3720 - Board of Claims

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eturn to the site when they left in mid-October of 2001 without touching Sections Two or One. Instead, he ignored Intercounty’s problems for six months. When questioned at hearing as to why he failed to act during this time, Mr. Pilosi testified, inter alia, that he acted on this job in accord with his general practice. Specifically, he noted that contractors on other jobs would frequently “cry wolf” when they experienced utility delays. Accordingly, when he heard Intercounty's complaints, he deliberately took no action in the early months of the Project. Mr. Pilosi also testified that he did not take any action to contact the Utilities during the first six months of the Project because he felt it was not his job to call the Utilities after the Project began. He instead insisted, at hearing, that it was Intercounty’s responsibility under the Contract to handle the Utilities directly once work began. This position, espoused at hearing by Mr. Pilosi and argued by PennDOT, will be addressed further below. We would note, however, that this position is nonetheless contradicted in fact by Mr. Pilosi’s statements at the June 11 prejob meeting; Mr. Sebastianelli’s actions during the Project; and Mr. Pilosi’s actions after January 2002 when the pole relocation was already badly delayed. Starting in January 2002, Mr. Pilosi reversed his earlier behavior and became active in calling the Utilities to meetings, urging the Utilities to come to the site, requesting their work schedules and seeking resolution of the ongoing "guy wire problem" on the Project. Although we can understand why Mr. Pilosi may not have felt the need to act for the first few months of the Project, and would have taken some comfort that the Utilities were at least working on site between late August to mid-October 2001, we find little merit in Mr. Pilosi's rationale that he was justified in ignoring the utility pole relocation problems on this Project for the entire six months because other contractors on other projects often "cry wolf." Moreover, we 80
can find no excuse for his complete lack of action when the Utilities left the job in mid-October 2001 without moving to Section Two and One as scheduled, particularly in light of the guy wire design problem in Section Two (which was noted to PennDOT in August 2001) and the expectation that all pole relocations for the Project would be done by that time before the Utilities left the site. It is for these reasons that we find Mr. Pilosi’s representations at the June 11, 1001 pre-job meeting to the effect that PennDOT and he would handle pole relocation issues going forward; Mr. Sebastianelli’s actions during the Project confirming this; and Mr. Pilosi’s absolute failure to do so for the entire initial six month period, amounted to a breach of contract by PennDOT and active interference with Intercounty’s work, causing both delay and disruption on the Project. In reaching our conclusion that PennDOT’s inaction on pole relocation for the first six months was inadequate and constituted a breach of contract, the Board is mindful that the Contract for this Project contains several provisions designed: A) to require the contractor to notify the utility companies of the need to move pole facilities and to cooperate with the utility companies to accomplish such relocation and B) to exculpate PennDOT from any liability for delay or disruption emanating from problems with utility pole relocation. 15 However, we have found that Intercounty did, as a matter of fact, cooperate with the Utilities to relocate the poles as prescribed by the Contract provisions cited by PennDOT throughout the Project, and contacted the Utilities as required, at least until Intercounty was deterred from further direct communication with the Utilities by PennDOT’s affirmative representations. Additionally, while we address the effect of the exculpatory provisions in a subsequent portion of this Opinion in greater detail, we note that because of these representations, as well as the design/coordination 15 See Contract Paragraph 6 and 408 Specifications Sections 102.05, 105.06(a), 105.06(b), and the "Utilities" section of the Contract's Special Provisions. (Exs. P-8, P-60, P-2B). 81
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COMMONWEALTH OF PENNSYLVANIA INTERC
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where PennDOT renamed it the “Con
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5) Grade areas behind shoulders. 6)
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38. In late 1999, two years before
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could properly schedule their crews
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egarding what PennDOT could do to m
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during the pre-Contract period, and
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timetable and order of operations w
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pole relocation delays were hinderi
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perform more clearing and grubbing
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160. Mr. Pilosi also testified he d
Page 23 and 24:
177. On March 11, 2002, Intercounty
Page 25 and 26:
when doing its excavations subgrade
Page 27 and 28:
construction problems that arise. H
Page 29 and 30: 214. PennDOT clearly misled Interco
Page 31 and 32: Delay Damages 225. Intercounty clai
Page 33 and 34: 244. The Tilcon letter, Exhibit P-5
Page 35 and 36: 265. With appropriate markup per Se
Page 37 and 38: 281. The Board finds that the diffe
Page 39 and 40: started to work, it had to finish t
Page 41 and 42: 315. Removal of the unsuitable mate
Page 43 and 44: desirable to complete the project.
Page 45 and 46: 352. Since no required road testing
Page 47 and 48: 8. To minimize erosion, the Conserv
Page 49 and 50: 21. By prescribing the character, d
Page 51 and 52: 30. Section 105.06(a) of the 408 Sp
Page 53 and 54: 36. Because Intercounty was instruc
Page 55 and 56: performance, the Contract’s excul
Page 57 and 58: Intercounty for the cost of general
Page 59 and 60: 71. Because the Contract (including
Page 61 and 62: 89. Although these provisions apply
Page 63 and 64: OPINION Plaintiff, Intercounty Pavi
Page 65 and 66: In addition to dividing work on the
Page 67 and 68: II. UTILITY POLE RELOCATION ISSUES
Page 69 and 70: the Project. Specifically, Intercou
Page 71 and 72: Moreover, we find PennDOT's defense
Page 73 and 74: were unprepared to do so. The Utili
Page 75 and 76: approximately five months. Actual p
Page 77 and 78: even though the as-planned sequence
Page 79: completed. Finally, Mr. Sebastianel
Page 83 and 84: To conclude, we find that, in subst
Page 85 and 86: Super. 1963); Angelo Iafrate Const.
Page 87 and 88: Construction Sequence could not be
Page 89 and 90: Paving undertook to negotiate the m
Page 91 and 92: adequate room for guy wires in its
Page 93 and 94: hoc weekly work schedules were addi
Page 95 and 96: For the Extended Field Conditions,
Page 97 and 98: PennDOT objected to admission of Ex
Page 99 and 100: y Chad Nansteel (Project Superinten
Page 101 and 102: (through Mr. Pilosi and Mr. Sebasti
Page 103 and 104: days of original excavation and the
Page 105 and 106: had to finish that section before m
Page 107 and 108: e necessary in order to stabilize t
Page 109 and 110: men back and forth to do the underc
Page 111 and 112: utilities. A prevailing party in an
Page 113: ORDER AND NOW, this 23 rd day of Ap
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3720 - Board of Claims

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