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COMMONWEALTH PENNSYLVANIA v. FRED LOFFREDO (11/29/74)

decided: November 29, 1974.

COMMONWEALTH OF PENNSYLVANIA, THE GENERAL STATE AUTHORITY, APPELLANT,
v.
FRED LOFFREDO, APPELLEE



Appeal from the Order of the Board of Arbitration of Claims, in case of Fred Loffredo v. The General State Authority at Docket No. 223.

COUNSEL

John A. Alogna, Assistant Counsel, with him Richard D. Holahan, Assistant General Counsel, and Michael A. Madar, General Counsel, for appellant.

Anthony L. V. Picciotti, with him Charles F. Duffield, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 16 Pa. Commw. Page 239]

This exceedingly long and rather complex case has been before this Court on two separate occasions. In brief, the pertinent facts of this appeal are that in 1966, the appellant, General State Authority (GSA), and the appellee, Fred Loffredo (Loffredo), entered into a $5.4 million contract for construction of nine buildings at the White Haven State School and Hospital. Various disputes arose and in 1970, an action was commenced by Loffredo before the Board of Arbitration of Claims (Board). On July 1, 1973, the Board made an award in favor of Loffredo against GSA. The form of this award, however, was procedurally defective and on January 4, 1974, this Court ordered the Board to make and produce findings of fact and conclusions of law.

On February 13, 1974, the Board did submit findings of fact and conclusions of law which GSA again attacked as procedurally defective. After oral arguments before this Court, a memorandum opinion and order, dated April 26, 1974, remanded the matter to the Board for a review of the record, arguments, further evidence, if necessary, and to render a "full and complete adjudication." Subsequently, on June 13, 1974, the Board filed findings of fact, conclusions of law and opinion awarding Loffredo $392,442.59, with interest from April 1, 1970. It is this award and the circumstances surrounding

[ 16 Pa. Commw. Page 240]

    it that is the basis of the instant appeal taken by the GSA. Although the award represents only approximately one-half of the amount claimed by Loffredo, he has not filed a cross appeal; therefore, the scope of our inquiry relates only to the awards made in favor of Loffredo against GSA.

Our scope of review in appeals from the Board of Arbitration of Claims is based on Section 8(c) of the so-called Arbitration Act, Act of May 20, 1937, P.L. 728, as amended, 72 P.S. § 4651-8(c), which states that findings of fact by the Board, supported by substantial evidence, shall be conclusive. As stated by Judge Mencer in John McShain, Inc. v. General State Authority, 9 Pa. Commonwealth Ct. 427, 431, 307 A.2d 469, 472 (1973): "[The Commonwealth Court's] scope of review is limited by the provisions of Section 8(c), and we must affirm the order unless it was not in accord with law or there is an absence of substantial evidence to support the findings of the Board as to facts."

It is this Court's function to review the record of this case for substantial evidence of support for the findings made by the Board in favor of Loffredo. These findings, if so supported, are binding on us. Appellant GSA has taken issue with each of the 17 counts found against it, and they have made extensive references to portions of testimony that are supportive of their position. However, it is not our province to retry the case or to make our own independent factual findings and conclusions from the evidence. The Board has heard and weighed the testimony and made its findings; it is not necessary that such findings be based on uncontradicted testimony as long as they are supported by substantial evidence. We have carefully reviewed the pertinent parts of the 18-volume record and find that there was substantial evidence upon which the Board did base its findings of fact. This is not to say that in some instances other findings than those made

[ 16 Pa. Commw. Page 241]

    by the Board could not have been drawn from the evidence presented, but in all cases, the findings the Board did make were based on substantial evidence. We cannot ...


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