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COMMONWEALTH PENNSYLVANIA v. BURRELL CONSTRUCTION & SUPPLY COMPANY (11/05/84)

decided: November 5, 1984.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
BURRELL CONSTRUCTION & SUPPLY COMPANY, INC., RESPONDENT



Appeal from the Order of the Board of Claims in case of Burrell Construction & Supply Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 715.

COUNSEL

Michael D. Reed, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

Frank M. Van Ameringen, for respondent.

Judges Doyle, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 86 Pa. Commw. Page 63]

This is an appeal by the Pennsylvania Department of Transportation (DOT) from a decision and order of the Board of Claims (Board) awarding Burrell Construction & Supply Company, Inc. (Burrell) "$9,117.40, together with interest at the rate of six (6%) percent per annum from April 15, 1980."

Burrell was awarded a contract for the resurfacing of Legislative Route 02260, Spur 2, in Allegheny County, commonly known as the 62nd Street Bridge. The contract, which incorporated by reference standard form specifications, supplements, and special provisions, required the removal of an existing bituminous surface from the roadway. The surface was then to be repaved with (1) a "scratch" course or leveling surface, (2) a binder course of one and a half inches minimum depth and (3) a wearing course of one and a half inches minimum depth.*fn1

[ 86 Pa. Commw. Page 64]

When the existing bituminous surface of the bridge was stripped away, the bridge deck was found to be seriously deteriorated; consequently, additional patching work was ordered by DOT and completed by Burrell at a cost of approximately $117,000.00. Because of this repair work DOT determined that less scratch course would be needed than was originally anticipated and so advised Burrell. Burrell verbally objected to this determination, believing the material to be necessary to ensure a level surface. Subsequently, Burrell, without obtaining a work order, written or otherwise, laid down an extra 272 tons of binder and wearing course material which in many areas that were sampled exceeded the one and a half inch minimum requirement for each. DOT advised Burrell of the excess thickness of the binder and wearing course materials, but made no further mention of this matter to Burrell. Recoupment for the cost of this 272 tons of materials is what is in dispute, a sum of $9,117.40.

Petitioner alleges that Burrell is not entitled to payment because the materials were not required by the contract, and were placed on the bridge without approval and without a written work order. In other words, DOT is insisting upon strict compliance with the terms of the contract.

Our scope of review is limited to determining whether an error of law was committed or whether the findings of fact are supported by substantial evidence. Department of Transportation v. Brayman Construction Co., 33 Pa. Commonwealth Ct. 485, 382 A.2d 767 (1978).

[ 86 Pa. Commw. Page 65]

This Court has previously recognized that "[p]arties have the right to make their own contract, and it is not the function of the court to rewrite it or give it a construction in conflict with the plain meaning of the language employed." Argeros and Company, Inc. Page 65} v. Department of Transportation, 67 Pa. Commonwealth Ct. 531, 533, 447 A.2d 1065, 1067 (1982). We, thus, must examine the relevant ...


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