3720 - Board of Claims

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Intercounty would be paid $16,200.00 if the final road surface met certain conditions of smoothness. (Ex. P-8 at p. 9). In order to qualify for the Ride Quality Incentive, the road surface had to be machine tested for smoothness after final paving and an index number for smoothness assigned thereto. Under the Contract's provisions, if the road was tested and the index number was high enough the bonus would be awarded, but if the index was too low, Intercounty could have faced a penalty. (408 Specifications, Change No. 2, Sec. 404; Ex. D- 19). In this case, neither party wanted to go forward with any measurement of the road's smoothness, so the road was never tested. The Board finds that since the conditions for the Ride Quality Incentive were not met and since Intercounty agreed that no test would be conducted, Intercounty is not entitled to the bonus and is also not liable for any penalty. Claim for Pre-judgment Interest and Attorney Fees Pennsylvania law recognizes that pre-judgment interest is to be awarded as a matter of right to the prevailing party in an action to recover upon a contract. See e.g. Widmer Engineering Inc. v. Dafalia, 837 A.2d 459, 469 (Pa. Super. 2003); Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 590 (Pa. Super. 2003). Interest shall run at the statutory rate from the date this claim was filed with the contracting officer. 62 Pa.C.S.A. sec. 1751. The record does not reflect the date on which Intercounty filed its claim with PennDOT, but the date of denial of that claim was July 12, 2004. (N.T. 872). Insofar as July 12, 2004 is the closest date of record to the claim filing date, the Board awards Intercounty pre-judgment interest from that date. Intercounty also requests an award of attorney fees under Section 3935 of the Procurement Code. (Complaint at p. 12). It alleges that PennDOT withheld payment in bad faith and acted arbitrarily and vexatiously with respect to the relocation work performed by the 110
utilities. A prevailing party in an action to recover payment may be awarded reasonable attorney fees if the opposing party “acted in bad faith” pursuant to 62 Pa.C.S. Sec. 3935(b). Bad faith will be found when the withholding of payment was “arbitrary or vexatious.” Id. The word “arbitrary,” for purposes of Section 3935, is defined as “based on random or convenient selection or choice rather [than] on reason or nature” and the words “vexatious conduct” as “that which is committed without sufficient grounds in either law or in fact with the purpose of causing annoyance.” Commonwealth v. Pittsburgh Building Company, 920 A.2d 973, 991 (Pa. Cmwlth. 2007). Although we find the actions/inactions of PennDOT in this matter to fall far short of exemplary, we do not believe that Section 3935 applies to this case. Specifically we note that Chapter 39 (of which Subchapter D and Section 3935 are part) speaks in terms of "Contract" and "Contractor" which are defined by Section 3902 of the Procurement Code as "excluding Department of Transportation contracts under section 301(c)(1) (relating to procurement)." 62 Pa.C.S. §§ 3901-3941. Section 301(c)(1) of the Procurement Code, in turn, identifies contracts for, "[B]ridge, highway, dam, airport . . . or specialized construction." [Emphasis added]. 62 Pa.C.S. § 301(c)(1). Because we believe the contract here at issue fits within the exclusion defined by Section 3902 and is therefore not subject to Chapter 39 (or Section 3935) of the Procurement Code, we decline to award attorney fees in this matter. Accordingly, we do not find the requisite predicate here for an award of attorney fees. We will also decline to award costs (other than attorney fees) pursuant to our discretionary authority at 62 Pa.C.S. § 1725(e)(1) as we believe the issues in this case were fairly presented and argued by both parties. 111
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COMMONWEALTH OF PENNSYLVANIA INTERC
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where PennDOT renamed it the “Con
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5) Grade areas behind shoulders. 6)
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38. In late 1999, two years before
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could properly schedule their crews
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egarding what PennDOT could do to m
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during the pre-Contract period, and
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timetable and order of operations w
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pole relocation delays were hinderi
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perform more clearing and grubbing
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160. Mr. Pilosi also testified he d
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177. On March 11, 2002, Intercounty
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when doing its excavations subgrade
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construction problems that arise. H
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214. PennDOT clearly misled Interco
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Delay Damages 225. Intercounty clai
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244. The Tilcon letter, Exhibit P-5
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265. With appropriate markup per Se
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281. The Board finds that the diffe
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started to work, it had to finish t
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315. Removal of the unsuitable mate
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desirable to complete the project.
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352. Since no required road testing
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8. To minimize erosion, the Conserv
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21. By prescribing the character, d
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30. Section 105.06(a) of the 408 Sp
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36. Because Intercounty was instruc
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performance, the Contract’s excul
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Intercounty for the cost of general
Page 59 and 60: 71. Because the Contract (including
Page 61 and 62: 89. Although these provisions apply
Page 63 and 64: OPINION Plaintiff, Intercounty Pavi
Page 65 and 66: In addition to dividing work on the
Page 67 and 68: II. UTILITY POLE RELOCATION ISSUES
Page 69 and 70: the Project. Specifically, Intercou
Page 71 and 72: Moreover, we find PennDOT's defense
Page 73 and 74: were unprepared to do so. The Utili
Page 75 and 76: approximately five months. Actual p
Page 77 and 78: even though the as-planned sequence
Page 79 and 80: completed. Finally, Mr. Sebastianel
Page 81 and 82: can find no excuse for his complete
Page 83 and 84: To conclude, we find that, in subst
Page 85 and 86: Super. 1963); Angelo Iafrate Const.
Page 87 and 88: Construction Sequence could not be
Page 89 and 90: Paving undertook to negotiate the m
Page 91 and 92: adequate room for guy wires in its
Page 93 and 94: hoc weekly work schedules were addi
Page 95 and 96: For the Extended Field Conditions,
Page 97 and 98: PennDOT objected to admission of Ex
Page 99 and 100: y Chad Nansteel (Project Superinten
Page 101 and 102: (through Mr. Pilosi and Mr. Sebasti
Page 103 and 104: days of original excavation and the
Page 105 and 106: had to finish that section before m
Page 107 and 108: e necessary in order to stabilize t
Page 109: men back and forth to do the underc
Page 113: ORDER AND NOW, this 23 rd day of Ap
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3720 - Board of Claims

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