18 Pa. Commw. 591 | Pa. Commw. Ct. | 1975
Opinion by
The Pennsylvania Department of Transportation (PennDOT) appeals from an award entered against it by the Board of Arbitration of Claims (Board) in favor of Mitchell’s Structural Steel Painting Company (Company) in the amount of $45,000 plus interest.
On April 25, 1972 the Company entered into a contract with PennDOT to paint five bridges located in Clarion County, and, one month later, on May 25 Mitchell commenced the necessary cleaning operations on Bridge No. 2 which crosses the Clarion River in Paint and Monroe Townships. While applying a commercial sandblast to the expansion joints for removal of rust and scale, one of the Company’s employees discovered that the existing finish coat of aluminum paint was peeling
On April 6, 1973 the Company filed its complaint against PennDOT with the Board seeking recovery for its unanticipated costs. After responsive pleadings were filed, an evidentiary hearing was held on September 18, 1973 before Board members Delduco and Kempter. When, however, the Board rendered its decision on April 17, 1974 neither Delduco nor Kempter was any longer a Board member. The award in favor of the Company was signed only by Fred C. Pace, then the Board Chairman, who had not heard the case. PennDOT has now appealed from that award to this Court.
The scope of our review in an appeal from an order of the Board is governed by Section 8(c) of the Act of May 20, 1937, P.L. 728, as amended, 72 P.S. §4651-8 (c)
The first issue which we must consider here is whether or not the change in Board membership between the date of the hearing and the date of the decision necessitates a remand. We believe that it does not. In Foley Brothers, Inc. v. Commonwealth, 400 Pa. 584, 168 A.2d 80 (1960) our Supreme Court was faced with a similar situation in which one of the Board members died before the decision was rendered. The court, in rejecting a rehearing, there stated:
“It is obviously advisable, when the legislative command is to hear and determine, that those who decide should hear substantially all of the testimony, except where the delegation of the hearing power to a master or auditor is proper. But the important thing is that they who decide must consider all of the evidence, and in the event of a member of the hearing body dying, it should suffice that his successor consider, by reading from the record what he has not heard, in order to avoid the practical and expensive difficulty of requiring a full-re-hearing. Of equal import is the right of the parties to make argument before the determining body on the issues involved.” 400 Pa. at 591, 163 A.2d at 84-85.
Recently in Commonwealth v. Loffredo (1115 C. D. 1973), in an unreported opinion which was filed on April 3,1974, we followed Foley insofar as we denied the appellant a rehearing where two of the Board members, who had participated in the original hearing, were replaced before the Board issued its order. We recognize, of course, that the Board members who issue the final decision must either take part in the preparation of findings of fact and conclusions of law or at least must exercise an inde
As to the terms of the contract itself, we must determine which party bore the risk that unusual subsurface conditions would make the job more difficult and costly than expected. We believe that the Company bore that risk under the terms of paragraph 4 of the contract, which reads:
“4. The contractor further covenants and warrants that he has had sufficient time to examine the site of the work; that he has examined the site of the work; that he has sufficient time to examine the site of the work to determine the character of the subsurface material and conditions to be encountered; that he is fully aware and knows of the character of the subsurface material and conditions to be encountered; and that he has based the within contract prices on his own independent examination and investigation of the site, subsurface materials, and conditions and has not relied on any subsurface information fur*596 nished to him by the Commonwealth of Pennsylvania, Department of Transportation.”
This language is almost identical to that considered in Commonwealth v. Acchioni & Canuso, Inc., 14 Pa. Commonwealth Ct. 596, 324 A.2d 828 (1974). We there recognized the difficult position of a bidder who must consider various unanticipated risks. But we concluded: “The appellees knew or should have known that there is always a risk involved in the event of unanticipated problems arising on a project and should have considered such a contingency in making their bid and adjusted the bid accordingly.” Acchioni & Canuso, supra, at 601, 324 A.2d at 831. The Company here explicitly assumed the responsibility for examining the bridge and determining the subsurface conditions. This duty cannot be excused simply because the Company’s visual inspection proved to be inadequate.
The Company argues that it was somehow misled by the specifications which were provided and cites the principle that where a governmental body prepares plans and specifications for a contract, it implicitly warrants that satisfactory performance will result if the plans and specifications are followed. The contract here incorporates Pennsylvania Department of Highways Specifications Form 409 which, in Section 1073.01, provides for
The Company also argues that PennDOT’s failure to inform it of the work order rejection places liability upon PennDOT for the cost of the extra work. We have already resolved that the Company was under a contractural obligation to clean and paint the bridge at the specified contract price despite the problems involving the nonadherent undercoat. It is also well established in contract law that a promise to pay additional compensation for the performance by the promisee of a contract, which the promisee is already under obligation to the promisor to perform, is without consideration. Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968). It is true, of course,
We, therefore, enter the following
Order
Now, April 30, 1975, the order of the Board of Arbitration of Claims dated April 17,1974, is hereby reversed, and the claim of the appellee is denied.
. In Foley, supra, the Supreme Court stated that “the signatures of all three arbitrators is a guarantee, absent evidence to the contrary, that they gave full consideration to the case.” The language regarding signatures in Ballough v. Civil Service Commission, Pa. Commonwealth Ct. , 329 A.2d 528 (1974), must, therefore, be considered as dicta.
. In previous cases, such as Acchioni & Canuso, supra, the term “subsurface conditions” has generally been interpreted as referring primarily to subsoil conditions. But in the context of this contract “subsurface conditions” must include conditions beneath the paint surface.