Appeal from the Order of the Board of Arbitration of Claims in case of Paoli Construction Company v. Department of Transportation, Commonwealth of Pennsylvania, Docket No. 316.
Arthur H. Marateck, Assistant Attorney General, with him, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for petitioner.
David B. Disney, with him McNees, Wallace & Nurick, for respondent.
President Judge Bowman and Judges Blatt and DiSalle, sitting as a panel of three. Opinion by President Judge Bowman.
[ 35 Pa. Commw. Page 391]
In July, 1970, petitioner, Department of Transportation (PennDOT), and respondent, Paoli Construction Company (Paoli), entered into a written contract for the construction or improvement of a certain section of state highway in Bucks County. The project involved construction of five and one-half miles of roadway over a new route in virgin territory and two miles of roadway within the right-of-way of the existing highway. During the course of construction, a dispute arose over Paoli's responsibility for maintenance and protection of through traffic along the two-mile segment of existing highway. As a result, after the project's completion, Paoli filed a complaint in assumpsit before the Board of Arbitration of Claims (Board) seeking compensation for what Paloi alleged
[ 35 Pa. Commw. Page 392]
to be unanticipated additional costs incurred in performing work beyond that required by the contract. The Board, after hearing, agreed with Paoli and awarded judgment in its favor in the sum of $218,322.07. PennDOT has filed a petition for review of the Board's order.
It is clear that an order of the Board must be affirmed by this Court unless we find that it is not in accordance with law or that there is not substantial evidence to support the findings of fact. Department of Transportation v. Brayman Construction Co., 33 Pa. Commonwealth Ct. 485, 382 A.2d 767 (1978). PennDOT argues that the Board's order should be reversed because it is not in accordance with basic contract law. PennDOT's argument is that the contract was patently ambiguous with regard to Paoli's traffic maintenance responsibilities; that Paoli was aware of this alleged patent ambiguity at the time it submitted its bid; that Paoli, therefore, had "an affirmative obligation" to "seek clarification" of the contractual provisions from PennDOT; and that, in failing to seek such clarification, Paoli bid "at its own risk" and is "estopped from claiming reimbursement for additional costs."
The Board concluded that the contractual provisions relating to traffic maintenance and protection were "ambiguous and incomplete" and, invoking the principle that an ambiguous contractual provision must be construed against the drafter, in this case PennDOT, determined that Paoli was not required by the contract to maintain a temporary roadway during construction of the new two-mile segment. Thus, PennDOT's insistence that Paoli do so, reasoned the Board, constituted a demand for additional work, not within the contract, for which Paoli should be reimbursed.
[ 35 Pa. Commw. Page 393]
Although we do not necessarily agree with the Board's conclusion that the contract was ambiguous, we do agree that the contract was "incomplete" in that, as written, it simply failed to require Paoli to perform the temporary roadway work PennDOT demanded. This being the case, we view the contract as having a patent "omission" rather than a patent "ambiguity." Since we believe the findings of fact in the present record support the conclusion that the contract was "incomplete," i.e., that the contract omitted provisions requiring Paoli to maintain through traffic along the entirety of the two-mile segment, we shall affirm the Board's order awarding judgment in favor of Paoli for additional work.
Few principles of law are more firmly established than the principle conferring upon parties the right freely to contract. "Parties have the right to make their own contract, and it is not the function of the courts to rewrite it or give it a construction in conflict with the plain meaning of the language utilized." Department of Transportation v. Brayman Construction Co., supra at 490, 382 A.2d at 769; see also Department of Transportation v. Acchioni and Canuso, Inc., 14 Pa. Commonwealth Ct. 596, 599, 324 A.2d 828, 830 (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. . . ." Id. The ...