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COMMONWEALTH PENNSYLVANIA v. E.J. ALBRECHT COMPANY (05/27/81)

decided: May 27, 1981.

COMMONWEALTH OF PENNSYLVANIA, STATE HIGHWAY AND BRIDGE AUTHORITY AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION (PENNDOT), PETITIONER
v.
E.J. ALBRECHT COMPANY, RESPONDENT



Appeal from the Order of the Board of Claims in the case of E.J. Albrecht Company v. Commonwealth of Pennsylvania, The State Highway and Bridge Authority, a public corporation, and The Pennsylvania Department of Transportation, Docket No. 331.

COUNSEL

Mark F. Brancato, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Harvey Bartle, III, Attorney General, for petitioner.

Alan A. Garfinkel, Berkman, Ruslander, Pohl, Lieber & Engel, for respondent.

Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Macphail

[ 59 Pa. Commw. Page 247]

The Commonwealth of Pennsylvania State Highway and Bridge Authority and Pennsylvania Department of Transportation (collectively, PennDot) have appealed from an order of the Board of Claims (Board) reaffirming its previous order*fn1 directing PennDot to pay the sum of $105,513.05 together with interest to the E.J. Albrecht Company (Albrecht).

This case is before us for the second time. We shall adopt herein the facts of this case recited by this Court in Commonwealth of Pennsylvania State Highway and Bridge Authority and Pennsylvania Department of Transportation v. E.J. Albrecht Co., 48 Pa. Commonwealth Ct. 491, 409 A.2d 1202 (1980).

Factually, the dispute arises from the interpretation of a construction contract entered into in 1969 between the parties for the improvement of a certain section of highways and bridges on L.R. 1039, Section 3, in Pittsburgh, Allegheny County. Among other things, the contract prepared by PennDot required Albrecht to do a substantial amount of excavation for which Albrecht was to be paid $3.00 per cubic yard or $20.00 per cubic yard depending

[ 59 Pa. Commw. Page 248]

    upon whether the excavation was Class I, II, or III excavation. Albrecht's complaint against PennDot is in three parts. In its first count, Albrecht claims $74,632.55 for excavating work it did adjacent to retaining walls identified as F, G, and H. The second count in the complaint concerns excavation for the removal of an underpass roof. Albrecht's claim for damages for that item is $26,809.00. In the third count, Albrecht claims $4,172.14 for excavation adjacent to physical abutments or transitions from bridge to ground. PennDot has paid Albrecht at the rate of $3.00 per cubic yard for all of the disputed excavation work. Albrecht demands the difference between that rate and $20.00 per cubic yard. The parties have stipulated to the number of cubic yards actually removed.

Id. at 492-93, 409 A.2d at 1203.

We said in our first opinion and we say again that the sole legal issue presented in this case is whether the entire contract, including specifications and drawings, was ambiguous with reference to the question of whether the disputed excavation material was Class I, II or III. In the Board's initial adjudication it held that the contract was ambiguous, proceeded to construe the contract against PennDot and awarded Albrecht the damages it was seeking. We deem it necessary to quote from the Board's discussion in that adjudication:

As in this type lawsuit, we have before this Board a problem as to the interpretation of a Contract. It is the Plaintiff's position that in reading the Contract, it is unquestionable in their mind that the amount of excavation in question is classified as Class II. It is unquestionable in the ...


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