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COMMONWEALTH PENNSYLVANIA v. L & L BOILER MAINTENANCE (10/26/79)

decided: October 26, 1979.

COMMONWEALTH OF PENNSYLVANIA, LAURELTON CENTER, DEPARTMENT OF PUBLIC WELFARE, PETITIONER
v.
L & L BOILER MAINTENANCE, INC., RESPONDENT



Appeal from the Order of the Board of Arbitration of Claims in case of L & L Boiler Maintenance, Inc. v. Laurelton State School and Hospital of the Commonwealth of Pennsylvania, Department of Public Welfare, Docket No. 432.

COUNSEL

Robert E. Kelly, Deputy Attorney General, for petitioner.

John C. Youngman, Jr., with him Candor, Youngman, Gibson & Gault; Richard H. Roesgen ; and Hager and Roesgen, for respondent.

Judges Blatt, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 47 Pa. Commw. Page 15]

Here the Pennsylvania Department of Public Welfare's Laurelton Center (Laurelton) appeals from an adjudication and order of the Board of Arbitration and Claims (board) which awarded to respondent contractor, L & L Boiler Maintenance, Inc., the full contract payment, plus interest, as provided under an agreement which obligated the contractor to install a steam line at Laurelton Center.

The excavation for the new steam line necessarily exposed an existing water line between two cottages at the Center. In frigid weather, that water line froze on January 15, 1975, but thawed without mishap. During the following weekend of January 18-19, a valve in the water line froze, and the result then was heavy flooding which caused damage to one of the cottages and its contents.

The contractor refused to repair or pay for that damage, and Laurelton therefore withheld payment to the contractor under the contract.

After hearing, the board issued an adjudication including a finding that Laurelton did not sustain the "burden of proof in attempting to show that the damage to cottage No. 7 was a result of the activity or inactivity of the Plaintiff."

Because the evidence has not revealed the nature or identity of the cause of the water pipe freezing and the consequent damage, each party argues that the other bears the burden of proof on that point.

Laurelton relies upon Paragraph 5 of Section A of the contract, which states:

[ 47 Pa. Commw. Page 16]

The contractor shall be responsible for any damages to existing utilities, buildings and grounds. Any utility damage by the contractor shall be ...


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