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COMMONWEALTH PENNSYLVANIA v. MOSITES CONSTRUCTION COMPANY (06/11/85)

decided: June 11, 1985.

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



Appeal from the Order of the Pennsylvania Board of Claims in the case of Mosites Construction Company v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 763.

COUNSEL

Michael D. Reed, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

Chester S. Fossee, with him, David A. Scotti, Reale, Fossee & Ferry, P.C., for respondent.

Judges Doyle and Barry and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. Judge Williams, Jr., did not participate in the decision in this case.

Author: Barry

[ 90 Pa. Commw. Page 34]

This appeal results from an order of the Board of Claims which found in favor of Mosites Construction Company (Mosites) against the Pennsylvania Department of Transportation (DOT) for $18,158.00 plus six percent interest.

Mosites contracted with DOT for highway and bridge repair. A problem with payment arose when, after approving several prior payments based on the weight of bolts, nuts and washers, DOT advised Mosites that these items were incidental and would

[ 90 Pa. Commw. Page 35]

    not be included in the weight of the steel for purposes of payment.

The Board of Claims determined that the contract was ambiguous regarding the payment schedule for bolts, nuts and washers used in repairs, and that this ambiguity should be resolved against the drafter of the contract, DOT.

Resolution of this appeal centers on certain contractual specifications. Item 2056-0130 of the Contract Specifications states, in part:

This work will be paid for at the contract unit price per pound for Fabricated Structural Steel Repairs, Method 1 and Method 2, which price will include welding, painting, materials, equipment, tools, labor and work incidental thereto.

Prior to bidding, DOT issued an addendum to the bidders which changed the estimated quantity of structural steel repairs from 7800 pounds to 14,056 pounds which change was noted on Sheet two of eight of the structural drawings. Two asterisks appear on this sheet next to the revised estimated quantity figure for Fabricated Structural Steel Repairs Methods 1, 2, 4 and 5. The following ...


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