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COMMONWEALTH PENNSYLVANIA v. OSAGE COMPANY (04/07/76)

decided: April 7, 1976.

COMMONWEALTH OF PENNSYLVANIA, THE GENERAL STATE AUTHORITY (NOW KNOWN AS THE DEPARTMENT OF GENERAL SERVICES)
v.
OSAGE COMPANY, INC., APPELLANT



Appeal from the Order of the Board of Arbitration of Claims in case of Osage Company, Inc. v. Commonwealth of Pennsylvania, General State Authority, Docket No. 302.

COUNSEL

James C. Larrimer, with him Dougherty, Larrimer & Lee, for appellant.

David W. Reager, Assistant Counsel, with him Arnold L. Wainstein, Assistant Counsel, Richard D. Holahan, Assistant General Counsel, and Michael A. Madar, Chief Counsel, 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

[ 24 Pa. Commw. Page 277]

This case is an appeal from a decision by the Board of Arbitration of Claims (Board) which denied claims by appellant for certain items of additional expense it incurred under a contract with the General State Authority (GSA) (now the Department of General Services). We affirm in part and remand to the Board for further proceedings.

On October 18, 1968, appellant, as successful bidder, executed a contract with the GSA for the general construction of a marina channel and jetties at Presque Isle State Park in Erie County. As the contractor, appellant was required to dredge the marina channel in areas and

[ 24 Pa. Commw. Page 278]

    to elevations indicated on the contract drawings. Upon commencing the dredging operation, appellant discovered that the elevations of the channel bottom to be dredged were actually higher than those stated in the drawings, thus necessitating the dredging of a greater quantity of material than appellant anticipated. Appellant was also required to install soil-cement pavement at various locations in the park. Following the initial installation of the pavement, the GSA informed appellant that the soil-cement material did not meet contract specifications and directed appellant to remove the pavement and make another installation. Appellant complied.

By writing dated July 14, 1970, subsequent to the completion and final inspection of the project, appellant submitted a list of claims to the GSA, which included damages related to the extra dredging of the channel and to the rejection of the first soil-cement pavement installation.*fn1 The GSA denied the claims and appellant filed a complaint with the Board. Hearings were held in September, 1974, and January, 1975, at which extensive testimony was taken and numerous exhibits introduced. The Board refused the claims that grew out of the extra dredging and the rejection of the pavement installation.*fn2 Appellant is now before this Court challenging that refusal.

DREDGING

Citing language contained in paragraphs 8 and 9 of the "Special Requirements" incorporated into the contract and our decision in Department of Transportation v. Acchioni ...


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