IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lobar Associates, Inc., :

Petitioner :

:

v. : No. 1038 C.D. 2018

: Argued: March 12, 2019

Pennsylvania Turnpike Commission, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: August 1, 2019

Lobar Associates, Inc. (Contractor) petitions for review of an order of 

the Board of Claims (Board) that sustained the preliminary objections of the 

Pennsylvania Turnpike Commission (Commission) and dismissed Contractor’s 

claim for lack of jurisdiction. The Board held that Contractor’s claim was barred by 

the six-month statute of limitations set forth in Section 1712.1(b) of the 

Commonwealth Procurement Code, 62 Pa. C.S. §1712.1(b).

1 Contractor argues that

the Board erred in its determination of when Contractor’s claim accrued. Discerning 

no such error by the Board, we affirm.

Background

On June 18, 2014, Contractor agreed to construct a 2,431-square-foot 

material testing laboratory at mile marker 113.82 of the Pennsylvania Turnpike (the 

 

1 Section 1712.1(b) of the Procurement Code states:

(b) Filing of claim.--A claim shall be filed with the contracting officer within six 

months of the date it accrues. If a contractor fails to file a claim or files an untimely 

claim, the contractor is deemed to have waived its right to assert a claim in any 

forum. Untimely filed claims shall be disregarded by the contracting officer.

62 Pa. C.S. §1712.1(b).
2

Somerset Project) for the Commission. Contractor completed the work in June 2016. 

On July 27, 2016, Contractor submitted a “supplemental work order” to the 

Commission, requesting additional compensation of $150,925.19 for changes to the 

project made by the Commission during construction. Reproduced Record at 676a 

(R.R. __). On September 21, 2016, the Commission responded that it would pay 

$35,233.05 for the supplemental work. Contractor responded with a request for

further review, which was denied by the Commission on October 17, 2016. 

On March 27, 2017, Contractor submitted an administrative claim to 

the Commission’s contracting officer, seeking $418,767.42 for the supplemental 

work and delay damages attributable to the Commission’s project design changes. 

The Commission conducted an administrative hearing. It denied Contractor’s claim 

as untimely because it was not submitted within six months of the Commission’s 

September 21, 2016, determination that it would pay $35,233.05 for the 

supplemental work.

Thereafter, on September 14, 2017, Contractor filed a three-count claim 

against the Commission with the Board asserting breach of contract, unjust 

enrichment, and violation of the Contractor and Subcontractor Payment Act, 73 P.S.

§§501-516.2 Contractor sought a judgment in excess of $418,767.42, plus interest, 

costs of suit and attorney fees.

Contractor’s claim stated that the Somerset Project began as a publicly 

bid project. However, the Commission then made an “unwieldy and confusing 

 

2 Act of February 17, 1994, P.L. 73, as amended, 73 P.S. §§501-516. The Contractor and 

Subcontractor Payment Act sets guidelines for prompt payment. Section 9 of the Contractor and 

Subcontractor Payment Act, 73 P.S. §509. Interest may be assessed on payments unreasonably 

held. Section 9(d) of the Contractor and Subcontractor Payment Act, 73 P.S. §509(d). A 

contractor that withholds payment in bad faith can be subjected to a one percent penalty and 

attorney fees. Section 12 of the Contractor and Subcontractor Payment Act, 73 P.S. §512.
3

attempt to convert [the] publicly bid project into a JOC [job-order contract] project.” 

Claim, ¶2 at 1; R.R. 8a.3 The claim alleged that this conversion resulted in “an 

incomplete design to start the [p]roject and thus one that changed and morphed as 

the [p]roject proceeded.” Claim, ¶3 at 2; R.R. 9a. The design changes required 

Contractor to perform work beyond the scope of the contract. Claim, ¶5 at 2; R.R. 

9a. In addition, Contractor sought delay damages for expenses it incurred due to 

delays caused by the design changes. Claim, ¶6 at 2; R.R. 9a. Contractor’s claim 

asserted damages of $150,925.19 for the supplemental work and delay damages of

$267,842.23. Claim, ¶7 at 2: R.R. 9a. 

