Sossong v. Shaler Area School Dist.

• Decision Date: 06 March 2008
• Docket Number: No. 979 C.D. 2007.,979 C.D. 2007.
• Citation: 945 A.2d 788
• Parties: Roger SOSSONG, Appellant, v. SHALER AREA SCHOOL DISTRICT and Pittsburgh Regional Building Trade Council.
• Court: Pennsylvania Commonwealth Court

945 A.2d 788

Roger SOSSONG, Appellant, v. SHALER AREA SCHOOL DISTRICT and Pittsburgh Regional Building Trade Council.

No. 979 C.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 7, 2007.

Decided March 6, 2008.

Reargument Denied May 1, 2008.

Richard W. Saxe, Jr., Pittsburgh, for appellant.

Richard B. Tucker, III, Pittsburgh, for appellee, Shaler Area School District.

Joshua M. Bloom, Pittsburgh, for appellee, Pittsburgh Regional Building Trade Council.

BEFORE: McGINLEY, Judge, FRIEDMAN, Judge, and FLAHERTY, Senior Judge.

OPINION BY Judge FRIEDMAN.

Roger Sossong (Sossong) appeals from the April 25, 2007, and May 14, 2007, orders of the Court of Common Pleas of Allegheny County (trial court). The April 25, 2007, order, which was issued by The Honorable Timothy Patrick O'Reilly, denied Sossong's first motion for a preliminary injunction (First Motion) against the Shaler Area School District (School District). The May 14, 2007, order, which was issued by The Honorable Michael A. Della Vecchia, denied Sossong's request for a hearing on his second motion for a preliminary injunction (Second Motion) against the School District. We affirm.

On April 25, 2007, Sossong appeared before Judge O'Reilly with the First Motion against the School District. In the First Motion, Sossong alleged that: (1) in March, the School District sought bids for work on two school construction projects, (First Motion, ¶¶ 1-2, R.R. at 31a); (2) in the bid documents, the School District required all bidders, union or non-union, to enter into a Project Labor Agreement (PLA), (First Motion, ¶ 5, R.R. at 32a); (3) the terms of the PLA prevent non-union contractors from effectively bidding on the projects, such that the provision violates lowest responsible bidder laws, (First Motion, ¶¶ 6-8, R.R. at 32a); and (4) the School District would be awarding the contracts at a school board meeting later that same day, (First Motion, ¶ 11, R.R. at 32a). Sossong sought to preliminarily enjoin the School District from awarding the contracts. (R.R. at 33a-34a.)

Sossong attached to his First Motion a copy of a Complaint in Equity (Complaint) that he had filed with the trial court on April 24, 2007. The Complaint alleged that: (1) the School District decided to include the PLA requirement in its bid documents after the Pittsburgh Regional Building and Construction Trades Council (Trades Council) informed the School District that a PLA would ensure that the projects were completed on schedule and on budget, (Complaint, ¶¶ 19-20, R.R. at 41a); (2) the School District received only one or two bids from non-union contractors, (Complaint, ¶ 35, R.R. at 44a); (3) the PLA requirement deterred other non-union contractors from submitting bids, (Complaint, ¶ 37, R.R. at 44a); and (4) because competition for the contracts was significantly reduced, the cost of the projects will likely be greater,¹ (Complaint, ¶ 38, R.R. at 44a).

Sossong attached the PLA provision from the School District's bid documents to his Complaint as Exhibit A. The provision provides, in pertinent part, as follows:

1.1 The [School District] and the [Trades Council] have entered into a[PLA] in connection with all work to be performed on the District's anticipated construction contracts.... The [PLA] ... is designed to maintain labor/management harmony and, therefore, the expeditious completion of the project on-time and on-budget.

1.2 The [PLA] precludes strikes, lockouts, work stoppages and any other disruptions of the work for the duration of the project. All contractors, both union and non-union, must sign and be bound by the terms of the [PLA]. This mandatory requirement does not preclude any contractors, union or non-union, from bidding on and being awarded a contract.

(R.R. at 48a) (emphasis added).

Sossong attached the PLA, itself, to his Complaint as Exhibit B. (R.R. at 49a-63a.) Section 1.3(A)(1) of the PLA states that its intent is to "foster the achievement of a timely and on-budget completion" of the projects. (R.R. at 50a.) Section 1.2(B)(2) of the PLA states that the parties understand that "time is of the essence," and that it is "essential that construction work ... be done in an efficient, economical manner with optimum productivity and no delays." (R.R. at 50a) (emphasis in original).

At the same time Sossong appeared with his First Motion before the trial court, the Trades Council appeared with a motion to intervene, which was granted. (R.R. at 69a.) Sossong, the School District and the Trades Council presented argument, after which Judge O'Reilly denied Sossong's First Motion. Judge O'Reilly explained his ruling in a subsequent opinion.

