The dispute between the contractor and developer was decided from among a tangle of about 30 lawsuits that involved key subcontractors and sureties. 

The damages portion of the dispute is scheduled to begin next month.

Tutor Perini officials could not immediately be reached for comment on the case, but the company has consistently argued that poor design work was behind the trouble and that the developer improperly took advantage of the situation by withholding payments.

In a narrative of events accompanying his ruling, Crumlish criticized both contractor and developer for what he characterized as over-the-top trial tactics and overly long presentations to the court that did not cut to the heart of the dispute. (ENR has not separately reviewed the Pennsylvania court record.)

"From the outset" of the legal disputes that started in 2019, Crumlish wrote, "the parties have disclaimed problem-solving approaches to the completion of the project and turned this litigation into a challenging behemoth that made any efforts at resolution impossible."

The judge claimed that "what the record largely shows is a level of developed animosity and distrust between parties ... that resulted in the construction manager, in derogation of its duties to act in the best interests of the project, engaging in a pervasive pattern of obfuscation, contentious posturing and deception" and also "provoking its project subcontractor parties."

The project's architects and engineers had previously settled claims that involved them, so the rest of their insurance policy limits were available to be tapped in the damages phase of the case, Crumlish wrote.

The unusual project involved construction of the three-star extended-stay Element Hotel in the concrete tower's lower portion and the four-star full-service W Hotel in the upper portion. Each had its own entrances. The original guaranteed maximum price was $239 million with 1,017 days to complete the work and $35,000-per-day in liquidated damages, save for permitted time extensions.

Structural engineer O'Donnell & Naccarato designed the tower podium with 12-in. slabs and the tower floors with 9-in. slabs, and Tutor Perini hired contractor Thomas P. Carney Inc. to perform the concrete work. Both Carney and Tutor Perini agreed to a four-day cycle for floor-to-floor concrete placement, Crumlish wrote.

Tutor Perini also executed a subcontract with facade-glazing firm Ventana to install the tower's cladding system.

As facade work began, it became clear that the concrete slabs had numerous problems with deflections that exceeded tolerances and that these would hinder facade installation, Crumlish wrote. That began a spiral of blame, and obfuscation, he said.

Slab Edge Chipping and Grinding

On numerous floors, many concrete slabs required edge chipping and grinding by Tutor Perini, the judge noted. According to Crumlish, Tutor Perini failed to report the grinding work to the developer and continued to deny that there were significant problems with the concrete work, even after retaining its own consultant to investigate.

Significant evidence and testimony during the trial seemed to point to potential slab shoring errors as the source of the concrete slab troubles, according to Crumlish.

In the five-month trial, Tutor Perini contended that Chestlen breached its contract with Tutor Perini, provided inadequate plans, used the anticipated deficiencies to obtain better floors than it had contracted to receive, schemed to slow down the project and improperly relied on the right to receive liquidated damages.