The Commission filed preliminary objections, asserting that the Board 

lacked jurisdiction because Contractor’s claim was barred by the six-month statute 

of limitations in Section 1712.1(b) of the Procurement Code. The Commission also 

asserted that Contractor failed to exhaust its administrative remedy and failed to state 

a claim for unjust enrichment. The Board held an evidentiary hearing on the question 

of its jurisdiction. 

Contractor presented the testimony of Carl Barker, its project manager 

for the Somerset Project.4 He has worked with hundreds of job order contracts, but 

the Somerset Project was his first with the Commission. The contract established a

fixed price for the completion of the Somerset Project, but it also authorized 

 

3 A “job order” is defined by Section 101.03 of the Contract as the “contractor’s authorization 

issued by the Commission, in conjunction with a Purchase Order, to perform all work required to 

complete the Detailed Scope of Work for the amounts in the Price Proposal within the agreed upon 

schedule.” R.R. 54a.

4 Barker was employed by Contractor from April 2015 through January 2018.
4

supplemental job orders that would add work credits to, or deletions from, the 

contract’s fixed price. 5

Barker’s contact at the Commission was Robert Kleimenhagen, the

project manager. At the outset, Kleimenhagen instructed Barker to keep an Excel 

spreadsheet to document extra work Contractor performed on the Somerset Project. 

Rather than address each project change as it arose, Kleimenhagen explained that 

the Commission would review the spreadsheet at the end of construction. Barker

thought this was unusual for such a large project, but he complied with 

Kleimenhagen’s directive. At the conclusion of the project, Contractor submitted a

supplemental job order and spreadsheet seeking $150,925.19 for additional work. 

Barker testified that he sent the supplemental job order request via 

email on July 27, 2016, to Gary Madey, the Commission’s construction manager. 

Barker explained that the spreadsheet had to be uploaded using the Commission’s

collaborative software, known as “Kahua,” and Madey was the person who handled 

this software. Notes of Testimony, 3/12/2018, at 53 (N.T. __); R.R. 388a. Barker 

copied Kleimenhagen on the email to Madey. On August 26, 2016, Kleimenhagen 

responded that he hoped to complete the review by September and requested

additional information from Barker. Barker did not respond to Kleimenhagen’s 

email.

On September 21, 2016, Kleimenhagen sent Barker an email with an 

attached spreadsheet. The email explained that the Commission’s entire 

construction management team had reviewed Barker’s spreadsheet and compared it 

to the project design drawings, specifications, special provisions and on-site 

 

5 The Commission describes the job order contract between the Commission and Contractor as an 

“umbrella contract” from which individual “job orders” or “projects” could be awarded. 

Commission Brief at 9.
5

construction inspections. The email concluded that Contractor was owed 

$35,233.05, and not $150,925.19. Contractor was advised to submit a supplemental 

job order for the work items for which the Commission was willing to pay. 

On October 6, 2016, Barker sent Kleimenhagen an email requesting 

further review because Contractor did not accept the amount of $35,233.05. Barker 

did not specifically request, but expected, a meeting. On October 17, 2016, 

Kleimenhagen responded with an email that reiterated the line-by-line account of 

what the Commission agreed to pay pursuant to the September 21, 2016, email.

Barker testified that he believed the Commission’s October 17, 2016,

email was the final determination. He did not believe the September 21, 2016, email 

was a final determination because the job order contract required a “collaborative 

process” whereby the parties would “review and discuss” all supplemental job

orders. With the October 17, 2016, email, Barker realized the Commission would 

not meet and discuss the supplemental job order at issue. 

On cross-examination, Barker was asked about Contractor’s delay 

damages, which were not included in its July 27, 2016, supplemental job order. 

Barker explained that he was still working on the delay claims at that time. Barker 

acknowledged that the job order contract required prompt notification of any claim 

for delay damages. 

