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1ST WESTCO CORP. v. SCHOOL DIST. OF PHILADELPHIA

January 8, 1993

1ST WESTCO CORP., RICHARD J. LEE, TROY LYLES, CARL HAINES, CHARLES J. FULLER, STANLEY YAKUPCHINA, TODD CURTIS, and ROOSEVELT WHITEHEAD, Plaintiffs
v.
SCHOOL DISTRICT OF PHILADELPHIA, Defendant v. ERNEST D. PREATE, JR., Individually and in his official capacity as ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, and DONALD M. CARROLL, JR., Individually and in his official capacity as SECRETARY OF EDUCATION OF THE COMMONWEALTH OF PENNSYLVANIA, Third-Party Defendants



The opinion of the court was delivered by: BY THE COURT; ROBERT S. GAWTHROP, III

 Gawthrop, J.

 Before the court are the cross-motions for summary judgment of the plaintiffs and the third-party defendants. Plaintiffs, 1st Westco Corp., a New Jersey corporation, and some individual employees of 1st Westco who are residents of New Jersey, seek a declaratory judgment that § 7-754 of the Pennsylvania Public School Code violates the Privileges and Immunities Clause and the Commerce Clause of the United States Constitution. That statute provides, in full:

 
The specifications upon which contracts are entered into by any school district for the construction, alteration, or repair of any public works, shall contain the provision that laborers and mechanics employed on such public works shall have been residents of the Commonwealth for at least ninety days prior to their employment. Failure to keep and comply with such provision shall be sufficient legal reason to refuse payment of the contract price to the contractor.

 Act of March 10, 1949, P.L. 30, art. VII, § 754, 24 P.S. § 7-754. Third-party defendants, the Attorney General and the Secretary of Education of the Commonwealth of Pennsylvania, argue that the statute is constitutional because there is a "substantial reason" for the statute's conceded discrimination against non-resident workers: Pennsylvania's interest in reducing the unemployment rate among its construction workers.

 Because I find that this statute unconstitutionally discriminates against non-Pennsylvanians, and that Pennsylvania has shown no substantial reason for the discrimination, I shall grant plaintiffs' motion for summary judgment and deny third-party defendants' motion for summary judgment.

 BACKGROUND

 The material facts of this case are not in dispute. The School District of Philadelphia entered into three contracts with 1st Westco for window construction and renovation on three of the district's buildings. 1st Westco assigned the individual plaintiffs, Messrs. Lee, Lyles, Haines, Fuller, Yakupchina, Curtis, and Whitehead, all of whom are New Jersey residents, to work on the Philadelphia school projects. Shortly after 1st Westco began work on the projects, the School District sent 1st Westco a stop-work order. After a brief investigation, the School District informed 1st Westco that since it was using New Jersey residents on the school projects, it was in violation of 24 P.S. § 7-754. 1st Westco then took the individual plaintiffs off the Philadelphia school projects and hired Pennsylvania residents to complete the projects.

 Before the School District ordered 1st Westco to stop work on the projects, it sought the advice of the Pennsylvania Department of Education on the constitutionality of § 7-754. The Department of Education, in turn, sought the advice of the Attorney General of Pennsylvania. The Attorney General issued an advisory opinion stating that "this statute is constitutional and must be enforced by the Department." Plaintiffs' Reply Memorandum to Defendants' Motion for Summary Judgment, Exhibit A, at 2. The Department of Education's Chief Counsel then wrote the School District, advising it "that the Department of Education and the School District of Philadelphia are obliged to abide by Section 754 of the Public School Code unless and until it is modified or struck down. I know that this ruling leaves the School District of Philadelphia in a difficult position and that litigation may be one result." Id. at 1.

 After issuance of the stop-work order, 1st Westco and the individual plaintiffs filed this suit against the School District of Philadelphia and the Commonwealth of Pennsylvania. The School District, in turn, joined the Attorney General and the Secretary of Education as third-party defendants. I denied the Attorney General's and the Secretary of Education's motions to dismiss *fn1" and granted the Commonwealth's unopposed motion to dismiss under the Eleventh Amendment.

 The School District has tendered its defense to the third-party defendants, and therefore it did not brief, and only briefly argued, the motions now before the court.

 DISCUSSION

 Standard of Review

 Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party opposing summary judgment must marshal sufficient facts to show that there is a genuine issue of material fact. Celotex Corp. v. ...


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