67 Pa. Commw. 531 | Pa. Commw. Ct. | 1982
Opinion by
Argeros & Company, Inc. (Argeros), a painting contractor, successfully bid on and subsequently entered into a contract with the Pennsylvania Department of Transportation (DOT) to paint five bridges. While painting bridge No. 4, Argeros determined that the weight of the bridge was approximately
Our scope of review here is limited to determining whether or not the Board’s order is in accordance with law and whether or not the findings of fact are supported by substantial evidence. Department of Transportation v. Brayman Construction Company, 33 Pa. Commonwealth Ct. 485, 382 A.2d 767 (1978).
Parties have the right to make their own contract, and it is not the function of the court to rewrite it or give it a construction in conflict with the plain meaning of the language employed. Consequently, we must interpret contracts as written and the intention of the parties can be ascertained only by examining the entire instrument so that each and every part of the contract is taken into account and given effect. Department of Transportation v. Acchioni and Caruso, Inc., 14 Pa. Commonwealth Ct. 596, 324 A.2d 828 (1974).
Argeros’ representative also testified that he had long-standing familiarity' with the bridge and was aware that the state had converted the decking from wood to steel. Argeros, therefore, knew — from the bid, from the contract as well as from its own personal knowledge — -that all metal surfaces were to be painted and that the bridge contained a metal deck. In the event of uncertainty on Argeros’ part as to whether or not the deck was included within the contract requirements, it should have sought clarification from the Department prior to committing itself to the endeavor. Brayman. Further, in signing the contract, Argeros warranted that it had had sufficient time to examine the structures, that it was fully aware of and knew the character of the paint, metal and conditions to be encountered and that it had based its bid prices “on his own independent examination and investigation of the structures, paint, metal and conditions and has not relied on any description of the structures furnished to him” by DOT.
It should also be noted that the contract was made under and was subject to Form 408 Specifications.
Argeros cannot prevail by characterizing the Deputy Chief Engineer’s instruction that it complete the project as an oral modification of the contract whereby it was required to perform extra work. Paragraph 7 of the contract clearly requires that claims for extra work or material will not be allowed unless such work has been ordered in writing by the chief engineer. Moreover, the work which Argeros attempts to characterize as additional work is, in fact, work already called for by the contract which, by its terms, includes painting of the steel deck, and it is
Argeros contends that Pennsylvania Turnpike Commission v. Smith, 350 Pa. 355, 39 A.2d 139 (1944), in which a contractor was allowed to recover for additional expenditures, controls here. This case presently before us, however, is clearly distinguishable from Smith, in which our Supreme Court held that an exculpatory clause similar to the one present here was not binding in a situation where a state agency or commission has knowingly and substantially misrepresented information in the bid, thereby creating a constructive fraud upon the contractor. Nothing in the record here, however, suggests that DOT was aware at the time of a possible discrepancy between the actual weight of the bridge and the approximate tonnage of the bridge as stated in the bid. The testimony before the Board was inconclusive and left unresolved the question of whether or not the 180 tons included the steel deck. Argeros has, therefore, failed to show the fraud or deception necessary to support a finding of constructive fraud.
We are, therefore, bound to enforce the contract to which the parties agreed and we will, therefore, affirm the Board.
And Now, this 20th day of July, 1982, the order of the Board of Claims in the above-captioned matter is affirmed.