Pleasant Hills Const. Co., Inc. v. Borough of Rankin

• Decision Date: 25 February 1998
• Citation: 707 A.2d 639
• Parties: PLEASANT HILLS CONSTRUCTION CO., INC., Appellant, v. BOROUGH OF RANKIN.
• Court: Pennsylvania Commonwealth Court

Page 639

707 A.2d 639

PLEASANT HILLS CONSTRUCTION CO., INC., Appellant, v. BOROUGH OF RANKIN.

Commonwealth Court of Pennsylvania.

Argued Nov. 5, 1997.

Decided Feb. 25, 1998.

Charles F. Scarlata, Pittsburgh, for appellant.

Gregory A. Castelli, Pittsburgh, for appellee.

Before DOYLE and SMITH, JJ., and NARICK, Senior Judge.

SMITH, Judge.

Pleasant Hills Construction Company, Inc. (Contractor) appeals from an order of the Court of Common Pleas of Allegheny County that denied Contractor's motions for post-trial relief following a nonjury trial in Contractor's action to recover the cost of a building permit fee that Contractor paid to the Borough of Rankin (Borough). Contractor questions whether it was required to obtain a permit at all, because assertedly none was required and it was so advised by Borough authorities. If a permit was required, Contractor questions whether it was subject to pay an increased fee based upon an ordinance enacted after the project was approved, the contract was signed and work was begun.

The trial court found that Contractor was awarded a contract for approximately $2.3 million to do plumbing and heating work as a prime contractor in connection with a renovation project with a total value of $9 million at Hawkins Village in the Borough. The contract was awarded by the Allegheny County Housing Authority. Michael Hartman, Contractor's Project Manager, testified that he inquired with the Borough as to the requirement for a permit for plumbing work, but he did not disclose the project name or the nature of the contract or the extent of the work to be performed. Contractor commenced work sometime after July 7, 1993. The Borough ultimately cited Contractor for doing work without the appropriate permit. On June 8, 1994, Contractor filed an application for a permit with the Borough. The Borough required that Contractor pay the fee under Ordinance 322, which became effective August 2, 1993. ¹ The trial court decided in favor of the Borough and denied post-trial relief, and Contractor appealed. ²

Contractor first contends that its activities did not require a building permit. Ordinance 213 speaks of "General Building Permits." Contractor asserts that it was not doing general contracting; therefore, no permit was required for the plumbing and heating work that it performed. The Borough responds by quoting Ordinance 213, which, under the heading "Building Permits" and the sub-heading "Purpose" provides: "To determine compliance with the provisions of this Ordinance, no person shall erect, alter, move or convert any structure or building, or any part thereof, nor alter the use of any land, until a Building Permit has been issued by the Zoning Official." Joint Ex. 1.

Contractor does not assert that its activity did not involve "altering" a structure or building. Although Hartman did not agree that the project involved a "complete renovation" of the units, he acknowledged that the work involved taking out some walls. N.T., p. 29. The Borough's witness Elfred T. Rohm, the Code Enforcement Officer for the Steel Valley Council of Governments, testified, in regard to the nature of his inspection of the plumbing work at the Hawkins Village project, that there was a large degree of gutting rehabilitation and reconfiguring of units involved, such as relocating bathrooms within units. N.T., pp. 88-89. Hartman testified that Contractor was not a subcontractor either to Pan Building Corporation, which was the general construction contractor, or to the electrical construction contractor. N.T., p. 28. The testimony and the plain language of Ordinance 213 offer no support for Contractor's position but rather indicate that a permit was required for the type of work Contractor performed.

Next Contractor argues that it should not have to secure a permit because it was advised by the Borough's Secretary and its Solicitor that none was required. It disputes the trial court's finding that Hartman did not provide notice to Borough personnel about the project involved when he made his inquiries, citing the testimony of Hartman at N.T., pp. 9-10 and 13-14. The first reference is to Hartman's response that he made a telephone call in January 1993, when asked by his counsel whether he had any communication with someone from the Borough concerning this project. Contrary to Contractor's representation to the Court, Hartman testified on cross-examination that he did not identify the project when he telephoned. N.T., p. 33. The second reference is to Hartman's testimony that he visited the Borough offices in June or July 1993 to ask about building permit fees, plumbing permits and sewer tap-ins. This testimony, however, does not include a statement that Hartman identified the project while he was there. Bruce D. Jamison, former manager of the Borough, testified that the Borough first learned of the project when the police informed him that construction equipment was appearing on site at Hawkins Village. N.T., p. 57.

Contractor refers also to a letter that Hartman sent to the Borough's Solicitor on May 19, 1994, Plaintiff's Ex. 3, stating that the Solicitor told Hartman approximately one year earlier that the general contractor, Pan Building, would have to receive a building permit from the Borough but that the plumbing/mechanical contractor would not. When the letter was introduced, however, Hartman testified that his conversations with the Solicitor had taken place roughly six months before the date of the letter, after the Borough demanded in November 1993 that Pan Building secure a building permit. Thus Contractor presented no evidence that it identified the Hawkins Village renovation project to Borough officials as the subject of its inquiries before it made its bid in March 1993 or before it started work after receiving the award of the contract on June 22, 1993. The trial court correctly concluded that Borough officials could not have misled Contractor when it failed to provide adequate information.

Contractor next argues that, if it is responsible to pay the building permit fee, then the fee should be calculated under the ordinance that was in place in June 1993, when Contractor was awarded the contract and commenced work. It cites Section 1926 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1926: "No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." This provision has been held to apply equally to ordinances. Appeal of Sawdey, 369 Pa. 19, 85 A.2d 28 (1952). This Court stated in Commonwealth, Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corp., 54 Pa.Cmwlth. 376, 421 A.2d 521 (1980), that a law is given retroactive effect when it is used to impose new legal burdens on a past transaction or occurrence. Contractor asserts that the Borough attempts to give retroactive effect to the August 2, 1993 ordinance by basing the fee for the building permit upon it, although the contract was bid, awarded and signed and work was commenced while the former ordinance was in effect.

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