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CARLISLE ELECTRIC v. COMMONWEALTH PENNSYLVANIA (10/21/86)

decided: October 21, 1986.

CARLISLE ELECTRIC, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, PREVAILING WAGE DIVISION, RESPONDENT



Appeal from the Order of the Department of Labor and Industry in the case of In Re: Carlisle, Electric, Inc., P.O. Box 158, Claremont Road, Carlisle, PA 17013/Project: (1) The Pennsylvania Game Commission State Game Lands, No. 169 Upper Mifflin Twp., Cumberland Co., PA, Predetermination Serial No. 38511 (13), and (2) The Pennsylvania Game Commission State Game Lands, No. 242, Warrington Twp., York County, PA, Predetermination Serial No. 38512 (14); Awarding Agency: Department of General Services.

COUNSEL

Stephen J. Weglarz, Pechner, Dorfman, Wolffe, Rounick & Cabot, for petitioner.

Richard C. Lengler, Assistant Counsel, with him, Peter C. Layman, Chief Counsel, for respondent.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 101 Pa. Commw. Page 360]

Carlisle Electric, Inc., the petitioner, appeals by permission*fn1 from an order of an adjudicative officer of the Department of Labor and Industry which denied petitioner's request for attorneys' fees pursuant to the

[ 101 Pa. Commw. Page 361]

Act of December 13, 1982, P.L. 1127, 71 P.S. §§ 2031-35 (Supp. 1986).

In January of 1982, the petitioner was a non-union contractor working on two projects on Pennsylvania state game lands under contracts awarded by the Department of General Services. During the performance of those two contracts, the petitioner was audited by the Prevailing Wage Division of the Department of Labor and Industry to determine if petitioner was paying its employees the prevailing wage rate under the Pennsylvania Prevailing Wage Act (Act), Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1-165-17. At the time of the audit, the field inspectors told petitioner's president, John Mumma, that possible discrepancies existed and that if violations of the Act were found, departmental notification would be forthcoming. Over the next three years, the petitioner was audited by field inspectors on other governmental projects it was performing; petitioner was never notified of any violations of the Act.

On February 20, 1985, the Department sent a notice of a hearing to petitioner, alleging that he had underpaid his workmen on the two game lands projects a total of $62.16. After two continuances at petitioner's request, a hearing was held before an adjudicative officer on June 18, 1985. At that time, petitioner filed a motion to dismiss the charges on numerous grounds, including, inter alia, that the action was time barred by the equitable defense of laches. The only testimony taken at that hearing was that of Mr. Mumma who testified concerning prejudice to the petitioner occasioned by the three year delay between the audit and the enforcement proceedings. For reasons not relevant here, a second hearing permitting additional cross-examination of Mr. Mumma was held on October 10, 1985. Before the adjudicative officer rendered a decision on the motion to

[ 101 Pa. Commw. Page 362]

    dismiss, the Department withdrew the charges on December 19, 1985.

On January 16, 1986, the petitioner requested an award of attorneys' fees in the maximum amount of $10,000.00. On February 18, 1986, the adjudicative officer issued an order which decided that the petitioner was not entitled to reimbursement of any attorneys' fees. Petitioner then filed a timely request with this Court for permission to appeal the denial of attorneys' fees. By per ...


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