Appeals from the Order of the Board of Arbitration of Claims in case of C. J. Langenfelder & Son, Inc. v. Commonwealth of Pennsylvania, Department of Transportation (formerly Department of Highways), Docket No. 409.
Frank A. Sinon, with him R. Stephen Shibla, and Rhoads, Sinon & Hendershot, for petitioner.
Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Acting Attorney General, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Craig and MacPhail. Judges Blatt and DiSalle did not participate. Opinion by Judge Rogers.
[ 44 Pa. Commw. Page 587]
The Board of Arbitration of Claims after trial entered judgment in favor of C. J. Langenfelder & Son, Inc., a road builder, and against the Pennsylvania Department of Transportation in the amount of $603,049.19 with interest from December 5, 1974. Both parties have appealed.
Langenfelder and the Department (then the Department of Highways) entered into a written contract dated January 20, 1969, under which Langenfelder undertook to build 13,205 feet of highway and bridges through the Tinicum Marsh, a feeding and resting ground for migratory birds, waterfowl and wildlife located in Delaware County. The contract called for Langenfelder to complete construction within twenty-one months, but delays extended construction time by more than twenty-two months.
The first significant delay occurred as a result of objections of the United States Department of Interior and others based on alleged harmful environmental consequences of construction in Tinicum Marsh. In order to build the highway through the marsh, Langenfelder was required to remove and dispose of a large amount of sediment and replace it with granular fill capable of supporting the highway. Langenfelder planned to do this by dredging the sediment, depositing it in Tinicum Marsh on privately owned land adjacent to the highway right-of-way
[ 44 Pa. Commw. Page 588]
and taking the necessary fill material from that land. When Langenfelder applied to the United States Army Corps of Engineers for the necessary permits to begin dredging on or about May 23, 1969, the Department of the Interior and persons and groups objected to their issuance on environmental grounds asserting that appropriate environmental planning had not been done. The normal permit issuance process was delayed while the Corps considered these objections. When the permits were finally issued on February 14, 1970 the objecting groups, including the Sierra Club and individuals, brought suit in United States District Court for the Eastern District of Pennsylvania against the Secretary of the Army and others, including Langenfelder, seeking an order invalidating the permits. A temporary restraining order halted operations for about ten days. The suit was eventually dismissed. Stewart v. Resor, No. 70-551 (E.D. Pa.). Langenfelder's dredging operations were delayed for seven months on account of this environmental issue.
Another cause of delay was difficulty encountered in redirecting traffic on Wanamaker Avenue, a public street crossing the highway right-of-way. The contract called for Langenfelder to build a temporary by-pass street to carry Wanamaker Avenue traffic while the permanent overpass was being constructed. According to the original plans provided by the Department, the temporary street would have passed over unprotected oil pipelines, which Langenfelder and the oil companies believed could not withstand the weight of traffic. After meeting with representatives of Langenfelder and the oil companies, the Department redesigned the traffic control plans for the temporary street and directed Langenfelder to redesign the sheeting and shoring plans in order to protect the oil lines. The redesign and the additional work occasioned
[ 44 Pa. Commw. Page 589]
by it caused a nine month's delay in the completion of construction on the temporary street, which in turn delayed construction of the permanent overpass and all other work dependent on its completion.
The remaining occasion of delay occurred during the pouring of the concrete deck of a bridge crossing Darby Creek. The first attempts to pour the deck were unsuccessful because the concrete hardened too fast and became unworkable. As a means of preventing this, Langenfelder recommended to the Department a change in the type of cement and the proportions of other ingredients used in the concrete. The Department approved the changes and Langenfelder poured the bridge deck after a delay of several months.
Langenfelder completed all construction on December 22, 1972. On June 7, 1974, the Department issued a Computation Certificate, showing its calculation of the amount due Langenfelder under the contract. On December 5, 1974, Langenfelder filed a statement of claim with the Board of Arbitration of Claims, seeking additional compensation for damages caused by the delays in an amount in excess of $1,165,000 and the remission of $26,565.00, which the Department had retained as liquidated damages for the delays, for which the Department, of course, denied responsibility. After ten days of hearings on Langenfelder's claims, the Board found that all delays were attributable to the Department. The Board awarded judgment in favor of Langenfelder in the previously stated amount of $603,049.19 with interest at the rate of six percent per year from December 5, 1974. The judgment consisted of damages of $576,484.78 and return of compensation withheld in the amount of $26,565.*fn1
[ 44 Pa. Commw. Page 590]
The Pennsylvania Department of Transportation's Appeal
The specific items of damages awarded to Langenfelder by the Board, whose action we here uphold, are described in the Board's findings of fact 75, 76, 78, 79 and 80, following. In finding 78, the delay caused by the Corps of Engineers' refusal promptly to issue the dredging permit is called "Dredge Permit Delay", the Wanamaker road redesign is called "Revised Construction at L.R. 795", and the delay occasioned by the defects in the concrete mix is called "Achievement of Workable Concrete":
75. Langenfelder's damages, by reason of the idleness of the attendant equipment, are as follows:
(a) Rental and insurance on
derrick barge "Great Eastern" $11,576.75
(b) Rental on 'S & P3' and
76. Certain attendant plant to outfit the dredge Barton and required to make it operate were made idle and unavailable to Langenfelder due to the delay. The fair rental value of this attendant plant is as follows:
Item Monthly Rental Period
5,500 l.f., 20" steel pipe $.50 l.f. 7 mos. $19,250.00
20-20" ball joints 50.00 7 mos. 7,000.00
77-20' dresser couplings .70 7 mos. 377.30
29 Pontoons -- 5 X 20 50.00 6.75 mos. 9,787.50
19 Pontoons -- 5 X 20 50.00 5 mos. 4,750.00
78. The damages to Langenfelder by reason of the delay, induced labor escalation costs that are broken down as follows:
[ 44 Pa. Commw. Page 591]
110 days/272.5 days = 40.4% $45,800.32
Revised Construction at L.R. 795
142 1/2/272.5 = 52.3% 59,291.01
Achievement of Workable ...