decided: November 13, 1985.
KEYSTONE CHAPTER, ASSOCIATED BUILDERS AND CONTRACTORS, INC., PETITIONER
DICK THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, AND JAMES W. KNEPPER, JR., SECRETARY OF THE DEPARTMENT OF LABOR AND INDUSTRY OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS
Original jurisdiction in the case of Keystone Chapter, Associated Builders and Contractors, Inc. v. Dick Thornburgh, Governor of the Commonwealth of Pennsylvania, and James W. Knepper, Jr., Secretary of the Department of Labor and Industry of the Commonwealth of Pennsylvania.
Stephen J. Weglarz, for petitioner.
Ellis M. Saull, Deputy Attorney General, with him, Peter Layman, Assistant Counsel, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General for respondents.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Kalish.
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Keystone Chapter, Associated Builders and Contractors, Inc., has filed a petition for review, addressed to this court's original jurisdiction, seeking mandamus relief against the respondents, Dick Thornburgh, Governor of Pennsylvania, and James W. Knepper, Jr., Secretary of the Department of Labor and Industry of Pennsylvania.
At the center of this case is an Act passed by the Pennsylvania Legislature known as the Pennsylvania Prevailing Wage Act (Wage Act), Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1-165-17. The Wage Act created in the Department of Labor and Industry an advisory board which consists of
[ 92 Pa. Commw. Page 648]
seven members, six to be appointed by the governor. Section 2.1 of the Wage Act, 43 P.S. § 165-2.1. The functions of the advisory board are to gather information and, after public hearing, consult with and advise the secretary of labor regarding determining the prevailing minimum wage rate. Section 2.1(d) and (e). The advisory board is authorized to promulgate rules and regulations necessary to carry out its duties. Section 2.1(e)(3). The Wage Act does not require the members appointed to the advisory board by the governor to be confirmed by the legislature. The Wage Act empowers the secretary to set the prevailing wage rates after consultation with the advisory board.
Keystone avers in its petition that the advisory board has not been convened or consulted with since March 11, 1965, and has never promulgated any regulations or rules. Keystone further alleges that the governor has failed to appoint any members to the advisory board; that there are currently vacancies on the advisory board; and that the advisory board has ceased to exist, all in violation of the mandate of the Wage Act.
Preliminary objections were filed by the respondents in the nature of a demurrer, alleging that convening the advisory board and consulting with it are discretionary acts of the secretary and mandamus will not lie to compel such actions; that mandamus will not lie where, as here, there is an appropriate and adequate remedy at law; and that the petitioner's action brings a non-justiciable issue before this court.
The respondents rely on Zemprelli v. Thornburgh, 47 Pa. Commonwealth Ct. 43, 407 A.2d 102 (1979) (Zemprelli I) and Zemprelli v. Thornburgh, 55 Pa. Commonwealth Ct. 330, 423 A.2d 1072 (1980) (Zemprelli II). This reliance is misplaced.
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to compel performance of a mandatory act where the petitioner has a clear right, there is a corresponding duty, and the petitioner demonstrates a lack of an adequate remedy of law. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985); Equitable Gas Co. v. Pittsburgh, 507 Pa. 53, 488 A.2d 270 (1985).
While, under the Act, the petitioner may object to a rate determination -- after the determination has been made -- this fails to provide an adequate remedy. This procedure would require the petitioner to object to each and every rate determination. Certainly, this was not the intent of the legislature. Such a procedure would involve delay which would seriously hamper construction work.
It cannot be seriously contended that the petitioners lack standing. Its members are general contractors such as envisioned in the Act, and who have the expertise and qualifications to serve as members of the board. The issue certainly is a justiciable one.
The preliminary objections of the respondents are overruled. The respondents are allowed thirty (30) days from the date of this order to file an answer to the petition for review.
Preliminary objections overruled.
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