On rule to show cause why an order should not be entered directing the parties to proceed to arbitration.
For the rule, French, Richards & Bradley and Lloyd, Horn & Perskie (by John Lloyd, Jr.).
Contra, John E. Toolan and E. H. Cushman (of the Pennsylvania bar).
Before Justice Donges, sitting alone pursuant to statute.
The opinion of the court was delivered by
DONGES, J. The petitioner seeks an order of this court to proceed with an arbitration clause in an agreement admittedly entered into between petitioner, Pennsylvania-Reading Seashore Lines, a corporation, and respondent, Anthony P. Miller, Inc., a corporation. R.S. 2:40-10 et seq.
Respondent entered suit against petitioner, claiming that there is due to it the sum of $205,024.24, with interest from June 19th, 1940, on account of claims arising out of said contract. The complaint filed in said cause alleges that the damages claimed arose from unwarranted delay on the part of petitioner.
The complaint of respondent in its law action claims damages substantially on two grounds: 1. That petitioner failed to provide sites for the prosecution of the work in accordance with the following provision of the contract:
"9. * * * The contractor shall not claim default of the provisions of the contract on account of delay in providing possession of the property required for the elimination if the railroad company negotiates with the property owner or owners and in the event negotiations fail, then institutes condemnation proceedings for such property and prosecutes such proceedings to a speedy conclusion."
Respondent alleges a failure to institute and prosecute such proceedings as provided in the agreement.
2. That the petitioner caused delay in directing respondent to stop work and refrain from proceeding therewith until directed by petitioner so to do, and that petitioner compelled respondent to discontinue the use of competent employees
and to substitute therefor incompetent employees, resulting in delay and ...