3720 - Board of Claims

PennDOT objected to admission of Exhibit P-86 at hearing on the basis that the
document did not exist until the night before; that PennDOT had not been told of this alleged
verbal agreement between Intercounty and Tilcon until Mr. Lizza's testimony the day before; that
PennDOT had, instead, been told by Intercounty that this escalation amount had been paid; and
that, as a result, PennDOT had been deprived of adequate discovery on this issue prior to
hearing. Intercounty denied that it had represented to PennDOT that the amount had been paid.
PennDOT, when queried by the Board at hearing, was unable to identify any discovery request
by it or discovery response by Intercounty to establish that Intercounty had misled PennDOT on
this issue.
PennDOT also questioned the weight and sufficiency of the evidence supporting the
document's admissibility. Specifically, after being allowed to question Mr. Lizza on Exhibit P-
86 at hearing as extensively as it wished, PennDOT argued that the document could not be
trusted because of the circumstances of its preparation during hearing and because no Tilcon
invoices or Intercounty cost reports support this claim of an additional $4 per ton being billed or
owed to Tilcon for asphalt provided after August 2002. PennDOT also intimated that the
document could be the product of collusion between the parties and not the result of an armslength
transaction.
Because of the nature of the objection, most particularly PennDOT's suggestion that it
had been misled in discovery by Intercounty on this issue, the Board reserved ruling on
admission of Exhibit P-86 and instructed the parties to fully address and argue this issue in their
post-hearing briefs. However, in its post-hearing brief, PennDOT added nothing to its arguments
against admission of Exhibit P-86; provided no evidence that Intercounty misled PennDOT in
discovery on this issue; and produced no evidence of some type of inappropriate "collusion"
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