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PENNSYLVANIA DEPARTMENT TRANSPORTATION v. PETER DEPAUL AND EUGENE DEPAUL (03/30/77)

decided: March 30, 1977.

PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
PETER DEPAUL AND EUGENE DEPAUL, TRADING AS TONY DEPAUL & SON, RESPONDENTS



Appeal from the Order of the Board of Arbitration of Claims in case of Peter DePaul and Eugene DePaul, trading as Tony DePaul & Son v. Pennsylvania Department of Transportation, Commonwealth of Pennsylvania, Docket No. 388.

COUNSEL

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

Marvin Comisky, with him Richard M. Rosenbleeth, Alan C. Gershenson, and, of counsel, Blank, Rome, Klaus & Comisky, for respondent.

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

Author: Wilkinson

[ 29 Pa. Commw. Page 448]

This is a Petition for Review of an award of the Board of Arbitration of Claims (Board) in the amount of $396,300.20 with interest from June 10, 1974, the date of the filing of the complaint. The award grows out of a dispute in the interpretation of a contract between petitioner and respondents. The contract provided for the installation of new traffic signals on North Broad Street in Philadelphia. The controversy centers around how the respondents are to be paid for

[ 29 Pa. Commw. Page 449]

    conduit and trench which were installed under the provisions of the contract. It is petitioner's position that payments for conduit and trench fall into two categories: (1) that identified on the contract drawings as "existing"; (2) that identified on the contract drawings as "proposed new conduit." The petitioner asserts that when respondents are required to replace existing conduit and trench they are to be paid by a unit price, but that the payment for all conduit and trench installed where the contract drawings call for proposed new conduit is covered by the lump sum bid for the contract. It is respondents' position that all new conduit and trench which they were required to install under the contract is to be paid for by a unit price. The Board found respondents' position to be the correct one. We must affirm.

The specific provision in the contract in principal controversy is printed in petitioner's reproduced record as one of the Special Provisions and provides:

Existing signal conduit shall be reused in place, where in reusable condition for installation of new signal cable. The amount of reusable conduit is unknown.

Prior to the installation of new signal cable the Contractor shall conduct a pulling test to determine whether the conduit is reusable. The decision as to whether or not the conduit is reusable will be made by the Engineer upon removal of the existing cable.

The Contractor shall install new conduit as directed by the Engineer. New conduit shall be galvanized steel alloy conduit and shall be paid for at the contract unit price per linear foot for Item No. 910-5005 -- 2 Inch Galvanized Steel Alloy Conduit complete in place. The trench required for ...


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