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E. SMALIS PAINTING COMPANY v. COMMONWEALTH PENNSYLVANIA (11/18/82)

decided: November 18, 1982.

E. SMALIS PAINTING COMPANY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Department of Transportation in case of In Re: Prequalification Suspension of E. Smalis Painting Company, Inc., No. 7 A.D. 81.

COUNSEL

Wendell G. Freeland, Freeland & Kronz, for petitioner.

Gregory C. Santoro, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 70 Pa. Commw. Page 91]

In this contractor suspension case, E. Smalis Painting Company appeals from a decision by the Department of Transportation, holding in abeyance the award of a February 1981 contract to the company and suspending the firm from bidding on any future work.

[ 70 Pa. Commw. Page 92]

Under regulations*fn1 which require a contractor to (1) submit a statement of all felony convictions of its directors, principal officers, and key employees [67 Pa. Code § 457.4(e)]*fn2 and (2) notify DOT in writing of a change in such information or suffer possible suspension [67 Pa. Code § 457.16],*fn3 the department took action against the contractor after an assistant district attorney for Allegheny County, and not the company, informed DOT's Office of Inspector General that Ernest Smalis, president and major shareholder of the firm, "had been convicted of certain crimes in a court of competent jurisdiction and was awaiting sentence pending a pre-sentence investigation."*fn4

[ 70 Pa. Commw. Page 93]

The administrative hearing officer, an assistant counsel to the department appointed by the Secretary of Transportation, decided that the Court of Common Pleas of Allegheny County had "convicted" Mr. Smalis of a felony within the meaning of Section 457.4(e) and that, consequently, DOT justifiably had suspended the company's contracts for failing to report a change in its president's penal status.

The petitioner contends, however, that because the court had not yet imposed sentence upon Mr. Smalis, the company had no obligation to submit a statement of conviction under Section 457.4(e). We disagree.

Both parties concur that this case turns on the proper definition of "conviction," as found in DOT's regulations, and that, in Pennsylvania, the word "conviction" has a common or popular as well as a technical or legal meaning. Commonwealth v. Minnich, 250 Pa. 363, 366, 95 A. 565, 566 (1975).

"As commonly understood, it means a verdict of guilty, or perhaps a plea of guilty, and for some purposes this is the meaning attributed to it by the courts. . . . For other purposes it has been held to imply ...


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