Pennsylvania lower court decision 'creating' pay-if-paid neutralized.

In a Sept. 12 decision in Eschbach Bros. v. Contracting Systems, Inc., a Superior Court in Pennsylvania decided not to give weight to a trial court's argument that the Pennsylvania Contractor and Subcontractor Payment Act created an inherent "pay-if-paid" provision in every construction contract. The non-binding decision of the Superior Court, which is an intermediate appellate court, stated: "The parties never argued during trial that the provisions of the Contractor and Subcontractor Payment Act at issue were incorporated into the parties' written contract, contrary to the parties' contract, or negated the condition precedent established in the contract. Therefore, we find any argument with regard thereto to be waived." In a friend-of-the court brief filed in February 2006, ASA argued that "instead of construing the payment terms of the pertinent terms of the subcontract (as the parties requested at trial), the [trial] court sua sponte [of its own accord] ignored the subcontract's payment provisions and 'created' a payment clause inferred from (but not intended by)" Pennsylvania's prompt payment law. In its decision, the Superior Court acknowledged ASA's brief and said it "considered the arguments presented therein."

Source: ASA