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COMMONWEALTH PENNSYLVANIA v. S. J. GROVES AND SONS COMPANY (07/29/75)

decided: July 29, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HIGHWAYS (NOW DEPARTMENT OF TRANSPORTATION), APPELLANT,
v.
S. J. GROVES AND SONS COMPANY, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION V. S. J. GROVES AND SONS COMPANY, APPELLANT



Appeals from the Order of the Board of Arbitration of Claims in case of S. J. Groves & Sons Company v. Commonwealth of Pennsylvania, Department of Highways, Docket 176, 1967.

COUNSEL

Edward A. Hosey, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for Commonwealth.

Joseph J. Laws, for S. J. Groves and Sons Company.

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

Author: Rogers

[ 20 Pa. Commw. Page 527]

These are cross-appeals by the Commonwealth's Department of Transportation and S. J. Groves and Sons Company from a decision by the Board of Arbitration of Claims in litigation arising out of a highway construction contract entered into in 1961, under which the work was completed in 1964, with respect to which the contractor's claim was filed with the Board in 1968, and the Board's decision was rendered in 1974. The Board awarded Groves, the contractor, damages in the amount of $819,999.88, for extra costs and expenses on account

[ 20 Pa. Commw. Page 528]

    of the Department's failure to advise the contractor prior to the award of the contract that the latter would not have access to a portion of the construction site for 14 weeks while the American Telephone & Telegraph Company removed and replanted coaxial conduits.

The Department of Transportation presents three questions. The first is that the Board was without jurisdiction because Groves' claim was not filed within six months after it accrued as required by Section 6 of the Act of May 20, 1937, P.L. 728, 72 P.S. ยง 4651.6. This argument can be quickly disposed of by reference to the specifications, Section 1.9.8 of which provides: "[t]he date on which the Secretary of Highways, through his authorized representative, notifies the contractor of the final certificate computations, or revised computations, as the case may be, shall be the date from which the time limit shall begin to run for the submission of claims to the Board of Arbitration of Claims named in the contract, and for such purpose shall be the date of completion of the contract." The Department's district engineer did not issue Final Certificate Computations until September 16, 1968, a date more than a year after Groves filed its claim with the Board. In Lashner, Inc. v. Department of Highways, 1 Pa. Commonwealth Ct. 486, 275 A.2d 403 (1971), we had occasion to consider the same contention by the Department in connection with a contract containing the same clause and there, by Judge Crumlish, Jr., we wrote:

"It is clear that the specification incorporated into the contract which set the date of notification of computations as the date which commenced the running of the statute of limitations and which made notification a prerequisite to any suit under the contract, indicate the undeniable intent of both Lashner and the Commonwealth to consider the date of notification as the accrual date of any cause of action under the contract." (Emphasis in original.) 1 Pa. Commonwealth Ct. at 490, 275 A.2d at 405.

[ 20 Pa. Commw. Page 529]

Hence, the claim was timely filed and the Board had jurisdiction.

Furthermore, the Commonwealth objected preliminarily that the claim was filed late; it never objected that it was prematurely filed. Indeed, after its preliminary objection to the original complaint was sustained with leave to Groves to plead again, the Department failed to file objections to Groves' amended complaint, but answered on the merits and went to trial. The first day of trial was a date after the issuance of the Final Certificate Computations.

The Department next contends that the Board erred in concluding that the Commonwealth committed constructive fraud by failing to notify Groves that a portion of the work area would be unavailable during 14 1/2 weeks*fn1 while AT&T relocated its coaxial cables.

The Board made comprehensive findings which our careful review convinced us are supported by the evidence. The Board summarized these findings in its Discussion which we adopt as a brief but accurate account of the facts, as follows:

"There appears to be no substantial dispute of the relevant facts. Plaintiff was the successful bidder on a contract involving the improvement of Bristol Pike (Route #13) and intersecting roads and bridges in Bucks County. The area of the project involved in this dispute was at the intersection of Bristol Pike and Woodhaven Road. At this point, Bristol Pike runs in an east-west direction and Woodhaven Road in a north-south ...


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