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SWINDELL DRESSLER COMPANY v. COMMONWEALTH PENNSYLVANIA (05/17/79)

decided: May 17, 1979.

SWINDELL DRESSLER COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Board of Arbitration of Claims in case of Swindell Dressler Company v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 401.

COUNSEL

Robert B. Sommer, with him Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.

Arthur H. Marateck, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 42 Pa. Commw. Page 634]

Swindell Dressler Company (Swindell) has appealed from an order of the Board of Arbitration of Claims rendering judgment in favor of the Pennsylvania

[ 42 Pa. Commw. Page 635]

Department of Transportation (PennDOT). The dispute between Swindell and PennDOT concerns whether Swindell's fee for engineering and design services should be based on an estimate of construction costs or upon the bid submitted by the successful contractor.

In 1961, Swindell agreed to plan and design a highway in Erie County for PennDOT (then known as the Department of Highways). The agreement designated the "completed project" as "the delivery to the Department, and the approval and acceptance by the Secretary and the Chief Engineer, of the completed drawings of all plans and designs." If the plans and designs were advertised for bids within 90 days of their approval, Swindell's fee was to be determined by multiplying the bid of the successful contractor by 3.25 percent. If the plans and designs were not advertised within 90 days, the fee was to be determined by multiplying the estimated cost of construction by 3.25 percent.

On March 7, 1969, Swindell delivered a complete set of plans and designs to PennDOT, together with an estimated construction cost of $2,984,197.31. These plans and designs were formally approved by the Chief Engineer on March 24, 1969 and by the Secretary on April 30, 1969.

It is undisputed that the project was not advertised for bids until September 24, 1970, 17 months later. Nevertheless, Swindell contended that its fee should be based upon the bid of the successful contractor. When PennDOT disagreed, Swindell brought its action before the Board of Arbitration of Claims (Board). The Board entered a decision upholding PennDOT's position, and Swindell's appeal to this Court followed.

The record fully supports the Board's findings that Swindell delivered a ...


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