*1 COURT HANCE 500 JAMES Construc- and Gorman
Knauer Inc., Co., Petitioners
tion
v. PREVAILING
PENNSYLVANIA BOARD, APPEALS
WAGE
Respondent. Pennsylvania. Court
Commonwealth 8, 2009.
Argued June Aug.
Decided 10, 2009. Denied Nov.
Reargument Nov.
Publiсation Ordered
Accordingly,
ing
the extent of the
pro
fellatio.
the defendant's due
duct did not violate
easily
Flanagan was
distin-
analysis
sexual contact in
rights.
court’s
did
cess
The Tookes
Tookes,
guishable
in
which involved
any
from that
criteria such
not include consideration
Rather,
Ac-
repeated instances of sexual intercourse.
Tookes
in Cueivelo.
those
on,
alia,
cordingly,
court's reliance
Municipality
we find the Tookes
court relied
inter
(Alaska
importantly,
Flanagan flawed. But more
Flanagan,
Anchorage
OPINION McGINLEY. (JHC) Court, 500 James Hance LP Knauer and Gorman Construction Co. (Knauer Gorman) (collectively, Appel- lants) petition for review from a decision of the Prevailing Wage Appeals Board’s (Board) Appellants’ grievance denial of the construction of the “building “public was not work” that required application Pennsylvania Pre- Act).1 vailing Wage (Wage 7, 2006, On Decembеr Appellants filed a grievance notice of with the Board and alleged: Identity I. And Interest Of The Grievants Court, 1. 500 James Hance L.P. is a Pennsylvania partnership, limited general partner JHC, of which is 500 LLC, a Pennsylvania limited liability company, only partners limited are Christopher James J. Gorman and J. JHC, Knauer. The sole members of 500 LLC are James J. Gorman and Christo- pher J. Knauer. ed, as amend- August § Act of P.L. 43 P.S. 165-1-165-17. Foundation, Pennsyl- and Gorman Construction
2. Knauer Gorman”) corporation (“Collegi- (“Knauer nonprofit vania Co., is Inc. um”) support organiza- acts as a corporation, for-profit Pennsylvania School, also Collegium Charier which are James J. sole shareholders *3 nonprofit corporation, Pennsylvania a J. Knauer. Christopher Gorman and building in Oaklands is the owner of Court, L.P. is the Hance 3. 500 James located, at 535 James Cotporate Center property real located owner of equitable occupied has been Hance which Court Hance Court also at 500 James the last Collegium School by Charier for Corporate as Lot 11 of Oaklands known the school’s class years 2 to 3 as (the “Property”). Center The building. administrative office 2006, 500 James Hance 4. In mid purchased from Ches- building Court, into a construction L.P. entered County Intermediate Unit. ter contract with Knauer and management became Collegium In mid 2006 13. Gorman, building construct a on to Court, Hance aware that 500 James added). Property, (emphasis building planned to construct L.P. Court, L.P. and James Hance 5. 500 single multiple ten- Property for are sometimes Knauer and Gorman added). (emphasis ant use. collectively to [sic] hereinafter refereed Collegium con- representative 14. A the “Grievants”. J. Gorman to discuss leas- tacted James Hance James building. Eventually, provi- [500 6. Grievants ing L.P., Court, Knauer and are negotiated, Gorman] were under a lease sions of Court, the Pre- seeking a determination Hance L.P. which 500 James from vailing Wage Appeals Board that Collegium building to would lease applica- Act ... is not Prevailing Wage by be built Knauer and Gorman L.P., Project Court, herein- ble to the the reasons owned 500 James Hance for stated, added). (emphasis the en- Collegium responsible after at building out shell tire fit II.Identity Project And The Of Con- or con- sole cost and its contractor tracting Body Public added). (emphasis tractors. Collegium in turn will sublease the 15. 7. The consists of the construc- School. building Collegium Charier 68,000 square approximately tion of an added). (emphasis building Property. shell on foot The Issue III. A Brief Statement Of Christopher J. 8. James J. Gorman Giving Dispute Or Rise To Griev- developers who Knauer are real estate ance Corporate developed have the Oaklands under various entities Center nor 16. Neither which years, one of is 500 James last 15 directly own or indirect- Charter School Court, Hance L.P. James Hance ly an interest in 5000[sic] LLC,
