3720 - Board of Claims

Gasparini, 187 A.2d at 161-162; S. J. Groves & Sons, Co., 343 A.2d at 76; C.J. Langenfelder &
Son, 404 A.2d at 750-751.
64. Because we have found that Intercounty’s estimate of 68 days of lost productivity
incurred by it on the Project due to PennDOT’s breaches of Contract and active interference with
its work is justified, adequately supported and reasonably certain, PennDOT is liable to
Intercounty for lost productivity costs of $364,480 plus appropriate markup pursuant to Section
110.03(d)(4) and (7) of $41,191, for total disruption damages due to Intercounty of $405,671.00.
408 Specifications § 110.03(d)(4) and (7). See e.g., Spang & Co. v. U.S. Steel Corp., 545 A.2d
861, 866-67 (Pa. 1988); A.G. Cullen, 898 A.2d at 1161; C. Ernst, Inc. v. Koppers Co., Inc., 626
F.2d 324 (3 rd Cir. 1980).
65. Sections 203.1, 203.3(j), 205.3(a), 205.4(a) and 206.4(a) of the 408 Specifications
provide that the payment rate allotted in the Contract for Class 1 Excavation includes the building
of embankments and no extra payment will be made for hauling material, wasting material, or
purchasing borrow material for replacement. 408 Specifications §§ 203.1, 203.3(j), 205.3(a),
206.4(a).
66. Pursuant to the Contract and Project plans, Intercounty was required to build
embankments along the roadway in Sections One and Two and then excavate hillside in Section
Three in order to straighten and widen the roadway. Exs. P-8, P-59.
67. Under the original Construction Sequence, Intercounty was to start work in Section
One, move to Section Two and finish with Section Three. Additionally, it was only permitted to
work in one section of the roadway at a time and was required to finish that section before moving
to the next section. Ex. P-8, P-59.
68. Because we have found that the reversal of the Construction Sequence did not cause
Intercounty to incur extra costs for rehandling stockpiled excavation material but actually allowed
it to avoid substantial costs it would have incurred under the original sequencing (for purchasing
and importing fill to construct the embankments in Sections One and Two and the further costs for
disposal of the extra material excavated from the hillside in Section Three required under the
provisions of the Contract and the 408 Specifications), we find Intercounty is not entitled to
recover any further payment for its rehandling claim and that PennDOT has no liability to
Intercounty for these costs. Exs. P-8, P-2A; 408 Specifications §§ 203.1, 203.3(j), 205.3(a),
206.4(a).
69. Pursuant to Sections 210.3 and 210.4 of the 408 Specifications, Intercounty was
required to excavate and replace unstable material encountered in the subgrade as needed to attain
required stability of the subgrade. 408 Specifications §§ 210.3 and 210.4.
70. Pursuant to Section 203 of the 408 Specifications, removal and replacement of such
unsuitable material causing instability in the subgrade, as directed by PennDOT, was within the
definition of Class 1 Excavation in Section 203 of the 408 Specifications. 408 Specifications §
203.
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