Barker was also questioned about a January 5, 2017, letter from the 

Commission’s counsel to Contractor’s counsel. In that letter the Commission 

expressed its disagreement with Contractor’s assumption that the deadline for filing 

an administrative claim with the Commission was six months after Kleimenhagen’s 

October 17, 2016, email, i.e., April 17, 2017. The letter stated that Kleimenhagen’s 
6

earlier email of September 21, 2016, was the final determination, and Contractor had

six months from that date to file a claim, i.e., March 21, 2017. 

Janice Fleming-White, a member of Contractor’s legal department, 

testified. She reviewed the September 21, 2016, email and concluded that it did not 

constitute a final decision. Upon review of the October 17, 2016, email she prepared 

a letter of intent to file a claim, which was sent to Kleimenhagen the next day.

The Commission presented the testimony of Kleimenhagen, who stated 

that he was the project manager for the Somerset Project, the contract representative 

and the contracting officer. Michael Baker International served as the construction 

manager, and it assigned Madey to inspect the Somerset Project. 

Kleimenhagen confirmed that he instructed Barker to keep a record of 

the work that was deleted or added to the project and to submit all work changes in

a supplemental job order at the conclusion of the contract. Kleimenhagen’s directive 

did not relate to the notice of delay damages; the contract requires that a claim for 

delay damages be asserted within ten calendar days of the act that caused the delay. 

The contract also required Contractor to file a notice of intent to submit a delay 

damages claim to the contracting officer in writing within ten days of the act or 

omission. 

Kleimenhagen testified that Contractor submitted the supplemental job 

order request on July 27, 2016. On August 24, 2016, Kleimenhagen emailed Barker 

requesting additional documentation to finish the review, but Barker did not respond. 

Kleimenhagen then sent the September 21, 2016, email partially denying the claim. 

Attached to the email was a spreadsheet with a line-by-line analysis of costs the 

Commission accepted or rejected, followed by a notation “pay” or “no pay.” N.T. 

142; R.R. 477a. 
7

Kleimenhagen noted that Barker’s email of October 6, 2016, did not 

point out any errors in the Commission’s review. It simply expressed disagreement 

and requested a further review. On October 17, 2016, Kleimenhagen responded to 

Barker, stating that the review had been completed, as reported in the Commission’s 

September 21, 2016, email. Contractor then issued a notice of claim on October 18, 

2016.

On cross-examination, Kleimenhagen was questioned about his status 

as the Commission’s contract representative. Kleimenhagen responded that he was 

assigned this job by his supervisor, but he conceded there was no written 

confirmation of his appointment. Kleimenhagen was then asked about an email 

Madey sent to Barker in 2015 in which Madey identified himself as the contract 

representative. Kleimenhagen explained that he drafted the email for Madey to send, 

but it looked, mistakenly, as if Madey was the author. 

Madey testified regarding his review of the supplemental job order.6 

When Contractor submitted the supplemental job order and spreadsheet, Madey 

prepared his own spreadsheet. He looked at each of the 237 line items submitted and 

compared each with the terms of the contract and the construction plans. If the item 

listed represented additional work requested by the Commission, he wrote “pay” on 

the line. N.T. 212; R.R. 547a. If the item listed was required under the original

contract, he wrote “no pay.” Id. There were items that Contractor had included in 

its proposal but did not perform, which he also listed as “no pay.” Madey stated that 

the spreadsheet was produced by collaboration between Michael Baker, Inc., and the 

 

6 Madey was not questioned about the 2015 email wherein he referred to himself as the contract 

representative. 
8

Commission. The Commission’s construction management team did one review, 

and it was completed by September 21, 2016. 

The Board sustained the Commission’s preliminary objection to its 

jurisdiction. The Board found that Contractor’s claim accrued on September 21, 

2016. Accordingly, when Contractor filed its administrative claim to the 

Commission on March 27, 2017, the six-month statute of limitations in Section 

1712.1(b) of the Procurement Code had run. 

