3720 - Board of Claims

36. Because Intercounty was instructed by Joseph Pilosi (the District Utility Relocation
Administrator for the Project) at the June 11, 2001 meeting that subsequent communication with
the affected utility companies regarding issues, problems or concerns with utility relocation would
be handled by “the state” (i.e. PennDOT) and/or Mr. Pilosi himself; and because these instructions
and representations were consistently affirmed throughout the Project by Mr. Sebastianelli
(PennDOT’s inspector-in-charge of the Project); we find that PennDOT, by its own representations
and actions, assumed responsibility for communication with the utility companies regarding pole
and wire relocation on the Project and relieved Intercounty of the responsibility to communicate
directly with these utility companies from the June 11, 2001 meeting onward. General Asphalt
Paving, 405 A.2d at 1140-1142.
37. We also hold that PennDOT is equitably estopped from asserting Intercounty’s
failure to contact the affected utility companies directly with regard to pole relocation on the
Project subsequent to the June 11, 2001 meeting because of: Mr. Pilosi’s representations and
instructions to Intercounty that PennDOT and Mr. Pilosi would handle all subsequent
communications to the utility companies regarding problems, issues or concerns with utility pole
relocation on the Project; Mr. Sebastianelli’s actions thereafter confirming these instructions; and
Intercounty’s obvious reliance on same exemplified by its ongoing communication to Mr.
Sebastianelli and PennDOT regarding utility pole relocation problems throughout the remainder of
the Project. Id.; see also Department of Commerce v. Robert J. Casey, 624 A.2d 247, 254 (Pa.
Cmwlth. 1993).
38. Mr. Pilosi’s representations made at the June 11, 2001 meeting that all further
coordination with the utility companies would be handled by Mr. Pilosi and/or PennDOT; Mr.
Sebastianelli’s actions thereafter confirming same throughout the remainder of the Project; failure
of anyone from PennDOT to advise Intercounty that it should be dealing directly with the utility
companies regarding pole relocation issues during the Project; and Mr. Pilosi’s complete failure to
do anything to facilitate utility pole and wire relocation during the first six months of the Project,
particularly after the utility companies had left the Project in mid-October of 2001 after completing
only Section Three and it was obvious that pole relocation was severely delayed at that point;
clearly misled Intercounty into believing PennDOT was making efforts to expedite pole and wire
relocations when it was not. This constituted active interference with Intercounty’s work on the
Project and material breach of contract on the part of PennDOT. See e.g., Pittsburgh Building, 920
A.2d at 991; James Corp. v. North Allegheny School District, 935 A.2d 474, 484 (Pa. Cmwlth.
2007); General Asphalt Paving, 405 A.2d at 1140-1141; Coatesville, 506 A.2d at 865-867; A.G.
Cullen, 898 A.2d at 1160; Gasparini, 187 A.2d at 161-162; S.J Groves & Sons, Co., 343 A.2d at
76.
39. PennDOT’s affirmative misrepresentations to Intercounty which misled Intercounty
into thinking that PennDOT was communicating its concerns with pole and wire relocations to the
utility companies and was taking action to expedite the utility companies’ performance, when, in
fact, PennDOT was not doing so for the first six months of the Project, constitutes active
interference with Intercounty’s work and ample grounds for refusal to enforce the exculpatory
clauses relied upon by PennDOT to relieve it from liability for delay and disruption damages on
the Project. Pittsburgh Building, 920 A.2d at 991; Coatesville, 506 A.2d at 865-867; A.G. Cullen,
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