Gasparini Excavating Co. v. Pennsylvania Turnpike Commission

• Decision Date: 08 January 1963
• Citation: 409 Pa. 465,187 A.2d 157
• Parties: GASPARINI EXCAVATING COMPANY, Inc., Appellant, v. PENNSYLVANIA TURNPIKE COMMISSION.
• Court: Pennsylvania Supreme Court

Page 157

187 A.2d 157

409 Pa. 465

GASPARINI EXCAVATING COMPANY, Inc., Appellant, v. PENNSYLVANIA TURNPIKE COMMISSION.

Supreme Court of Pennsylvania.

Jan. 8, 1963.

James J. Ligi, Carlon M. O'Malley, Sr., Joseph E. Gallagher, O'Malley, Morgan, Bour & Gallagher, Scranton, for appellant.

John H. Schatt, Harrisburg, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, and O'BRIEN, JJ.

O'BRIEN, Justice.

Gasparini Excavating Company, Inc., appealed from the judgment of the Court of Common Pleas of Dauphin County which overruled and dismissed appellant's motion to modify and correct an award of Arbitrators or to resubmit the matter to the arbitrators.

Appellee, Pennsylvania Turnpike Commission, on or about April 26, 1955, advertised for bids for the construction of a portion of the Northeastern Extension of the Pennsylvania Turnpike. The bids were opened on May 18, 1955 and appellant was the successful bidder. On May 31, 1955 Gasparini and the Commission signed a written contract whereby Gasparini was to construct, in Luzerne County, the part of the Turnpike known as Section 37-I. Appellant was to commence work when ordered to do so by the appellee and was to have the work completed on or before September 1, 1956.

The Commission advertised for bids for slushing mine areas under Section 37-I, which work was awarded to Sullivan Trail Coal Company. The drilling and casing of the holes through which the material would be slushed was to be done by Manu-Mine Research and Development Company under a negotiated contract with the Commission.

Section 37-I comprised a distance of 15,176 lineal feet and included an interchange known as DuPont or Wyoming Valley. The right of way width was 200 feet, in addition to easements for slopes in cuts and fills.

Appellant, in order to establish the grade of the roadway required by the contract, had to excavate, using material from the cuts to fill the embankment areas. This movement of earth was rather extensive in some parts of the section, and it was necessary to have sufficient equipment of the proper kind deployed on the right of way. The direction of the flow of material excavated to make the fills or embankments was determined by balance areas where the excavating was being done. The movement of the earth from the place of excavation, either north or south, required the availability of an area of fill or embankment to receive it. The terrain on which the work was being done and the quantity and distances the earth could be moved most efficiently regulated the establishment of balance areas.

This section, as other parts of the Northeast Extension, crossed anthracite coal deposits and mined veins of coal where voids existed. For the purpose of stabilizing the surface, the Sullivan Trail Coal Co. slushed material into holes, drilled and cased by Manu-Mine Research and Development Co. The drilling and slushing work was to be done before any embankment or fill was placed and where cuts were to be made the excavating was to be done before the drilling and slushing was performed.

The contract contemplated the situation where other contractors would be working and obviously co-ordination and co-operation would be necessary to insure completion of the work in the allotted time. ¹ In the Gasparini contract with the Commission is the following provision:

'20. Cooperation With Slushing Contract. During the time that the Contractor is carrying on his operations under this contract, other contractors will be engaged in slushing operations on the site.

'The Contractor shall, therefore, plan and conduct his operations in such a manner as to cause a minimum of interference with the slushing operation. In order that the slushing maybe completed in the least time, the Contractor will be required to schedule excavation in the slushing areas first. No embankment will be placed in areas that are to be slushed until slushing is completed. No claims for damages or extra costs due to delay to the Contractor's work caused by the work of slushing contracts will be allowed and it is hereby agreed that the contract prices are submitted on this basis.'

On June 6, 1955, the Commission gave Gasparini official notice to proceed actively on the project and arrange to complete fully all work thereunder on or before September 1, 1956. The Contractor mobilized the necessary equipment and brought it to the site of operations.

At about the same time, the slushing operation was going on in the area to receive the fill or embankment and the appellant was not able to proceed with a large cut or excavation to move the earth as there was no place to receive it. Although the Contractor was able to do some work on other parts of the section the slushing work as it proceeded along the right of way prevented appellant from going on with its work, except in a limited way, until November, 1955.

