3720 - Board of Claims

8. To minimize erosion, the Conservation District required PennDOT to submit for
approval an Erosion and Sediment Pollution Control Plan ("E and S Plan"). This plan specified a
detailed sequence of how the Project would be built with the contractor working in only one
section, or one-third of the Project, at a time. N.T. 12, 133, 225, 1071-1072; Exs. P-8, P- 59.
9. The Conservation District approved PennDOT’s E and S Plan and PennDOT then
incorporated it into the Contract’s plans and drawings. PennDOT also put it in the Special
Provisions of the Contract and renamed it the “Construction Sequence.” Thus, PennDOT made
the E and S Plan into the roadway Construction Sequence and incorporated this unusually specific
plan of construction activities into the Contract for the Project. N.T. 444-445, 1071-1072; Exs. P-
59, P-2A, P-2B, P-8.
10. PennDOT included the Construction Sequence in the bid and Contract documents.
Accordingly, the Construction Sequence was to be used by the successful bidding contractor to
price and perform the work. Exs. P-2A, P-2B; Philadelphia Warehousing and Cold Storage v.
Hallowell, 490 A.2d 955, 956-57 (Pa. Cmwlth. 1985); American Totalisator Co., Inc. v. Seligiman,
384 A.2d 242, 258 (Pa. Cmwlth. 1977); see also, Durkee Lumber Co., Inc. v. Dep’t of
Conservation and Natural Res., No. 3797, 2008 WL 509459 at *26-27 (Pa. Bd. Claims, Jan. 4,
2008), citing Ezy Parks v. Larson, 454 A.2d 928, 933 (Pa. 1982).
11. The Contract required that, pursuant to the Construction Sequence, work on the
Project would be performed in specified sections and phases while the roadway remained open to
traffic. The roadway was divided into three roughly equal sections (Sections One, Two and Three)
and within each section there were three phases of work (comprised of multiple steps) to be
accomplished. N.T. 153; Exs. P-2A, P-8.
12. Pennsylvania utility companies have the privilege of free occupancy of PennDOT’s
public rights-of-way for the installation of their poles, wires and other facilities. In return, when
PennDOT alters a state highway, these utility companies owe a corresponding duty to PennDOT to
relocate their poles, wires and other facilities at their own cost at the time, and to the location
within such rights-of-way, as PennDOT determines. 36 P.S. Sec. 670-411, 67 Pa. Code Sec.
459.1; Exs. P-38, P-35; see Delaware River Port Authority v. P.U.C., 145 A.2d 17 (1958);
Department of Transportation v. Pennsylvania Power & Light Co., 383 A.2d 1314, 1317-1318 (Pa.
Cmwlth. 1978).
13. The Contract (in Paragraph 6, in the “Utilities” section of the Special Provisions,
and in the 408 Specifications Sections 105.06(b), 105.06(a) and 102.05) imposed certain duties on
Intercounty to contact and cooperate with the affected utility companies in connection with the
utility pole and wire relocation work on the Project. Ex. P-8; Pub. 408 Specifications §§ 102.05,
105.06(a) and 105.06(b).
14. However, Intercounty’s duties to contact and cooperate with the affected utility
companies in connection with the utility pole and wire relocation on the Project commenced only
upon completed execution of the Contract by both Intercounty and PennDOT. Ex. P-8; 408
Specifications §§ 103.03, 103.05(b), 103.07.
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