Appeal from the Order of the Board of Arbitration of Claims in case of W. P. Dickerson and Son, Inc. and Dickerson Enterprises, Inc., a Joint Venture v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 215.
Arthur H. Marateck, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, for appellant.
Bert R. Oastler, with him Smith, Currie & Hancock; Edward C. First ; and McNees, Wallace & Nurick, for appellees.
Judges Crumlish, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 42 Pa. Commw. Page 360]
This is the appeal of the Department of Transportation (PennDOT) from two judgments rendered by the Board of Arbitration of Claims in favor of W. P. Dickerson & Son, Inc. and Dickerson Enterprises, Inc. (Dickerson) and against PennDOT in the amounts, respectively, of $120,830.98 with interest from October 31, 1969 and $47,618.85 with interest from June 1, 1970.
On December 12, 1967 Dickerson and PennDOT entered into a written contract for the construction by the former of 5,500 feet of highway and necessary bridges in Crawford County. The most significant element of the contract was the construction of a pair of multi-span bridges across what is known as the Conneaut
[ 42 Pa. Commw. Page 361]
Swamp. The construction of these bridges entailed the manufacture, transportation and erection of 600 prestressed concrete box beams for the support of the concrete decks. All except 115 of these beams were manufactured by the Dickerson Structural Concrete Corporation, a company owned by W. Logan Dickerson, the owner of W. P. Dickerson & Son, Inc. and Dickerson Enterprises, Inc. PennDOT provided the specifications for the manufacture of the beams, including the materials to be used therein, and maintained an inspection team at Dickerson's plant during the process. All construction was originally to be completed within 230 working days but this was later extended to 299 days because of another contractor's delay in putting in place a surcharge, a fill material designed to stabilize the soil on the approach to the bridges. According to the plans, the surcharge was to remain in place for two years and it is clear that Dickerson could not complete its construction until the surcharge was removed.
Dickerson delivered the concrete box beams to the construction site and began placing them in late summer of 1968. By April, 1969, many of the beams were in place and portions of the deck were completed. On April 22, 1969 PennDOT notified Dickerson that three of the beams on the bridge were rejected because of top cracking. PennDOT inspected the other beams and by June 12, 1969 had rejected a total of thirty-seven of them for top cracks. All of the rejected beams had been manufactured at Dickerson's plant. Because of the rejections, Dickerson was forced to remove the beams or to shift them to areas of the bridge where decking had not yet begun. This caused a major disruption in the construction schedule. On July 18, 1969, after analyzing core samples of the top cracked beams, PennDOT accepted all but one of the beams as being satisfactory. The one that was not accepted was rejected
[ 42 Pa. Commw. Page 362]
because of insufficient top slab thickness. PennDOT also inspected beams still at Dickerson's plant and rejected thirteen of those because of side cracking.
On August 5, 1969 PennDOT approved a partial removal of the surcharge and the remainder was ...