Appeal from the Order of the Court of Common Pleas of York County, in case of Brady Contracting Company, Inc. v. West Manchester Township Sewer Authority and Columbia Gas of Pennsylvania, Inc. v. Columbia Gas of Pennsylvania, Inc. and C.S. Davidson, Inc., No. 82-S-1376.
Jeffrey W. Davis, with him, Thomas A. Beckley, Beckley & Madden, for appellant.
Lillian M. Morgan, Laucks & Monroe, for appellee, West Manchester Township Sewer Authority.
Judges Rogers and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.
This is an appeal filed by appellant, Brady Contracting Co., Inc. (Brady) from a York County Court of Common Pleas order granting appellee, West Manchester Township Sewer Authority's (WMTSA) motion for summary judgment and dismissing Brady's claim for pecuniary damages.
Appellant submitted a proposal to WMTSA pursuant to WMTSA's advertisement for bids for installation of sewer lines and excavation. This project was called The Willis Run Interceptor-Phase III project. WMTSA accepted Brady's bid and awarded the contract
on April 7, 1981 which was entitled "Contract for Construction". The contract price was $76,937.65. The drawings upon which Brady based its bid were prepared by Mr. Donald Resh, a private engineer representing C.S. Davidson, Inc. Mr. Resh was the project engineer employed by the WMTSA. His drawings marked the location of the subsurface utility lines and contained a stamp which read: "NOTE: Information concerning underground utilities is not guaranteed to be complete or accurate. Contractor is responsible to contact all utility owners and to determine the location of all underground utilities prior to excavation by use of power operated equipment." The parties to this action maintain that at a pre-construction site conference on April 10, 1981, between Brady, Mr. Resh and Columbia Gas Company officials, the utility markings, as shown on the original drawings, were either marked or confirmed.*fn1 In a follow-up letter to this pre-construction site conference, Mr. Resh stated, "Representatives of the utility companies, the contractor and the engineer reviewed on the site the markings of the utility so that the markings were fully understood. The existing utility should not interfere with the proposed construction work under this contract." On April 22, 1981, Columbia Gas again marked its gas lines. It was discovered then that these new, more accurate markings differed from the previous ones. To resolve the matter Columbia disconnected and then severed and removed the gas line at the point it conflicted with Brady's proposed excavation plans. Brady began
performance on April 27, 1981, but, due to the alleged obstruction of the gas line, Brady claims that some redesign and reconstruction were required. Brady claims that this resulted in $34,684.10 of additional costs not originally contemplated when the bid was submitted. It attributed these costs to increased labor, materials and equipment. Brady notified WMTSA on May 6, 1981, in writing, about the conflict and its increased costs. In addition, Brady advised WMTSA that it would continue to work but demanded a written commitment from either WMTSA or Mr. Resh that it would be reimbursed for its additional costs, although it did not itemize its additional expenses. Written reassurance was never provided by either WMTSA or Mr. Resh. The record does indicate that on-going discussions between Brady and Mr. Resh took place throughout the project about Brady's increased costs and that Mr. Resh verbally recommended to WMTSA an extension of time to complete the project if one was so needed or requested, and a contract price increase. Brady continued work and was granted a certificate of substantial completion on June 4, 1981. On July 9, 1981, Brady, in a letter from its attorney, wrote to WMTSA stating the amount it was requesting, setting forth the reasons for its request and demanding arbitration pursuant to the contract. Brady again did not itemize its increased costs. Subsequent negotiations failed and Brady filed for damages in York County Court of Common Pleas. WMTSA and Columbia Gas were named as defendants and both moved for summary judgment. The York County Court of Common Pleas, the Honorable James Buckingham presiding, granted WMTSA's motion but denied that of Columbia Gas. In granting WMTSA's motion, the trial court reasoned that the express contract terms in conjunction with Section 5 of the Act of December 10, 1974, P.L. 852, 73 P.S. § 180 (Act 287), to which the
contract refers, placed the risk of loss resulting from mislocation of subsurface utility lines squarely on Brady. On appeal, Brady argues that any written agreement must be construed strictly against the party drafting it and that since neither the contract documents nor Act 287 contain provisions which place the risk of financial loss on the contractor, it should be reimbursed. Nor, it contends, does Act 287 require Brady to dig excavation pits to determine the exact location of the subsurface utilities. In addition, Brady argues that Mr. Resh's actions in recommending a price increase to WMTSA are binding on WMTSA under the terms of the contract, that it fulfilled all conditions precedent for timely notification of extra expenses under the contract and that whether it complied with the relevant section of the contract which requires "reasonable" actions on the part of the contractor is an issue of fact which, by its nature, should be resolved by a fact finder, thus, the motion for summary judgment was improper.
In addressing Brady's first argument, Brady contends that any written agreement must be construed strictly against the party who prepared it, that there were no provisions in these contract documents which specifically allocate financial responsibility for the location of utility lines after contract formation and, similarly, there are no provisions to the effect that the contractor covenants that there are no utility line conflicts. This, Brady contends, is sufficient to impose financial responsibility on WMTSA. Brady also argues that Act 287, on which the trial court relies, does not allocate financial responsibility and makes no mention of the risk of loss for the mislocation of subsurface utility lines. In addition, Act 287, says Brady, does not even require the excavation of test pits to verify utility locations. In effect, Brady is arguing that, because there are no express provisions in Act 287 or the contract specifically placing
the risk of financial loss on it, WMTSA should bear the costs. This argument, however, misses the point. The real issue is not whether Brady should be financially responsible for additional costs due to its reliance on Mr. Resh's estimate of utility locations but whether WMTSA should be financially responsible for Brady's increased expenses due to Brady's failure to adhere to the contract and related documents which pertained to the ascertainment of the exact location of the subsurface lines. A careful reading of the contract documents reveals that Mr. Resh's original drawings were stamped with the aforementioned "warning", that the contractor is responsible for ...