Highley v. Pa. Dep't of Transp.
195 A.3d 1078
| Pa. Commw. Ct. | 2018Background
- PennDOT issued a bid solicitation (Dec. 2017) for Contract No. 80021 (Markley Street Project) requiring bidders to sign a project labor agreement (PLA) binding them to CBAs with 11 unions and hiring through those unions; a carve‑out allowed bidders with an existing United Steelworkers CBA to use that workforce.
- Petitioners Richard Highley and Brian Hurst are nonunion highway construction employees of Allen Myers, LP (Myers); they allege the PLA prevents nonunion contractors from bidding and thus harms their employment prospects and challenges PennDOT’s compliance with the Procurement Code and State Highway Law.
- Two prospective contractors (Myers and J.D. Eckman) filed bid protests under the Procurement Code challenging the PLA; Myers is represented by the same counsel as Petitioners in this equity action.
- Commonwealth Respondents (PennDOT and officials) filed preliminary objections asserting Petitioners lack standing (traditional and taxpayer/Biester exception) and that claims are barred by sovereign immunity (Scientific Games).
- The Commonwealth Court accepted Petitioners’ factual averments as true for preliminary‑objection purposes, held Petitioners lack both traditional and taxpayer standing, sustained the standing objection, and dismissed the petition with prejudice; the court did not reach sovereign‑immunity arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Traditional standing: Are Petitioners "aggrieved" (substantial, direct, immediate interest)? | Petitioners: as long‑time construction workers dependent on gov't projects, PLA will directly and immediately harm their livelihood (may force unionization or loss of opportunity). | Commonwealth: any injury is speculative and contingent (Myers must bid, win, and assign them); interest is attenuated. | No standing — injury too contingent; petitioners not substantially, directly, immediately aggrieved. |
| Taxpayer (Biester) exception: Can Petitioners sue as taxpayers to challenge government procurement? | Petitioners: taxpayers may use equity to challenge bid conditions affecting public procurement. | Commonwealth: Biester requires 5 prongs; here two nonunion bidders (Myers and J.D. Eckman) have already challenged the solicitation, so the action would not go unchallenged and those affected are challenging it. | No taxpayer standing — fail Biester prongs (government action already challenged; directly affected parties are contesting it). |
| Precedent permitting taxpayer standing in bidding contexts (e.g., Balsbaugh, Marx, Brayman): Do those cases allow Petitioners to proceed? | Petitioners: Commonwealth Court precedents relax standing for taxpayers in procurement disputes; Balsbaugh supports standing for subcontractor employees. | Commonwealth: those cases are distinguishable or nonbinding; Procurement Code gives disappointed bidders statutory remedies and here bidders have challenged the bid. | Court: precedents do not create a separate standing path here; Biester controls; cases distinguished and inapplicable. |
| Sovereign immunity (Scientific Games): Are Petitioners' claims barred? | Petitioners: not fully addressed because court resolved standing first. | Commonwealth: claims barred by sovereign immunity under Scientific Games. | Not reached — court dismissed for lack of standing. |
Key Cases Cited
- Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655 (Pa. 2005) (standing requires substantial, direct, immediate interest)
- Thomas v. Corbett, 90 A.3d 789 (Pa. Cmwlth. 2014) (standard on preliminary objections; accept well‑pleaded facts)
- Application of Biester, 409 A.2d 848 (Pa. 1979) (five‑part taxpayer‑standing exception)
- Scientific Games Int’l, Inc. v. Department of Revenue, 66 A.3d 740 (Pa. 2013) (sovereign immunity principles applied to procurement challenges)
- Balsbaugh v. Department of General Services, 815 A.2d 36 (Pa. Cmwlth. 2003) (taxpayer/subcontractor employee challenge to procurement discussed)
- Marx v. Lake Lehman School District, 817 A.2d 1242 (Pa. Cmwlth. 2003) (relaxed standing standard for taxpayers in certain bid‑award challenges)
- Reich v. Berks County Intermediate Unit No. 14, 861 A.2d 1005 (Pa. Cmwlth. 2004) (distinguishing taxpayer standing contexts)
- Brayman Construction Corp. v. Department of Transportation, 13 A.3d 925 (Pa. 2011) (procedural history addressing standing question on appeal)