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BEN CONSTRUCTION COMPANY v. DUQUESNE SANITARY AUTHORITY (01/20/67)

decided: January 20, 1967.

BEN CONSTRUCTION COMPANY, APPELLANT,
v.
DUQUESNE SANITARY AUTHORITY, APPELLANT



Appeals from judgment of Court of Common Pleas of Allegheny County, Oct T., 1965, No. 567, in case of Ben Construction Company v. Sanitary Authority of City of Duquesne.

COUNSEL

Raymond G. Hasley, with him Harold R. Schmidt, and Rose, Schmidt and Dixon, for plaintiff.

David M. Harrison, with him Michael H. Kowallis, and Harrison & Louik, for defendant.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Musmanno dissents.

Author: Eagen

[ 424 Pa. Page 41]

In 1963, the Sanitary Authority of the City of Duquesne, Allegheny County (Authority) awarded the Ben Construction Company (Ben) a written contract for the construction of certain intercepting sewers. A dispute arose as to the total amount due Ben for performance.

By agreement of the parties, the issue proceeded to arbitration under the Act of April 25, 1927, P. L. 381, 5 P.S. ยง 161 et seq. The arbitrators made comprehensive

[ 424 Pa. Page 42]

    findings and entered an award based thereon. Authority then petitioned the common pleas court to modify or correct the award. Ben countered with an answer asking that Authority's petition be dismissed, and the court increase the amount of the award. From the court's judgment, both sides appealed.

The contract provided that Ben would construct the sewers by full-depth, open-cut trenches, but with the permission of Authority's consulting engineer could use the tunnel method. Ben sought and received this permission for a portion of the work. There was no unit price per linear foot provided for tunnel construction (as there was for the open-cut method); however, in reference thereto the contract stated, "It shall be paid for at the contract unit price for pipe installed in open cut for the corresponding depth classification."

The contract further provided for monthly payments by the Authority with a ten per cent retainage. Upon completion of the work and Ben's furnishing of a maintenance bond to the Authority, the balance unpaid became due within thirty days.

In the course of construction, Ben encountered within the trench limits a much greater amount of rock and "hard materials" than it anticipated from its initial inspection of the work sites and study of the information booklet circulated by Authority for the guidance of bidders. Ben then took the position that, under the terms of the contract, the materials to be excavated were "classified," i.e., a separate payment was due for any "hard materials" encountered and excavated. It, therefore, in one of its early monthly statements for payment of estimated work done, included a separate charge for "hard materials" excavated. Authority disputed the charge and ...


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