3720 - Board of Claims

Intercounty for the cost of general and project superintendence, we find that Intercounty is not
entitled to any further award for Extended Project Supervision. Id.
57. Under Section 110.04 of the 408 Specifications, the contractor may recover for
material cost increases for bituminous materials. 408 Specifications § 110.04.
58. The Board, as the finder of fact, may believe all, part or none of the evidence; must
make all credibility determinations; and is responsible for resolving all conflicts in the evidence.
A.G. Cullen, 898 A.2d at 1155; Com. v. Holtzapfel, 895 A.2d 1284, 1289 (Pa. Cmwlth. 2006);
Allegheny Ludlum Corp. v. Municipal Authority of Westmoreland, 659 A.2d 20, 30 (Pa. Cmwlth.
1995).
59. Under the specifics of this case, including Mr. Lizza’s testimony regarding the oral
agreement between Tilcon and Intercounty and Exhibit P-58, sufficient evidence was presented to
support the finding of a binding oral contract between Intercounty and Tilcon (its asphalt supplier)
for payment by Intercounty to Tilcon of material escalation costs for asphalt used on the Project
due to delay caused by PennDOT in the amount of $115,956. Ex. P-58; see e.g. Edgcomb v.
Clough, 118 A. 610, 614-616 (1922); Lombardo v. Gasparini Excavating Co., 123 A.2d 663, 666
(1956).
60. Because we find the testimony of Mr. Lizza with respect to Exhibit P-86 to be
credible, because adequate foundation was provided for this document, because the document is
relevant and material to the issues in the case, and because PennDOT has failed to supply an
adequate basis to preclude the document's admission, we will admit this document into evidence as
a document that accurately reflects the earlier oral agreement between Intercounty and Tilcon for
material escalation costs. Ex. P-58; see e.g. Edgcomb v. Clough, 118 A. 610, 614-616 (1922);
Lombardo v. Gasparini Excavating Co., 123 A.2d 663, 666 (1956).
61. Pursuant to the facts of this case and the weight of evidence presented, we find that
Intercounty was and is indebted to Tilcon for asphalt material cost escalation of $115,956 as a
result of the delay in completion of the Project caused by PennDOT. Ex. P-58; see e.g. Edgcomb v.
Clough, 118 A. 610, 614-616 (1922); Lombardo v. Gasparini Excavating Co., 123 A.2d 663, 666
(1956).
62. After adding appropriate markup pursuant to Section 110.03(d)(4) and (7),
PennDOT is liable to Intercounty for $144,945 for material escalation costs incurred by
Intercounty for asphalt acquired for the Project because of delay caused by PennDOT’s active
interference and material breach of the Contract. 408 Specifications § 110.03(d)(4) and (7).
63. Because we have found that PennDOT’s multiple breaches of the Contract and
active interference with Intercounty’s work caused Intercounty to work out-of-sequence, in a nonlinear
manner much less efficiently than provided for by the Construction Sequence prescribed by
PennDOT in the bid documents, we find PennDOT is liable to Intercounty for lost
productivity/disruption damages incurred by Intercounty on this Project. N.T. 38; Ex. P-1M; See
e.g. Coatesville Contractors, 506 A.2d at 865-867; A.G. Cullen Construction, 898 A.2d at 1160;
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