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

COMMONWEALTH COURT OF PENNSYLVANIA


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 contends that Burrell's exclusive remedy was a request for an extension of time.

Our scope of review is limited to determining whether necessary findings were supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. The burden of proof is on the contractor who seeks reimbursement from the Commonwealth for increased costs, charges, expenses or damages to show the facts necessary for such recovery. Penn-Jersey Contractors, Inc. v. General State Authority, 12 Pa. Commonwealth Ct. 203, 315 A.2d 920 (1974); Larry Armbruster & Sons, Inc. v. State Public School Building Authority, 95 Pa. Commonwealth Ct. 310, 505 A.2d 395 (1986).

The Board erred in applying the doctrine of mistake. Under the Pennsylvania Rules of Civil Procedure and existing case law mistake must be specifically alleged before it can be addressed by the Board. See 4 Pa. Code § 121.1, Pa. R.C.P. No. 1019(b) and Borrell v. Borrell, 346 Pa. Superior Ct. 1, 498 A.2d 1339 (1985). It is clear from the record that mistake was never specifically pleaded by either party.

Burrell urges us to consider the Board's conclusion that a mutual mistake had occurred as a misstatement of the theory of implied consent and waiver. Burrell bases this argument on the assertion that DOT's past practice in dealings with it and other contractors was to extend permission beyond the November 1st, poor weather deadline date. Burrell argues that due to DOT's initial delay both parties were aware of a probability of working

[ 111 Pa. Commw. Page 594]

    beyond this paving deadline but silently proceeded with optimism to conclude the contract and that DOT was primarily responsible for the on-going delays during contract performance.

DOT, on the other hand, argues that the Board's finding that the paving was required to be performed in the last stage of the 146 day contract is unsupported by the record and that the record clearly establishes that Burrell should have completed paving well before the November 1st cut-off date. It alleges that the contract clearly shows that the paving was to be completed by eighty-six calendar days into the contract and thus the paving should have been completed by September 10th. The initial dates for paving were to be performed between the thirty-seventh to eighty-sixth calendar days of the contract. When the notice to proceed date was shifted from April to June, the paving completion date was shifted from July until September 10th. Under the terms of the contract Burrell could have requested a re-evaluation of the contract time*fn4 or a change in the distribution of the contract time.*fn5 Therefore, DOT concludes

[ 111 Pa. Commw. Page 595]

    that the parties had agreed to another completion date which was well before the October 31st paving deadline and negates the requirement of completion in 146 days.*fn6

Unfortunately, the Board's findings of fact are limited to consideration of what was perceived as a controlling issue of mutual mistake and do not address either Burrell's or DOT's arguments.

The Board is entrusted with the duty of fact finding, Lipchak v. Unemployment Compensation Board of Review, 34 Pa. Commw 451, 383 A.2d 970 (1978), and we may neither assist nor interfere with that important function. This Court has held that '[w]hen the fact-finder in an administrative proceeding is required to set

[ 111 Pa. Commw. Page 596]

    forth his findings in an adjudication, that adjudication must include all findings necessary to resolve the issues raised by the evidence which are relevant to the decision.' Lipchak, supra at 457, 383 A.2d at 972.

State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa. Commonwealth Ct. 246, 255, 430 A.2d 328, 332 (1981). "It is not within the province of this court to retry the case or to make independent factual findings and conclusions from the evidence." Department of Transportation v. Anjo Construction Company, Inc., 87 Pa. Commonwealth Ct. 310, 315, 487 A.2d 455, 458 (1985). Therefore, we must vacate and remand to the Board to determine whether Burrell has met its burden to establish entitlement to additional compensation for its costs to complete this project.

On remand to the Board, it is within our power to order the Board to proceed as we request. 72 P.S. § 4651-8(c). We request the Board to make specific findings on the following matters:

1. Whether the failure to complete the project within the 146 day time frame was due to specific delays caused by either Burrell or DOT.

2. Whether DOT's denial of Burrell's request to pave past the October 31, 1980 deadline was justified, considering

(a) DOT's past record of granting extensions of a paving deadline to other contractors;

(b) DOT's past record of granting extensions of paving deadlines to Burrell;

(c) DOT's reasons for refusing, in this case, to grant an extension of time to pave past the October 31, 1980 deadline.

[ 111 Pa. Commw. Page 597]

Order

Now, December 11, 1987, the order of the Board of Claims, dated March 29, 1984, at Docket No. 807, is vacated. This matter is remanded to the Board for further findings in accordance with this opinion.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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