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NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY v. THOMAS M. DURKIN & SONS (05/31/84)

decided: May 31, 1984.

NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY, APPELLANT,
v.
THOMAS M. DURKIN & SONS, INC., A PENNSYLVANIA CORPORATION, AND H. GILROY DAMON AND H. GILROY DAMON ASSOCIATES, INC. AND HAAG & D'ENTREMONT, APPELLEES



No. 81 E.D. Appeal Docket 1983, Appeal from the Order of Superior Court at No. 2727 Philadelphia, 1981 dated April 29, 1983, affirming the Order of the Court of Common Pleas of Delaware County at No. 5409 or 1973, Pa. Superior Ct. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a Dissenting Opinion.

Author: Papadakos

[ 505 Pa. Page 45]

OPINION OF THE COURT

This appeal by the Nether Providence Township School Authority (Authority) calls into question well-settled principles of law concerning waiver of public contract provisions regulating change orders and extra work claims.

The Authority and Thomas M. Durkin and Sons, Inc., (Contractor) entered into a contract on June 12, 1968, under which the Contractor was to construct a new high school for the Authority at a price of $586,000.00. Not long after construction began, the Contractor noticed discrepancies between the site plan topography contour lines and the actual topography conditions. Resolution of these discrepancies required the clearing of an additional three-fourths of an acre of ground at the job site. A dispute arose as to who would bear the cost of clearing and grading this land.

The Authority's President authorized its secretary to correspond with the Contractor, acknowledging the disagreement and recommending continuation of the work with resolution of any problem at a later time. The Contractor completed the job and billed the authority $22,200.18 for the extra work, claiming he had been induced to perform this work by the letter of April 29, 1969. Work orders submitted to the Authority were rejected except for a tree removal claim of $350.00; the other claims were held to constitute part of the original contract.

The Contractor thereupon instituted an assumpsit action against the Authority for the extra work in the Delaware County Court of Common Pleas, claiming that the April 29, 1969, letter was a waiver of the no change provisions of the contract. The Authority joined the engineers who prepared the sketches. They in turn joined the architects, but both were dismissed from the action during the course of the trial and non-suits were entered in their favor. A jury

[ 505 Pa. Page 46]

    returned a verdict against the Authority for $32,856.10 (the full claim plus interest) and post trial motions were denied by the trial court in its September 28, 1979, order. That order was affirmed by the Superior Court which held that the April 29, 1969, letter was a waiver of the contract provisions regulating extra work, Durkin v. Nether Providence Township School Authority, 314 Pa. Superior Ct. 131, 460 A.2d 800 (1983).

Because we perceived this conclusion to be a departure from firmly established case law, we granted allocatur. The contract before us imposes responsibility on the Contractor's part to determine the amount of cut and fill needed to complete the job,*fn1 to examine the work site personally, and to satisfy himself as to the nature and location of the work, the confirmation of the ground, and the character, quality, and quantity of the materials which would be required for the job.*fn2 The contractor was aware of these

[ 505 Pa. Page 47]

    duties and had every opportunity to make his own estimate of the necessary excavation and submit a bid including the additional excavations costs, or bring the discrepancy to the Authority's attention. Once his bid was accepted and the contract was executed, however, he became bound by it, irrespective of discrepancies in the site plan with the actual job conditions. The contractor's obligation thus was to complete the excavation as part of the original contract at the agreed upon price unless a change order for extras was submitted and approved as provided in the contract. Section 16A of the contract specifically regulates change orders as follows: "No change in the contract shall be made without the written approval of the Board. A request for any change must be in writing." "Approval" is defined in Section 2 as the "written approval of the Authority and the architect or their authorized representative."

Where a public contract states the procedure in regard to work change and extras, claims for extras will not be allowed unless these provisions have been strictly followed. Scott Township School District Authority v. Branna C. Corporation, 409 Pa. 136, 185 A.2d 320 (1962); Morgan v. Johnstown, 306 Pa. 456, 160 A. 696 (1931). Here it is argued that the preparation of the change orders was supervised by the architect, contractor, and two members of the Authority Board, and that these members had authority to bind the Board on the change orders. We disagree. There is no evidence that the members were in fact authorized by ...


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