72 Pa. Commw. 162 | Pa. Commw. Ct. | 1983
Opinion by
This is an appeal filed following an adjudication of the Board of Claims (Board) on a claim made by Craftech International, Ltd. (Craftech) against the Department of Community Affairs (DCA). After the Board had made an award in favor of Craftech, DCA filed a petition for review (No. 1664 C.D. 1981) arguing that the Board lacked jurisdiction to entertain Craftech’s complaint. In the alternative, DCA argues that Craftech failed to sustain its burden of proof as
The salient facts are as follows. During the third week in June, 1972, Tr-opioal Storm Agnes spread torrential rains acro-ss the Commonwealth. The floods which resulted therefrom caused fifty deaths, approximately one and a half billion dollars of damage to property and crops, and left over 250,000 persons homeless. Among the hardest hit were the residents of the Wyoming Valley. In an effort to alleviate the suffering of these flood victims, DCA established emergency -mobile home parks. Included within .these emergency parks were monolithic
On October 15,1974, -Craftech filed a claim with the Board against DCA alleging breach ¡of contract and seeking damages. After the pleadings had closed,
Now, with the benefit of a full record, including the Board’s findings of fact and conclusions of law, DC A again argues that the Board lacked jurisdiction. In pertinent part, Section 6 of the Act provides that “[t]he board shall have no power and exercise no jurisdiction over a .claim asserted against the Commonwealth unless .the claim shall have been filed within six months after it accrued. ’ ’ The jurisdictional period begins to run from the time the cause of action arose and that is when the injuried party is first able to litigate the claim. Allen N. Lashner, Inc. v. Department of Highways, 1 Pa. Commonwealth Ct. 486, 275 A.2d 403 (1971). A party becomes able to litigate a claim when the amount due under the claim is known. Department of Public Welfare v. Federated Security, Inc., 49 Pa. Commonwealth Ct. 411, 411 A.2d 284 (1980). Furthermore, Section 6 of the Act also provides that:
[t]he claimants shall advise the department involved, in writing, of .such claim, .specifying the details thereof, and shall, within the same period, file with the secretary of the board a concise and specific written statement of this claim,*166 signed and verified by ,tbe claimant before an officer authorized to administer oaths.
A claim does not accrue until a claimant is able to prepare this detailed 'statement. Penn-Jersey Contractors, Inc. v. General State Authority, 12 Pa. Commonwealth Ct. 203, 315 A.2d 920 (1974).
In order to determine the moment when Craftech’s cause of action accrued, we must review both the course of events and the conduct of the parties over a fourteen month period. On August 10,1973, DOA sent notice to Craftech of the immediate termination of the contract. The integrated contract beween DCA and Gr.aftech provided for termination for default (Article XVII),
DCA’s position was contradictory and caused great confusion in Craftech’s effort .to determine its rights and the extent of its claim.
*167 7. DCA deliberately terminated outside the provisions of the Contract without advising [Craftech] of the basis or reasons for same. [DCA] knew, or reasonably should have known, that this would create great confusion in [Crafteeh’s] ability to determine its Claim and its legal rights and position.
11. [Craftech] was left in a position of having to determine under which provision of the Contract DCA was terminating, causing great confusion in [Craftech’s] determination of its rights and rendering [Craftech] unable to determine the full extent of its claim.
Numerous calls were made to DCA and numerous messages were left for DCA representatives' to contact representatives of [Craftech] for pusposes (sic) of clarifying all the con*168 fusion in [Craftech’s] legal position and to clarify ¡the situation with regard to .the buildings, shells and materials at the sites, the method of termination of the contract, etc., but DOA never responded or clarified the situation.
DCA argues that Craftech ’.s claim .accrued upon receipt of the August 10, 1973 notice of termination- If this is true, then the Board would not have jurisdiction over Craftech’s claim, filed fourteen months later on October 15, 1974. We conclude, however, that as a result of DCA’s conduct, Craftech’s claim did not accrue until May, 1974. It was not until the meeting held dur-
DCA, exercising prudent foresight, argues in the alternative that Craftech failed to sustain its burden of proof in measuring damages. Citing as authority Lichter v. Mellon-Stuart Co., 305 F.2d 216 (3d Cir. 1962), DCA asserts that the proper measure of damages should not include expenditures attributable to any cause other than the breach of the other party. Specifically, DCA argues that extra costs due to theft and vandalism, which the Board included in damages, were not caused by its failure to provide prepared foundations as required by the contract. Therefore, based on Lichter, DCA concludes that the Court should reject Craftech’s claim for these damages. We disagree. The Board found that Craftech was ready and able to complete performance within thirty days.
Finally, in its cross appeal, Craftech argues that the Board adopted an erroneous measure of damages. Our review reveals that while the Board adopted the proper formula to measure damages, they applied that formula improperly. In addition to being entitled to recover excess costs, S. J. Groves and Sons Co., Craftech is also entitled to recover the profit anticipated under the contract. C. J. Langenfelder & Son, Inc. v. Department of Transportation, 44 Pa. Commonwealth Ct. 585, 404 A.2d 745 (1979). The method of determining excess cost is the difference between the contract price paid and the actual cost incurred by Craftech and attributable to DCA’,s breach. S. J. Groves and Sons Co. The figures necessary to determine the appropriate measure of damages are not in dispute. Upon execution of the contract, Craftech received payment of one-half the contract price, or $128,750.00. The actual cost to perform one-half of the contract was $201,-238.78. The excess cost is the difference between those figures, or $72,488.78. If the contract had been completed as expected, <Graftech would have made a profit
Order
Now, February 17, 1983, the judgment entered by the Board of Claims by order dated June 30, 1981 is modified so as to add thereto the amount of $28,102.00; and as so modified, the said judgment is affirmed.
Both DOA ¡and Oraftech use this term to describe the structures.
Article XI (b) of the contract did provide, however, that DOA and Craftech would mutually agree as to when work on the project would begin.
Article XVII provides as follows:
If through any cause [Craftech] shall fail ito fulfill in a timely and proper manner its obligations under this CONTRACT, or in the event of violation of any of the covenants contained herein, [DOA] shall .thereupon have the right to ■terminate this CONTRACT by giving written notice to the applicant and specifying the effective date of termination at least thirty (30) days prior to said date. In such event all project records, unused grant monies, and such amounts as may have been expended contrary to the terms of the AGREEMENT shall be turned over to [DOA].
Article XI(c) provides as follows:
(c) On written notice by either party, this AGREEMENT may be terminated at any date prior to the expiration hereof. In such event, all finished or unfinished documents, data, surveys, studies, drawings, maps, models, photographs, and reports prepared by [Craftech] under .this AGREEMENT, except material used by [Craftech] which are the property of [Craftech] upon the effective date of this AGREEMENT and materials which are developed, prepared, completed or acquired by [Craftech] shall be delivered to [DOA]. [Craftech] shall be entitled to receive payments for services performed and for expenses incurred to the date of termination.
The Board’s findings of fact include:
The Board’s fourteenth finding of fact states :
The Board’s sixteenth findings of fact states: “As calls from [Craftech] to BOA continued into late 1973 and up to May, 1974, [the project coordinator for] DOA was directed by [DOA’s legal counsel] not to respond to any calls or communications from representatives of [Oraftech].”
The Board's twenty-ninth finding of fact states: “Craftech could and would have completed its performance under the Contract
The materials stolen from the worksite included windows, doors, lock sets and butts. Insulated ceilings, drywall, windows and doors were destroyed due to vandalism.