80 Pa. Commw. 438 | Pa. Commw. Ct. | 1984
Opinion By
The Commonwealth of Pennsylvania, Department of Environmental Resources (Petitioner), appeals from an order by the Board of Claims (Board) which awarded Dixon Contracting Company (Respondent) the sum of $371,768.85 with interest which the Board found to be due Respondent by virtue of its determination that the award, issuance and execution of a con
. Petitioner in 1969, advertised and invited bids for the control and elimination of air pollution resulting from an abandoned coal burning refuse bank known as the Huber Bank. The bids contained certain specifications
Prior to the execution of the contract, a determination was made to increase the number of operating days to 392 -with the ¡same per diem rate as that of the 70 days originally bid by Respondent. Respondent commenced work under the contract and on or about January 12, 1971, Petitioner and Respondent executed an “Addendum” which extended the original contract and provided for an additional 210 operating days to be paid at the same per diem rate as the original 70 days. Both increases in the number of operating days occurred without resubmission of bids.
Respondent perf ormed all the work under the contract and submitted invoices to Petitioner for the entire contract amount. Petitioner withheld payment of the last four invoices alleging that the contract was unenforceable because appropriated money under Section 16 of the Land and Water Conservation and Rec
After a hearing, the Board found that Petitioner was estopped from asserting the alleged illegality of •the contract as a defense. Petitioner argued that under Section 16(a)(1) of the Act, appropriated money could be used to extinguish coal burning refuse banks on publicly owned land, therefore, money appropriated for Huber Bank, privately owned land, would render the contract void. The Board, however, found that Section 16 permits the filing of a consent lien
Petitioner relies on our decision in Department of Public Welfare v. Harambee, Inc., (Harambee), 21 Pa. Commonwealth Ct. 430, 346 A.2d 594 (1975) to argue that contracts between the Commonwealth and a third party for a purpose to which no money has been appropriated are void ¡and unenforceable. In that case
- The Board correctly distinguished Harambee from the case sub judice. First, .Section 20 of the Act
Petitioner’s argument that the contract is unenforceable because the addendum extending the number of work days was executed without resubmitting bids is without merit. In American Totalisator Company,
Petitioner’s last argument is that according to the specifications, no payment will be made when the water monitors are not operating, and one-half of the hourly rate will be paid when only one of the draglines is operating. Petitioner seeks to reduce Respondent’s claim by the number of hours ¡that the water monitors and dragline were inoperative-.
The Board found that when the specified equipment was inoperative, Respondent continued to work with other equipment at the instruction of Petitioner’s job inspector.
After review of the record, we hold that the Board’s findings of fact are supported by substantial evidence.
We affirm.
Order
The order of the Board of Claims, No. 277, dated February 24, 1983 is affirmed.
These specifications were called “The Land and Water Conservation and Reclamation Act Air Pollution Elimination Project, No. S.L. 204.” The specifications were incorporated into the contract by attachment and reference. Project S.L. 204 will be referred to as the “contract.”
Act of January 19, 1968, P.L. (1967) 996, as amended, 32 P.S. §5116.
At the revelant time, Section 16, inter alia, provided that whenever Secretary of Mines and Mineral Industries (Secretary) made the finding of fact that it was within the public interest to combat air pollution from a refuse bank fire or if an emergency existed and no other person or agency could combat the condition, then the Secretary, poUtical subdivisions of the Commonwealth or municipalities, their agents, employes or contractors would have the right to enter the premises to combat the refuse bank fire. Within six months after the completion of the work on the property, the Secret tary was required to itemize the monies so expended whereupon such statement would constitute a lien upon the property.
In October 1969, Deputy Attorney General Robert Lesbo issued a memorandum which interpreted Section 16 of the Act. The memorandum stated that the Secretary of Mines and Mineral Industries has the discretion to either assert a right of entry or condemn the property. Specifically, the memorandum stated that:
[i]f the legislature had -intended that condemnation was mandatory, then the lien provision would be redundant; the Commonwealth would then have a lien against property : -which it owned. The lien provision would be meaningless because if one acquires fee title to property a lien held by • that person against the property blends with the fee and . terminates. ’ Laws should not be interpreted to arrive at absurd or meaningless conclusions.
The Board awarded Respondent $221,768.85 for the four unpaid invoices and the sum of $150,000 which was retained by Petitioner pursuant to its retention rights under the contract plus six percent interest from November 19, 1971, the date Of the invoices and retainage.
32 P.S. §5120.
According to the Stipulation of Facts, consent lien procedure was used on all contracts let by Petitioner under the Act. With respect to culm bank fires, it was used on S.L. 201, S.L. 201-1 and S.Ii. 207 and in each case Respondent was the contractor.
The specifications defined Petitioner’s Job inspector as “the person or persons duly authorized by the Secretary of Mines and Mineral Industries to represent the Department in this project and to see that the work is done in compliance with the specifications and Contract and to accomplish the purpose of this project."