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COMMONWEALTH PENNSYLVANIA v. BURRELL CONSTRUCTION & SUPPLY COMPANY (12/11/87)

decided: December 11, 1987.

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



Appeal from the Order of the Pennsylvania Board of Claims in the case of Burrell Construction & Supply Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, Docket No. 807, dated March 29, 1985.

COUNSEL

Kenneth B. Allen, Assistant Counsel, with him, Robert J. Shea and Charleton O. Strouss, Assistant Counsels, Spencer A. Manthorpe, Assistant Chief Counsel and Jay C. Waldman, General Counsel.

Frank M. Van Ameringen, for respondent.

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

Author: Barry

[ 111 Pa. Commw. Page 591]

This is an appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Board of Claims (Board) awarding Burrell Construction and Supply Co. Inc., (Burrell), respondent, $33,701.15 in additional compensation for paving work.

On June 3, 1980, DOT and Burrell entered into a contract to repair and improve Perrysville Avenue in Pittsburgh. These repairs and improvements consisted of: scraping or milling the surface course, base replacement, drainage work, traffic signal improvement and resurfacing the "wear" surface of the road. The work was scheduled to be completed in 146 days.*fn1 June 16, 1980 was the target starting date; November 9, 1980 was the anticipated completion date.*fn2 The contract specified that paving work could not be performed after October 31, 1980.*fn3 Due to the unavailability of Burrell's

[ 111 Pa. Commw. Page 592]

    milling subcontractor, actual work on the road surface did not begin until July 8, 1980. At the request of DOT, Burrell dug ten test holes to determine the sufficiency of the road base. After evaluating the results of this testing, the parties switched from a concrete base material to an asphalt base. Further problems were encountered when unsuitable sub-grade material was discovered. As a result of these problems the original contract was modified to include additional compensation to Burrell. On October 23, 1980, Burrell had performed all of the work except for laying the final wearing surface. This was estimated to require three days to complete. Due to inclement weather during the last week of October 1980, Burrell was unable to finish the project before the paving deadline. On October 23, 1980 and November 3, 1980, Burrell requested permission to pave after the October 31, 1980 cut-off date. DOT refused both requests. Consequently, Burrell was unable to resurface the road until the spring of 1981.

Burrell brought suit against DOT for additional expenses resulting from remobilization costs and additional repairs for winter damage to the road surface. The Board stated that the parties were victims of a mutual mistake of fact as the contract could not be performed within the anticipated time frame as the November 9, 1980 deadline extended beyond the October 31 cut-off date for road paving. The Board opined that both parties had acquiesced to performing a contract which was impossible to complete in the stated time frame. Therefore, according to the Board, DOT should be held responsible for Burrell's additional remobilization costs incurred in the spring of 1981, so as to prevent a miscarriage of justice.

DOT contends that the Board committed an error of law in applying the doctrine of mutual mistake because mistake was never pleaded or proved and this doctrine

[ 111 Pa. Commw. Page 593]

    cannot be applied to a delay in the award of a public contract in Pennsylvania. DOT also alleges the Board's findings of fact, that the paving operations would require 146 days to complete, is not supported by substantial evidence, and disregards competent evidence. It also ...


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