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COMMONWEALTH PENNSYLVANIA v. GRAMMAR CONSTRUCTION COMPANY (01/31/83)

decided: January 31, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
GRAMMAR CONSTRUCTION COMPANY, RESPONDENT



Appeal from the Order of the Board of Claims in the case of Grammar Construction Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 583.

COUNSEL

Carleton O. Strouss, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

Charles R. Volk, with him Martin J. Saunders, Thorp, Reed & Armstrong, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 71 Pa. Commw. Page 482]

The Pennsylvania Department of Transportation (DOT) has appealed from an order of the Board of Claims (Board) directing DOT to pay the sum of $19,400.53 together with interest to Grammar Construction Co. (Grammar).

At issue here is the interpretation of a portion of a maintenance contract entered into between DOT and Grammar in 1977 for the cleaning of certain roadway slopes, slope benches, drop areas and shoulders at seven designated areas. Specifically, the dispute involves work performed along a 6,000 foot section of L.R. 1037 in Allegheny County, referred to in the contract as "Area No. 4". Grammar's complaint against DOT alleges that it was required to perform work beyond its contractual obligations for Area No. 4 and that it is entitled to compensation for that additional work. DOT contends that the work which Grammar performed was required by the terms of the contract and that no additional compensation is due. The parties have stipulated that compensation in the amount awarded by the Board is due Grammar if the disputed work was not required by the maintenance contract.

Following a hearing, the Board concluded that the contract was ambiguous with regard to the amount

[ 71 Pa. Commw. Page 483]

    of work required in Area No. 4 and that the ambiguity should be construed against DOT, who had drafted the agreement. The Board, accordingly, awarded damages to Grammar. DOT subsequently perfected its appeal to this Court.*fn1

Our scope of review is limited in cases of this nature. We must affirm the Board unless we find that its order is not in accordance with law or that the findings of fact are not supported by substantial evidence. Department of Transportation v. Paoli Construction Co., 35 Pa. Commonwealth Ct. 390, 386 A.2d 173 (1978).

The first issue raised by DOT is whether or not Grammar's acceptance of payment of the total contract price constituted a release of its present claim under the following contractual provision:

[T]he acceptance of the final payment by the contractor shall be considered as a release in full of all claims against the Commonwealth of Pennsylvania arising out of, or by reason of, the work done and ...


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