Wilco Mech. Serv., Inc. v. Dep't of Gen. Servs.
| Decision Date | 19 October 2011 |
| Citation | 33 A.3d 654 |
| Parties | WILCO MECHANICAL SERVICES, INC., Petitioner v. DEPARTMENT OF GENERAL SERVICES, Respondent. |
| Court | Pennsylvania Commonwealth Court |
OPINION TEXT STARTS HERE
John G. Richards, II, Conshohocken, for petitioner.
Michael C. Barrett, Senior Counsel, Harrisburg, for respondent.
BEFORE: McGINLEY, Judge, and LEAVITT, Judge, and KELLEY, Senior Judge.
OPINION BY Judge McGINLEY.
Wilco Mechanical Services, Inc. (Wilco) petitions for review from the final decision of the Department of General Services (DGS) that affirmed the Bureau of Minority and Women Business Opportunities' (BMWBO) denial of Wilco's request for certification as a Women's Business Enterprise (WBE).
On April 30, 2010, Wilco applied for certification as a WBE with the BMWBO and submitted extensive documentation 1 in support of its principal, Meaghen Moyer's (Moyer) request. On June 21, 2010, BMWBO denied Wilco's application:
The ... BMWBO has reviewed your application for certification as a Women Business Enterprise. After pg. careful review, BMWBO has determined that your firm does not meet the requirements for a Women Business Enterprise as required by the eligibility standards. This determination is based on information found in 4 Pennsylvania Code, Chapter 58, titled Statement of Policy related to Ownership, Management and Operational Control of this Business....
...
Wilco Mechanical Services Inc. does not meet the criteria of a Women Business Enterprise for the following reasons:
The Statements of Policy, § 58.204(2)(ii) states that Wilco Mechanical Services Inc. is not an independent company because its business relationship with Anchor Fire Protection, a non W/MBE entity that is owned by Ms. Meaghen Moyer's father Mr. Ted Wills, Jr. Wilco ... is in the exact same business line as Anchor Fire Protection (AFP). Their application lists Wilco as providing services in fire protection, sprinkler fabrication and installation and supplier of related materials.... Ms. Moyer, the sole owner/employee at Wilco, is also an employee at AFP where she works 24 hours per week. Besides having the same business line and shared personnel, Wilco is located in the same building as AFP. Ms. Moyer rents office space from her parent. Moreover, AFP has been a key subcontractor for Wilco....
BMWBO Decision, June 21, 2010, at 1–2; Reproduced Record (R.R.) at 23a–24a.
On July 20, 2010, Wilco petitioned for reconsideration and alleged:
The Department's initial determination and refusal to certify Wilco as a WBE was incorrect. The Department incorrectly determined that Wilco is not an “independent business”. The relevant Pa.Code Section § 58.204(2)(i) places emphasis on the “Ownership” of the proposed WBE. As demonstrated in the application, Wilco is 100% owned by an eligible person, Meaghen Moyer. The Department did not find any deficiency with the “ownership and control” requirements stated in the regulations. The Department also failed to question the fact that Ms. Moyer has “real, substantial and continuing” involvement and expertise in the business.
....
As noted above, the Department's denial of certification rests solely on the assertion that Wilco is not sufficiently independent. No other objections to certification were raised by the Department. The Department incorrectly applied subjective criteria to evaluate Wilco's “independence”....
Wilco Mechanical Services, Inc. Request for Reconsideration of Denial of WBE Certification, July 20, 2010, at 1–2; R.R. at 21a.
After an on-site visit to the headquarters of Wilco on August 26, 2010, BMWBO found the following facts:
1. Wilco ... is in the exact same business line as ... AFP.... Additionally, Wilco['s] ... website states: “Wilco ... is soon to be WBE certified provider of sprinkler installation and supplies.” However, when asked to describe her company's business philosophy she said: “I applied for installation and supply but I'm mainly focusing on the supply end.”
2. ... When asked if she still works for ATF Ms. Meaghen [Moyer] said “No”. When asked, “When did you quit,” Ms. Meaghen [Moyer] said she quit ATF in December 2009 and started with Wilco in January 2010. However, Ms. Moyer did not purchase Wilco ... until April 1, 2009.
3. Ms. Meaghen [Moyer] indicated to Ms. Yidi Outhier and me [Harold Levy] that she does not share any other equipment with Anchor Fire Protection. However, when I [Harold Levy] called Anchor Fire Protection and asked to speak to Ms. Meaghen Moyer, I was put on hold and transferred to Ms. Meaghen's [Moyer's] office which is in the office adjoining Anchor Fire Protection.
