945 A.2d 788 (Pa.Cmwlth. 2008), Sossong v. Shaler Area School Dist.

Citation:945 A.2d 788
Opinion Judge:OPINION BY Judge FRIEDMAN.
Party Name:Roger SOSSONG, Appellant. v. SHALER AREA SCHOOL DISTRICT and Pittsburgh Regional Building Trade Council.
Attorney: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.
Case Date:March 06, 2008
Court:Commonwealth Court of Pennsylvania
 
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945 A.2d 788 (Pa.Cmwlth. 2008)

Roger SOSSONG, Appellant.

v.

SHALER AREA SCHOOL DISTRICT and Pittsburgh Regional Building Trade Council.

Commonwealth Court of Pennsylvania

March 6, 2008

Submitted on Briefs Dec. 7, 2007.

Reargument Denied May 1, 2008.

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[Copyrighted Material Omitted]

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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, FRIEDMAN, FLAHERTY, Senior Judges.

OPINION

FRIEDMAN, Judge.

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, pp 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, pp 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, pp 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

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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 re-bidding 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

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in bidding documents), 3 and the fact that Sossong had notice of the PLA...

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