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COMMONWEALTH PENNSYLVANIA v. BRAYMAN CONSTRUCTION CORPORATION-BRACKEN CONSTRUCTION COMPANY (07/31/86)

decided: July 31, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
BRAYMAN CONSTRUCTION CORPORATION-BRACKEN CONSTRUCTION COMPANY, A JOINT VENTURE, RESPONDENT



Appeal from the Order of the Board of Claims, in case of Brayman Construction Corporation-Bracken Construction Company, a joint venture v. Commonwealth of Pennsylvania, Department of Transportation Docket No. 533.

COUNSEL

John J. Bucky, Jr., with him, George D. Wenick, Michael D. Reed, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

C. Grainger Bowman, McNees, Wallace & Nurick, for respondent.

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

Author: Doyle

[ 99 Pa. Commw. Page 374]

This is an appeal by the Department of Transportation (DOT) from an order of the Board of Claims (Board) awarding the sum of $24,214.14, together with six percent interest from September 10, 1976, "to Brayman Construction Corporation-Bracken Construction Company, a Joint Venture." (Brayman-Bracken).

The Board found that on or about July 27, 1973 Brayman-Bracken and DOT entered into a contract for the construction and improvement of a section of state highway in Allegheny County. A portion of the construction and improvement involved the fabrication and erection of overhead sign structures. Brayman-Bracken, the general contractor, subcontracted this portion of the work to an electrical contractor, Broadway Maintenance

[ 99 Pa. Commw. Page 375]

Corporation (Broadway) which in turn subcontracted it to Bruce & Merrilees Electric Co. (Bruce-Merrilees). Bruce-Merrilees subcontracted the fabrication of the sign structures to a fabrication subcontractor, Conn. Welding and Machine Company (Conn). DOT specifications required that before fabrication, the sign structure supplier (here Conn) submit shop drawings for approval to DOT. The usual procedure in submitting drawings is for the supplier to submit to his general contractor (Conn's general contractor was Bruce-Merrilees) who in turn submits to his general contractor and so on up the chain. The Board found that on August 15, 1974 Conn submitted its drawings together with a letter of transmittal to Bruce-Merrilees which, within a reasonable period, forwarded the drawings to Broadway. Broadway submitted the drawings to Brayman-Bracken which in turn submitted them in a timely manner to DOT. Because none of the contractors ever heard from DOT with respect to the drawings, Conn, in October of 1975, resubmitted the drawings again following the chain of privity. In addition, the Board found that Bruce-Merrilees frequently asked DOT field representatives about both sets of drawings.

Bruce-Merrilees first became aware that DOT had "approved" the original shop drawings on April 8, 1976 when an employee of Bruce-Merrilees, while visiting the DOT field office-trailer on other business, inquired, as he had before, on whether any action had been taken by DOT on the drawings. At that time two DOT employees discovered the original drawings somewhere in the trailer. These drawings did not contain DOT's certification of approval but contained only the signature of a DOT consultant indicating the consultant's approval as modified some thirteen months earlier -- March 12, 1975. Conn was unwilling to accept this signature as approval absent official DOT certification. Six days later

[ 99 Pa. Commw. Page 376]

DOT alleviated Conn's concern by issuing a letter over the signature of its district engineer, which letter indicated that DOT considered the drawings approved. Subsequent to receipt of this letter Conn immediately ordered its material; its fabrication of the structures then took approximately six months to complete.

Because of the twenty-month delay from the time Conn first submitted its drawings (August 15, 1974) until they were discovered in the DOT trailer (April 8, 1976) and approved, the signs could not be fully erected before the scheduled opening of the highway on August 31, 1976. Thus, the structures had to be erected while the highway was open to traffic causing an increase in labor, office and equipment costs. The Board found that had Brayman-Bracken and its subcontractors received the approved drawings from DOT on or about November 1974, as the parties had estimated, the structures would ...


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