The Board rejected Contractor’s contention that Kleimenhagen was not 

the contract representative with authority to deny payment on Contractor’s 

supplemental job order. The contract defined the Commission’s “representative” as

“the authorized representative acting on behalf of the Director of Facilities and 

Energy Management Operations or the Chief Engineer.” R.R. 588a. The contract 

made the “representative” the one to “decide differences concerning the performance 

of the work covered by the contract.” R.R. 598a. Although Madey identified 

himself in an email as the Commission’s “designated representative” on the 

Somerset Project, the Board accepted Kleimenhagen’s testimony that he was the

actual contract “representative.” This finding was supported by other evidence. 

For example, Contractor sent the supplemental work order to Madey, 

but it was Kleimenhagen who responded. It was Kleimenhagen who advised Barker 

that if Contractor submitted a revised proposal, “I will process the supplemental Job 

Order ASAP.” R.R. 681a. These communications showed that Kleimenhagen was 

the contract “representative,” and at no point did Contractor question 

Kleimenhagen’s authority to so act. Indeed, Contractor sought further review from

Kleimenhagen, and Contractor accepted his October 17, 2016, email as a final 

determination. 
9

The Board rejected Contractor’s argument that the September 21, 2016,

email was not a final determination. The email stated that the Commission had

“completed the review” of Contractor’s supplemental job order request and that the 

“entire construction management team” had compared the submission with the 

project specifications. The email specifically identified what would not be paid, 

with line-by-line notations, and this constituted a denial. The Board also rejected 

Contractor’s assertion that Kleimenhagen’s October 17, 2016, email implied that 

additional review had been undertaken by the Commission subsequent to September 

21, 2016. Contractor now petitions for this Court’s review. 

Appeal

On appeal,7 Contractor raises several issues, which we have reordered 

and combined into three for purposes of our review. First, Contractor argues that 

the Board erred in finding that Kleimenhagen was the contract “representative” with 

authority to make a determination on Contractor’s supplemental job order. Second, 

Contractor contends that even if Kleimenhagen could issue a determination, the 

Board erred in holding that Contractor’s claim accrued on September 21, 2016, 

because Contractor reasonably interpreted the email Kleimenhagen sent on that date 

as merely starting the contractually mandated collaborative review process, to which 

the Commission did not adhere. Relatedly, Contractor contends that the Board erred 

in failing to consider actions by the Commission after September 21, 2016, 

indicating that it did not consider Kleimenhagen’s email to be a final determination. 

 

7

In reviewing a Board decision this Court determines whether the Board committed an error of 

law, whether the necessary findings were supported by substantial evidence, or whether 

constitutional rights were violated. Wayne Knorr, Inc. v. Department of Transportation, 973 A.2d 

1061 (Pa. Cmwlth. 2009). Our standard of review of an order sustaining preliminary objections 

based on an issue of law is de novo, and our scope of review is plenary. Buchart Horn, Inc. v. 

Department of Transportation, 1 A.3d 960 (Pa. Cmwlth. 2010).
10

Third, Contractor asserts that the Board erred in finding that any confusion over the 

procedure the Commission followed was cleared up by the January 5, 2017, letter 

from the Commission’s general counsel; Contractor argues that letter was 

misleading.

Discussion

I. Kleimenhagen’s Authority

In its first issue, Contractor argues the Board erred in finding that

Kleimenhagen was the Commission’s named contract “representative” with 

authority to make a determination on Contractor’s supplemental job order.8 

Contractor cites Kleimenhagen’s testimony that there was nothing in writing 

appointing him as contract representative. The only person who asserted, in writing,

that he was the Commission’s contract representative was Madey, the 

Commission’s construction manager. Because Kleimenhagen lacked the requisite 

authority, Contractor asserts that Kleimenhagen’s September 21, 2016, email to 

Barker was not a final determination that caused Contractor’s claim to accrue. 

 

8 Section 101.03 of the parties’ contract defines the “representative” as “[t]he authorized 

representative acting on behalf of the Director of Facilities and Energy Management Operations 

or the Chief Engineer.” R.R. 588a. Pursuant to Section 105.01 of the contract, the named contract 

representative is authorized to:

[1] determine the appropriateness of each task in the Price Proposal[;]

[2] determine whether an item of work is a Prepriced Task or a Non-Prepriced Task;

[3] determine the quantity of the kinds of work and the quality of material for which 

payment will be made under the contract;

[4] determine the answer to questions in relation to the project and its construction; 

and

[5] decide differences concerning the performance of the work covered by the 

contract.