At argument, I denied the [First] Motion, and I deemed a hearing thereon to be unnecessary in view of the circumstances then existing. In particular, the award of the contract was to be made that night by [the School District]. Obviously, this would have an adverse impact on the public interest. Further ... the relief sought was an Order voiding the [PLA], which would necessitate rebidding of the entire project, which would create further delay, and adversely impact the public interest. Finally, I said from the bench that I did not see that an equitable issue lay in the case, inasmuch as citizen [Sossong's] remedy was a surcharge action against [the School District's] Board Members, if the award under existing circumstances proved to be a waste of [the School District's] money.[²]

(Judge O'Reilly's op. at 4). Judge O'Reilly further stated that his decision is supported by A. Pickett Construction, Inc. v. Luzerne County Convention Center Authority, 738 A.2d 20 (Pa.Cmwlth.1999) (upholding the inclusion of a PLA requirement in bidding documents),³ and the fact that Sossong had notice of the PLA requirement at least from the time that the School District published the bid solicitation in March 2007. (Judge O'Reilly's op. at 5-6.) Finally, Judge O'Reilly noted that the School District's projects are subject to the Pennsylvania Prevailing Wage Act (Prevailing Wage Act);⁴ thus, the likelihood that union workers would be paid more than non-union workers, resulting in a monetary loss to taxpayers, is extremely remote. (Judge O'Reilly's op. at 6.)

On May 9, 2007, Sossong filed an Amended Complaint and Second Motion at the same docket number and without leave of court. In the Amended Complaint, Sossong added averments that: (1) recognized the Trades Council as intervener; (2) challenged Judge O'Reilly's April 25, 2007, order; (3) questioned the applicability of Pickett; (4) recognized that the School District awarded the contracts on April 25, 2007; and (5) stated that the projects are scheduled to begin in June 2007. (Amended Complaint, ¶¶ 4, 9-11, 40-47, 65, 70.) In the Second Motion, Sossong argued that, unlike the government entity in Pickett, the School District included the PLA requirement in its bid documents without conducting a study. (Second Motion, ¶ 14, R.R. at 106a.) Sossong sought in his Second Motion to enjoin the beginning of work in June 2007.

The School District filed a response to Sossong's Second Motion, alleging that it did conduct a study, which included a review of a report entitled "Labor Analysis and Report on Feasibility for a Project Labor Agreement on the Construction Phases for the Baldwin High School" (Hill Report), prepared in September 2005 by Hill International for the Baldwin-Whitehall School District. The School District asserted that the Baldwin-Whitehall School District is a similarly sized public school district in the same labor market that was seeking to undertake a project of approximately the same size and scope as the projects here. (School District' Response, ¶ 14, R.R. at 147a.) The School District attached a copy of the Hill Report to its response. (R.R. at 156a-90a.) The Trades Council also filed a response to Sossong's Second Motion. (R.R. at 210a-27a.)

On May 14, 2007, Sossong appeared before Judge Della Vecchia with a request for a hearing on his Second Motion. Judge Della Vecchia denied the request because: (1) Sossong failed to follow proper procedures by filing his Amended Complaint without seeking leave of court; (2) Sossong simply wanted a "second bite at the apple"; and (3) the law of the case doctrine precludes Judge Della Vecchia from overruling Judge O'Reilly's decision.⁵ Sossong now appeals to this court.⁶

I. First Motion

Sossong first argues that Judge O'Reilly erred in denying Sossong's First Motion because he met the prerequisites for a preliminary injunction.⁷ More specifically, Sossong argues that he established immediate and irreparable harm by proving that the PLA requirement violates the lowest responsible bidder laws. See Shaeffer v. City of Lancaster, 754 A.2d 719 (Pa.Cmwlth.2000) (stating that a statutory violation is sufficient to constitute irreparable harm). We disagree.

In Pickett,⁸ this court was asked to consider whether the Luzerne County Convention Center Authority (Authority) violated the lowest responsible bidder laws by requiring the successful bidder for its Project to enter into a PLA. This court noted that: (1) the issue boils down to whether the PLA requirement relates to the "responsibility" of the bidders within the meaning of the lowest responsible bidder language; (2) the question of who is the lowest responsible bidder is one for the sound discretion of the Authority; (3) the lowest responsible bidder is not necessarily the one whose bid on its face is the lowest in dollars; and (4) bidder "responsibility" includes financial responsibility, integrity, efficiency, industry, experience, promptness and the ability to successfully carry out the particular undertaking. This court held that, because the PLA requirement relates to the need for prompt completion of the Project, the Authority did not abuse its discretion by including such a requirement.

Given the undisputed critical need for timely completion of the Project,...