4. When asked if Wilco ... subcontracted out their [sic] installation services to Anchor ..., Ms. Meaghen [Moyer] said “Yes, but there was no formal written agreement. However, when asked what percent of the work at Wilco in the past two years has been subcontracted to AFP and other subcontractors, Ms. Moyer produced a copy of the information sent originally to Ms. Yidi Outhier in an e-mail dated June 14, 2010 which is shown below:
For the Liberty High School contract (2005–2009) the subcontracts breakout as follows:
....
90% of the installation was done by Wilco Mechanical
90% of the material was subcontracted to Anchor Fire Protection
100% of the fabrication was subcontracted to Anchor Fire Protection.
These subcontracts were based on verbal agreements. There was work done at Liberty High School in 2009 but the tax return for the part of the year that the work was done was just filed on Friday.
For the Upper Hanover Township Building (2007–2008)
100% of the material and fabrication was subcontracted to Anchor Fire Protection.
....
90% of the installation was performed by Wilco Mechanical.
Findings that support approval of certification:
1. Ms. Meaghen Moyer is the President and sole owner (100%) of Wilco Mechanical Services, Inc.
BMWBO's Onsite Review Report, August 26, 2010, Findings of Fact (F.F.) Nos. 1–4 at 2–3; R.R. at 19a–20a.
On September 9, 2010, the DGS determined that DGS's Final Decision, September 9, 2010, at 1; R.R. at 17a.
I. Was Wilco Denied Due Process ?
Initially, Wilco contends 2 that it was denied due process regarding BMWBO's denial of certification.3 Counsel for Wilco asserts that DGS ignored counsel's request to participate in the reconsideration process and failed to provide a formal hearing.
DGS responds that Wilco was not deprived of any property right or liberty interest that required DGS to hold a formal hearing. Pennsylvania Interscholastic Athletic Association, Inc. v. Greater Johnstown School District, 76 Pa.Cmwlth. 65, 463 A.2d 1198 (1983). Specifically, DGS asserts that the denial of certification as a WBE did not rise to the level of an adjudication to warrant appellate review. DGS poses that a lack of certification did not preclude Wilco from bidding on a government contract or procurement.
In Greenstein v. Pennsylvania Department of Health,4 98 Pa.Cmwlth. 445, 512 A.2d 739 (1986), this Court stated:
An adjudication is defined as ‘[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, duties, liabilities or obligations of any or all of the parties to the proceedings in which the adjudication is made.’ 2 Pa.C.S. § 101. Section 504 of the Law [Administrative Law and Procedure] provides that ‘[n]o adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard.’ 2 Pa.C.S. § 504. ‘ The essential elements of due process in administrative proceedings are notice and the opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case, before a tribunal with jurisdiction over the matter.’ Wojciechowski v. Unemployment Compensation Board of Review, 47 Pa.Commonwealth Ct. 116, 119, 407 A.2d 142, 143 (1979). (footnote omitted and emphasis added).Id. at 743. In Greenstein, this Court cautioned that “ [n]ot every action by an agency constitutes an adjudication.” (emphasis added). Id. at 743 n. 6, citing Salvucci v. Secretary of Commerce, 81 Pa.Cmwlth. 361, 473 A.2d 1107 (1984).
In NHS Human Services of Pennsylvania v. Department of Public Welfare, 985 A.2d 992 (Pa.Cmwlth.2009), this Court also stated:
A letter can constitute an adjudication, requiring notice and a hearing, if a two-prong test is met: 1) the letter must be an agency's final order [5 , decree, determination, or ruling; and 2) it must impact on a party's personal or property rights, privileges, immunities, duties, liabilities or obligations. Guthrie [ v. Borough of Wilkinsburg, 505 Pa. 249, 478 A.2d 1279 (1984). (emphasis added) ].
In Presbyterian Medical Center v. Department of Public Welfare, 792 A.2d 23, 29 (Pa.Cmwlth.2002), appeal denied, 576 Pa. 717, 839 A.2d 354 (2003), this Court noted that “[ i]n order to have a constitutionally protected property interest, a party must have more than a unilateral expectation, but rather, a legitimate and enforceable claim under the law.” (emphasis added).
Last, in Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 374 A.2d 671 (1977), our Pennsylvania Supreme Court noted that “ ‘ a general statement of policy is the outcome of neither a rule making nor an adjudication....’ ” (emphasis added). Id. at 349–50, 374 A.2d at...
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