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MICHAEL BAKER v. COMMONWEALTH PENNSYLVANIA (02/22/74)

decided: February 22, 1974.

MICHAEL BAKER, JR., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Board of Arbitration of Claims, in case of Michael Baker, Jr., v. Commonwealth of Pennsylvania, Department of Transportation, No. 242.

COUNSEL

Judd N. Poffinberger, Jr., with him T. Lawrence Palmer and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.

Arthur H. Marateck, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Rogers

[ 12 Pa. Commw. Page 255]

Michael Baker, Jr., Inc., design engineers, have appealed from a judgment of the Board of Arbitration of Claims in favor of the Commonwealth in a suit to recover from the State the sum of $146,054.68 allegedly due for services performed under a written contract with the Department of Transportation. We affirm the Board.

[ 12 Pa. Commw. Page 256]

In the negotiations for the contract with the Department of Transportation Baker was represented by an employe bearing the title of chief engineer, a Christian F. Eben. The work the Department sought to have accomplished and Baker wished to be engaged to perform was the final design of a portion of an interstate road known as I-84. The United States government by its Bureau of Public Roads had agreed to pay 90% of the costs of the road, including the cost of design. The Federal Bureau of Public Roads required that a lump sum fee for the design work be established by contract. Prior to negotiating with Baker, the Department of Transportation had obtained a preliminary design of the work from another engineering firm. This 50 page report, which was available to Baker's representative during negotiations, included a preliminary cost estimate for constructing the section in question of $12,435,145. That estimate multiplied by 3.45% was used by the parties to fix Baker's design fee of $429,012.50.

The written contract between Baker and the Department of Transportation contained the following provisions which are determinative of this case.

"5. Payment --

"(a) In payment for the survey, design, drawings, computations and estimates including all structures, the Engineer shall be paid a fee of four hundred and twenty-nine thousand and twelve dollars and fifty cents ($429,012.50).

"6. The maximum cost, to the Department, for this Agreement shall not exceed the ...


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