R.R. 598a. 
11

The Commission responds that Kleimenhagen testified that he was 

appointed the contract representative for the Somerset Project by his director. 

Further, the Commission routinely assigned the project manager to serve as the 

contract representative and the contracting officer. Kleimenhagen testified that

Contractor was well aware of this practice because it has completed dozens of 

construction projects with the Commission over many years. Kleimenhagen drafted 

the 2015 email that identified the author as the contract representative, and Madey

sent it to Contractor. Although it was not clear that the email referred to

Kleimenhagen as the contract representative, Contractor did not treat Madey as the

actual contract representative. 

We agree with the Board’s conclusion that Kleimenhagen had authority 

to issue a determination on Contractor’s supplemental job order. Barker emailed the 

supplemental job order to Madey, with a copy to Kleimenhagen, and the responses

on August 26 and September 21, 2016, came from Kleimenhagen. Barker did not

testify that he considered the September 21, 2016, email to be a preliminary

communication because Kleimenhagen had authored it. In fact, Barker testified he 

had no idea who was the contract representative. Barker further testified that he 

considered the October 17, 2016, email, which was also authored by Kleimenhagen, 

to be the Commission’s final decision. This inconsistency cannot be reconciled with

Contractor’s premise that Kleimenhagen was not authorized to act as the 

Commission’s contract representative. 

Further, the Board credited Kleimenhagen’s testimony that he was the 

contract representative. This testimony is supported by Kleimenhagen’s September 

21, 2016, email to Barker, which states:

The [Commission] has completed the review of your 

supplemental job order request submitted on July 27, 2016. 
12

Please find attached an EXCEL spreadsheet which provides an 

explanation for each category/line in the proposal, and our 

position on whether the line item will be paid or not by the 

[Commission]. The entire construction management team [the 

Commission, the construction project manager and inspector, 

and the project architect] thoroughly reviewed your submission

by comparing it to the project design drawings, specifications, 

special provisions, and on-site inspections during construction. 

Our determination is the acceptable additional work costs 

submitted by [Contractor] is $35,233.05 not $150,925.19.

R.R. 681a (emphasis added). This email demonstrated Kleimenhagen’s authority to 

speak for the Commission. 

There is no support for Contractor’s claim that Kleimenhagen lacked 

authority. Further, Contractor’s legal department deemed Kleimenhagen’s October 

17, 2016, email to speak for the Commission, thereby triggering Contractor’s right 

to file a notice of claim. In sum, substantial evidence supports the Board’s factual 

finding that Kleimenhagen was the contract representative on the project.

II. Accrual Date of Contractor’s Claim

Contractor contends that the Board erred in finding that Contractor’s 

claim accrued on September 21, 2016, because Kleimenhagen’s email of that date 

was not a final determination on Contractor’s supplemental job order. Contractor 

observes that the email did not use terms such as “will not be paid” or “denied.” Nor 

did Kleimenhagen assert in his subsequent email of October 17, 2016, that the claim 

had already been denied. Contractor maintains that it reasonably interpreted the

September 21, 2016, email as starting the contractually mandated review process, 

which required that a supplemental job order follow the same process for developing 

a new job order. This collaborative process required the parties to “meet and 

discuss” the matter before a final determination was made, and the Commission did 

not satisfy this requirement. Barker requested further review on October 6, 2016,
13

because he assumed there would be a meeting prior to a final determination. 

Contractor asserts that the Commission’s actions after September 21, 2016, also 

show that it did not consider Kleimenhagen’s communication of that date to be a 

final determination. 

