John McShain, Inc. v. General State Authority

Opinion by Judge Mencer, On December 27, 1966, John McShain, Inc. (Mc-Shain) and the General State Authority of the Commonwealth of Pennsylvania (Authority) entered into General State Authority Contract No. 1104-10.1, under the terms of which McShain was to be the general contractor for the construction of a physical education building at Temple University. Section 10C-22 of the specifications to the contract between McShain and the Authority is captioned “Alarm System” and reads as follows: “a. All hardware sets suffixed with (a) shall include a compact, self-contained warning alarm triggered by unauthorized open — 429 — ing of door. Alarm shall be battery powered causing a loud, continuous blast by horns built into the unit. It shall also include a remote signalling system with multiple signal capability consisting of lights and buzzers at central station panelboard, operating on low voltage supervised lines to each monitored door through DO power supply and plug in type relays. Provide sufficient remote indicating panels to correspond with the quantity of alarms plus 25% expansion. Alarms and Remote indicating exit control equipment shall be of the type manufactured by Detex Corporation, New York, N. Y., or approved equal.” In order to make this alarm system operational, it was necessary to do certain electrical wiring. The electrical contract incident to this construction project did not contain any specifications or requirements for wiring the Detex Alarm System. Paragraph 17, Section III, of the General Conditions of Contract No. G.S.A. 1104-10.1 reads as follows: “All work that may be called for in the specifications and not shown on the drawings or shown on the drawings and not called for in the specifications, shall be executed and furnished by the Contractor as if described in both. Should any incidental work or materials be necessary for the proper carrying out of the intent of the specifications or plans, either directly or indirectly, the Contractor agrees to perform all such work and furnish and install all such materials as if the same were fully specified.” McShain commenced work on the aforesaid construction project on January 10, 1967. McShain furnished and installed the hardware for a Detex Alarm System in the metal frames of the doors in the building.1 On March 24, 1969, the Authority ordered Mc-Shain to perform the electric wiring work on the Detex — 430 — Alarm System which, resulted in McShain’s engaging, under protest, the firm of Ross Electric Construction Company, Inc. (Ross) to perform the necessary wiring at a cost of $7,848.55. On April 1, 1970, McShain filed a statement of claim with the Board of Arbitration of Claims, seeking to recover damages from the Authority for this forced electrical work, which it alleged was extra and not its responsibility under the terms of Contract No. G.S.A. 1104-10.1. After a hearing, held on May 11, 1971, the Board of Arbitration of Claims, on July 18, 1972, held against McShain on its claim for payment of the $7,848.55 which McShain had paid Ross for the necessary wiring relative to the Detex Alarm System. McShain filed this appeal from that decision. Appeals from the Board of Arbitration of Claims are governed by Section 8, subsections (b) and (c), of the Act of May 20, 1937, P. L. 728, as amended, 72 P.S. §4651-8(b), (c). Those subsections read as follows: “(b) Within thirty (30) days after dismissing the claim or making an award, any party aggrieved thereby, including the Commonwealth, shall have a right of appeal therefrom. Such appeal shall be taken to the Court of Common Pleas of Dauphin County.2 Parties — 431 — interested in such an order including the Commonwealth, jointly, severally or otherwise, may join in an appeal therefrom even though all of the interested parties do not join therein. “(c) The court shall hear the appeal without a jury on the record certified by the board. After hearing the court shall affirm the order unless it shall find that the same is not in accordance with law. The findings of the board as to the facts, if supported by substantial evidence, shall be conclusive. If the order is not affirmed the court may set aside or modify, in whole or in part, or may remand the proceeding to the board for further disposition in accordance with the order of the court.” (Footnote added.) Our scope of review is limited by the provisions of Section 8(c), and we must affirm the order unless it was not in accordance with law or there is an absence of substantial evidence to support the findings of the Board as to the facts. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. A. P. Weaver and Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A. 2d 515 (1971). After carefully reading the entire record, we conclude that the findings of fact made by the Board of Arbitration of Claims are supported by substantial evidence. Was the order of the Board of Arbitration of Claims in accordance with law? We think that it was. Courts must interpret contracts as written. Peter J. Mascaro Co. v. Milonas, 401 Pa. 632, 166 A. 2d 15 (1960). A court cannot disregard a provision in a contract if á reasonable meaning can be ascertained therefrom. In construing a contract each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument. Giuliani Construction Co., — 432 — Inc. v. School District of Philadelphia, 207 Pa. Superior Ct. 498, 217 A. 2d 793 (1966). The contract between McShain and the Authority provided for a Detex Alarm System and we believe that it is reasonable to conclude that this system was intended by the parties to be installed in an operable condition. The limited interpretation urged upon us by McShain would result in an unconnected alarm system which would be useless for the purpose for which it was designed. We think that the portion of Section 10C-22 which specified that the alarm system should include “multiple signal capability consisting of lights and buzzers at central station pauelboard, operating on low voltage supervised lines to each monitored door through DC power supply and plug in type relays” clearly expressed the obligation to provide the electrical wiring necessary to make the alarm system operable. Our conclusion is further supported by Paragraph 17 of Section III of the contract which, inter alia, provides that “[s]hould any incidental work or materials be necessary for the proper carrying out of the intent of the specifications or plans, either directly or indirectly, [McShain] agrees to perform all such work and furnish and install all such materials as if the same were fully specified.” We think that it is of some importance that the alarm system was referred to only in the general contractor’s specifications and contract and the electrical contract was totally silent in regard to the alarm system. This fact was or should have been known to Mc-Shain. In the absence of any ambiguity in a contract, we cannot give consideration to the practical construction of the contract as suggested by usual practice or custom. Although wiring is normally a part of the responsibility of the electrical contractor, the. contrae! — 433 — here provided otherwise in regard to the Detex Alarm System and placed that obligation upon McShain. Order affirmed. Judge Rogers dissents in this opinion. Footnotes [1] A difference of opinion existed as between McShain and the Authority as to whose obligation it was to do the wiring for the — 430 — alarm system. In June of 1968, McShain. sent to the Authority’s architect catalogue data for a Detex Alarm System, indicating that wire and installation of wire were to be included under the electrical contract. The architect crossed out the word “Electrical” and wrote in the word “General” before the word “Contract.” He then stamped the catalogue data “Approved” and returned it to McShain. Mc-Shain apparently saw the approval stamp but not the penned change from “Electrical” to “General” and the difference of opinion remained the same as before the admission of the catalogue data to the architect. [2] Section 508(a) (51) of the “Appellate Court Jurisdiction Act of 1970,” Act of July 31, 1970, P. L. 673, 17 P.S. §211.508(a) (51), provided that the jurisdiction of the court named in this section is transferred to and vested in the Commonwealth Court and that this section is “repealed insofar as inconsistent with such transfer.”