Com., Dept. of Labor and Industry v. Altemose Const. Co.

Decision Date20 January 1977
Citation368 A.2d 875,28 Pa.Cmwlth. 277
Parties, 23 Wage & Hour Cas. (BNA) 34 COMMONWEALTH of Pennsylvania, DEPARTMENT OF LABOR AND INDUSTRY, Paul J. Smith, Secretary, Plaintiff, v. ALTEMOSE CONSTRUCTION COMPANY, a Pennsylvania Corporation, and J. Leon Altemose, President of Altemose Construction Company, Defendants. COMMONWEALTH of Pennsylvania, DEPARTMENT OF LABOR AND INDUSTRY, Paul J. Smith, Secretary, Plaintiff, v. George J. USUKA, Individually, et al., Defendants.
CourtPennsylvania Commonwealth Court

Charles S. Solit, Gen., Counsel, Herbert S. Cohen, Dept. of Labor and Industry, Richard D. Holahan, Asst. Atty. Gen., Harrisburg, for plaintiff in No. 359 C.D.1976.

John W. Pelino, Max L. Lieberman, Pelino, Wasserstrom, Chucas & Monteverde, Philadelphia, for defendants in No. 359 C.D.1976.

Herbert S. Cohen, Asst. Atty. Gen., Harrisburg, for plaintiff in No. 478 C.D.1976.

Vincent J. Fumo, Pechner, Dorfman, Wolffe & Rounick, Philadelphia, for defendants in No. 478 C.D.1976.



ROGERS, Judge.

The Commonwealth's Secretary of the Department of Labor and Industry (Secretary) has commenced two equity actions. The first, filed March 1, 1976 to No. 359 C.D.1976, names the Altemose Construction Company and its president, Leon Altemose (Altemose) as defendants, 1 and the second, filed March 18, 1976 to No. 478 C.D.1976, names as defendants George J. Usuka and George S. Usuka, individually and trading as Usuka Builders and Engineers (Usuka). By order dated November 23, 1976, we consolidated the actions for hearing.

In each complaint the Secretary alleges that the defendants are contractors engaged in 'public work', within the meaning of Section 2(5) of the Pennsylvania Prevailing Wage Act (Act), August 15, 1961, P.L. 987, As amended, 43 P.S. § 165--2(5), 2 and that they have refused to produce hourly wage records in connection with said work upon request of Department representatives seeking to inspect records to ascertain whether wages paid complied with the standards of the Act. 3 The Secretary, asserting a want of an adequate remedy at law, requests that we enjoin and restrain Altemose and Usuka from transferring, removing or otherwise disposing of the requested payroll records, and that the defendants be directed to deliver or make the records available to the Secretary.

Usuka filed preliminary objections pursuant to Pa.R.C.P. No. 1017(b)(1), alleging that this Court lacks jurisdiction to grant the relief requested. Altemose lodged more detailed and encompassing preliminary objections, alleging not only lack of jurisdiction but demurring generally on the basis of a challenge to the Secretary's capacity to bring suit. The Secretary received Altemose's preliminary objections on April 8, 1976. On April 19, 1976, eleven days after receipt of Altemose's preliminary objections, the Secretary, without permission of court, filed amendments to his complaint to include Section 2203 of the Administrative Code of 1929, Act of April 9, 1939, P.L. 177, As amended, 71 P.S. § 563, in support of his power to make the aforementioned inspections. On April 26, 1976, the Secretary filed preliminary objections to the allegations made in Altemose's preliminary objections that the Secretary's inspections were for purposes of harassment and requested that said allegations be stricken pursuant to Pa.R.C.P. No. 1017(b)(2) as being scandalous and impertinent matter. On April 28, 1976, Altemose filed preliminary objections in the nature of a motion to strike the Secretary's April 19, 1976 amendments to his complaint as being untimely under Pa.R.C.P. No. 1028(c), which states that amendments to a complaint challenged by preliminary objections may be filed, as a matter of course, only within the ten day period after service of the preliminary objections.

The preliminary objections of both Altemose and Usuka are now before this Court, all of which we must overrule. The Secretary's preliminary objections in the form of a motion to strike scandalous and impertinent matter in Altemose's preliminary objections are sustained in reference to Altemose's allegations of harassment since such matters are not relevant to the issues of jurisdiction and capacity to sue, and may be properly pleaded under 'New Matter' in Altemose's response to the Secretary's complaint and, if proved, considered in connection with the grant, if any, of relief. Pa.R.C.P. No. 1030.