Our Supreme Couort has addressed the accrual of a claim under the 

Procurement Code. In Darien Capital Management, Inc. v. Public School 

Employes’ Retirement System, 700 A.2d 395, 397 (Pa. 1997), the Court stated as 

follows:

A claim accrues when 1) a claimant is first able to litigate his or 

her claim, e.g., when the amount due under the claim is known 

and the claimant is capable of preparing a concise and specific 

written statement detailing the injury, and 2) the claimant is 

affirmatively notified that he or she will not be paid by the 

Commonwealth.

Both prongs must be satisfied for a claim to accrue and only then will the statute of 

limitations commence. Ferguson Electric Company, Inc. v. Department of General 

Services, 3 A.3d 681, 686 (Pa. Cmwlth. 2010). A refusal to pay need not contain the 

words “will not be paid” or “denied.” Id. Nor is it mandatory that the refusal state 

that it is a “final decision” or advise the recipient of the “right to appeal.” Id. A 

claim accrues when the refusal communicates that payment will not be made. Id. 

The September 21, 2016, email from Kleimenhagen to Barker states, in 

relevant part, as follows:

The [Commission] has completed the review of your 

supplemental job order request submitted on July 27, 2016. 

Please find attached an EXCEL spreadsheet which provides an 

explanation for each category/line in the proposal, and our 

position on whether the line item will be paid or not by the 

[Commission]. The entire construction management team [the 

Commission, the construction project manager and inspector, 
14

and the project architect] thoroughly reviewed your submission 

by comparing it to the project design drawings, specifications, 

special provisions, and on-site inspections during construction. 

Our determination is the acceptable additional work costs 

submitted by [Contractor] is $35,233.05 not $150,925.19.

I have created JOC Project 02-2015-G-009.01 in the E-Gordian 

system, and respectfully request that you submit a revised 

proposal for the “pay” items listed in the attached EXCEL 

spreadsheet at your earliest convenience. Once I receive the 

proposal in E-Gordian, I will process the supplemental Job Order 

ASAP. 

R.R. 681a. Contractor asserts that this language did not trigger the accrual of its 

claim against the Commission. We disagree.

Kleimenhagen’s email specifies the total amount of the supplemental 

work order that the Commission would pay. A spreadsheet was attached, listing the 

237 line items Contractor sought payment for and the cost of each item. A notation 

is made after every single item stating “pay” or “no pay.” A reason is listed for each 

item for which payment was denied. The email states the review was “completed,” 

and “our determination is the acceptable additional work costs submitted by 

[Contractor] is $35,233.05 not $150,925.19.” R.R. 681. In sum, the September 21, 

2016, email meets both prongs of the standard set forth in Darien Capital 

Management, i.e., Contractor was able to state the amount due under its claim and 

had been notified that it would not be paid that amount by the Commission.

Notwithstanding the unequivocal denial communicated by the 

September 21, 2016, email, Contractor maintains that it reasonably interpreted it to 

initiate the contractually mandated review process, which requires a supplemental 

job order to follow the same process for developing a new job order. This 

collaborative process required the parties to “meet and discuss” the matter before a 
15

final determination was made. The Commission responds that the plain language of 

the contract does not support Contractor’s argument. The collaborative process set 

forth in the contract relates to the development of a job order. It makes no sense to 

follow this procedure for work already completed. The Board agreed, as do we. 

Section 109.03(a) of the contract states that a “supplemental job order”

will be developed in accordance with the “procedures for developing a job order.” 

R.R. 632a. More specifically, Section 109.03(a) states: 

Work specified in Sections 104.02 [regarding alterations to 

detailed scope of work] and 104.03 [deleted from contract] will 

be paid, if authorized in writing by the Representative, as a 

Supplemental Job Order developed in accordance with the 

procedures for developing a Job Order set forth in the Special 

Provisions. Compensation will be limited to the work authorized 

in writing and actually performed. Work performed before 

written authorization will be at the Contractor’s risk.

A Supplemental Job Order identifying the work to be done and 

the price to be paid therefore will be processed before or during 

the performance of the work. To avoid interrupting the project, 

written authorization to perform the work [is permissible from 

specified project personnel].

