Original jurisdiction in cases of Commonwealth of Pennsylvania, Department of Labor and Industry, Paul J. Smith, Secretary, Plaintiff v. Altemose Construction Company, a Pennsylvania corporation, and J. Leon Altemose, President of Altemose Construction Company; and Commonwealth of Pennsylvania, Department of Labor & Industry, Paul J. Smith, Secretary, Plaintiff v. George J. Usuka, individually, George S. Usuka, individually, George J. Usuka and George S. Usuka, t/a Usuka Builders and Engineers, Defendants.
Herbert S. Cohen, Assistant Attorney General, with him Charles S. Solit, General Counsel, for plaintiff.
Kenneth R. Gilberg and Vincent J. Fumo, with them Pechner, Dorfman, Wolffe & Rounick; John W. Pelino; Max L. Lieberman ; and Pelino, Wasserstrom, Chucas & Monteverde, for defendants.
Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 28 Pa. Commw. Page 279]
The Commonwealth's Secretary of the Department of Labor and Industry (Secretary) has commenced two equity actions. The first, filed March 1, 1976 to No. 359 C.D. 1976, names the Altemose Construction Company and its president, Leon Altemose, (Altemose) as defendants,*fn1 and the second, filed March 18, 1976 to No. 478 C.D. 1976, names as defendants George J. Usuka and George S. Usuka, individually and trading as Usuka Builders and Engineers (Usuka). By order dated November 23, 1976, we consolidated the actions for hearing.
In each complaint the Secretary alleges that the defendants are contractors engaged in "public work,"
[ 28 Pa. Commw. Page 280]
within the meaning of Section 2(5) of the Pennsylvania Prevailing Wage Act (Act), August 15, 1961, P.L. 987, as amended, 43 P.S. § 165-2(5),*fn2 and that they have refused to produce hourly wage records in connection with said work upon request of Department representatives seeking to inspect records to ascertain whether wages paid complied with the standards of the Act.*fn3 The Secretary, asserting a want of an adequate remedy at law, requests that we enjoin and restrain Altemose and Usuka from transferring, removing or otherwise disposing of the requested payroll records, and that the defendants be directed to deliver or make the records available to the Secretary.
[ 28 Pa. Commw. Page 281]
Usuka filed preliminary objections pursuant to Pa. R.C.P. No. 1017(b)(1), alleging that this Court lacks jurisdiction to grant the relief requested. Altemose lodged more detailed and encompassing preliminary objections, alleging not only lack of jurisdiction but demurring generally on the basis of a challenge to the Secretary's capacity to bring suit. The Secretary received Altemose's preliminary objections on April 8, 1976. On April 19, 1976, eleven days after receipt of Altemose's preliminary objections, the Secretary, without permission of court, filed amendments to his complaint to include Section 2203 of the Administrative Code of 1929, Act of April 9, 1939, P.L. 177, as Page 281} amended, 71 P.S. § 563, in support of his power to make the aforementioned inspections. On April 26, 1976, the Secretary filed preliminary objections to the allegations made in Altemose's preliminary objections that the Secretary's inspections were for purposes of harassment and requested that said allegations be stricken pursuant to Pa. R.C.P. No. 1017(b)(2) as being scandalous and impertinent matter. On April 28, 1976, Altemose filed preliminary objections in the nature of a motion to strike the Secretary's April 19, 1976 amendments to his complaint as being untimely under Pa. R.C.P. No. 1028(c), which states that amendments to a complaint challenged by preliminary objections may be filed, as a matter of course, only within the ten day period after service of the preliminary objections.
The preliminary objections of both Altemose and Usuka are now before this Court, all of which we must overrule. The Secretary's preliminary objections in the form of a motion to strike scandalous and impertinent matter in Altemose's preliminary objections are sustained in reference to Altemose's allegations of harassment since such matters are not relevant to the issues of jurisdiction and capacity to sue, and may be properly pleaded under "New Matter" in Altemose's response to the Secretary's complaint and, if proved, considered in connection with the grant, if any, of relief. Pa. R.C.P. No. 1030.
We next address Altemose's preliminary objections raising a question as to the timeliness of the Secretary's April 19, 1976 amendments and decide they are meritless. April 18, 1976, the tenth day of the period fixed by Pa. R.C.P. No. 1028(c) fell on a Sunday. Consequently, this day was, pursuant to Pa. R.C.P. No. 106(b), properly excluded from computation, and April 19, 1976 became the last day for filing.
[ 28 Pa. Commw. Page 282]
Defendants' first substantive objection is that the Secretary does not possess the statutory authority to conduct self-initiated, spontaneous inspections of wage records. Both case law and statutory authority is against them. In Pennsylvania Prevailing Wage Appeals Board, Commonwealth of Pennsylvania v. Steve Black, Inc., 27 Pa. Commonwealth Ct. 21, 365 A.2d 685 (1976), we held that "the Secretary is empowered to supervise compliance with the Act by authorizing field inspectors to make 'routine checkups' at the sites and to audit payroll records independently to determine whether or not a contractor has failed to pay the minimum wage rates." (Emphasis added.) This conclusion was based on Section 2203 of the Administrative Code of 1929, 71 P.S. § 563, which provides that:
The Department of Labor and Industry shall have the power to make investigation surveys upon any subject within the jurisdiction of the department, either upon its own initiative or upon the request of the Industrial Board.
On the matter of inspection of records, Section 6 of the Act, 43 P.S. § 165-6 also provides:
Every contractor and subcontractor shall keep an accurate record showing the name, craft and the actual hourly rate of wage paid to each workman employed by him in connection with public work, and such record shall be preserved for two years from date of payment. The record shall be open at all reasonable hours to the ...