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COMMONWEALTH PENNSYLVANIA v. MITCHELL'S STRUCTURAL STEEL PAINTING CO. (04/30/75)

decided: April 30, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
MITCHELL'S STRUCTURAL STEEL PAINTING CO., APPELLEE



Appeal from the Order of the Board of Arbitration of Claims in case of Mitchell's Structural Steel Painting Company v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 323.

COUNSEL

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

David B. Disney, with him McNees, Wallace & Nurick, George C. Xakellis, and Xakellis, Perezous & Mongiovi, for appellee.

Judges Crumlish, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 18 Pa. Commw. Page 592]

The Pennsylvania Department of Transportation (PennDOT) appeals from an award entered against it by the Board of Arbitration of Claims (Board) in favor of Mitchell's Structural Steel Painting Company (Company) in the amount of $45,000 plus interest.

On April 25, 1972 the Company entered into a contract with PennDOT to paint five bridges located in Clarion County, and, one month later, on May 25 Mitchell commenced the necessary cleaning operations on Bridge No. 2 which crosses the Clarion River in Paint and Monroe Townships. While applying a commercial sandblast to the expansion joints for removal of rust and scale, one of the Company's employees discovered that the existing finish coat of aluminum paint was peeling

[ 18 Pa. Commw. Page 593]

    off in sheets from the bridge surface. The employee immediately notified Mr. Mitchell, the owner of the Company, of this unusual condition and Mr. Mitchell ordered his employees to stop working on that bridge. On the following day, May 26, and on May 31, Mitchell met with local representatives of PennDOT with whom he discussed the increased anticipated costs which would result from the lack of adherence of the undercoat paint layers. At the conclusion of these meetings, it was agreed that the Company would go back to work on Bridge No. 2 and that the PennDOT representatives would submit a work order to PennDOT's central office in Harrisburg for removal of 60% of the existing aluminum paint at an additional cost of $45,000. The local PennDOT representatives indicated to Mitchell that they themselves did not have the power to approve such an order and that only the Harrisburg office had that power. Mitchell, however, anticipated that the order would be approved and resumed work on June 2. By a memorandum dated June 21, the Harrisburg central office informed the local office that the work order was denied, but this information was never communicated to Mitchell until October 11, which was after the job was completed.

On April 6, 1973 the Company filed its complaint against PennDOT with the Board seeking recovery for its unanticipated costs. After responsive pleadings were filed, an evidentiary hearing was held on September 18, 1973 before Board members Delduco and Kempter. When, however, the Board rendered its decision on April 17, 1974 neither Delduco nor Kempter was any longer a Board member. The award in favor of the Company was signed only by Fred C. Pace, then the Board Chairman, who had not heard the case. PennDOT has now appealed from that award to this Court.

The scope of our review in an appeal from an order of the Board is governed by Section 8(c) of the Act of May 20, 1937, P.L. 728, as amended, 72 P.S. § 4651-8(c)

[ 18 Pa. Commw. Page 594]

    which provides in part: "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 ...


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