Id. (emphasis added). The “Procedure for Developing a Job Order” is set forth in 

Special Provision 9.00 of the Contract. It provides:

As the need exists, the Commission will notify the contractor of 

a project. The Commission and the contractor will review the 

project and discuss, at a minimum:

a. the general scope of the work

b. alternatives for performing the work and value 

engineering;

c. access to the site and protocol for admission;
16

d. hours of operation;

e. staging area;

f. requirements for professional services, sketches, 

drawings, and specifications;

g. construction schedule;

h. the presence of hazardous materials;

i. date on which the Price Proposal is due.

R.R. 571a-72a. Once this initial process is completed, the contractor prepares a price 

proposal, which the Commission reviews to determine its reasonableness. The 

Commission is authorized to accept or reject the price proposal for any reason. 

The contractual procedure for developing a job order requires a 

discussion to determine what work will be done, how it will be done, when it will be

done and what it will cost. This presupposes that the work has not yet been 

completed. Similarly, Section 109.03(a) states that the supplemental job order will 

be “processed before or during the performance of the work.” R.R. 632a. These 

requirements cannot be applied to the type of supplemental job order at issue here, 

i.e., one for work that has already been completed. 

The Board rejected Contractor’s claim that a supplemental job order

was to be negotiated in accordance with the procedures for developing a job order. 

The Board explained as follows:

Based on the Board’s reading of the [contract], as well as our 

years of experience in resolving contract claims, a supplemental 

job order, like a change order (which was to accompany same 

here per the General Provisions) is the process used when both 

contractor and owner/agency agree the work is beyond the scope 

of the original design/specifications and determine that they can 

negotiate a price for the new work and add it to the contract 
17

before the new work is done without delaying the project. It is 

not the process prescribed or utilized when the parties do not 

agree as to whether the disputed work is or is not within the 

original scope of the contract or have not determined to resolve 

the issue before the alleged extra work occurs. Instead the 

process prescribed here by [] Kleimenhagen (i.e. continue with 

the work, keep track of what the contractor believes to be extra 

work, and seek resolution at the end of the project) is the more 

typical method for resolution of such disputed tasks as we have 

here in this case. 

Based on the plain language of the [c]ontract, particularly that of 

Section 109.03 of the General Provisions, to which [Contractor] 

wishes strictly to hold the [Commission], we conclude that, 

strictly speaking, this provision is not applicable to a claim for 

extra work made after the work was performed and done prior 

to written authorization. Therefore, to the extent [Contractor] 

claims the [Commission’s] denial of its request for additional 

payment was ineffective for failure to observe the supplemental 

job order process, we disagree.

Board Adjudication at 33 (underlining in original) (emphasis added).

We agree with the Board’s analysis. Where uncertainty existed about

whether certain work was within the scope of the contract, Contractor was directed 

to do the work and then submit an invoice. Contractor followed this procedure and 

received the Commission’s agreement to pay the invoice for supplemental work, in 

part, on September 21, 2016. Notably, in his October 6, 2016, response, Barker did 

not request a meeting or ask when one would be scheduled. Instead, Barker asked 

Kleimenhagen to “further review[]” the determination and “contact our office if you 

have any questions.” R.R. 716a.9

 

9

In full, Barker’s email response to Kleimenhagen stated:

Attached is our response to the [Commission’s] offer for a Supplemental Work 

Order.
18

Contractor argues that the Commission’s actions after September 21, 

2016, signaled that the Commission did not make a final determination on that date. 

Contractor notes that Kleimenhagen took more than a week to respond to Barker’s 

October 6, 2016, email, which implies that another review was conducted. 

Additionally, when Contractor filed its claim, the Commission held a hearing prior 

to dismissing it as untimely, which would not have been necessary unless it was 

uncertain about the meaning of the September 21, 2016, email. Contractor argues 

that the Board erred in failing to consider these points in determining the date that

Contractor’s claim accrued.

Contractor’s argument lacks merit. The Board credited 

Kleimenhagen’s testimony that he was at a conference in California when Barker 

sent the October 6, 2016, email, so he did not review it until October 11, 2016. 

