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SWINDELL-DRESSLER COMPANY v. COMMONWEALTH PENNSYLVANIA (04/11/80)

decided: April 11, 1980.

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



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

COUNSEL

Robert B. Sommer, with him Alexander C. Black, of Kirkpatrick, Lockhart, Johnson & Hutchinson, for petitioner.

Stuart M. Bliwas, Assistant Attorney General, with him, Robert W. Cunliffe, Deputy Attorney General and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman did not participate in the decision in this case.

Author: Mencer

[ 50 Pa. Commw. Page 465]

In Swindell Dressler Co. v. Department of Transportation, 42 Pa. Commonwealth Ct. 634, 401 A.2d 600 (1979), we ruled on a dispute between Swindell-Dressler Company (Swindell) and the Pennsylvania Department of Transportation (PennDOT) concerning 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. Our ruling, based on the provisions of the agreement between the parties and the facts of the case, was that Swindell's fee must be based upon the approved estimated construction cost submitted with the plans and designs.

We further determined that the original project was complete on April 30, 1969 and Swindell's right to a specific fee became fixed 90 days thereafter. We remanded the case to the Board of Arbitration of Claims

[ 50 Pa. Commw. Page 466]

(Board),*fn1 with directions that judgment be entered in favor of Swindell and against PennDOT in an amount consistent with our opinion.

On remand, the Board awarded Swindell $39,439.24,*fn2 with simple interest from April 2, 1974, the date the Board determined Swindell's cause of action accrued in these proceedings. Swindell filed this appeal which only challenges that portion of the Board's order fixing the date from which interest is to be computed.

In Department of Transportation v. DePaul, 29 Pa. Commonwealth Ct. 447, 371 A.2d 261 (1977), involving a claim against the Commonwealth under a contract for the installation of new traffic signals, we adhered to our holding in Department of Property & Supplies v. Berger, 11 Pa. Commonwealth Ct. 332, 312 A.2d 100 (1973), that interest should be awarded from the date on which the Commonwealth's obligation arose. In General State Authority v. Loffredo, 16 Pa. Commonwealth Ct. 237, 247, 328 A.2d 886, 893 (1974), we stated that "[i]t is axiomatic that when a contract is fully performed, the obligation to pay for that performance would arise on the date of completion absent contractual terms to the contrary."

Here the contractual terms were that, if the plans and designs were not advertised for bids within 90 days of their approval, the fee was to be determined by multiplying the estimated cost of construction by 3.25 percent. The project was not ...


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