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PENN-JERSEY CONTRACTORS v. COMMONWEALTH PENNSYLVANIA (03/06/74)

decided: March 6, 1974.

PENN-JERSEY CONTRACTORS, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, THE GENERAL STATE AUTHORITY, APPELLEE



Appeal from the Order of the Board of Arbitration of Claims, in case of Penn-Jersey Contractors, Inc. v. Commonwealth of Pennsylvania, General State Authority, Docket No. 256.

COUNSEL

Frank L. White, Jr., with him Duane, Morris & Heckscher, for appellant.

John A. Alogna, Assistant Counsel, with him Richard D. Holahan, Assistant General Counsel, and Michael A. Madar, General Counsel, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 12 Pa. Commw. Page 204]

This is an appeal filed by Penn-Jersey Contractors, Inc. (Penn-Jersey) from an adjudication of the Board

[ 12 Pa. Commw. Page 205]

    of Arbitration of Claims (Board) making an award in part on certain claims made by Penn-Jersey against the General State Authority (GSA).

Even a cursory review of the record made in this case by one not directly and intimately involved in this rather typical governmental construction project permits one to wonder how a contractor bids on construction for such a project, and how any such project is ever completed without a multiplicity of lawsuits. Typically, the parties to this case, subsequent to the acceptance of Penn-Jersey's bid, were faced with unanticipated variances which led to typical disputes, e.g., admitted changed site conditions, extras, architectural and engineering changes in design, other contractors prematurely completing work, labor disputes, misunderstandings between inspectors and performers, municipal governmental interference, landowner's (West Chester State Teachers College) objections, bankruptcy of another contractor, misunderstandings arising out of very technical and complicated specifications and agreements, and even acts of God in the form of precipitation causing impassable mud-filled roadways. It is rather remarkable that in the present posture of this case we are faced only with the few issues presented.

On April 16, 1969, Penn-Jersey submitted a $169,000 bid to GSA for the installation of certain underground plumbing utilities on a construction project involving new athletic facilities at the West Chester State Teachers College. Penn-Jersey's bid was based upon not only the specifications and the proposed agreement, but also upon a prior view or examination of the site conditions. On May 6, 1969, GSA declared Penn-Jersey the low and successful bidder, and awarded a contract to it. As part of the instructions to bidders, Penn-Jersey was given the responsibility of a "careful personal examination of the site to satisfy himself as

[ 12 Pa. Commw. Page 206]

    to the nature and location of the work, the conformation of the ground, the soil and rock conditions, and the character, quality and quantity of the materials which will be required." Penn-Jersey was also notified that it assumed "all risks resulting from any changes in the conditions which may occur during the progress of the work." The record indicates that at the time of the view or examination of the site prior to the bid, the president of Penn-Jersey observed that other contractors' work was already in progress. The agreement itself is dated May 7, 1969, and about a week later, the president of Penn-Jersey again visited the construction site where he observed, from his point of view, a substantial change in the site conditions, which obviously would increase the cost of Penn-Jersey's performing its contract. It notified the officials of GSA and after a series of meetings, GSA by a letter dated June 19, 1969, directed Penn-Jersey to proceed immediately with all work encompassed within the agreement and acknowledged the changed site conditions. Because of its pertinence to this opinion, we quote two paragraphs from that letter.

"The Authority, by virtue of this special meeting, does recognize, under the terms of contract, 414-28's claim of changed conditions on site. This claim falls into two categories; one being a loss in production efficiency, and the other restoration of finished surfaces. The first category will stand for arbitration. The second ...


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