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H. B. ALEXANDER & SON v. COMMONWEALTH PENNSYLVANIA (04/01/82)

decided: April 1, 1982.

H. B. ALEXANDER & SON, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, RESPONDENT



Appeal from the Order of the Board of Claims in case of H. B. Alexander and Son, Inc. v. Commonwealth of Pennsylvania, Department of General Services v. Nassaux-Hemsley, Inc., Docket No. 581.

COUNSEL

Arthur Berman, Berman, Bowell & Tintner, for petitioner.

Thadeus A. Tanski, Chief, General Litigation Unit, with him Anthony P. Krzywicki, Chief Counsel, for respondent.

President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 65 Pa. Commw. Page 559]

The appellant, H. B. Alexander & Son, Inc. was awarded the contract to do the general construction work involved in improvements to certain buildings at Laurelton State School and Hospital for the Pennsylvania Department of General Services. Included in general construction contract work was an item called Resilient Tile Flooring. After completing the work, Alexander filed a complaint with the Board of Claims to recover about $10,000 which it says it was required to spend doing work ordered by the Department but not required of it by the contract. Alexander sued the Department on this claim in the Board of Claims.

The Department filed an Answer and New Matter to Alexander's complaint. The Department's New

[ 65 Pa. Commw. Page 560]

Matter, which was endorsed with notice to plead, consisted of extensive reproductions of provisions of the contract imposing on the contractor the duty to inspect the site before bidding. The only averments of fact contained in the New Matter were:

35. Plaintiff did not visit his area of the jobsite where contract work was required.

36. All of the conditions described in the Room Finish Schedules were visible and otherwise readily ascertainable from a visible inspection of the buildings.

Alexander did not file a Reply to New Matter. The Department filed a motion for judgment on the pleadings on the ground that Alexander's admission, for failing to plead, that it did not inspect the site, required that judgment be entered against Alexander. The Board of Claims granted the motion, entering judgment in favor of the Department. Alexander has appealed. We reverse and remand the record for further proceedings.

Since judgment on the pleadings has been entered against Alexander, the facts alleged in its Complaint must be taken as true. Alexander's averments are: that the bidding documents included Resilient Floor work, which he subcontracted; that the subcontractor in preparing his price to Alexander had before him the Department's contract drawings to which were attached Room Finish Schedules; that on the Room Finish Schedules, under the heading "Floor", were spaces for recording flooring work required to be done in each room of the particular building being remodeled; that with respect to five of the total of thirteen buildings required to be ...


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