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decided: December 21, 1981.


Appeal from the Order of the Board of Claims in the case of Westmoreland Engineering Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 526.


Mark F. Brancato, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Harvey Bartle, III, Attorney General, for petitioner.

George I. Bloom, with him Thomas P. Shearer, and Lawrence A. Layton, for respondent.

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

Author: Craig

[ 63 Pa. Commw. Page 319]

The Pennsylvania Department of Transportation (PennDOT) appeals a decision of the Board of Claims (board) which awarded Westmoreland Engineering Company, Inc. compensation for engineering services claimed pursuant to a professional services contract.

To introduce the issues, some history from the record is helpful.

PennDOT's District 12 office (district) had prepared a preliminary design study for a proposed LR 1015 (Legislative Route) northward from Mount Pleasant to New Stanton, ending at a trumpet interchange with I-70 just west of New Stanton. PennDOT's central office approved the preliminary design, and, anticipating federal funding, sent the study to the U.S. Bureau of Public Roads (BPR), which recommended, among other changes, the elimination of the existing I-70 intersection with the primary New Stanton business road (LR 64125) located a short distance east of the LR 1015/I-70 interchange.

[ 63 Pa. Commw. Page 320]

At a public hearing, New Stanton business people objected to the elimination of the I-70 intersection with the business road because of the business access it provided.

On January 8, 1968 PennDOT executed a contract with Westmoreland to prepare the final design of the LR 1015 project, including also a special study of possible improvements in PennDOT's preliminary design, considering BPR's recommendations.

In the Spring of 1968, the Chrysler Corporation decided to build an assembly plant south of New Stanton, near the LR 1015 preliminary design line, astride the existing LR 64125. Therefore, PennDOT also agreed that Westmoreland design a relocated alignment of LR 64125 and revise the LR 1015 preliminary design line south of station 370;*fn1 several alternative preliminary design lines resulted.*fn2

Because of the importance of the Chrysler project, there was a climate of urgency; PennDOT shortcut normal procedures and lines of authority, issued oral orders, and often reduced agreements to writing after the fact. On three separate occasions, PennDOT placed the LR 1015 final design work on hold to facilitate other activities.

This appeal involves only work entirely within section four of LR 1015, north of station 370. After

[ 63 Pa. Commw. Page 321]

    final design work on that section four ended in January, 1972, PennDOT paid Westmoreland only for 50.6% of the work on the section, based on PennDOT's tentative 1967 estimated construction costs, $7,300,000. PennDOT refused to pay any more under the contract.

Westmoreland claims that it actually completed 59.3% of the final design work by January, 1972, and contends that, under the terms of the contract, the percentage of completion should be applied to construction costs estimated as of the time of cancellation, in April, 1976; that estimate was $22,285,827.

The board agreed, concluding that Westmoreland's fee should be calculated using the April, 1976 cost estimate. However, the board also found that PennDOT was entitled to a credit of $6,812.56 for supplying maps, and a credit of $62,434.65*fn3 for progress payments it had already made to Westmoreland. Thus, the board ordered PennDOT to pay Westmoreland $393,295.43.*fn4

[ 63 Pa. Commw. Page 322]

On this appeal, PennDOT raises the following issues: Was Westmoreland authorized to proceed with final design between final design stations 370 and 460? Did the design work beyond final design station 460 constitute unauthorized "extra work" outside the scope of the contract? Did Westmoreland fulfill the special study requirements in the contract? PennDOT contends that all of these issues were wrongly decided by the board and that the board's findings are not supported by substantial evidence.

This court must affirm the order of the board unless it is not in accordance with the law or unless findings of fact are not supported by substantial evidence.*fn5 Commonwealth, Department of Transportation v. Acchione and Caruso, Inc., 14 Pa. Commonwealth Ct. 596, 324 A.2d 828 (1974).

1. Final Design Authorization Past Station 370

PennDOT asserts that Westmoreland was authorized only to proceed with final design up to station 370, so that PennDOT is not liable for any final design past that point, located approximately one-quarter of the way northward into section four, the final section of proposed LR 1015.

Both parties agree that in May, 1968, PennDOT had orally instructed Westmoreland to halt work on the LR 1015 project,*fn6 and to conduct a study to determine whether I-70 should be relocated,*fn7 ...

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