32 A.2d 764 | Pa. | 1943
This was a proceeding under the Act of April 25, 1927, P.L. 381, to modify an arbitration award.
John B. Acchione, trading as Acchione Contracting Company, was awarded two highway construction contracts for the Commonwealth of Pennsylvania. The first contract, executed December, 1933, had to do with Section 8 of State Highway Route No. 153, and the second, executed September, 1934, with Section 10 of the same highway. The work under the Section 8 contract required eleven months and was completed and accepted on November 20, 1934. The Commonwealth was anxious to have the Section 10 contract completed quickly, and after the bid was accepted it asked the contractor to complete the work on or before November 25, 1934, which the contractor agreed to do. At a conference prior to the signing of the Section 10 contract, the contractor indicated that the presence of facilities of certain utilities might cause delay. The Commonwealth agreed to assist the contractor in obtaining removal of these facilities. The site on Section 10 was not cleared until two months after work had begun, and the contract was not completed until May 24, 1935. The appellant contends that the delay in the completion of the contracts, due to the presence of the facilities of the utilities, caused him to suffer a loss of $5,046.80 on Section 8 and $20,847.11 on Section 10.
The contracts provided, inter alia, that: (1) (section 4) "The bidder is required to examine carefully the site of and the proposal, plans, specifications and contract form for the work contemplated, and it will be assumed that he has judged for and satisfied himself as to the conditions to be encountered . . ."; (2) (section 40) "The contractor's attention is drawn to county *564 bridges and certain other work which it may be necessary to construct, which are not under the supervision of this Department. He shall investigate such matters fully and satisfy himself as to the performance of such work so he can anticipate its execution and shall not make claim or hold the Department liable for his failure satisfactorily to anticipate the performance of the work . . ."; (3) (section 101) "The contractor shall keep in touch with all public service companies, individuals, and others owning or controlling any structures or tracks within the limits of the highway which may have to be removed, reset or reconstructed and shall give due notice in advance to the responsible party of the work required and time it should be completed . . ."; and (4) "All questions or disputes arising between the parties . . . shall be referred to the Secretary of Highways and the Attorney General . . . whose decision and award shall be final, binding, and conclusive upon all parties without exception or appeal; and all rights or rights of any action . . . are hereby expressly waived."
The contractor contended that the Commonwealth was obligated to deliver the site of the work free of obstacles which would interfere with the performance of the contracts and that its failure to do so constituted a breach of contract entitling him to damages in the amount of $25,893.91. The Commonwealth took the position that the contracts placed the duty of securing the removal of all obstacles and utility facilities on the contractor, or, in the alternative, that the Commonwealth was only liable for an "unreasonable" delay and that there was no evidence that the two months required for the removal of the facilities was "unreasonable."
The controversy was submitted to arbitration and the board found the ". . . obligation on the part of the employer to give his contractor free access to the site at which the work is to be performed free and clear of obstructions . . ." was not applicable in this situation, and that the ". . . spirit of the specifications includes *565 the removal of poles among the responsibilities thus imposed." The board awarded the contractor $2,270. on one excavation item caused by the delay.
The contractor appealed to the Court of Common Pleas of Dauphin County to modify this award, to include all damages caused by the delay. The Commonwealth contended that under the arbitration clause the award of the arbitrators was the final authority on questions of fact and of law, which contention is again made. The court below found that it had jurisdiction and concluded that the contractor covenanted to make no claim for damages for delay in the performance of his contract, when such delay was occasioned by the failure of utilities or others to remove structures from the site. The award of $2,270. for additional excavation costs was modified and reduced to $455.61 and all other claims of the contractor were refused. This appeal by the plaintiffs was then taken.
The Commonwealth's assertion that the arbitrator's award was the final authority on questions of fact and of law is without merit. In Philadelphia Housing Authority v. Turner ConstructionCo.,
The provisions of the contracts did not place the duty of securing the removal of the utility facilities upon *566 either party, and we find nothing which indicates that the Commonwealth agreed to secure the removal of the facilities, or deceived the contractor in this respect. The provisions under consideration did place the contractor upon notice that he was required to examine the site, investigate matters not under the control and supervision of the Commonwealth and notify all parties owning or controlling structures within the limits of the highway to remove or reset them. The only reasonable interpretation of the language of the contracts is that the Commonwealth agreed to deliver the site burdened with existing obstructions over which it exercised no direct control. From previous experience the contractor had reason to know that some delay would ensue, and the cost of such reasonable delay was a proper element of expense to be estimated and included in the bid.1
The authorities cited by counsel are not applicable in the present situation because both contracting parties had knowledge of pre-existing conditions under the immediate control of third persons which might delay the performance of the work. In Henry Shenk Co. v. Erie County,
In Frederick Snare Corp. v. Philadelphia,
The appellant's remedy was to treat the failure to clear the site as a temporary impossibility and to refuse to perform:Union Paving Co. v. City of Philadelphia, supra; 2 Restatement of Contracts, section 462.2 By continuing the work the appellant assumed the risk of delay and cannot now be heard to complain.
Judgment affirmed.