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COMMONWEALTH PENNSYLVANIA v. ACCHIONI AND CANUSO (08/09/74)

decided: August 9, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
ACCHIONI AND CANUSO, INC., AND NESHAMINY CONSTRUCTORS, INC., APPELLEES



Appeal from the Order of the Board of Arbitration of Claims in case of Acchioni and Canuso, Inc. and Neshaminy Constructors, Inc. v. Commonwealth of Pennsylvania, Department of Highways, No. 251.

COUNSEL

Stuart J. Moskovitz, Assistant Attorney General, with him Edward A. Hosey, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.

Steven A. Arbittier, with him Wolf, Block, Schorr & Solis-Cohen, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.

Author: Blatt

[ 14 Pa. Commw. Page 598]

This is an appeal from an adjudication of the Board of Arbitration of Claims (Board) in a matter involving Acchioni and Canuso, Inc. and Neshaminy Constructors, Inc. (appellees) and the Commonwealth of Pennsylvania, Department of Transportation (PennDot). The appellees were named the contractors for a project which involved the construction of a 33 span multigirder bridge, a box beam bridge and an arch culvert on South Broad Street in Philadelphia. All three portions of the project involved the installation of concrete piles (cast-in-place concrete piles consisting of steel shells filled with concrete) and the appellees subcontracted with Raymond International, Inc. (Raymond) to complete the pile installation.*fn1

The appellees claimed before the Board that, as a result of unusual and unanticipated subsurface conditions encountered on the project and PennDot's arbitrary refusal to change its requirements, Raymond was forced to use "extraordinary methods" in order to meet the minimum tip elevations for installation of certain of the piles, as a result of which appellees will have to reimburse Raymond to cover the additional costs involved.*fn2 The Board concluded that, (a) the appellee could justifiably rely on the soil profile furnished by PennDot before bidding, even though it was thought by the Board to be erroneous as to several

[ 14 Pa. Commw. Page 599]

    areas; (b) PennDot acted unreasonably in refusing requests by Raymond to raise the minimum tip elevation; (c) the contract for the multi-girder and box beam bridge incorrectly represented that 7 gauge steel could be driven by normal methods to the minimum tip elevation; and (d) the gauge provision allowed only for 7 gauge piles and nothing else. Therefore, because Raymond was entitled to recovery for its costs from the appellees, the appellees were awarded $100,000.

Our scope of review is limited and we must affirm the order of the Board unless it was not in accordance with law or there was an absence of substantial evidence to support the findings of fact. Penn-Jersey Contractors, Inc. v. Commonwealth of Pennsylvania, The General State Authority, 12 Pa. Commonwealth Ct. 203, 315 A.2d 920 (1974). We find here that certain basic principles of contract law were overlooked by the Board, and we must reverse.

Parties have the right to make their own contract, and it is not the function of the court to rewrite it or give it a construction in conflict with the plain meaning of the language used. Michael Baker, Jr. v. Commonwealth of Pennsylvania, Department of Transportation, 12 Pa. Commonwealth Ct. 254, 315 A.2d 669 (1974). Courts must interpret contracts as written, and in construing a contract each and every part of it must be taken into consideration and be given effect; the intention of the parties must be ascertained from the entire instrument. John McShain, Inc. v. General State Authority, 9 Pa. Commonwealth Ct. 427, 307 A.2d 469 (1973).

In reviewing the agreement we must note that the contract specifically incorporated "the original proposal . . ., Form 408, Specifications, dated 1967, and Form 409 dated 1967," as well as "the drawings of the project, ...


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