Appeal from the Order of the Commonwealth of Pennsylvania, Board of Claims, in case of Glasgow, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 521, dated March 2, 1982.
Otis W. Erisman, with him Wilbur L. Kipnes, Schnader, Harrison, Segel and Lewis, for petitioner.
John J. Buchy, Jr., Assistant Counsel, with him Ward T. Williams, Chief Counsel, Jay Waldman, General Counsel, for respondent.
President Judge Crumlish, Jr., and Judges Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., concurs in the result only.
[ 78 Pa. Commw. Page 247]
Glasgow, Inc., appeals a Board of Claims order which denied further recovery under a contract between Glasgow and the Department of Transportation (DOT). We affirm.
Glasgow and DOT entered into a written contract for highway and bridge construction work, specifically to construct a reinforced concrete or earth slab to repair a sinkhole area. The earth slab method of construction was chosen because it was less expensive than its concrete counterpart. The earth slab method, however, required additional excavation since this slab must be placed further below the earth's surface.*fn1
[ 78 Pa. Commw. Page 248]
The contract provided a unit price for excavation extending to where the bottom of the concrete slab would have been located had that method been used. DOT paid Glasgow the unit price for this limited excavation. The sole issue is whether the contract clearly and unambiguously required Glasgow to include in its lump sum bid for the earth slab additional excavation costs. The agreement indicated that the lump sum item (Item 2000-0020) included the additional excavation. It further provided that any "[a]additional excavation for the reinforced earth slab shall be incidental to item 2000-0020."*fn2 "Incidental" is defined in the contract to preclude additional compensation for that item.
Glasgow argues that the additional excavation should be paid on a unit price basis. DOT contends that the additional work is part of the lump sum bid for the earth slab. DOT's interpretation prevailed before the Board of Claims.
Our scope of review is limited to whether the Board's order is in accordance with law and whether substantial evidence exists to support the Board's findings of fact.*fn3
In Department of Transportation v. Grammar Construction Co., 71 Pa. Commonwealth Ct. 481, 454 A.2d 1205 (1983), we stated that, if a maintenance contract is ambiguous as to the amount of work, the ambiguity will be resolved against the draftsman. Whether a contract is ambiguous is a ...