003, and, as such, he was entitled to a compulsory non-suit on the Tentarellis’ counter-claim.
Both the legal premise and the factual conclusion of Church’s argument are irreparably flawed. Church’s reliance on Hood is wholly misplaced. Hood does not stand for the proposition that a plaintiff must establish he gave a contractor a reasonable opportunity to rectify defects in order to establish a cause of action for breach of a construction contract, and no case of which we are aware cites Hood for this proposition. Frankly, we are unaware of any case which stands for this proposition. While cure and mitigation are unquestionably relevant to the issue of damages in a contract dispute as a general matter, there is simply no support in our caselaw for the proposition Church advances. Notably, Church does not contend the Tentarellis’ alleged failure to allow him to cure warrants a diminution of the Tentarellis’ damage award.
Church v. Tentarelli, 2008 PA Super 139 (June 30, 2008). It seems to be the natural progression after LJL Transp., Inc. v. Pilot Air Freight Corp., 2006 PA Super 176; 905 A.2d 991(2006)("there are circumstances where the nature of the breach permits the aggrieved party to immediately terminate the contract despite a "cure" provision.").
That said, I think the Superior Court went a little bit far. There’s precedent suggesting the party be offered an opportunity to cure the defect. For example,
In determining materiality for purposes of breaching a contract, we consider the following factors:
a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
b) the extent to which the injured party can be adequately compensated for that part of the benefit of which he will be deprived;
c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
d) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstancesincluding any reasonable assurances;
e) the extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing.
Restatement (Second) of Contracts § 241 (1981). Accord Jennings v. League of Civic Organizations of Erie County, 180 Pa. Super. 398, 119 A.2d 608 (1956).
Either way, it’s worth noting the apparent shift towards not requiring the breaching party be offered an opportunity to cure their failure, even where the contract specifically says they should be.