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MCGINLEY MAINTENANCE v. COMMONWEALTH PENNSYLVANIA (06/06/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 6, 1988.

MCGINLEY MAINTENANCE, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeal from the Order of the Board of Claims, in the case of McGinley Maintenance, Inc. v. Commonwealth of Pennsylvania, Department of Public Welfare, No. 1039.

COUNSEL

Frank A. Conte, for petitioner.

Bruce G. Baron, Assistant Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 588]

McGinley Maintenance, Inc. (Petitioner) appeals from an order of the Board of Claims (Board) denying Petitioner compensation under a contract for custodial services with the Commonwealth of Pennsylvania, Department of Public Welfare, Mayview State Hospital (Department). We affirm.

Petitioner entered into a contract with the Department whereby Petitioner was to perform certain custodial services at Mayview State Hospital from July 1, 1982 through May 30, 1983. The contract covered the Hospital's Temple Center I, Temple Center II, Hilltop Canteen, Forrester, and Medical Center. This contract consists of the Department's acceptance of Petitioner's March 1, 1982 bid proposal, which proposal incorporated the bid specifications of the Department.*fn1 Pertinent parts of the contract are as follows:

VIII. D. This agreement may be cancelled by either party at any time, with or without cause, upon sixty days written notice.

XI. C. Contractor shall be paid for actual units of service provided.

XIII. Award will be made on an aggregate basis. If one or more buildings are taken out of service the dollar amount bid on each will be deducted from the contract price during the time they are out of service. If part of a building is taken out of service, the monthly charge for that building will be reduced by the percentage of square footage so removed. (Emphasis added.)

[ 116 Pa. Commw. Page 589]

The parties subsequently entered into two renewal contracts. The second renewal contract included the language: "Contractor [Petitioner] will be reimbursed only for services/material actually accepted by the Department."*fn2

On June 19, 1985, this renewal contract was amended to extend the contract for an additional three months. The amendment stated that Petitioner would provide custodial services for the Temple Center I, Center II, Hilltop Canteen, and Forrester buildings during the months of July, August, and September, 1985 at a contract price of $30,342.60. Of this amount, $9,266.40 was attributable to custodial services for the Temple Center I building.

In February or March of 1985, the Department decided to phase out the Temple Center I building. In March of 1985, the Department's custodial supervisor orally advised Petitioner's supervisor that the Temple Center I building would eventually be taken out of service. On June 28, 1985, the Temple Center I building was closed and locked until May 1986. Petitioner did no custodial work in the Temple Center I building during the months of July, August and September 1985.

The Department, on or about August 29, 1985, sent Petitioner a proposed amendment which called for a $9,266.40 decrease in the contract price because the Temple Center I building had been closed.*fn3 In response to this proposed amendment, Petitioner demanded

[ 116 Pa. Commw. Page 590]

    payment for the months of July and August 1985. The Department made no attempt to satisfy Petitioner's demand for payment.

Petitioner filed a claim with the Board asserting that Article VIII of the contract required the Department to give Petitioner written notice 60 days prior to cancellation because the Department's proposed amendment was cancellation of part of the contract. The Board concluded that Article VIII of the contract was only applicable where there was a cancellation of the entire contract, and therefore Petitioner was not entitled to written notice nor to compensation under the contract for services which were not performed.

On appeal to this court,*fn4 Petitioner contends that the Board incorrectly interpreted the contract. Petitioner contends that the Department was required to give it 60 days written notice prior to closing the Temple Center I building. Petitioner maintains that since the Department did not properly cancel the part of the contract pertaining to the Temple Center I building, Petitioner is entitled to $9,266.40 compensation for the Temple Center I building.

It is not the function of the Board or the courts to rewrite a contract or to give a contract a construction in conflict with the plain meaning of the language used in the contract. Department of Transportation v. Brayman Construction Co., 33 Pa. Commonwealth Ct. 485, 382 A.2d 767 (1978); Department of Transportation v. Acchioni and Canuso, Inc., 14 Pa. Commonwealth Ct. 596, 324 A.2d 828 (1974). Where the words of a contract are clear and unambiguous, the intent of the parties

[ 116 Pa. Commw. Page 591]

    is to be determined solely from the express language of the instrument. Avery v. Pennsylvania Labor Relations Board, 97 Pa. Commonwealth Ct. 160, 509 A.2d 888 (1986).

In this case, article XI(C) of the contract clearly and unambiguously states that Petitioner will be compensated only for those custodial services which are actually performed. Article XIII of the contract makes it clear that if a building is taken out of service the amount ordinarily paid for custodial services for that building will be deducted from the contract price during the period the building is out of service. In this case, the Temple Center I building was out of service during July, August and September, 1985. Petitioner did no work in the building during this three month period. Thus, Petitioner is not entitled to any compensation for custodial services for the Temple Center I building for July, August and September, 1985. When Petitioner entered into this contract with the Department, it accepted the terms of article XIII of the contract which provides that no payment will be received for a building which closes.

Petitioner focuses on article VIII of the contract, which requires 60 days written notice prior to cancellation of the contract, and argues that the Department was required to give it 60 days written notice prior to closing the Temple Center I building. We have carefully reviewed the entire contract and disagree with Petitioner's interpretation of article VIII. Article VIII clearly refers to cancellation of the entire contract. If parties had intended for the closing of a building to constitute a partial cancellation of the contract requiring 60 days notice as Petitioner maintains, the language contained in article XIII of the contract would be meaningless. Such a result would be contrary to well established principles of contract law. In construing a contract, the

[ 116 Pa. Commw. Page 592]

    entire contract must be considered and all the contract's provisions should be given effect. Acchioni.

Accordingly, we affirm.

Order

And Now, June 6, 1988, the order of the Board of Claims in the above-captioned matter is affirmed.

Disposition

Affirmed.


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