3720 - Board of Claims

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errors in the pre-Contract planning stage and PennDOT’s further acts of active interference with Intercounty’s work (discussed herein) in the post-Contract period, we find the various exculpatory provisions cited by PennDOT to be ineffective. To the extent that the Contract gave Intercounty duties to “notify” or “contact” the Utilities on pole relocation, the Board finds that Intercounty did so in all material respects until such time as it was deterred from doing so by active misrepresentations on the part of PennDOT. With respect to Intercounty's duty to notify the Utilities of the need to relocate their poles "upon execution of the contract"; its duty to "make all necessary arrangements"; and its obligation to comply with the more specific instruction in the Special Provisions to "contact all utility representatives at least fifteen calendar days prior to starting operations"; Intercounty did just this up to and through the June 11, 2001 pre-job meeting. Even before the Contract was executed by PennDOT on June 5, 2001, Intercounty met with the Utilities and PennDOT, attending the first pre-construction meeting on June 4, 2001. It thereafter met again with the Utilities at the pre-job meeting on June 11, 2001 and accomplished this initial duty to contact and coordinate its work with the Utilities at this June 11 meeting where Intercounty and the Utilities clearly discussed when and where the Utilities would start moving their poles. To the extent the provisions cited by PennDOT gave Intercounty a duty to "cooperate with" the Utilities on pole relocation, there is no serious dispute that Intercounty cooperated fully with the Utilities in relocating poles throughout the Project. Examples of this commence with Intercounty's willingness to "flip" the Construction Sequence and begin work in Section Three as well as its prompt completion of the surveying and staking work needed by the Utilities to begin pole relocation and its timely response to any clearing and grubbing requests by the Utilities to facilitate their pole work. 82
To conclude, we find that, in substantial contradiction to the position Mr. Pilosi expressed at the hearing, PennDOT consistently represented to Intercounty that it was PennDOT and Mr. Pilosi who would handle all communications and address all utility pole relocation issues with the Utilities subsequent to the June 11, 2001 pre-job meeting and for the duration of the Project. Mr. Sebastianelli consistently told Intercounty that Mr. Pilosi was aware of the delays and led Intercounty to believe from June 2001 to January 2002 that Mr. Pilosi was taking actions to expedite the Utilities’ performance and deal with the delay issues. Thus, during 2001, Intercounty continued to work as Mr. Sebastianelli directed, believing that the utility pole problems were being addressed by PennDOT/Pilosi and that their impact would be minimized. In this way, PennDOT, through a combination of Mr. Pilosi's representations at the June 11 meeting, Mr. Sebastianelli’s ongoing assurances, and Mr. Pilosi’s inaction, misled Intercounty and actively interfered with Intercounty's work on the Project. Abandonment of the Construction Sequence Intercounty bid the Contract based upon the Construction Sequence and planned its work in accordance with its requirements. When Mr. Nansteel approached Mr. Sebastianelli with a request to suspend work in October 2001 because of the utility pole delays, Mr. Sebastianelli responded that PennDOT would not even consider such a suspension. Instead, Mr. Sebastianelli, starting in November 2001 and continuing throughout the length of the Project, decided to abandon the Construction Sequence and substitute weekly work schedules determined by him on an ad hoc basis. PennDOT’s insistence that Intercounty alter its work plan and continue to widen the road with utility poles still in the roadway caused Intercounty to work in a less effective and piecemeal fashion, performing multiple phases of work in multiple sections simultaneously instead of in the planned, linear sequence of phases and steps performed in one 83
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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
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177. On March 11, 2002, Intercounty
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when doing its excavations subgrade
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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 and 80: completed. Finally, Mr. Sebastianel
Page 81: can find no excuse for his complete
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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