Appeal from the Order of the Board of Arbitration of Claims in case of General Asphalt Paving Company v. Commonwealth of Pennsylvania, State Highway and Bridge Authority, Docket No. 239.
Arthur H. Marateck, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.
Charles V. Stoelker, Jr., with him Meeham and Stoelker, for appellee.
Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle. Dissenting Opinion by Judge Blatt.
[ 46 Pa. Commw. Page 115]
The Commonwealth of Pennsylvania, State Highway and Bridge Authority (PennDOT), has appealed to this Court from an order of the Board of Arbitration of Claims (Board), awarding additional compensation to General Asphalt Paving Company (General) because the road construction work in which it was engaged was delayed for almost three months. The sole issue is whether an express provision in the construction contract which excludes claims for additional compensation on account of delay "caused by the failure of the owners of structures on, under and/or over the project to adjust their facilities during the progress of any portion of the work" is a bar to the claim.
[ 46 Pa. Commw. Page 116]
On February 24, 1966, General and PennDOT entered into a contract for the resurfacing and improvement of a part of Verree Road in Philadelphia, Pennsylvania. That portion of the contract with which we are concerned reads in relevant part as follows:
1.8.3. PUBLIC OR PRIVATE STRUCTURES ON THE PROJECT --
(1) Structures interfering with Contractor's Operation. The contractor is required to fully inform himself concerning location of public and private structures on, under and/or over the project which may or may not require removal, resetting, construction and/or reconstruction, and which may interfere with his operations, and it shall be assumed that he has prepared his bid and entered into the contract in full understanding of the conditions to be encountered and his responsibility in connection therewith. . . .
It shall be the responsibility of the contractor to make proper arrangements with the owners of structures on, under, and/or over the project, or to take requisite action for the removal, resetting or reconstruction of such structures and facilities which may be required by the construction. The contractor shall cooperate with the owners of structures on, under and/or over the project to arranging and performing his work in and around such structures, without additional compensation, to facilitate their preservation, reconstruction or relocation. The work of the contractor shall be arranged and performed in accordance with good engineering and construction practices. The [PennDOT] engineer will cooperate in
[ 46 Pa. Commw. Page 117]
working out the construction problems involved, but without relieving the contractor of his responsibility therefor.
(2) Delays in the Performance of Work. Delays may be expected in the performance of the work under contract in order to permit public and private structures to be removed, constructed, and/or reconstructed, but the work under contract may be required to proceed as deemed advisable by the engineer for the convenience and facility of the public use of the project. No charges or claims for additional compensation shall be made by the contractor for any delays or hinderances, regardless of duration or extent, caused by the failure of the owners of structures on, under and/or over the project to adjust their facilities during the progress of any portion of the work ...