3720 - Board of Claims

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mid-October 2001 (when the Utilities left the Project without touching Sections Two and One) to January 2002, despite his representations at the June 11 meeting, remains without reasonable explanation. 19 Applying the case law established by Pennsylvania's courts in Coatesville, General Asphalt and their progeny to the case at bar, the Board finds that the representations of PennDOT personnel that they were working to coordinate and expedite the utility pole relocation from the outset of work on the Project when, in fact, they were not, constituted active interference with Intercounty’s work on the Project. See also, Department of General Services v. Pittsburgh Building Co., 920 A.2d 973, 991 (Pa. Cmwlth. 2007) (The Court found that DGS's actions in withholding a memo about adverse soil conditions and directing the contractor to commence work in contradiction of same deceived the contractor and actively interfered with its work). James Corp. v. North Allegheny School District, 938 A.2d 474 (Cmwlth. Ct. 2007) (The Court found active interference and misrepresentation by the school district that first told the contractor that the E & S permit had been issued pre-bid when it had not); See also, S.J. Groves & Sons, Co., 343 A.2d at 72; Gasparini, 187 A.2d at 162. PennDOT's affirmative misrepresentations with regard to the role it would undertake post-Contract in utility pole relocations in this case are ample grounds for dismissal of the several exculpatory provisions relied upon by PennDOT to relieve it from responsibility for the delay and disruption caused to Intercounty. However, there are several other circumstances here which we also find to constitute active interference with Intercounty's work by PennDOT. The most significant of these additional circumstances are PennDOT’s initial failure to include 19 If, indeed, it was not Mr. Pilosi’s job to communicate with the Utilities on pole relocation problems once the Project commenced, why did he represent that he would do so at the June 11, 2001 pre-job meeting and why did Mr. Sebastianelli perpetuate this representation by his conduct for the first six months of the Project? 90
adequate room for guy wires in its roadway design and its subsequent failure to resolve this problem in a timely manner. PennDOT had a duty to properly plan and design the Project. U. S. v. Spearin, 248 132, 39 S.Ct. 59 (1918); Canuso v. City of Philadelphia, 192 A. 133, 136 (Pa. 1937); Department of Transportation v. W.P. Dickerson & Son, Inc., 400 A.2d 930, 932 (Pa. Cmwlth. 1979); Allentown Supply Corp. v. Stryer, 195 A.2d 274, 299 (Pa. Super. 1963); Angelo Iafrate Construction Co., Inc. v. Pennsylvania Turnpike Commission, No. 3654, 2006 WL 2585020 at *29-30, 41-42 (Pa. Bd. Claims, July 27, 2006) (affirmed by Commonwealth Court in unreported opinion). However, the evidence establishes that PennDOT’s design did not allow sufficient room for guy wires in the right-of-way at several new pole locations (which locations PennDOT itself had authorized). In August 2001, early in the Project, the Utilities notified PennDOT that they could not move certain poles around these locations because the poles were supported by guy wires and there was no room for the wires at the newly designated pole locations. It then took seven months for PennDOT to correct this design and planning mistake by redesigning the roadway in order to get those poles moved in so the guy wires fit in the right-of-way. Section 107.18 of the 408 Specifications, entitled “Furnishing Right of Way,” states that ‘[t]he Department will be responsible for securing all necessary rights-of-way in advance of construction.” (Ex. P-60). By not planning enough room for these guy wires, PennDOT failed to fulfill its responsibility to coordinate with the Utilities in the pre-Contract design phase and also failed to provide Intercounty with plans and drawings adequate to build the Project as designed. Delays in construction occasioned by the necessity of altering plans because of PennDOT’s failure to originally provide an adequate design are properly charged to PennDOT. C. J. Langenfelder & Son, Inc. v. Department of Transportation, 404 A.2d 745, 750-751 91
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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
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214. PennDOT clearly misled Interco
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Delay Damages 225. Intercounty clai
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244. The Tilcon letter, Exhibit P-5
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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 and 82: can find no excuse for his complete
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: Paving undertook to negotiate the m
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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