Commonwealth v. Anjo Construction Co.

487 A.2d 455, 87 Pa. Commw. 310, 1985 Pa. Commw. LEXIS 815
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 1, 1985
DocketAppeals, Nos. 623 C.D. 1983 and 963 C.D. 1983
StatusPublished
Cited by4 cases

This text of 487 A.2d 455 (Commonwealth v. Anjo Construction Co.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Anjo Construction Co., 487 A.2d 455, 87 Pa. Commw. 310, 1985 Pa. Commw. LEXIS 815 (Pa. Ct. App. 1985).

Opinion

Opinion by

Judge Rogers,

Each Anjo Construction Company, Incorporated (Anjo) and the Commonwealth Department of Transportation (DOT) has appealed from an order of the Board of Claims directing DOT to pay Anjo the sum of $25,537.00, plus interest, for material used by Anjo in making repairs to a state-owned road.

The Board of Claims made the following findings of fact which economically state the case:

(3) On the basis of a bid it submitted, Anjo and PennDOT entered into a written contract dated April 13, 1977 for slabjacking and concrete patching to repair L.R. 1016-72-641-1023 ... in Allegheny and Beaver Counties.
[312]*312(4) Slabjacking is a procedure for raising slabs of pavement wbicb have settled by drilling holes in them and injecting the holes with a mixture of cement concrete, sand and expansive admixture.
(5) The contract, which by its terms incorporated Form 408 specifications (1976) and Form 409 (1973), has three items in its schedule of prices which relate to the slabjacking portion of the repair project:
Approx. Unit
Item Number Quantity Price Item Amount
681-002 581 $30.00 Holes drilled slabjacking $17,430.00
681-0025 581 Bags Cement Concrete-Grout $30.00 $17,430.00
681-0050 195 Ounces Expansive $10.00 Admixture $ 1,950.00
(6) Under the terms of the contract, Penn-DOT agreed to pay the unit prices for each and every item set forth in the contract as compensation for the furnishing of all materials, work and labor required to complete the whole of the work to be done under the agreement.
(7) The contract contained an estimate for the quantity of admixture based on the mistaken assumption that one ounce [of admixture] would be sufficient for every three bags of cement concrete.
(8) Under the specifications, the final mix design setting for the proportion of admixture to cement concrete in the injected material was not determined until after the contract was awarded.
(9) Pursuant to §681.3 of Form 408, Anjo submitted for approval, a slabjacking mix design.
[313]*313(10) On June 20, 1977, a report of the Pittsburgh Testing Laboratory relating to the concrete mix design which set forth the required amount of admixture for the slab jacking operation calling for interplast (4%) 3.8 pounds or 60.8 ounces per bag of grout was delivered to [PennDOT] and approved by the Assistant Construction Engineer, Materials Engineer and District Engineer of PennDOT.
(11) The design was prepared in accordance with the provisions of Section 681.3 of the 1976 Form 408 Specifications calling for 60.8 ounces of expansive admixture per bag of cement.
(12) Subsequently, Anjo began the slab-jacking portion of the work and had drilled 18 holes, placed 42 bags of cement and furnished 2,553.6 ounces of admixture as of June 24,1977.
(14) As a consequence of the mix design tested by the Pittsburgh Testing Laboratory and approved in the presence of PennDOT representatives, 35,324.8 ounces of expansive admixture were necessary for completion of the work pursuant to the contract.
(15) On June 24, 1977 PennDOT, believing that the unit price of $10.00 per ounce of expansive admixture was too high and having unsuccessfully negotiated with Anjo to reduce the unit price, ordered Anjo to cease operations on the slabjacking portion of the contract work.
(16) The cost of the admixture to Anjo was $0.325/ounce.
(17) PennDOT paid Anjo for the holes drilled and the cement concrete placed at the unit price.
[314]*314(18) PennDOT did not pay Anjo for the quantity of expansive admixture actually used by Anjo on the project prior to the stop work order by PennDOT.
(21) The slab jacking portion of the contract was never completed.
(22) At the contract unit price, the cost of the admixture necessary to complete the project would have equaled $353,248.00.
(23) The original bid price for the entire contract was $158,996.45.

Although as just recorded, Anjo bid $158,996.45 to do the work and supply the materials to complete the contract, it filed a claim for loss of profits in the amount of $403,738, allegedly caused by DOT’s aborting the slab jacking work; $370,678 of this amount represents the profit that it would have made by supplying the 35,324.8 ounces of admixture at $10 per ounce, which it could buy for three cents an ounce. DOT, by Answer and New Matter, averred that Anjo was not entitled to recover any profit on account of admixture either that which it supplied or that which it was prevented from supplying because it knowingly had, and knowingly would have supplied admixture in amounts grossly exceeding the amount, 195 ounces, called for in the contract without notifying DOT’s Chief Highway Engineer as required by the contract.

The Board of Claims held that Anjo was not entitled to recover its anticipated profits because (1) it had breached the contract by failing to notify DOT when it discovered that 195 ounces of admixture was a gross underestimate of the amount of admixture required and (2) because, it did not comply with a provision of the contract which requires written authori[315]*315zation for the placement of the extra material. Anjo has appealed this determination.

The Board of Claims awarded Anjo the sum of $25,537 for the 2,553.6 ounces of admixture used before DOT halted the slabjacking because DOT’S representatives had on June 20, 1977, four days before it halted the work, approved the mix design calling for 60 ounces of admixture to a bag of cement. DOT has appealed from this determination.

An order of the Board of Claims will not be disturbed unless it is contrary to the law or unless the Board’s findings of fact are not supported by substantial evidence. Dick Corporation v. State Public School Building Authority, 27 Pa. Commonwealth Ct. 498, 365 A.2d 663 (1976). It is not within the province of this court to retry the case or to make independent factual findings and conclusions from the evidence. C.J. Langenfelder & Son, Inc. v. Department of Transportation, 44 Pa. Commonwealth Ct. 585, 404 A.2d 745 (1979).

First, with respect to Anjo’s claim for loss of profits of $403,738, we note that Section 105.04 of Form 408 Specifications, incorporated by reference in the contract, provides as follows:

Section 105.04. COORDINATION OF DRAWINGS AND SPECIFICATIONS. The contractor shall perform the work in accordance with the intent of the drawings and specifications, and shall not take advantage of any error or omission in the drawings and specifications. In the event the contractor discovers an error or omission, he shall immediately notify the engineer.

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Bluebook (online)
487 A.2d 455, 87 Pa. Commw. 310, 1985 Pa. Commw. LEXIS 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-anjo-construction-co-pacommwct-1985.