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Construction

Practice group · Seven lawyers · Chair, Walter Iannucci

Harwell Brandt’s Construction Group is handed projects that have run over budget or behind schedule, and the contracts that decide who pays: delay claims, unpaid change orders, defective work, a contractor’s default, and the negotiation that comes before any of it, when the contract is still a draft. Seven lawyers represent general contractors, subcontractors, owners, developers and sureties on private and public projects, in court, in arbitration and before the Pennsylvania Board of Claims.

What the group is handed

  1. Delay, disruption and acceleration. Claims for the cost of a late project and the counterclaims for liquidated damages that answer them, argued from the project’s schedule updates and the critical path. Pennsylvania courts generally enforce a contract’s no-damages-for-delay clause, but not where the owner actively interfered with the contractor’s work or failed to act on a matter essential to it.

  2. Getting paid. On private projects, the Contractor and Subcontractor Payment Act sets deadlines for payment down the chain, adds interest of one percent a month on late payments unless the parties have agreed otherwise, adds a penalty at the same rate on amounts wrongfully withheld, and awards a reasonable attorney’s fee to the party that substantially prevails, whatever the contract says about fees. A mechanics’ lien claim must be filed within six months after the claimant completes its work under its contract, and a subcontractor must give the owner formal written notice at least thirty days before it files. On a project costing $1.5 million or more where the owner has filed a notice of commencement in the State Construction Notices Directory, a subcontractor that does not file a notice of furnishing within forty-five days after it first performs work or delivers materials at the site forfeits its right to file a lien claim.

  3. Public work. On a contract with a Commonwealth agency, a claim must be filed with the contracting officer within six months of the day it accrues or it is waived in every forum, and the dispute then goes to the Pennsylvania Board of Claims rather than to court. Claims against school districts, municipalities and authorities go to the Courts of Common Pleas. Payment bond claims on public projects run under the Public Works Contractors’ Bond Law of 1967, and on federal projects under the Miller Act.

  4. Defective work and design. Claims by owners against contractors and design professionals, and the claims that follow back up the chain. Pennsylvania courts generally hold that an owner who furnishes the plans and specifications warrants their adequacy to the contractor who builds from them. A claim against a licensed architect or engineer requires a certificate of merit under Pa.R.C.P. 1042.3, and the statute of repose bars most claims twelve years after an improvement to real property is completed.

  5. A contractor’s default. For sureties on performance and payment bonds: the investigation of the default, the choice between takeover and tender, the completion contract, and the claims of unpaid subcontractors and suppliers.

  6. The contract before the work starts. Owner, contractor and subcontractor agreements on AIA and ConsensusDocs forms, for lump-sum, construction-manager-at-risk and design-build projects. The negotiation turns on how the contract allocates delay, unforeseen site conditions, design errors and consequential damages, and on what the lender and the insurers require.

How the group works

  1. Records before pleadings. A dispute starts with the project’s own documents: the daily reports, the schedule updates, the change order log, the meeting minutes and the correspondence. The group reads them before it states a position.

  2. Notice provisions in the first week. The group reads the notice and claim provisions of the prime contract and every relevant subcontract as soon as it is retained, because a claim that is sound on the merits can be lost to a missed notice deadline.

  3. Experts retained early. Scheduling and cost experts are engaged before positions harden, and report to the client what the records show, including where the records cut against it.

  4. Trials with the Litigation Group. When a construction case goes to a jury, the Construction Group tries it with the firm’s Litigation Group. Arbitrations under the American Arbitration Association’s Construction Industry Arbitration Rules are handled within the group.

  5. Drafting informed by the claims. On owner-side and contractor-side agreements, the lawyers who negotiate the contract are the lawyers who litigate the disputes these clauses produce.

A lawyer in this group

Walter Iannucci

Founding Partner · Chair, Construction Group

Walter Iannucci is brought in when a building project has run over budget or behind schedule and the contract will decide who pays for it: an owner holding retainage over a punch list that never closes, a subcontractor told its change orders were never authorized, an apartment tower that opened fourteen months late with every party blaming someone else’s work.

Read the full biography

The lawyers

  • Walter IannucciFounding Partner · Chair
  • Gregory PaulsonPartner
  • Teresa KowalczykPartner
  • Leonard FitchCounsel
  • Erin GallowayAssociate
  • Thomas NguyenAssociate
  • Rachel AbernathyAssociate