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Borough of Schuylkill Haven v. Prevailing Wage Appeals Board

June 30, 2010

BOROUGH OF SCHUYLKILL HAVEN, PETITIONER
v.
PREVAILING WAGE APPEALS BOARD, RESPONDENT



The opinion of the court was delivered by: Senior Judge Kelley

ORDER

AND NOW, this 20th day of August, 2010, it is ordered that the Opinion filed on June 30, 2010, shall be designated OPINION rather than MEMORANDUM OPINION, and that it shall be reported.

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

The Borough of Schuylkill Haven (Borough) petitions for review of an order of the Pennsylvania Prevailing Wage Appeals Board (Board) that denied the Borough's grievance challenging a determination of the Department of Labor and Industry's Bureau of Labor Law Compliance (Bureau). The Bureau's determination concluded that the Borough's Sanitary Sewer Manhole Maintenance Project (Project) is subject to the Pennsylvania Prevailing Wage Act (Act).*fn1

Prior to September 28, 2007, the Borough issued an invitation for public bids on the Project (then titled the Manhole Rehabilitation Project). In conjunction therewith, the Borough requested from the Bureau the Pennsylvania prevailing wages for the Project, which the Bureau issued on September 11, 2007. Thereafter, on September 27, 2007, the Borough cancelled the opening for this bid solicitation.

Prior to October 5, 2007, the Borough issued a second invitation for bids for the Project. The Borough re-titled the Project as the Manhole Maintenance Project, and the second bid solicitation did not list as a requirement the payment of Pennsylvania prevailing wages.

The Borough's correspondence with the Bureau characterized the Project's work as including: the cleaning of manholes and surface preparation as necessary for the correct application of rehabilitative materials; the replacement of manhole access covers, frames and steps; the installation and/or replacement of manhole inserts and risers; the relining of the interior portion of manhole risers and/or the filling of manholes with either micro-silicate or epoxy, and; manhole bench and flow channel rehabilitation. Reproduced Record (R.R.) at 58a. The Project's estimated cost was $250,000.00.

By letter dated July 1, 2008, the Bureau determined that the Project was subject to the Act, and that thus Pennsylvania prevailing wages were required, based in part upon the documents submitted by the Borough. R.R. at 61a-65a. In its July 1, 2008 Determination the Bureau reasoned, in relevant part, that the Project did not constitute maintenance work which would be excluded from the Act's prevailing wage payment mandate, but rather constituted repair work that was subject to the Act. Id.

The Borough subsequently filed a grievance under the Act on July 24, 2008. The Board thereafter received briefs on the issues from the Borough and the Bureau, and held oral argument on the matter. By Decision and Order dated April 7, 2009, the Board denied the Borough's grievance, and upheld the application of the Act to the Project. The Borough then timely petitioned this Court for review of the Board's order, and the Bureau intervened.*fn2

In reviewing a decision of the Board, this Court's scope of review is limited to determining whether constitutional rights were violated, whether the Board committed an error of law, and whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Butler Balancing Co., Inc. v. Department of Labor & Industry, Prevailing Wage Appeals Board, 780 A.2d 840 (Pa. Cmwlth. 2001).

The Borough presents two issues for review, which we have reordered in the interests of clarity: 1.) whether the Board erred in concluding that the Borough failed to meet its burden of proving that the scope of work did not change the size, type, and extent of the manholes, and 2.) whether the Board erred in concluding that the evidence of record supported the conclusion that the Project's work involved a replacement of 75-80% of the manholes, and thusly constituted non-maintenance work subject to the Act.

The Board, in its Decision in this matter, aptly stated the applicable law:

The Act's purpose is to protect workers on public projects from substandard wages by ensuring that they receive the prevailing minimum wages. Ferguson Electric [Co., Inc.] v. Foley, 115 F.3d 237 (3d Cir. 1997). By guaranteeing such protection, the legislation helps to insure the employment of skilled craftsmen on the job. Keystone Chapter of Associated Builders & Contractors, Inc. v. Department of Labor & Industry, 414 A.2d 1129 (Pa. Cmwlth. 1980). The Act has been recognized as a remedial statute that is to be liberally construed to affect its purposes. Kulzer Roofing, Inc. v. Department of Labor & Industry, 450 A.2d 259 (Pa. Cmwlth. 1982). Any exceptions to its remedial provisions are to be narrowly construed. ...


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