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COMMONWEALTH PENNSYLVANIA v. TRUMBULL CORPORATION (08/11/86)

decided: August 11, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
TRUMBULL CORPORATION, RESPONDENT



Appeal from the Order of the Board of Claims in the case of Trumbull Corporation v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 787.

COUNSEL

John J. Buchy, Jr., Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel and Jay C. Waldman, General Counsel, for petitioner.

Stuart J. Moskovitz, Berman, Paley, Goldstein & Berman, for respondent.

Judges Barry and Palladino, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 99 Pa. Commw. Page 558]

PennDOT entered into a contract with the Trumbull Corporation on September 29, 1980 for the resurfacing of a section of Traffic Route 51 in Allegheny County. The contract involved an estimated amount of base repair and replacement. When PennDOT employees marked the areas where Trumbull was to perform base repair, the quantity marked was much less than the quantity estimated in the contract. Because Trumbull was paid on the basis of unit costs, its compensation under the contract was reduced by $1,670,423.30. Trumbull asked PennDOT to make an adjustment in the contract price because its unit costs were increased as a result of the reduced quantity of work. PennDOT refused to take any action. Trumbull filed a claim for compensation with the Board of Claims (Board). The Board decided in Trumbull's favor in the amount of $220,562.27 plus interest. We 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. Department of Transportation v. Westmoreland Engineering Co., 63 Pa. Commonwealth Ct. 318, 438 A.2d 1005 (1981).

One of the pertinent parts of the contract is Section 109.03 which reads:

[ 99 Pa. Commw. Page 559]

MODIFICATION OR ALTERATION IN CHARACTER OF WORK -- The drawings and specifications herein referred to may be modified or altered at any time by the engineer in writing if such changes are necessary to up-date, adjust, accept, or fully complete the work contemplated by the contract.

Current and/or additional work involved in such changes will be paid for at the contract unit price. However, if such changes materially increase or decrease the unit cost of the work, or if work not contained in the contract is required, payment will be made as extra work in accordance with the provisions of Section 109.04(c).

The Board made a finding of fact that PennDOT's reduction in quantity caused the size of the patches designated for repair to be smaller than they would have been had the original quantity of work been performed, and that this caused Trumbull's costs to increase. There is substantial evidence in the record to support this finding so we must accept it. It is therefore proper to move to Section 109.04(c) to determine compensation.

Section 109.04(c) reads:

Extra Work. Any work having no quantity and/or price included in the contract, and current or additional work requiring an adjustment in price as provided in Section 109.03, will be performed as extra work, at a price to be negotiated between the ...


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