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ALL-WELD v. COMMONWEALTH PENNSYLVANIA (03/30/78)

decided: March 30, 1978.

ALL-WELD, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the Pennsylvania Prevailing Wage Appeals Board in case of In Re: All-Weld, Inc., under Predetermination Serial No. 20654(13).

COUNSEL

Rudolph J. DiMassa, with him DiMassa, Grasberger & Marinelli, for appellant.

William G. Dade, Assistant Attorney General, with him Charles S. Solit, General Counsel, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 34 Pa. Commw. Page 483]

All-Weld, Inc. (All-Weld) appeals from a decision of the Pennsylvania Prevailing Wage Appeals Boarded (Board) which affirmed a determination by the Secretary of Labor and Industry (Secretary) that All-Weld had failed to pay the prevailing wage to certain of its workers and ordered it to compensate them for the amount of the underpayments.

Four former All-Weld employes filed wage claim certifications with the Department of Labor and Industry

[ 34 Pa. Commw. Page 484]

(Department) in September and October of 1974 alleging that they had not received the minimum wage rate while doing steel erection work at the Quakertown Junior High School during August, 1973. These claims were not timely filed "within three months from the date of the occurrence of the incident complained of" as provided in Section 11(b) of the Pennsylvania Prevailing Wage Act*fn1 (Act), 43 P.S. § 165-11(b). Nevertheless, in November, 1975, the Secretary issued notice to All-Weld that a hearing had been set for January 9, 1976 to investigate the workers' claims.*fn2 At the request of All-Weld's counsel, the hearing was continued until February 6, 1976. A second request for continuance was denied, and representatives of All-Weld appeared at the hearing without counsel. After taking testimony on the alleged underpayments, the hearing examiner recommended to the Secretary that All-Weld be found to be an unintentional violator of the Act and that it be ordered to pay the four workers the difference between the prevailing wage rates and the rates actually received by them.*fn3 The Secretary adopted the findings of fact and the recommendation of the hearing

[ 34 Pa. Commw. Page 485]

    examiner, and the Board affirmed the Secretary's decision.

Section 44 of the Administrative Agency Law,*fn4 71 P.S. § 1710.44, limits our scope of review to a determination of whether or not the findings of fact are supported by substantial evidence, whether or not an error of law was committed, or whether or not the appellant's constitutional rights were violated.

We have scrutinized the hearing examiner's findings of fact, which have been adopted by both the Secretary and the Board, and our review of the record discloses that these findings are adequately supported by substantial evidence. All-Weld has contended that it was denied due process of law because it was not given proper notice of the charge, that certain findings were based upon hearsay, and that the denial of a second continuance deprived it of the opportunity to defend itself. We are unable to find merit in these arguments. All-Weld was timely notified in writing that "a hearing will be held for the purpose of receiving testimony that the prevailing minimum wage rates predetermined by the Secretary of Labor and Industry have not been paid" to the four named individuals who worked on the Quakertown school. This notice sufficiently informed All-Weld of the charges against it. On the issue of the rates paid to the workers and the hours which they worked, a field investigator testified with ...


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