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COMMONWEALTH PENNSYLVANIA v. DYBERRY SAND & GRAVEL (06/13/88)

decided: June 13, 1988.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
DYBERRY SAND & GRAVEL, INC., RESPONDENT



Appeal from the Board of Claims, in the case of Dyberry Sand & Gravel, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 1002.

COUNSEL

Robert J. Shea, Assistant Counsel, with him, Kenneth Lee Sable, Assistant Counsel, John L. Heaton, Chief Counsel, for petitioner.

Lee C. Krause, for respondent.

Judges MacPhail and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 117 Pa. Commw. Page 102]

The Department of Transportation (DOT) appeals from a decision of the Board of Claims (Board) which awarded Dyberry Sand and Gravel, Inc. (Dyberry) the full contract price for two deliveries of Type III Anti-Skid Material (Material) delivered by Dyberry to DOT in March of 1984.

Dyberry entered into a contract with DOT on August 19, 1983, to deliver Material to DOT's Engineering District 4-0 during the 1983-1984 snow season. Dyberry delivered its last two shipments on March 7 and 15, 1984, respectively. DOT's normal procedure when material is taken from the vendor's stockpile is for DOT to randomly extract samples of the material for testing in order to ensure that the material meets the specification set forth by the contract. The vendor also has the option of taking companion samples at the time that DOT's samples are taken to conduct their own test of the material in the presence of DOT's material inspector. The result of such tests by the vendor is then recorded in DOT's logbook which is usually kept at the vendor's plant site during the snow season.

On March 7 and 15, 1984, DOT's material inspector directed Dyberry's representative to draw gradation test samples from three different trucks to be sent to Harrisburg for testing. Dyberry's representative also elected to do a gradation test of its own, which showed the Material to be in conformity with the requirements set forth by DOT. The result of Dyberry's test was then recorded in the logbook kept at Dyberry's plant site.

On March 21, 1984, Dyberry was notified that the March 7, 1984 samples were not in conformity with DOT's specification. DOT stated that based on the lack of conformity of the Material it would only pay for sixty-five

[ 117 Pa. Commw. Page 103]

    percent (65%) of the delivery. On April 4, 1984, Dyberry was also notified that the March 15, 1984 Material sampled was not in conformity with DOT's specification and that DOT would only pay sixty-seven percent (67%) of that delivery.

A meeting was then held between Dyberry and DOT, at which time Dyberry contested DOT's reduction of the invoice prices and requested a retesting of the Material pursuant to DOT's policy. DOT advised Dyberry that there was no Material available for retesting; however, on May 4, 1984, DOT sent a representative to Dyberry's plant to take three (3) investigative samples from the same stockpile that the March 7 and 15, 1984, deliveries were taken. The samples were tested in Harrisburg and found to be within the required specification.

By invoices dated May 21, 1984, Dyberry demanded payment in full. In a letter dated May 25, 1984, DOT refused to pay the full contract price and called Dyberry's attention to the right to file a contract claim under Section 105.01 of the specifications.*fn1 Plaintiff's Exhibit # 13, Reproduced Record (R.R.) at 24(a). Dyberry then continued to discuss the problem with a representative of the Bureau of General Services and the Bureau of Office Services until October of 1984. The logbook which was kept at Dyberry's plant was removed by DOT shortly after Dyberry received notices that the March 7 and 15 samples were not in conformity ...


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