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GASPARINI EXCAVATING COMPANY v. PENNSYLVANIA TURNPIKE COMMISSION. (01/08/63)

January 8, 1963

GASPARINI EXCAVATING COMPANY, APPELLANT,
v.
PENNSYLVANIA TURNPIKE COMMISSION.



Appeal, No. 46, May T., 1962, from judgment of Court of Common Pleas of Dauphin County, No. 439 Commonwealth Docket, 1960, in case of Gasparini Excavating Company, Inc. v. Pennsylvania Turnpike Commission. Judgment vacated.

COUNSEL

Joseph E. Gallagher, with him James J. Ligi, Carlon M. O'Malley, Sr., and O'Malley, Morgan, Bour and Gallagher, for appellant.

John J. Schatt, for Pennsylvania Turnpike Commission, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: O'brien

[ 409 Pa. Page 467]

OPINION BY MR. JUSTICE O'BRIEN

Gasparini Excavating Company, Inc., appealed from the judgment of the Court of Common Pleas of Dauphin County which overruled and dismissed appellant's motion to modify and correct an award of arbitrators or to resubmit the matter to the arbitrators.

Appellee, Pennsylvania Turnpike Commission, on or about April 26, 1955, advertised for bids for the construction of a portion of the Northeastern Extension of the Pennsylvania Turnpike. The bids were opened on May 18, 1955 and appellant was the successful bidder. On May 31, 1955 Gasparini and the Commission signed a written contract whereby Gasparini was to construct, in Luzerne County, the part of the Turnpike known as Section 37-I. Appellant was to commence work when ordered to do so by the appellee and was to have the work completed on or before September 1, 1956.

The Commission advertised for bids for slushing mine areas under Section 37-I, which work was awarded to Sullivan Trail Coal Company. The drilling and casing of the holes through which the material would be slushed was to be done by Manu-Mine Research and Development Company under a negotiated contract with the Commission.

[ 409 Pa. Page 468]

Section 37-I comprised a distance of 15,176 lineal feet and included an interchange known as DuPont or Wyoming Valley. The right of way width was 200 feet, in addition to easements for slopes in cuts and fills.

Appellant, in order to establish the grade of the roadway required by the contract, had to excavate, using material from the cuts to fill the embankment areas. This movement of earth was rather extensive in some parts of the section, and it was necessary to have sufficient equipment of the proper kind deployed on the right of way. The direction of the flow of material excavated to make the fills or embankments was determined by balance areas where the excavating was being done. The movement of the earth from the place of excavation, either north or south, required the availability of an area of fill or embankment to receive it. The terrain on which the work was being done and the quantity and distances the earth could be moved most efficiently regulated the establishment of balance areas.

This section, as other parts of the Northeast Extension, crossed anthracite coal deposits and mined veins of coal where voids existed. For the purpose of stabilizing the surface, the Sullivan Trial Coal Co. slushed material into holes, drilled and cased by Manu-Mine Research and Development Co. The drilling and slushing work was to be done before any embankment or fill was placed and where cuts were to be made the excavating was to be done before the drilling and slushing was performed.

The contract contemplated the situation where other contractors would be working and obviously coordination and co-operation would be necessary to insure completion of the work in the allotted time.*fn1

[ 409 Pa. Page 469]

In the Gasparini contract with the Commission is the following provision: "20. Cooperation With Slushing Contract. During the time that the Contractor is carrying on his operations under this contract, other contractors will be engaged in slushing operations on the site.

"The Contractor shall, therefore, plan and conduct his operations in such a manner as to cause a minimum of interference with the slushing operation. In order that the slushing may be completed in the least time, the Contractor will be required to schedule excavation in the slushing areas first. No embankment will be placed in areas that are to be slushed until slushing is completed. No claims for damages or extra costs due to delay to the Contractor's work caused by the work of slushing contracts will be allowed and it is hereby agreed that the contract prices are submitted on this basis."

On June 6, 1955, the Commission gave Gasparini official notice to proceed actively on the project and arrange to complete fully all work thereunder on or before September 1, 1956. The contractor mobilized the ...


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