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TRI-COUNTY EXCAVATING v. BOROUGH KINGSTON (10/03/79)

decided: October 3, 1979.

TRI-COUNTY EXCAVATING, INC., APPELLANT
v.
BOROUGH OF KINGSTON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Borough of Kingston, a Pennsylvania Municipal Corporation v. Tri-County Excavating, Inc., No. 12437 of 1976.

COUNSEL

Thomas P. Harlan, with him R. Hart Beaver, and Beaver, Wolf & Harlan, for appellant.

Frederick W. Alcaro, with him William J. Fahey, and Theodore L. Krohn, for appellee.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 46 Pa. Commw. Page 316]

The Luzerne County Common Pleas Court modified an arbitrator's award in favor of Tri-County Excavating, Inc. (Tri-County) upon petition by the Borough of Kingston. Tri-County claimed it was contractually entitled to reimbursement for allegedly unforeseen subsurface conditions encountered in connection with a sewer construction project, namely, unforeseen mine water, utility lines, and a storm main. The arbitrators awarded Tri-County $163,500.00 plus interest. The court below concluded that the arbitrators erred in awarding reimbursement for the mine water problem but found merit in the other two claims and reduced the award to $17,988.16. We conclude that the decision of the Common Pleas Court was correct as a matter of law.*fn1

[ 46 Pa. Commw. Page 317]

Shortly after construction was begun, the sub-contractor experienced adverse water and soil problems requiring additional work and, of necessity, increasing costs.

Who is contractually responsible for the extra costs?

"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. . . . 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." Commonwealth of Pennsylvania, Department of Transportation v. Acchioni and Canuso, Inc., 14 Pa. Commonwealth Ct. 596, 599, 324 A.2d 828, 830 (1974). (Citations omitted.)

Tri-County, in asserting its claim, relies entirely on Article 4.3 of the General Conditions which reads in pertinent part:

Unforeseen Subsurface Conditions:

4.3. The CONTRACTOR will promptly notify the OWNER and ENGINEER in writing of any subsurface or latent physical conditions at the site differing materially from those indicated in the Contract Documents. . . . If the ENGINEER finds that the results of such surveys or tests indicate subsurface or latent physical conditions differing significantly from those indicated in the Contract ...


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