Because of other work, he was not able to respond until October 17, 2016. Simply, 

Contractor’s belief that the lapse of time between the Commission’s two emails 

shows that a second review occurred lacks a foundation in the record. Likewise, 

nothing can be read into the Commission’s holding a hearing on Contractor’s claim 

before it dismissed it as untimely. We agree with the Board on this point. 

 III. January 5, 2017, Letter from Commission’s Counsel

Finally, Contractor challenges the Board’s conclusion that the

Commission cleared up any confusion over the date Contractor’s claim accrued with 

 

[Attachment:] [Contractor] is in receipt of your email dated 9/21/16 with 

revisions/acceptance of items on our ... Submission Breakdown of additional work 

performed on the above referenced project. We disagree with your proposed 

approval of $35,233.05 out of $150,925.19 of additional work which was directed 

by the [Commission] and performed by our firm. We respectfully request that these 

changes be further reviewed and paid for.

Please feel free to contact our office if you have any questions. Thank you.

R.R. 716a, 722a (emphasis in attachment omitted).
19

a letter from its general counsel to Contractor’s counsel on January 5, 2017. More 

specifically, the Board concluded that the letter of Commission’s counsel 

cleared up any possible confusion engendered by the loose usage 

of the “supplemental job order” term and indicated that 

[Contractor’s] request for payment was finally denied on the 

September 21, 2016 date, at the latest. 

Board Adjudication at 35. 

Contractor argues that the letter from the Commission’s counsel did not 

state that the Commission made and communicated its final determination through 

Kleimenhagen’s email to Barker on September 21, 2016. Further, the letter was 

confusing because it posited that Contractor’s claim could have accrued on several

different dates. The Commission responds that the letter expressly disagreed with 

Contractor’s suggestion that it had until April 17, 2017, to file a claim. 

To begin, counsel’s letter, sent to Contractor’s counsel, stated that the 

Commission 

disagrees with [Contractor’s] position as to the present 

procedural posture of its Claim. Accordingly, we respectfully 

disagree with your assumption that [Contractor’s] Claim is to be 

filed on or before April 17, 2017. 

R.R. 797a. The letter then went on to address several matters, such as the lack of 

specificity in Contractor’s notice of claim and Contractor’s assertion that 

Kleimenhagen’s October 17, 2016, email represented the Commission’s final 

determination. The Commission’s counsel reasoned that Barker’s request for

“further review” in his email of October 6, 2016, demonstrated that Contractor 

understood that its request for payment had been denied on September 21, 2016. 

The letter challenged Contractor’s failure to file a notice of intent to file a claim 
20

within ten days of the September 21, 2016, email and questioned why Contractor did

not “suggest that its claim is due by March 21, 2017, six (6) months from that earlier 

and identical determination.” R.R. 798a.

We reject Contractor’s characterization of the letter as not stating that

“the Commission believed that [Contractor’s] claim accrued as of September 21, 

2016.” Contractor Brief at 36. The letter acknowledged Contractor’s belief that the 

October 17, 2016, email constituted the denial of the claim and then explained why 

that belief was incorrect. The letter stated that the September 21, 2016, email denied

Contractor’s work costs and established the administrative claim was due by March 

21, 2017, i.e., six months from the September 21, 2016 email. There was nothing 

confusing here. The Commission expressed its position that Contractor’s claim 

accrued on September 21, 2016. Contractor chose to ignore this warning, to its own 

detriment.10 

Conclusion

For all the above reasons, we affirm the order of the Board.11

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.

 

10 Of course, the extra-contractual statement by the Commission’s counsel is not dispositive of 

what the job order contract required of the parties. 

11 Judge Fizzano Cannon did not participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lobar Associates, Inc., :

Petitioner :

:

v. : No. 1038 CD 2018

:

Pennsylvania Turnpike Commission, :

Respondent :

O R D E R

 AND NOW, this 1st day of August, 2019 the order of the Board of 

Claims, dated June 28, 2018, in the above-captioned matter is hereby AFFIRMED. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge