Appeal from the Order of the Board of Arbitration of Claims in case of Hempt Brothers, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 396.
David B. Disney, with him McNees, Wallace & Nurick, for petitioner.
Richard S. Herskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 36 Pa. Commw. Page 517]
Petitioner seeks review of an adverse determination by the Board of Arbitration of Claims (Board) denying petitioner additional compensation in the amount of $72,722.82 under a highway construction contract with the Commonwealth of Pennsylvania, Department of Transportation (respondent). We affirm the determination of the Board.
On November 2, 1972 petitioner executed a contract to perform all work in improving a section of Interstate 81 in East Pennsboro and Hampden Townships,
[ 36 Pa. Commw. Page 518]
Cumberland County. The initial phase of this construction involved clearing and grubbing the project area and disposing of burnable spoils for which petitioner bid $133,500.00 on a lump sum basis pursuant to the invitation to bid. Petitioner subcontracted the clearing and grubbing work in East Pennsboro Township (where 80% of the project area was located) to Kerndale Constructing Company (Kerndale). After Kerndale began work in December 1972, respondent's project engineer informed Merritt Rimshaw, a Kerndale official, that open air burning was prohibited in East Pennsboro Township by Department of Environmental Resources (DER) regulations as a part of the Harrisburg Air Basin established pursuant to Section 5 of the Air Pollution Control Act.*fn1 The engineer and Rimshaw agreed to continue burning spoils by constructing an open pit incinerator which is permitted in an air basin. Subsequently, in a letter to respondent dated February 12, 1973, petitioner stated that while it was aware that 80% of the project area was located in an air basin at the time of its bid, it was relying on Item 213-0001 of the contract, titled Temporary Project Air Pollution Control, in seeking additional compensation for construction of the open pit incinerator. By letter dated February 15, 1973, respondent's district engineer denied payment on the ground that Item 213-0001 does not apply when clearing and grubbing is done in an air basin.
Petitioner appealed this determination to the Board. At a hearing held on July 27, 1976, Rimshaw
[ 36 Pa. Commw. Page 519]
testified that Kerndale*fn2 was unaware that 80% of the project area was located in the air basin at the time of its bid. He stated that he relied on the inclusion of Item 213-0001 as allowing for additional costs to meet air pollution standards regardless of whether or not the project was located in an air basin. Rimshaw further testified regarding previous contracts with respondent that when he knew the work was to be done in an air basin he would bid on the basis of using the open pit incinerator. The Board found petitioner could not rely on Item 213-0001 since the provision, without any ambiguity, applies only when an actual violation of the Air Pollution Control Act has occurred.
Petitioner contends the Board erred as a matter of law in finding that Item 213-0001 contained no ambiguity. It bases its allegation of ambiguity on two theories: (1) that Item 213-0001 does not specifically state that it does not apply to project areas inside a DER-established air basin; and (2) that the language of Item 213-0001 is unclear as to whether there must be an actual violation of the Air Pollution ...