The work was completed by appellant in July, 1957 instead of September 1, 1956. Gasparini filed several items of claim with the Commission but of concern here are claims of (1) Gasparini for additional costs due in delays in its work, (2) for additional costs incurred by B. G. Coon Construction Company, the paving subcontractor, and (3) for additional costs incurred by G. H. Litts, the concrete structures subcontractor.

The Commission rejected the claims and the matter went to arbitration under a provision in the contract between the parties and the majority of the arbitrators denied the claims. The decision and award of the Board of Arbitrators ruled that the claims arising out of delays caused by the drilling and slushing operation were denied for the reason that paragraph 20, Supra, of the contract contained a specific no damage clause applicable to the delays involved in these particular claims.

Gasparini, pursuant to provisions of the Act of 1927, P.L. 381, § 11(d), 5 P.S. § 171(d) ² presented a petition in the Court of Common Pleas of Dauphin County, to modify and correct the award of arbitrators and to resubmit the matter to arbitration. The Court, in its opinion and order, overruled and dismissed the motion and rule, and entered judgment in favor of the Pennsylvania Turnpike Commission and against Gasparini Excavating Company, Inc. This appeal followed.

The Act of 1927, P.L. 381, 5 P.S. § 161 et seq., 'places an award on the same footing as the verdict of a jury; mistakes of law may be rectified on appeal [citing cases]; and on a motion to vacate the award of the arbitrators, every inference of fact must be drawn in favor of the party having the award.' Pennsylvania Turnpike Commission v. Smith et al., 350 Pa. 355 359, 39 A.2d 139, 141 (1944), McDevitt v. McDevitt, 365 Pa. 18, 73 A.2d 394.

The Court below in its opinion denying appellant's claim said:

'The crux of Gasparini's complaint with respect to these disputed claims is that the Turnpike Commission actively and directly interfered with the Contractor's work when it notified Gasparini to proceed with the work, knowing that the Contractor would mobilize its equipment and personnel and then be unable to do the job because Manu-Mine Research and Development Co. and Sullivan Trail Co. were already occupying the work-site for their drilling and slushing operations respectively. Gasparini avers that the 'No Damages' clause in Paragraph 20 of the Special Conditions of the contract does not preclude it from recovery on its Claims Nos. 1, 4 and 5 and that accordingly the matter should be re-submitted to the Arbitrators for further proceedings. On the other hand, the Turnpike Commission contends that these claims should be denied because Paragraph 20 contains a specific 'No Damages' clause applicable to the delays involved in these claims and that Gasparini was put on notice by the provisions of the contract that other contractors would be working in the same area.'

The Arbitrators made no findings of fact, not being required to do so, and rendered their award on the legal effect of the provision in the Contract providing for no damages for delay. The part of the decision and award relevant in this appeal is as follows:

'A majority of the arbitrators find that Claims Nos. 1, 4 and 5, arising out of delay occasioned by the slushing and drilling contractor, should be denied for the reason that paragraph 20 of the Special Conditions, at page 9 thereof, contains a specific no damage clause applicable to the delays involved in these particular claims. This paragraph contemplates the very delays complained of and provides that 'No claims for damages or extra costs due to delay to the Contractor's work caused by the work of slushing contracts will be allowed and it is hereby agreed that the contract prices are submitted on this basis."

Where parties to a contract provide for arbitration, disputes involving questions of law as well as facts must be submitted to the Arbitrators: Shannon et al. v. Pennsylvania Electric Company, 364 Pa. 379, 72 A.2d 564 (1950).

In its opinion, the Court further said: 'We believe the question on which this case turns is whether the Turnpike Commission obligated itself to pay 'Extra Costs' to Gasparini solely because of delay in making the work site available to the Contractor. Could the delays experienced by the Contractor have been reasonably contemplated under the contract or were those delays unreasonably and abnormally increased by the Owner-Turnpike Commission? What was the real situation when Gasparini submitted its bid in May 1955 and when it received the Commission's Notice to Proceed on June 6, 1955. The contract provided that it should be completed on or before September 1, 1956. The work was begun on June 13, 1955. The period of the alleged delay complained of was from June 30 to November 30, 1955. During this period, however, the Gasparini Company, nevertheless, was able to excavate approximately 50,000 cubic yards of earth, to do clearing and grubbing and also some drainage work. At the same time the...