3720 - Board of Claims

(Cmwlth. Ct. 1979). This is true even when the contract’s exculpatory language provides that
there can be no liability for delay damages. In Sheehan v. Pittsburgh, 213 Pa. 133, 62 A. 642
(1905), the court stated:
Notwithstanding the breadth of the language of the agreement that all loss or
damages from unforeseen obstructions and difficulties and from delay, were to be
borne by the contractors, it is clear that the delay from the city’s failure to obtain
complete right of way was not in the class of difficulties and delays which were in
the minds of the parties, for the agreement itself was based on the assumption by
both parties that the complete right of way had been secured so that the work
could be begun at any point and proceed without interruption. Id.
As in Sheehan, the parties in the case at bar reasonably expected that PennDOT had secured the
complete right-of-way so the contractor’s work could proceed uninterrupted, but that was not the
case. Indeed, the long delay in resolving the right-of-way problem was another instance of
PennDOT’s failure to act in a manner necessary to progress work on the Project. Thus,
PennDOT is liable for the all delay and disruption contributed to the Project from August 2001 to
March 2002 by these right-of-way design mistakes and its failure to correct same in a timely
manner. Id.; Coatesville 506 A.2d at 865-867; Pittsburgh Building, 920 A.2d at 987; C.J.
Langenfelder, 404 A.2d at 750-751; James Corp. v. North Allegheny School District, 938 A.2d
at 484-485; A.G. Cullen Construction v. State System of Higher Education, 898 A.2d 1145, 1160
(Pa. Cmwlth. 2006).
In the case at bar, the Construction Sequence incorporated into the plans and bid
documents by PennDOT set forth a compact linear work plan. However, when utility pole
relocation problems arose, PennDOT directed Intercounty to abandon the Construction Sequence
set forth in the Contract and do the road widening work before the poles were moved, thereby
impeding the contractor’s ability to work efficiently. PennDOT’s denial of a work suspension
and its direction to Intercounty to continue working in an unplanned, piecemeal way under the ad
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