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FOLEY BROTHERS v. COMMONWEALTH (06/30/60)

June 30, 1960

FOLEY BROTHERS, INC.
v.
COMMONWEALTH, APPELLANT.



Appeal, No. 14, May T., 1960, from decision and award of Board of Arbitration of Claims, Docket No. 77, in case of Foley Brothers, Inc. v. Commonwealth of Pennsylvania, Department of Highways. Decision and award affirmed; reargument refused August 3, 1960.

COUNSEL

Nelson M. Galloway, Assistant Attorney General, with him John R. Rezzolla, Jr., Chief Counsel, David E. Abrahamsen, Deputy Attorney General, and Anne X. Alpern, Attorney General, for Commonwealth, appellant.

John B. Martin, with him John J. McCreesh, Jr., Thomas S. Weary, and Duane, Morris & Heckscher, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 400 Pa. Page 586]

OPINION BY MR. JUSTICE BOK.

In 1947 the plaintiff, a contractor, made a contract with the Department of Highways of the Commonwealth to build the Penrose Avenue Bridge over the Schuylkill River in Philadelphia. The Commonwealth and the City of Philadelphia had, a year before, put in contract form their respective responsibilities vis-a-vis each other arising out of the construction of the bridge and its approaches. Plaintiff also contracted with the City in 1947 for certain of the peripheral work.

Plaintiff's construction contract required it to finish the bridge in 290 working days, but there were delays arising out of the Department's telling plaintiff to stop work while a railroad branch line was re-located and certain drainage problems were solved. Having begun work in March, 1948, plaintiff was unable to finish its job until November, 1950.

The Department of Highways did not issue its final certificate until 1953 and in 1954 plaintiff began suit before the Board of Arbitration of Claims, as provided in its contracts, against the Department and the City. There followed considerable sparring over jurisdictional and procedural matters, with the result, in 1957 and 1958, that this court decided that the Board of Arbitration had no jurisdiction over the City and that it did have jurisdiction over the Department.

Twenty-one hearings were held, in consequence, between June 25 and October 30, 1958, on three claims advanced by plaintiff. The Board unanimously allowed the first and third claims, without interest, and disallowed the second. The Commonwealth has appealed.

The case is now before us on narrow certiorari. The contract between the parties expressly provided for arbitration under the Act of May 20, 1937, P.L. 728, No. 193, § 1, as amended, 72 PS § 4651-1 et seq., which created the Board of Arbitration to hear claims against

[ 400 Pa. Page 587]

    the Commonwealth. It provides for a Board of three members appointed by the Governor: two of them shall constitute a quorum. They are appointed for staggered terms and receive compensation per diem. If any member shall die or resign, the ...


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