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ARGEROS AND COMPANY v. COMMONWEALTH PENNSYLVANIA (07/20/82)

decided: July 20, 1982.

ARGEROS AND COMPANY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Board of Claims (formerly Board of Arbitration of Claims) in the case of Argeros and Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 520.

COUNSEL

Lewis R. Long, for petitioner.

Michael Reed, Assistant Counsel, with him Kenneth Lee Sable, Assistant Counsel, Mark Hodgeman, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

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

Author: Blatt

[ 67 Pa. Commw. Page 532]

Argeros & Company, Inc. (Argeros), a painting contractor, successfully bid on and subsequently entered into a contract with the Pennsylvania Department of Transportation (DOT) to paint five bridges. While painting bridge No. 4, Argeros determined that the weight of the bridge was approximately

[ 67 Pa. Commw. Page 533260]

tons, as opposed to the "approximately 180 tons" listed in the bid proposal and in the contract provided by DOT, and attributed this difference to the weight of the steel deck with which the state had replaced the original wooden deck sometime after it had taken over control of the bridge from the county. Argeros' representative testified that he had notified the Assistant Deputy Engineer of the weight differential and had voiced his position that Argeros had contracted to paint only 180 tons of metal on the bridge. The Assistant Deputy Engineer responded that Argeros had contracted to paint all the metal on the bridge and that it should, therefore, paint all metal surfaces on the bridge, including the deck. Argeros completed the work as so directed and was paid the amount for which it had contracted and submitted a claim to the Board of Claims (Board) for additional compensation in the amount of $6,900.00 for painting the surfaces represented by the additional tonnage. The Board denied the claim and this appeal followed.

Our scope of review here is limited to determining whether or not the Board's order is in accordance with law and whether or not the findings of fact are supported by substantial evidence. Department of Transportation v. Brayman Construction Company, 33 Pa. Commonwealth Ct. 485, 382 A.2d 767 (1978).

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 employed. Consequently, we must interpret contracts as written and the intention of the parties can be ascertained only by examining the entire instrument so that each and every part of the contract is taken into account and given effect. Department of Transportation v. Acchioni and Caruso, Inc., 14 Pa. Commonwealth Ct. 596, 324 A.2d 828 (1974).

[ 67 Pa. Commw. Page 534]

Argeros' representative testified that the contract called for painting of all metal surfaces. He further testified that he had looked at the bridge prior to submitting the company's bid but had not calculated its dimensions, choosing instead to rely upon the information contained in the bid. He maintained that the 180 tons set forth therein and in the contract referred to the structural steel surfaces but not to the deck of the bridge. However, the contract described bridge No. 4 as including an "[o]pen type steel beam bridge flooring." Argeros was, therefore, clearly on notice that the work to be done included the steel deck of the bridge, an area easily available for visual inspection and calculations.

Argeros' representative also testified that he had long-standing familiarity with the bridge and was aware that the state had converted the decking from wood to steel. Argeros, therefore, knew -- from the bid, from the contract as well as from its own personal knowledge -- that all metal surfaces were to be painted and that the bridge contained a metal deck. In the event of uncertainty on Argeros' part as to whether or not the deck was included within the contract requirements, it should have sought clarification from the Department prior to committing itself to the endeavor. Brayman. Further, in signing the contract, Argeros warranted that it had had sufficient time to examine the structures, that it was fully aware of and knew the character of the paint, metal and conditions to be encountered and that it ...


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