3720 - Board of Claims

performance, the Contract’s exculpatory provisions, relied upon by PennDOT to relieve it from
liability for delay and disruption damages on the Project, are not enforceable. Coatesville
Contractors, 506 A.2d at 865-866; Gasparini, 187 A.2d at 163; General Asphalt Paving, 408 A.2d
at 1141; Sheehan v. Pittsburgh, 62 A. at 624.
46. Delay caused by an owner’s failure to obtain the rights-of-way necessary to build a
roadway project is not in the class of difficulties generally contemplated by the parties, since the
roadway construction agreement is based on the assumption by both parties that all the necessary
rights-of-way have been secured and the work can proceed without interruption. Sheehan v.
Pittsburgh, 62 A. 642 (Pa. 1905).
47. In addition to its initial failure to plan enough room for guy wires as needed on the
new poles on the Project, PennDOT’s long delay in resolving the pole relocation right-of-way
problem (from August 2001 to March 2002) was another instance of PennDOT’s failure to act in
an essential matter necessary to the prosecution of the work on this Project and itself constituted a
material breach of the Contract and active interference with Intercounty’s work on the Project.
Coatesville Contractors, 506 A.2d at 865-867; Pittsburgh Building Co., 920 A.2d at 987; A.G.
Cullen, 898 A.2d at 1160; C.J. Langenfelder & Son, Inc., 404 A.2d at 750-751.
48. PennDOT’s long delay in resolving the pole relocation right-of-way problem (from
August 2001 to March 2002) constitutes additional 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. Sheehan v. Pittsburgh, 62 A. at 642; Pittsburgh Building, 920 A.2d at 991; General
Asphalt Paving, 405 A.2d at 1141; Gasparini, 187 A.2d at 162-163; S.J. Groves & Sons, Co., 343
A.2d at 74-76; James Corp., 938 A.2d at 484.
49. Because we have found that PennDOT actively interfered with Intercounty’s work
on the Project and materially breached the Contract by way of the following acts/omissions on the
Project:
A. PennDOT’s failure to provide plans and drawings adequate to construct
the Project;
B. PennDOT’s failure to act in an essential matter necessary to the prosecution of work
on the Project by its failure to adequately coordinate utility pole and wire relocation on the
Project in the pre-Contract design phase of same;
C. 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;
D. PennDOT’s denial of a work suspension after the utility companies left the Project
in mid-October 2001 with only a small portion of the pole relocation accomplished and its
direction to Intercounty to work in an unplanned, piecemeal way under the ad hoc weekly
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