Commonwealth v. General Asphalt Paving Co.

405 A.2d 1138, 46 Pa. Commw. 114, 1979 Pa. Commw. LEXIS 1988
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 19, 1979
DocketAppeal, No. 317 C.D. 1978
StatusPublished
Cited by9 cases

This text of 405 A.2d 1138 (Commonwealth v. General Asphalt Paving Co.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. General Asphalt Paving Co., 405 A.2d 1138, 46 Pa. Commw. 114, 1979 Pa. Commw. LEXIS 1988 (Pa. Ct. App. 1979).

Opinions

Opinion by

Judge DiSalle,

The Commonwealth of Pennsylvania, State Highway and Bridge Authority (PennDOT), has appealed to this Court from an order of the Board of Arbitration of Claims (Board), awarding additional compensation to General Asphalt Paving Company (General) because the road construction work in which it was engaged was delayed for almost three months. ■ The sole issue is whether an express provision in the construction contract which excludes claims for additional compensation on account of delay “caused by the failure of the owners of structures on, under and/or over the project to adjust their facilities during the progress of any portion of the work” is a bar to the claim.

[116]*116On February 24, 1966, General and PennDOT entered into a contract for the resurfacing and improvement of a part of Verree Road in Philadelphia, Pennsylvania. That portion of the contract with which we are concerned reads in relevant part as follows:

1.8.3. PUBLIC OR PRIVATE STRUCTURES ON THE PROJECT—
(1) Structures interfering with Contractor’s Operation. The contractor is required to fully inform himself concerning location of public and private structures on, under and/or over the project which may or may not require removal, resetting, construction and/or reconstruction, and which may interfere with his operations, and it shall be assumed that he has prepared his bid and entered into the contract in full understanding of the conditions to be encountered and his responsibility in connection therewith....
It shall be the responsibility of the contractor to make proper arrangements with the owners of structures on, under, and/or over the project, or to take requisite action for the removal, resetting or reconstruction of such structures and facilities which may be required by the construction. The contractor shall cooperate with the owners of structures on, under and/or over the project to arranging and performing his work in and around such structures, without additional compensation, to facilitate their preservation, reconstruction or relocation. The work of the contractor shall be arranged and performed in accordance with good engineering and construction practices. The [PennDOT] engineer will cooperate in [117]*117working ont the construction problems involved, but without relieving the contractor of his responsibility therefor.
(2) Delays in the Performance of Work. Delays may be expected in the performance of the work under contract in order to permit public and private structures to be removed, constructed, and/or reconstructed, but the work under contract may be required to proceed as deemed advisable by the engineer for the convenience and facility of the public use of the project. No charges or claims for additional compensation shall he made hy the contractor for any delays or hinderances, regardless of duration or extent, caused hy the failure of the owners of structures on, under and/or over the project to adjust their facilities during the progress of any portion of the work embraced in the contract, hu,t the contractor may he granted a remission or extension of time for the completion of the work in accordance with Section 1.8.6. (Emphasis added.)

The work under the PennDOT contract was to be done in two stages. Stage One was to begin on April 28, 1966 and finish by November 15, 1966, while Stage Two was to be performed between April 6, 1967 and November 14, 1967. On March 21, 1966, General entered into a separate contract with the City of Philadelphia (City) for sewer and water work within a section of Verree Road covered by the PennDOT contract. That work was to be done during Stage One of the PennDOT contract.

Before the work began, a problem arose concerning an existing 12-inch water main under the surface of a portion of the road, the location of which might interfere with the proposed construction. City owned the [118]*118main, and the matter was considered at a meeting on March 9, 1966. With respect to this meeting, the Board made the following finding:

19. At preconstruction meeting on March 9, 1966, Plaintiff was told by R. G. Windisch, then District Construction Engineer [for Penn-DOT], that problems resulting from shallowness of pipe — i.e., scheduling, restriction on use of Contractor’s equipment and lowering of pipe would ‘be taken up in the field . . . between the State, Right-Of-Way and the Water Departments.’ (Emphasis added.)

General commenced work on Stage One on April 28, 1966, and, as planned, completed all that it was required to do under that stage of the PennDOT contract and under the City contract by November 2, 1966. The City’s failure to relocate the 12-inch water main made it impossible to begin work on Stage Two, however, so on March 20, 1967, more than one month before that work was to begin, General sent a letter to PennDOT requesting, that the line be relocated. PennDOT forwarded the letter to City’s water department, which, after initially opposing attempts to relocate the main, eventually agreed to do so, and on April 3, 1967, moved its forces on to the job site. For the next two months, General sent letters to PennDOT, complaining that City’s forces were working too slowly and haphazardly, and that, at one point, they had stopped working altogether and left the site. Penn-DOT assumed an active role in the dispute, forwarding all correspondence to City and receiving answers for General. General was finally able to begin work on Stage Two on June 12, 1967, and it finished the job in November, 1967. General filed a claim for delay damages with the Board, such damages being stipulated at $47,432.31, and the Board ruled in its favor. We will affirm.

[119]*119The Board made the following significant findings of fact:

14. Although Plaintiff was ready to commence Phase B, Stage II on April 6, 1967, it could not commence until June 13,1967.
15. By reason of the presence of City’s employees within the area of Phase B, Stage II, Plaintiff was delayed in the performance of its Contract 2.7 months. (Stipulation of counsel.)
20. Plaintiff performed work outside the scope of the Contract between Plaintiff and Defendant — lowering water services — for the City of Philadelphia on a basis that was negotiated by the Department of Highways.
21. Plaintiff made no agreements for extra work directly with City; all was done through Department of Highways.
22. On the issue of lowering the said twelve inch water main, Plaintiff had no direct dealings with the City of Philadelphia. All dealings were through Department of Highways.
25. The Department of Highways, through its District Engineer, Paul J. Thomas, did not suggest that Plaintiff deal directly with the City on the relocation of the twelve inch water main; rather it forwarded all correspondence to the City and received answers for Plaintiff.

The Board concluded that PennDOT’s involvement in the efforts to relocate the main relieved General of its duty to negotiate the relocation and prevented Penn-DOT from attempting to impose that obligation on General.

We find substantial evidence in the record to support the Board’s findings that with regard to the 12-[120]

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Bluebook (online)
405 A.2d 1138, 46 Pa. Commw. 114, 1979 Pa. Commw. LEXIS 1988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-general-asphalt-paving-co-pacommwct-1979.