Department of Transportation v. P. DiMarco & Co.

711 A.2d 1088
CourtCommonwealth Court of Pennsylvania
DecidedMay 13, 1998
StatusPublished
Cited by1 cases

This text of 711 A.2d 1088 (Department of Transportation v. P. DiMarco & 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
Department of Transportation v. P. DiMarco & Co., 711 A.2d 1088 (Pa. Ct. App. 1998).

Opinion

NARICK, Senior Judge.

The issue before this Court is whether the Commonwealth of Pennsylvania, Board of Claims (Board) erred in awarding damages to P. DiMarco and Company, Inc. (DiMarco) for additional expenses incurred by DiMarco while repairing a road for the Commonwealth of Pennsylvania, Department of Transportation (DOT). Because it did not, the order of the Board, with one modification to remedy a mistake in the calculation of damages,1 is affirmed.

The relevant facts are as follows. DiMar-co, as prime contractor, and DOT entered a contract on June 11, 1993 for the improvement of a 1.708-mile stretch of State Route 1010 (road) in Lancaster County for the sum of $677,648.35. The contract called for the project to be completed in two phases.

The phasing of the project was designed to permit two different sections of the road to be worked on at different times so that the entire stretch of the road would not have to be closed at one time. Phase I of the project was to be completed in twenty days, and Phase II in forty-three days. Liquidated damages were to be assessed against DiMar-co for every day that the project extended beyond these time limits. Regarding the closure of the road to traffic during Phases I and II, the contract provided as follows:

Maintain two lanes of traffic for the life of this project with the following exceptions:
1) One lane may be maintained during working hours.
2) Close S.R. 1010 from Station 98 + 00 to Station 104 + 00 (Phase I) to through traffic for 20 calendar days.
3) Close S.R. 1010 from Station 732 + 00 to Station 758 + 64 (Phase II) to through traffic for 43 calendar days.

During the road closures of Phases I and II, the contract required DiMarco to “[m]ain-tain local traffic ingress and egress by use of existing or new roadways [and][p]rovide and maintain local access to and from the nearest intersecting public road or street, unless otherwise directed.” Board Finding of Fact (FF) No. 76. Regarding DiMareo’s plans for maintaining access for local traffic and emergency vehicles during Phases I and II, a witness for DiMarco testified as follows:

When we shut down a road ... I am responsible to allow homeowners to get to their properties. I am responsible for allowing emergency vehicles to get to their properties.... If someone has to get to their house, it is very easy. We ramp it in by the end of the day, there is a ramp. There might be some point in time during the day for an hour or so when somebody can’t get into their house. If for some reason somebody is coming home from shopping and they have to get in, you build them a ramp and you get them in. If not, by the end of the day, you put a ramp there so they can come in and out at night and you go back the next day and you can proceed accordingly_ If they need access to the house, we give them access.

[1090]*1090Despite DiMareo’s assertions that the contract permitted complete road closure during Phases I and II, DOT required DiMarco to maintain one lane of traffic open at all times, including during Phases I and II. DOT’s directive that DiMarco maintain one lane open at all times created additional expenses for which DOT did not compensate DiMarco, Board FF Nos. 79-88, and which comprise a portion of the damages claimed by DiMarco in this lawsuit.

DiMarco also incurred additional, unforeseen expenses on the project when, during Phase I, it encountered “soft spots” in the soil under the road that required additional labor and materials to remedy. DiMarco was not aware of these “soft spots” prior to bidding on the contract. DOT did not compensate DiMarco for these additional expenses, which also comprise a portion of DiMarco’s claimed damages, because it considered unstable subsurface conditions to be DiMarco’s responsibility based upon the following contract clause:

The contractor further covenants and warrants that he has had sufficient time to ... examine the site of the project to determine the character of the subsurface materials and conditions to be encountered; that he is fully aware and knows of the character of the subsurface materials and conditions to be encountered....

Finally, during the hearing before the Board, DiMarco stipulated that it did not reduce its calculation of damages in order to account for forty-three incidents of cost overruns which DOT inspectors recorded in their project diaries and which DOT claimed were DiMarco’s responsibility.

Following the hearing, the Board, by decision dated November 7, 1997, awarded Di-Marco $556,429.00 in total damages.2 This appeal by DOT followed.

On appeal,3 DOT argues that the Board erred on three issues. First, DOT claims that the Board erred by finding it, and not DiMarco, responsible for the additional costs DiMarco incurred to remedy the “soft areas” in the soil under the road. DOT cites the contract clause, reproduced above, which states that DiMarco “covenants and warrants” that it has examined and is fully aware of the subsurface conditions of the road.

Second, DOT argues that the Board erred by ignoring the forty-three stipulations of cost overrun incidents for which DiMarco allegedly admitted responsibility yet did not deduct from its overall claim for damages.

Third, DOT asserts that the Board erred in awarding damages to DiMarco for its additional expenses incurred in keeping the one lane of the road open during Phases I and II of the project. The contract, DOT argues, clearly states that DiMarco was required to maintain one lane of traffic open at all times, and any additional expenses DiMarco incurred in doing so are therefore DiMarco’s responsibility. As such, these expenses should not have been included in DiMarco’s total damages.

I. Responsibility for Subsurface Soil Conditions

As stated above, the contract states that DiMarco “covenants and warrants” that it has inspected the project site and is fully aware of all subsurface conditions. This clause, argues DOT, clearly places the financial responsibility on DiMarco for any unstable subsurface soil that DiMarco encounters on the project.

We disagree. In I.A Construction Corporation v. Department of Transportation, 139 Pa.Cmwlth. 509, 591 A.2d 1146 (1991), a contractor incurred additional, unforeseen expenses when it encountered subsurface utility lines of which it was not aware when bidding on the project. The contract in that case contained the identical clause as is in the contract in the present case, and we held that the contractor was not responsible for the additional costs because a pre-bid investigation to discover the underground [1091]*1091utility lines could not reasonably have been performed. We stated, “If the investigation purportedly required by the contract could not reasonably have been performed, those provisions cannot be used to deny recovery to the contractor.” Id 591 A.2d at 1150.

We recognize that the Court in LA. Construction also stated that “[furthermore, we believe this clause is simply not meant to apply to the question of utility lines;

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Bluebook (online)
711 A.2d 1088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-p-dimarco-co-pacommwct-1998.