Appeal from the Order of the Board of Claims in case of Acchione and Canuso, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 503.
Paul A. Logan, Assistant Attorney General, with him John T. Kalita, Jr., Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for petitioner.
Marvin Comisky, with him Richard M. Rosenbleeth, Alan C. Gershenson, and Michael Minkin, of counsel, Blank, Rome, Comisky & McCauley, for respondent.
President Judge Crumlish and Judges Wilkinson, Jr., Rogers, Blatt, Craig and MacPhail. Judges Mencer and Williams, Jr. did not participate. Opinion by President Judge Crumlish. Judge Rogers dissents.
This is an appeal of the Pennsylvania Department of Transportation (PennDOT) from a Board of Claims' decision awarding $191,272.05 in damages to claimant Acchione and Canuso, Inc. (Acchione).
These facts are pertinent. On October 5, 1973, general contractor Acchione and PennDOT entered into a contract for highway improvements to Roosevelt Boulevard in Philadelphia. Trenching excavation work was necessary to replace conduit encasing traffic signal wiring at existing intersections.*fn1
After reviewing the project plans, subcontractor Tony DePaul & Sons, Inc., noted a discrepancy between its calculation of 16,658 lineal feet of trenching and the bid materials calling for 13,131 lineal feet. As
a result, DePaul telephoned PennDOT's engineers and was informed that PennDOT had directed its engineers to assume that approximately half of the existing conduit would be reusable. Relying on its own calculations and this oral representation, DePaul arrived at a unit price of $24.00 by averaging the cost per lineal foot of earth, pavement and roadway trenching.*fn2
In the course of the project, PennDOT discovered most of the conduit was not reusable, and that the engineers had failed to include a contingency item in the contract for this eventuality. PennDOT orally directed DePaul to perform the necessary trenching and then executed a written work order calling for an additional 17,433 lineal feet at the contract unit price. When the job was completed, Acchione was paid at this contract rate for all work performed, 34,738.70 lineal feet.
However, in 1976, Acchione filed a complaint with the Board requesting increased compensation for all trenching performed, alleging that its cost per lineal foot substantially increased because the majority of the additional work was the more expensive roadway trenching.*fn3 The Board of Claims awarded additional compensation, finding that the increased amount ...