Branna Construction Corp. v. West Allegheny Joint School Authority

242 A.2d 244, 430 Pa. 214, 1968 Pa. LEXIS 698
CourtSuperior Court of Pennsylvania
DecidedMay 21, 1968
DocketAppeals, Nos. 56 and 57
StatusPublished
Cited by11 cases

This text of 242 A.2d 244 (Branna Construction Corp. v. West Allegheny Joint School Authority) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branna Construction Corp. v. West Allegheny Joint School Authority, 242 A.2d 244, 430 Pa. 214, 1968 Pa. LEXIS 698 (Pa. Ct. App. 1968).

Opinion

Opinion by

Mr. Justice Cohen,

These are appeals from judgments entered in the court below in favor of Branna Construction Corpora[216]*216tion (Branna) against appellants, Celli-Flynn Architects and Engineers, and the West Allegheny Joint-School Authority (Authority), in the amount of $50,-000.

Branna, as a result of being the successful bidder for the construction of a new high school building iii West Allegheny, entered into a formal contract with the Authority on July 21, 1960, whereby Branna agreed to construct the new building for the sum of $1,268,000. The firm of Celli-Flynn had been retained under a separate agreement with the Authority to serve as architect and engineer for the construction project.

After completion of the contract, Branna instituted the present action of assumpsit against the Authority and Celli-Flynn, which drew the plans and specifications for the new building, alleging that it was entitled to receive extra compensation in the amount of $94,-416 for certain additional excavation work performed. The complaint alleged, inter alia, that immediately upon commencing the excavation of the property, Branna discovered that the test borings of the subsurface conditions as supplied in the plans and specifications attached to the contract were in fact inaccurate, misleading, and materially misrepresented the subsurface conditions to such an extent that Branna was compelled to suffer additional costs in order to perform the excavation work properly. It was further alleged that Branna had relied upon the test borings and that it did not have sufficient time to make its own independent investigation.

The Authority and Celli-Flynn then filed preliminary objections to the complaint in the nature of a motion for a more specific pleading. After the preliminary objections were denied, appellants filed an answer and “New Matter” setting forth certain alleged self-exonerating clauses contained in the con[217]*217tract. Thereupon, they filed a motion for a judgment on the pleadings averring that Branna had no right of recovery because of the self-exonerating clauses. The motion was denied and an appeal was taken to this Court. These appeals were quashed on the basis that they were taken from an interlocutory order. Branna Construction Corporation v. West Allegheny Joint School Authority, 414 Pa. 251, 199 A. 2d 414 (1964). The case was subsequently tried and the jury returned a verdict of $50,000 in favor of Branna and against both appellants. After motions for judgments n.o.v. or a new trial were denied by the court below and judgment entered thereon, appellants took the instant appeals.

The first issue presented for our resolution is whether or not the self-exonerating clauses in the agreement between Branna, the general contractor, and the Authority preclude recovery by Branna. In this regard, the contract contained the following relevant paragraphs with reference to the test borings of the subsurface conditions:

“ ‘General Conditions’... Sub-Surface Soil Data....

“(a) If core test borings were made the results are indicated on the drawings. No responsibility is assumed by the Owner or Architect for sub-surface conditions. Where core test borings have been made these findings are recorded and reproduced on the contract drawings but such information is given to the Contractor for guidance only.

“(b) Any data concerning sub-surface conditions which is based upon soundings, test pits or test borings, has been obtained by the Owner for its own use only in designing this project, and bidders shall not rely on such data in estimating contract costs. Bidders shall make their own investigation of existing sub-surface conditions, including the examination and evaluation of available core borings.

[218]*218“ ‘General Conditions’ . . . Excavation Requirements. . . .

“This Contract includes all excavations and grading necessary to complete the project on an ‘Unclassified’ basis including rock; the cost of such excavations being included in the total payment due the Contractor as called for in this Contract, the bid having been accepted by the Owner on that basis.

“(b) Where core test borings have been made these findings are recorded and reproduced on the contract drawings; such information is given to the Contractor for Guidance only.

“. . . Excavating, Pilling and Grading-Basis of Contract. . . .

“(4) The excavation work shall be performed on an ‘unclassified basis’; that is, the removal of all material encountered including earth or rock formations, regardless of the type or hardness of such formations■, the cost of such excavations being included in the contract price at the time of bidding.

“Core Boring and Test Holes. . . .

“(5) Core boring and test hole location plan with log of drilling information is shown on drawings. However, this information is not to be taken by the Contractor as a definite basis for the submission of his bid as he will be held responsible for carrying out and completing all excavation work regardless of the formations encountered(Emphasis supplied.)

Appellants strenuously urge that this contract language unequivocally demonstrates an intention that Branna should not and could not rely upon the test borings; that it was incumbent upon Branna to undertake its own investigation of the subsurface conditions and that the responsibility for any additional costs incurred rested solely on its shoulders. The [219]*219court below rejected this argument on two grounds. Initially, the court took the position that since the contract by its terms failed to exclude from the contract the plans and specifications with respect to the subsurface conditions, the contractor was entitled to recover under the line of cases represented by Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A. 2d 139 (1944), and that the failure to exclude such information from the contractor distinguished the instant situation from the line of cases represented by O’Neill Construction Company, Inc. v. Philadelphia, 335 Pa. 359, 6 A. 2d 525 (1939). We cannot agree with the lower court’s analysis of the applicability of the foregoing case authority.

In Smith, the plans and specifications submitted to the contractor for its bid indicated that the material to be excavated would consist almost entirely of loose earth and approximately 50,000 cubic yards of limestone. After the contractor commenced excavating, it was discovered that the subsurface consisted predominately of limestone rock. The contractor filed a claim for the additional expense incurred and our Court permitted recovery. However, the decision in Smith was predicated upon several factors, none of which exist here, namely: (1) that the contractor was com1 pelled to rely upon the plans as to the subsurface conditions since it was virtually impossible to make a thorough and independent investigation of the conditions in the short time allotted between the receipt of the plans and the time for bidding; (2) the Turnpike Commission had knowledge that the subsurface was predominately rock and not soft loose earth as represented by the plans, and (3) the misrepresentations actually worked a constructive fraud upon the contractor. In contradistinction to the Smith case, the instant situation lacks any allegation or evidence ap[220]

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Bluebook (online)
242 A.2d 244, 430 Pa. 214, 1968 Pa. LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branna-construction-corp-v-west-allegheny-joint-school-authority-pasuperct-1968.