Com. Dept. of Transp. v. W. P. Dickerson & Son, Inc.
| Decision Date | 01 May 1979 |
| Citation | 42 Pa.Cmwlth. 359,400 A.2d 930 |
| Parties | COMMONWEALTH of Pennsylvania DEPARTMENT OF TRANSPORTATION, Petitioner, v. W. P. DICKERSON & SON, INC., et al., Respondents. |
| Court | Pennsylvania Commonwealth Court |
Argued March 5, 1979.
Arthur H. Marateck, Asst. Atty. Gen., Robert W. Cunliffe, Dept. Atty. Gen., Dept. of Transp., Harrisburg for petitioner.
Edward C. First, Harvey Freedenberg, C. Grainger Bowman, McNees Wallace & Nurick, Harrisburg, Bert R. Oastler, Smith, Currie & Hancock, Atlanta, Ga., for respondents.
Before CRUMLISH, Jr., ROGERS and MacPHAIL, JJ.
This is the appeal of the Department of Transportation (PennDOT) from two judgments rendered by the Board of Arbitration of Claims in favor of W. P. Dickerson & Son, Inc. and Dickerson Enterprises, Inc. (Dickerson) and against PennDOT in the amounts, respectively, of $120,830.98 with interest from October 31, 1969 and $47,618.85 with interest from June 1 1970.
On December 12, 1967 Dickerson and PennDOT entered into a written contract for the construction by the former of 5,500 feet of highway and necessary bridges in Crawford County. The most significant element of the contract was the construction of a pair of multi-span bridges across what is known as the Conneaut Swamp. The construction of these bridges entailed the manufacture, transportation and erection of 600 prestressed concrete box beams for the support of the concrete decks. All except 115 of these beams were manufactured by the Dickerson Structural Concrete Corporation, a company owned by W. Logan Dickerson, the owner of W. P. Dickerson & Son, Inc. and Dickerson Enterprises Inc. PennDOT provided the specifications for the manufacture of the beams, including the materials to be used therein, and maintained an inspection team at Dickerson's plant during the process. All construction was originally to be completed within 230 working days but this was later extended to 299 days because of another contractor's delay in putting in place a surcharge, a fill material designed to stabilize the soil on the approach to the bridges. According to the plans, the surcharge was to remain in place for two years and it is clear that Dickerson could not complete its construction until the surcharge was removed.
Dickerson delivered the concrete box beams to the construction site and began placing them in late summer of 1968. By April, 1969, many of the beams were in place and portions of the deck were completed. On April 22, 1969 PennDOT notified Dickerson that three of the beams on the bridge were rejected because of top cracking. PennDOT inspected the other beams and by June 12, 1969 had rejected a total of thirty-seven of them for top cracks. All of the rejected beams had been manufactured at Dickerson's plant. Because of the rejections, Dickerson was forced to remove the beams or to shift them to areas of the bridge where decking had not yet begun. This caused a major disruption in the construction schedule. On July 18, 1969, after analyzing core samples of the top cracked beams, PennDOT accepted all but one of the beams as being satisfactory. The one that was not accepted was rejected because of insufficient top slab thickness. PennDOT also inspected beams still at Dickerson's plant and rejected thirteen of those because of side cracking.
On August 5, 1969 PennDOT approved a partial removal of the surcharge and the remainder was removed on April 30, 1970.
Dickerson completed the project on October 13, 1970 in a total of 3401/2 working days, instead of the 299 working days specified as extended. PennDOT, relying on the liquidated damages clause of the contract, withheld from Dickerson $420 for each day over the 299 days provided for completion, or a sum of $17,430.00.
Dickerson filed a complaint in assumpsit with the Board of Arbitration and Claims seeking remission of the liquidated damages and requesting damages for the delay caused by PennDOT's rejection and inspection of the prestressed concrete beams. After twenty-nine days of hearings, the Board gave judgment for Dickerson in the amount of $120,830.98 with interest from October 31, 1969 for damages relating to PennDOT's rejection of the beams and an additional $47,618.85 with interest from June 1, 1970 for corporate and job overhead and the retention of liquidated damages.
PennDOT says that it is not liable for the expenses incurred by Dickerson as a result of the rejection and later acceptance of beams because it did not act arbitrarily or capriciously in rejecting the beams and because Dickerson was responsible for the defects which led to the rejections. This argument turns on whether PennDOT provided the design specifications for the beams and whether Dickerson...
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