# Nether Providence Township School Authority v. Thomas M. Durkin & Sons, Inc.

> Supreme Court of Pennsylvania · May 31, 1984 · 505 Pa. 42

URL: https://www.frixlaw.com/law-library/cases/9635606

## Case

- **Full name:** NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY, Appellant, v. THOMAS M. DURKIN & SONS, INC., a Pennsylvania Corporation, and H. Gilroy Damon and H. Gilroy Damon Associates, Inc. and Haag & D’Entremont, Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 31, 1984
- **Citations:** 505 Pa. 42; 476 A.2d 904; 1984 Pa. LEXIS 275
- **Precedential status:** Published
- **Opinion:** Dissent by Larsen
- **Judges:** Nix, Larsen, Flaherty, McDermott, Hutchinson, Zappala, Papadakos
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9635606

## Opinion text

LARSEN, Justice
dissenting.
I dissent. The majority holds that “[wjaiver of public contract provisions regulating change orders can be accomplished only by a formal written action, (i.e. a new contract) by the public body authorized to enter into the contract ...,” and that the April 29, 1969, letter was not sufficient to constitute such “formal written action.” At 48. What the majority fails to consider, however, is that after appellee Durkin notified appellant Authority of the discrepancies between the actual site conditions and the topographical contour lines of the plans, the Authority ordered an investigation which resulted in a determination that the original plans were, in fact, in error. The Authority therefore authorized the preparation of revised plans.
The Authority admits that the changes made in the site plans resulted in “extra” work for Durkin but claims that since no formal change orders were approved by them, they are not liable for the extra cost to Durkin. I believe that no change orders were required since the Authority itself changed the contract by revising the plans. In Scott Township School District Authority v. Branna Construction Corporation, 409 Pa. 136, 138 , 185 A.2d 320 (1962) (emphasis added), this Court refused to allow a claim for extra work performed under the contract based only upon oral change orders, since “[n]o formal work orders were executed either by the architect or by appellee and no changes *50 were made in the plans or specifications.” By changing the site plans in this case, the Authority was taking “formal written action” and waiving the contract provision regulating change orders. The absence of a formal change order, therefore, should not affect Durkin’s claim and I believe the majority does an injustice to hold otherwise.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9635606. Public record. Not legal advice.