430 Pa. 214 | Pa. Super. Ct. | 1968
Opinion by
These are appeals from judgments entered in the court below in favor of Branna Construction Corpora
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
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.
“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
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
Appellants rely most heavily upon two cases, O’Neill Construction Company, Inc. v. Philadelphia, supra, and Montgomery v. Philadelphia, 391 Pa. 607, 139 A. 2d 347 (1958), both of which were distinguished by the court below on the basis that the contracts did not exclude from the terms of the contracts the reference to subsurface conditions. While the contracts in O’Neill and Montgomery did provide that “In no event is this information to be considered as part of the contract”, we are of the opinion that the mere absence of such a provision does not necessarily permit a contractor to rely upon information contained in the plans and specifications. There is no necessity to require such “boiler plate” language to appear in every contract of this nature if the owner desires to disclaim liability for subsurface conditions. This contract should be considered as any other contract and general principles of contract law should be applied in order to ascertain the actual intent of the parties. With these basic principles in mind, we turn our attention again to the language employed in the contract.
The contract provides in essence that (1) no responsibility is assumed by the owner or architect for subsurface conditions; (2) the information concerning these conditions was obtained by the owner for its own use in designing the project; (3) bidders shall make
However, Branna cites another provision of the contract which it contends indicates that the parties contemplated extra compensation in the event that the subsurface conditions encountered during the course of the work materially differed from those in the specifications. The provision relied upon by Branna, Article 15, Section (e) of the General Construction Contract Agreement, reads in pertinent part as follows: “Should the Contractor encounter . . . subsurface conditions at the site materially differing from those shown on the Drawings or indicated in the Specifications, the attention of the Architect shall immediately be called to such conditions. ... If the Architect finds that they so materially differ, he shall
There are two other provisions which appellants rely upon in support of their position that the contractor cannot recover in any instance. They essentially provide that no extra compensation will be forthcoming unless the contractor completely satisfies the architect that the added work was a result of conditions which the contractor could not have investigated beforehand or foreseen the likelihood of their occurrence. In addition, the contractor warranted that he had thoroughly examined the plans and specifications and familiarized itself with all the conditions existing at the construction site. Analyzing these provisions in conjunction with one another, we conclude that the parties intended that extra compensation would be awarded by the architect only in the event that the architect was fully convinced that the added excavation work was the result of circumstances and conditions beyond the control of the contractor and without fault on its part. The record in the court below fails to establish that the contractor did all that was required of it to ascertain the actual conditions of the subsurface. No investigation was made beforehand and as previously determined the contract specifically stated that the contractor could not rely upon the test borings. It cannot be said that the contractor through no fault of its own suffered the added burden with respect to the increased excavation work. The logical and rational import of Article 15, Section (e) is that the architect could, if justifiable, increase the price or extend the time for performance when situations arose (subsurface conditions materially differed)
Judgments reversed as to both parties and judgments n.o.v. entered.