No. 85 E.D. Appeal Docket 1985. Appeal from the Order of the Superior Court dated December 5, 1984, Docket No. 1709, Philadelphia, 1983, affirming the Order of the Court of Common Pleas of Delaware County, Pa., entered on June 13, at No. 80-10135. 339 Pa. Super 147,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
In this appeal we are asked to decide whether the lower court erred in entering a compulsory non-suit against the appellant, Coatesville Contractors & Engineers, Inc. (Coatesville-appellant) in its action in assumpsit and trespass against appellee, Borough of Ridley Park (Ridley Park-appellee).*fn1 Coatesville initiated the action seeking to recover additional compensation in excess of the contract price called for in an excavation contract between the parties. Reviewing the evidence in a light most favorable to the appellant,*fn2 the record establishes the following:
In the summer of 1977, Ridley Park advertised an invitation for bids for certain excavation work to be performed at Ridley Park Lake.*fn3 Upon learning of the invitation, the appellant, through its agents, made an inspection of the job site in preparation of submitting a bid. The pre-bid on-site inspection revealed an area that was once a lake, but at that time was filled with silt. There was a small stream flowing through the area of silt giving the appearance of a meadow or a field. After making the inspection, appellant prepared and delivered its bid for the excavation job. The bid was submitted on official bid documents provided by appellee. Among other things, the bid documents set forth specifications for the removal of silt from the lake site. Paragraph 1 of the specifications provided:
The lake has been drained and shall remain in the drawdown condition until all silt debris removal work has been
completed. The contractor shall remove silt and debris from areas as herein and shown on the plan.
The appellant was the low bidder and was awarded the contract. In November, 1977, after receiving notice of its successful bid, Mr. John Fallon of Coatesville made another inspection of the lake site with a view toward getting the job started. On this second inspection the job site was found to be in a condition similar to that observed at the September pre-bid inspection. The lake bed was still full of silt and the small stream continued to run through the silt area.
In late March, 1978, appellant received notice from Ridley Park to begin work on the job. Responding to the notice, appellant sent workmen to the job site to commence operations. When appellant's workers arrived at the site, it was discovered that the lake was completely filled with water. John Fallon of Coatesville immediately notified the borough engineer, Jack Damon, of the unexpected water condition. Mr. Fallon informed the appellee that appellant had a couple of days work to do in other portions of the job site away from the main body of the lake and could get started on those other areas even though the lake was filled with water. Mr. Fallon indicated, however, that at such time when the appellant's work progressed to the lake, it would be necessary that the appellee have the lake drained of water and kept in the drained condition appellant observed in its September and November inspections, and which was called for by the bid documents and contract specifications.*fn4 Based upon Mr. Fallon's conversations with the borough engineer, appellant reasonably concluded that the appellee would take the steps necessary to remove the water from the lake and work was commenced.
The water remained in the lake throughout the spring and summer of 1978. From time to time, borough employees would go out on the lake in a boat and, with long poles, try to open a valve, ostensibly to accelerate the flow of water out of the lake. These efforts were consistently unsuccessful. Appellant continued on the job during this time and eventually, in early August 1978, considered its performance completed. Appellant billed Ridley Park for an additional $17,000.00 over and above the contract price, most of which had already been paid. The added $17,000.00 represented additional costs allegedly incurred by appellant because the lake was filled with water and remained that way while appellant performed its work under the contract.*fn5 Appellee disputed appellant's assertion that the job was finished and insisted that further work had to be done before the contract was completed. After negotiations between the parties over the question of whether appellant's performance was complete, the appellee agreed to hire a subcontractor to drain the water from the lake. The subcontractor engaged by appellee successfully drained the lake in March, 1979. Appellant returned to the job site after the lake had been drained and did the additional work insisted upon by appellee. Subsequently, Ridley Park refused to pay the invoice for additional expenses in the sum of $17,000.00 and appellant filed suit. At the close of appellant's case, the trial court granted appellee's motion for a compulsory non-suit. Appellant's timely motions to
remove the non-suit and for a new trial were denied. On appeal, the Superior Court affirmed. Appellant's petition for ...