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CENTRAL PENN INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (06/02/76)

decided: June 2, 1976.

CENTRAL PENN INDUSTRIES, INC.
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, (2 CASES)



Appeal from the Order of the Board of Arbitration of Claims in case of Central Penn Industries, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 301.

COUNSEL

Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for Commonwealth.

Edward C. First, Jr., with him David B. Disney, and McNees, Wallace & Nurick, for Central Penn Industries.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Rogers. Dissenting Opinion by Judge Wilkinson. Judge Blatt joins in this dissent.

Author: Rogers

[ 25 Pa. Commw. Page 27]

Central Penn Industries, Inc. (hereinafter referred to as Central) under its former name, Central Pennsylvania Quarry, Stripping and Construction Co., entered into a contract with the Commonwealth of Pennsylvania, acting by its Department of Transportation*fn1 (PennDOT), for the construction by Central of seven miles of a separated highway known as I-84. The project was advertised for bidding on March 11, 1966 and for letting on April 15, 1966. Central's bid of $4,013,528.58 was the low bid. The contract was duly awarded to Central which commenced the work on May 9, 1966 and completed it in December of 1968.

The contract was let and bids received on the unit price basis for many items of the work. After the work was completed the Department issued its Notification of Amount of Final Payment showing the total amount due Central to be $3,886,710.93, an amount arrived at by computation of the amount of work actually done with respect to unit price items. Central objected to the Department's computations of the amount of money due with respect to two unit price items -- (1) Class 1 excavation and (2) borrow excavation.

The parties were unable to resolve their differences over the disputed items and Central filed a complaint with the Board of Arbitration of Claims. The Board denied Central any recovery for its claim based upon Class 1 excavation, but awarded Central the amount of $231,240 on its claim with respect to borrow excavation. The Commonwealth has appealed from the action of the Board allowing Central's claim for the borrow excavation, and Central has appealed from the Board's action denying its claim with respect to Class 1 excavation. We have concluded that the Board correctly denied Central's claim for additional compensation

[ 25 Pa. Commw. Page 28]

    for Class 1 excavation and that it erred in awarding Central additional compensation for borrow excavation.

Central's Appeal

PennDOT provided bidders with a Soils Profile, which included a Seismic Survey, purporting to show the hardness and elevation of rock. In doing the work Central encountered the top of rock at elevations higher than those indicated on the Soils Profile. This condition required Central to excavate about 500,000 cubic yards of rock in excess of the amount of rock the Soils Profile provided by PennDOT indicated would be present. This unanticipated work, Central says, caused its cost per cubic yard of Class 1 excavation to be 99.2 cents, 9.2 cents more than its bid price of 90 ...


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