# Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority > Superior Court of Pennsylvania · September 2, 1983 · 314 Pa. Super. 131 URL: https://www.frixlaw.com/law-library/cases/9757769 ## Case - **Full name:** THOMAS M. DURKIN & SONS, INC., a Pennsylvania Corporation v. NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY and H. Gilroy Damon and H. Gilroy Damon Associates, Inc. and Haag and D’Entremont. Appeal of NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY - **Court:** Superior Court of Pennsylvania - **Decided:** September 2, 1983 - **Citations:** 314 Pa. Super. 131; 460 A.2d 800 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Hester, Johnson, Popovich - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Nether Providence Township School Authority v. Thomas M. Durkin & Sons, Inc., 505 Pa. 42 (1984). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757769 ## Opinion text JOHNSON, Judge, dissenting: I respectfully dissent. The majority determines that a governmental unit can waive a written authorization requirement for extra work when the waiver is made in writing. The majority appears to base its determination on a finding that a letter dated April 29, 1969, sent by the assistant secretary of the school authority to Appellee Thomas M. Durkin suffices to prove such waiver. The law is clear that where a public contract states the procedure in regard to work changes and extras, claims for extras will not be allowed unless these provisions have been strictly followed. Scott Township School District Authority v. Branna Construction Corp., 409 Pa. 136 , 185 A.2d 320 (1962). I agree with the majority that Branna is not necessarily dispositive of the instant case because Branna involved oral modifications. However, it has also been held that a contract by a school board cannot be enlarged, diminished, supplemented or in any manner changed by evidence extraneous from the minutes, or by actions or declarations of officials of the school district. Matevish v. School District of Borough of Ramey, 167 Pa.Super. 313 , 74 A.2d 797 (1950). In Emporium Area Joint School Authority v. Anundson Construction and Building Supply Company, 191 Pa.Super. 372 , 156 A.2d 554 (1959), rev’d on other gds., 402 Pa. 81 , 166 A.2d 269 (1960), the contract between the *144 authority and the contractor contained a provision regarding authorization for extra work similar to the provision in the instant case. The architect in that case gave the contractor change orders orally and allegedly threatened dire consequences if the contractor did not comply. The members of the authority were aware that changes were being made without the issuance of proper orders. The court determined that this evidence did not amount to a waiver of strict compliance with the terms of the contract. The court also stated that the contractor’s alternative was to simply refuse to perform the extra work until proper written authority was obtained. Likewise, in Dick Corporation v. State Public School Building Authority, 27 Pa.Commw. 498, 500-01, 365 A.2d 663, 664-5 (1976) the court stated: It is a well-established rule of law that where, by the terms of a contract with a governmental body, written orders for additional work are required, the contractor cannot recover for extra work without compliance with the contractual provisions. Montgomery v. Philadelphia, 391 Pa. 607 , 139 A.2d 347 (1958); Burke v. Allegheny County, 336 Pa. 411 , 9 A.2d 396 (1939); Morgan v. Johnstown, 306 Pa. 456 , 160 A. 696 (1931). And we have so held. Security Painting Co. v. Commonwealth, 24 Pa.Cmwlth. 507 , 357 A.2d 251 (1976); see [Department of Transportation v.] Acchioni and Canuso, supra, 14 Pa.Cmwlth. [596] at 599, 324 A.2d [828] at 830. The basic rationale behind this rule is that such provisions prevent fraudulent and exhórbitant claims for compensation for extra work and additional costs. 65 Am.Jur.2d, Public Works and Contracts, § 190. We believe that where, as here, written authorization from the contracting governmental authority is required before the contractor can recover for additional work performed, the contractor is not required to perform such work absent the required authorization. Strict adherence to the contract provision involved here must apply equally to both parties. The contractor, by refusing to perform, *145 took the only logical action available to him and he is entitled to recover any damages suffered by him as a result of the Authority’s delay in providing the written authorization, (footnote omitted) Therefore, Appellee clearly maintained the right to withhold performance of the extra work in the instant case until proper authorization was forthcoming. Finally, I disagree that the April 29, 1969 letter constituted written waiver of the contract provisions regarding extra work in and of itself. That letter states: Dear Mr. Durkin: Dr. Charles R. Whittlesey, President of the Nether Providence Township School Authority, has requested that I acknowledge your letter dated April 25, 1969, concerning the site contract for the Nether Providence High School. Please be assured that we are [sic] interested as you are in reaching a settlement that is just and equitable. It is clear that disagreement exists with respect to certain essential facts which can only be resolved in the course of time. Meanwhile, we are requesting you to proceed with the site work as you have done in the past so that there will be no delay in the progress of the building construction. We are anxious to cooperate fully and look forward to a satisfactory settlement of this matter. Very truly yours, /s/ Frederick E. Welte Assistant Secretary In my opinion, the letter does not explicitly or implicitly waive the contractual requirements for authorization of extra work in the instant case. I therefore can find no written waiver of the provisions of the contract and would hold that, for the reasons set forth supra, the instant case should be reversed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757769. Public record. Not legal advice.