3720 - Board of Claims

Construction Sequence could not be followed and fully productive work could not be done; and
(4) by failing to resolve the guy wire/design problem for seven months, once again failing to act
in a matter necessary for the prosecution of work on the Project.
Although PennDOT admits that the relocation of the poles was "a drawn out endeavor"
(Ex. P-48), it disagrees that it can be held responsible for the delays and disruptions of
Intercounty’s work. PennDOT bases much of this defense on exculpatory language in the
Contract and Specifications. 16
It asserts that it is not liable for the Utilities' failure to relocate
their facilities on time because the Contract provided that it was the contractor’s responsibility to
arrange for the timely performance of the pole relocations, not PennDOT's. It also asserts that
the contractor cannot claim compensation for any delays “regardless of duration or extent”
caused by the utility relocations. 17
Intercounty replies that the Contract’s exculpatory clauses
cannot bar its recovery because PennDOT actively interfered with its work. We agree with
Intercounty.
The Pennsylvania Supreme Court first set forth the test for the enforceability of such
exculpatory provisions as we see here in Coatesville Contractors & Engineers, Inc. v. Borough of
Ridley Park, 506 A.2d 862 (Pa. 1986):
The rule in Pennsylvania is that exculpatory provisions in a contract cannot be
raised as a defense where (1) there is an affirmative or positive interference by the
owner with the contractor’s work, or (2) there is a failure on the part of the owner
to act in some essential matter necessary to the prosecution of the work.
506 A.2d at 865
In Coatesville, the Court found that the contractor was “led to reasonably believe that corrective
measures would be taken to have the lake bed drained” and held that the borough/owner actively
16 Ex. P-8, para. 6 at p. 5; Ex. P-2B; Ex. P-60, Sections 102.05, 105.06(a) and 105.06(b) of the Publication 408
Specification dated 2000 (“408 Specifications”) referred to in the Contract for this Project.
17 Ex. P-60 at p. 105-6.
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