738 A.2d 20 (Pa.Cmwlth. 1999), A. Pickett Const., Inc. v. Luzerne County Convention Center Authority

Citation:738 A.2d 20
Opinion Judge:The opinion of the court was delivered by: BY Judge Flaherty
Party Name:A. PICKETT CONSTRUCTION, INC., Lackawanna Land & Energy, Inc., K & K Electric, Inc., Pinnacle Roofing & Sheet Metal, Inc., and Central Pennsylvania Chapter, Associated Builders and Contractors, Inc., Appellants, v. LUZERNE COUNTY CONVENTION CENTER AUTHORITY.
Case Date:August 11, 1999
Court:Commonwealth Court of Pennsylvania
 
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738 A.2d 20 (Pa.Cmwlth. 1999)

A. PICKETT CONSTRUCTION, INC., Lackawanna Land & Energy, Inc., K & K Electric, Inc., Pinnacle Roofing & Sheet Metal, Inc., and Central Pennsylvania Chapter, Associated Builders and Contractors, Inc., Appellants,

v.

LUZERNE COUNTY CONVENTION CENTER AUTHORITY.

Commonwealth Court of Pennsylvania

August 11, 1999.

Argued April 13, 1999.

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Thomas R. Davies, Lancaster, for appellants.

Thomas P. Brogan, Harrisburg, for appellee.

Before McGINLEY, J., FLAHERTY, J., and McCLOSKEY, Senior Judge.

FLAHERTY, Judge.

A. Pickett Construction, Inc., Lackawanna Land & Energy, Inc., K & K Electric, Inc., Pinnacle Roofing & Sheet Metal, Inc., and Central Pennsylvania Chapter, Associated Builders & Contractors, Inc. (collectively, Appellants) appeal from an order of the Court of Common Pleas of Luzerne County (trial court) which denied Appellants' motion for summary judgment and granted Luzerne County Convention Center Authority's (Authority) motion for summary judgment. We affirm.

Four of the Appellants are contractors who are non-union. The fifth appellant, Central Pennsylvania Chapter, Associated Builders & Contractors, Inc., is a not-for-profit association of mostly non-union contractors. The Authority was formed pursuant to the Municipalities Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended, 53 P.S. §§ 301-322, (the Act or the competitive bid statute) in 1994 for the construction of a civic arena-convention center in Luzerne County (the Project). After an Authority Board meeting conducted on August 28, 1997, the Authority commissioned James M. O'Neill (O'Neill) to evaluate and make recommendations on the inclusion of a Project Labor Agreement (PLA) in the bidding process for the Project. A PLA is an agreement between a government authority and a collection of

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unions represented by a council (often a construction trades council) which applies to parts of a construction project. The terms of PLAs vary according to the terms negotiated in each agreement. The PLA at issue herein requires inter alia that all contractors who submit bids to the Authority agree to employ a certain number of union laborers at union wages, regardless of whether the contractor is a union shop or not.

O'Neill issued his report (the O'Neill Report) which recommended the inclusion of a PLA as part of the bidding process. The O'Neill Report gave the following as the principal justifications for such inclusion: 1) the avoidance of costly delays occasioned by labor disruption in a heavily unionized labor environment of Northeastern Pennsylvania, if the PLA were not included, 2) the promotion of labor harmony for the duration of the Project, 3) the necessity to adhere to a tight inflexible construction deadline, given the loss of an anchor tenant and significant state funding if construction were not completed by a certain date, 4) significant cost savings and management flexibility for the Project and 5) the assurance of a large pool of skilled and experienced labor for the Project. The O'Neill report noted that the most significant consideration in utilizing the PLA was the inflexible deadline by which the Project had to be completed. The O'Neill report found that

[i]n general terms, the size and complexity of this Project are significant factors that help meet the tests for utilizing a PLA, such as or similar to the attached PLA. As noted above, this Project is one of the largest construction projects in the history of Northeastern Pennsylvania and will involve thirteen trades, specialized construction needs, and millions of dollars, such size and complexity makes [sic] a PLA more appropriate than in other settings. In addition and of the greatest significance to this analysis is the critical time element of an inflexible October 1, 1999 completion deadline mandated by the outside forces of the State through its funding terms and the anchor tenant hockey team through its contractual terms and requirements. The Arena's existence thus depends on the construction deadline being met. The absolute requirement that there be no work interruption, disruption or stoppage on this Project makes a PLA more appropriate than in other settings where timely, uninterrupted completion is not as critical.

O'Neill Report at Reproduced Record (R.R.) at pp. 296-97 (emphasis added).

At its November 13, 1997 meeting, the Authority accepted the recommendation in O'Neill's Report and approved the use of a PLA. Following that meeting, the Authority and the Northeast Pennsylvania Building and Construction Trades and its affiliated unions among others entered into the PLA which provided, inter alia, that the "construction work covered by this Agreement [the PLA] shall be contracted exclusively to Contractors who agree to execute and be bound by the terms of [the PLA]." R.R. at p. 310.

On January 7, 1998, the Appellants filed a complaint in the trial court seeking a declaratory judgment that the actions of the Authority in embracing the PLA were contrary to the requirements of Pennsylvania's competitive bidding statutes. On February 27, 1998, the Appellants and the Authority both filed their respective motions for summary judgment. By order dated June 1, 1998, the trial court denied Appellants' motion for summary judgment and granted the Authority's motion for summary judgment. From this order, the Appellants timely appealed to this court.

Appellate review over the grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Blocker v. City of Philadelphia, 729 A.2d 187 (Pa.Cmwlth.1999).

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The sole issue which the Appellants present is: whether the use of a PLA...

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