We next address Altemose's preliminary objections raising a question as to the timeliness of the Secretary's April 19, 1976 amendments and decide they are meritless. April 18, 1976, the tenth day of the period fixed by Pa.R.C.P. No. 1028(c) fell on a Sunday. Consequently, this day was pursuant to Pa.R.C.P. No. 106(b), properly excluded from computation, and April 19, 1976 became the last day for filing.

Defendants' first substantive objection is that the Secretary does not possess the statutory authority to conduct self-initiated, spontaneous inspections of wage records. Both case law and statutory authority is against them. In Pennsylvania Prevailing Wage Appeals Board, Commonwealth of Pennsylvania v. Steve Black, Inc., --- Pa.Cmwlth. ---, 365 A.2d 685 (1976), we held that 'the Secretary is empowered to supervise compliance with the Act by authorizing field inspectors to make 'routine checkups' at the sites and to audit payroll records independently to determine whether or not a contractor has failed to pay the minimum wage rates.' (Emphasis added.) This conclusion was based on Section 2203 of the Administrative Code of 1929, 71 P.S. § 563, which provides that:

'The Department of Labor and Industry shall have the power to make investigations and surveys upon any subject within the jurisdiction of the department, either upon its own initiative or upon the request of the Industrial Board.'

On the matter of inspection of records, Section 6 of the Act, 43 P.S. § 165--6 also provides:

'Every contractor and subcontractor shall keep an accurate record showing the name, craft and the actual hourly rate of wage paid to each workman employed by him in connection with public work, and such record shall be preserved for two years from date of payment. The record shall be open at all reasonable hours to the inspection of the public body awarding the contract and to the secretary.' (Emphasis added.)

Consequently, defendants' reliance on Pennsylvania Human Relations Commission v. St. Joe Minerals Corp. Zinc Smelting Division, 24 Pa.Cmwlth. 455, 357 A.2d 233 (1976), for the proposition that the Secretary is not empowered to make Sua sponte inspections of wage records is completely misplaced. In St. Joe we held that the Human Relations Commission had no power to compel response to interrogatories Because there were no statutry provisions authorizing the Commission to engage in discovery by written interrogatories.

The defendants apparently next argue that even if the Secretary is empowered to make the inspections in question, equitable jurisdiction to compel cooperation is lacking. Defendants assert that the production of wage records may be compelled in prevailing wage investigation hearings initiated by the Secretary under Section 11 of the Act, 43 P.S. § 165--11, 4 and that since the Secretary failed to initiate a Section 11 investigatory hearing, he has not exhausted his statutory remedies.

It is clear, of course, that this Court possesses original jurisdiction to entertain the proceedings initiated by the Secretary pursuant to Section 401(a) (2) of the Appellate Court Jurisdiction Act of 1970. Act of July 31, 1970, P.L. 673, As amended, 17 P.S. § 211.401(a)(2), which provides that:

'(a) The Commonwealth Court shall have original jurisdiction of:

'(2) All civil actions or proceedings by the Commonwealth or any officer thereof, acting in his official capacity, except proceedings under the Eminent Domain Code.'

Likewise apparent is the fact that the Appellate Court Jurisdiction Act of 1970 does not confer upon this Court broader subject matter jurisdiction than existed prior to its enactment. Since traditional concepts of equity jurisdiction govern the instant case, the Secretary must show that all adequate statutory remedies are lacking or have been exhausted before this Court will intervene in equity. Pennsylvania Human Relations Commission v. United States Steel Corp., 10 Pa.Cmwlth. 408, 311 A.2d 170 (1973), Aff'd, 458 Pa. 559, 325 A.2d 910 (1974). We have been unable to find, either in the Act or the Administrative Code of 1929, 71 P.S. § 51 et seq., any statutory provision for the enforcement of the Secretary's power to conduct routine inspections of contractors' wage records, not associated with Section 11 investigatory hearings. 5 Also, the Secretary should not be forced to initiate a formal hearing to gain access to these records, assuming that production of wage records may be compelled at such a hearing, since one of the purposes of the prehearing inspections is to determine whether a hearing is required at all. Having no legal remedy at hand, the Secretary may properly seek recourse in equity.

Altemose next contends that the Act violates a number of provisions of the Pennsylvania and United States Constitutions. Initially, Altemose asserts that Section 7 of the Act, 43 P.S. § 165--7, delegate legislative authority without adequate guidelines and thus violates Article II, Section 1 of the Pennsylvania Constitution which states:

'The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.'

Section 7 of the Act provides, Inter alia, that:

'The secretary shall, after consultation with the advisory board, determine the general Prevailing minimum wage rate in the locality in which the public work is to be performed for each Craft or classification of all workmen needed to perform public work contracts during...

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