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COMMONWEALTH PENNSYLVANIA v. BRAYMAN CONSTRUCTION CO. (02/03/78)

decided: February 3, 1978.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
BRAYMAN CONSTRUCTION CO., RESPONDENT



Appeal from the Order of the Board of Arbitration of Claims in case of Brayman Construction Corporation v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 332.

COUNSEL

John T. Kalita, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for petitioner.

Victor R. Delle Donne, with him Owen B. McManus, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for respondent.

Judges Wilkinson, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle. Judge Rogers dissents.

Author: Disalle

[ 33 Pa. Commw. Page 486]

This petition for review was filed by the Commonwealth of Pennsylvania, Department of Transportation

[ 33 Pa. Commw. Page 487]

(Department), from an adverse decision rendered by the Board of Arbitration of Claims (Board).

Brayman Construction Company (Brayman) entered into a contract with the Department for the construction of a portion of Interstate-79. The total contract price was $4,430,471.20. Included in this contract was the relocation of a township road and the construction of a new arch to carry the relocated road over a channel.

Prior to the bidding on this particular contract, Brayman perused all the proposals, plans, and specifications regarding the project. Brayman also physically made an inspection of the site covered by the contract. While in the process of constructing the relocated road, Brayman discovered a pre-existing, reinforced concrete arch which Brayman contends was not designated on the Department's specifications and plans. The Department maintained that the cost of removing the existing arch should be borne by Brayman under its contractual responsibilities. Brayman completed the excavation of the old arch, but did so under protest.

The Department refused to pay Brayman for the cost of the removal of the arch, contending that it was covered in the quantities listed for excavation. Brayman contended that the item was not covered in the excavation quantities and filed a claim before the Board. After a comprehensive hearing, the Board entered judgment for Brayman and against the Department in the amount of $12,869.18.

At the hearing, the expert who calculated the bid for Brayman on this portion of the job stated that the arch was not taken into consideration when the job was bid because it did not specifically appear on the Department's documents. The Department's expert conceded that none of the ...


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