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J.E. BRENNEMAN COMPANY v. COMMONWEALTH PENNSYLVANIA (01/21/81)

decided: January 21, 1981.

J.E. BRENNEMAN COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Board of Claims in case of J.E. Brenneman Company v. Commonwealth of Pennsylvania, Department of Transportation, No. 337.

COUNSEL

Vincent B. Mancini, with him Richard E. Burnham, and Joanne M. Lindsey, Kassab, Cherry, Curran and Archbold, for petitioner.

Mark F. Brancato, Assistant Attorney General, with him Stuart J. Moskovitz and Paul A. Logan, Assistant Attorneys General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Blatt

[ 56 Pa. Commw. Page 211]

The petitioner in this case, J.E. Brenneman Company, appeals a decision of the Board of Claims (Board) rejecting the petitioner's contractual claims against the Commonwealth's Department of Transportation (DOT).

In 1970, the petitioner, after being chosen as the successful bidder in the construction project in question, entered into a written agreement with DOT in which the petitioner agreed to provide all the materials and labor for the improvement of the road and bridges along a certain section of highway in Montgomery County. As part of the construction of twin bridges involved in the project, the petitioner originally was to furnish 271 lengths of 36-inch diameter drilled caissons,*fn1 aggregating approximately 5271 linear feet, but the project was subsequently redesigned, requiring the addition of extra caissons for a total of 276. When DOT sent out its initial requests

[ 56 Pa. Commw. Page 212]

    for bids, it included plans and specifications declaring that the caissons were to be seated on rock with a bearing capacity of 15 tons per square foot and delineating, as the Board found, "the distance into which the foot of the caissons was to be socketed into solid rock or minimum tip elevations."*fn2 The documents also contained the results of 73 test holes which had been bored by an independent company at DOT's direction in order to indicate subsurface conditions and facilitate the design of the pier structures which were to support the roadbeds of the bridges. The petitioner began installation of the caissons and, at times, encountered rock above the minimum tip elevation which was not shown in the test hole data. In 78 of the caissons in which unanticipated rock was discovered, DOT did not insist that the petitioner reach the minimum tip elevation specified in the drawings, but in all other such instances DOT required that the rock be removed and that the caissons penetrate at least to the minimum tip elevation.

The petitioner filed a complaint before the Board alleging four counts against DOT. Count I maintained that DOT failed to provide adequate test borings for the project, that there was insufficient time between DOT's solicitation of bids and the deadline for their submission to allow the petitioner to seek its own subsurface survey and, as a result, materially different subsurface conditions were discovered which required the petitioner to excavate and extract 1523.6 linear feet of excess rock. Count II alleged that the drawings specify that the caissons were to be socketed one foot into solid rock and that DOT's insistence that the petitioner could not stop after drilling one foot into rock but must continue to penetrate at least

[ 56 Pa. Commw. Page 213]

    to the minimum tip elevation caused the petitioner damages by necessitating removal of 1812.4 linear feet of additional rock. Count III claims that DOT acted arbitrarily and capriciously by requiring that the caissons penetrate through more than one lineal foot of rock and to the minimum tip elevation. Count IV contends that, as a result of the delays caused by the unnecessary excavation delineated in the first three counts, the petitioner could not keep up its schedule for erection of the structural steel used to support the bridges and consequently incurred damages for storage and repainting of that steel. After multiple hearings and the taking of extensive evidence, the Board denied all the petitioner's claims.

Our scope of review is limited to determining whether or not the order of the Board of Claims was supported by substantial evidence and was in accordance with law, PennDOT v. E.J. Albrecht Co., 48 Pa. Commonwealth Ct. 491, 409 A.2d 1202 (1980), and, after reviewing the ...


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