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BURLY CONSTRUCTION CORP. v. COMMONWEALTH (12/20/71)

decided: December 20, 1971.

BURLY CONSTRUCTION CORP.
v.
COMMONWEALTH



Appeal from the Order of the Department of Justice in the case of In the Matter of the Claim of Burly Construction Corp., against the Commonwealth of Pennsylvania (Department of Property and Supplies).

COUNSEL

William K. Wright, with him Keith A. Clark and Shumaker, Williams & Placey, for appellant.

John Stewart, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino.

Author: Manderino

[ 4 Pa. Commw. Page 47]

This appeal arises from a contract dispute between the Burly Construction Company and the Department of Property and Supplies, Commonwealth of Pennsylvania. In May of 1967, the Commonwealth of Pennsylvania entered into a construction contract with the Burly Construction Corporation pursuant to which Burly was to construct a concrete gravity dam in Sholoha Falls, Pike County, Pennsylvania.

Subsequent to the signing of the contract, a dispute arose as to whether the contractor was required under the contract to use wood forms rather than steel forms in the construction of the bulk of the concrete dam. Burly did the work using wood forms and filed a claim against the Commonwealth requesting damages because

[ 4 Pa. Commw. Page 48]

    additional costs were incurred in the use of wood forms rather than steel forms. The Commonwealth rejected the validity of Burly's claim. Burly also made a claim for other items under the contract and the Commonwealth also made claims against Burly for certain delays, but none of these other claims are before us. Previous decisions involving these other claims have not been appealed by either Burly or the Commonwealth.

Burly's claim involving the use of wood forms was heard and a decision entered by the Department of Justice dismissing Burly's claim. It is this order which Burly now appeals to this Court.

The Commonwealth asks that Burly's appeal be quashed because it is barred by both his contractual agreement with the Commonwealth and by law. We do not agree and the motion to quash must be denied.

The contract between the parties specifically provided that Burly had the right to appeal from the decision and award of the Department of Justice ". . . as provided by law." The contract thus refers us to the law of the Commonwealth in order to determine whether Burly had the right to appeal. Under the contract, Burly had such a right if provided by law.

In contending that Burly did not have any right to appeal, the Commonwealth refers to Section 2408 of the Administrative Code of 1929 (Act of April 9, 1929, P.L. 177, 71 P.S. 638(j)). That Section, according to the Commonwealth, prohibits Burly's appeal because it states that a ". . . decision by the Department of Justice . . . shall be final." ...


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