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

COMMONWEALTH COURT OF PENNSYLVANIA


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 complete set of plans and

[ 42 Pa. Commw. Page 636]

    designs to PennDOT on March 7, 1969 and that these plans and designs were accepted and approved by April 30, 1969. Under the terms of the agreement, the project was complete at that time.*fn1 Since the project was not advertised for bids within 90 days, the Board properly concluded that Swindell's fee must be based upon the approved estimated construction cost submitted with the plans and designs.

Swindell's argument to the contrary is based on the fact that in April 1970, one year after completion of the original project, PennDOT requested Swindell to make substantial modifications to a portion of the project, thereby rendering the formerly complete project incomplete pending PennDOT's acceptance of the modification. A "supplemental agreement" concerning the modifications was executed on September 14, 1970. Although the supplemental agreement refers to the original agreement, we are of the opinion that the supplemental agreement was not intended to alter the amount payable to Swindell for services already rendered. The original project was complete on April 30, 1969, and Swindell's right to a specific fee became fixed 90 days later. If desired, the right could have been enforced at any time thereafter. The supplemental agreement contained a provision specifying how Swindell was to be paid for the services performed pursuant thereto but did not purport to

[ 42 Pa. Commw. Page 637]

    alter the amount Swindell was already entitled to recover. We must therefore reject Swindell's argument.

In its order, the Board simply "rendered judgment" in favor of PennDOT and against Swindell. This was in error, since it is undisputed that Swindell has not been fully paid for its services; the dispute concerned only the amount to which Swindell was entitled. We will therefore vacate the order of the Board and remand for the entry of a judgment in favor of Swindell and against PennDOT in an amount consistent with the Board's decision and with this opinion.

Order

And Now, this 17th day of May, 1979, the order of the Board of Arbitration of Claims dated December 7, 1977 is hereby vacated, and this case is remanded with directions that judgment be entered in favor of Swindell Dressler Company and against the Pennsylvania Department of Transportation in an amount consistent with the decision of the Board of Arbitration of Claims dated December 7, 1977 and with this opinion.

Disposition

Order vacated. Case remanded.


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