Court, L.P., JHC, Knauer and Gorman. Corporate is a 11. Oaklands Center offices, body party is a manufacturing, med- 17. No light mix of offices, faсilities, Project, pub- build the nor is contract to ical research wholesale facilities, money being used to construct vocation- lic sales and distribution shell, added). building (emphasis institutions. al and other educational Funding The Board following made the findings provided by shell ivill be Ful- of fact3: Bank, Court, ton 500 James Hance L.P. On or about September solely repayment ivill be liable JHC contracted with KGC to construct a loan, added). (emphasis 68,000 square building on Lot 11 foot Court, 19. Neither 500 Hance James Corporate Oaklands Park or 500 James added). L.P. nor Knauer and Gorman Construc- Hance .... (emphasis Court Co., alter-ego is an or instrumen- 2. On or about October KGC tality Collegium nor Collegium Char- Clifford, contracted with Pancoast and School, added). ter (PCI) Inc. to construct building. *4 Collegium 20. No nor Col- funds from 1, 2007, 3. On September March 25 . legium being paid Charter School are contract was provide amended to for Court, 500 James Hance L.P. nor to separation the construction into the of Knauer and Gorman to construct building “shell” and the building “fit shell, added). (emphasis added). out.” (emphasis 19. [sic] Construction the build- of 1, 2007, 4. On or about March JHC ing shell a public project. is not took title to lot 11.... added). (emphasis 1, 2007, 5. On or about March JHC Collegium 21. Charter and the Collegium Foundation entered parties School are not to the construc- into a building, (emphasis tion contract between 500 James Hance added). Court, Gorman, L.P. and Knauer and 1, 2007, 6. or about On March the Col- they nor are obligated repay nor lеgium Foundation entered into a guaranty the construction [sic] loan. “First Supplemental Agreement of added). (emphasis ” Lease with Collegium Charter School Agency’s IV. Brief Statement Of The added). building, (emphasis Position 11, 7. 2007, On or about September Collegium Charter School Foundation 22. The Bureau Compli- Labor Law and PCI entered into a contract for “fit (the “Bureau”) ance determined that the out” of the building for the Collegium Prevailing Wage apply Act does Charter School. added). project .... 8. Collegium Charter a public School is Grievance, 7, 2006, Notice of December nonprofit corporation authorized to op- 1-4; Paragraphs 1-8 and 11-22 at Repro- erate a charter school within the West (R.R.) duced Record at 8a-lla. Chester Area School District under the continuances, After a number the Board Charter School Law. It has a board of parties allowed the supplemental to file operates trustees and also another char- briefs no later than April May 15 and 1 Court, ter school at 535 James Hance respectively.2 Exton.
2. requested Petitioners and the Bureau a con 3. findings The Board noted that ''[o]ur fact tinuance in order to address this Court’s deci are parties’ stipulation derived from the ” Education, Pennsylva sion in Mosaica only stylistic changes.... Inc. v. minor The Board’s (Mosaica Prevailing Order, Wage Appeals nia Board Final Decision and June at 3 II), (Pa.Cmwlth.2007). A.2d 176 n.l. fit out of and mechanical is a electrical Collegium Foundаtion
9. building. orga- foundation nonprofit Pennsylvania exclusively sup- operate nized to wages prevailing Pennsylvania Char- benefit of port and requested were ter School. rates for The Bureau issued out.” “fit 10. Landlord’s [sic] 2006.... project August work; chain includes site building shell received notice of 17. Grievants seeding; cast-in- permanent fence; link orders and the Board’s opinion Bureau’s concrete; structur- masonry; unit place in this matter. and filed briefs metals; steel; carpen- al miscellaneous Decision, Findings June Board’s systems; panel metal try; roofing and (F.F.) Fact Nos. 1-17 at 3-5. doors; sealants; caulking; frames and, concluded: The Board windows, hardware; glass 2(5) Act, ceiling gypsum wallboard glazing; By virtue of section elevator; sup- 165-2(5), systems; hydraulic § аnd section 1715 43 P.S. fire HVAC; Law], plumbing; pression sprinklers; P.S. the CSL School [Charter *5 electric, added). (emphasis 17-1715-A(10), § and byor boards done under contract the of construction of 11. The total cost for of (or in- their trustees charter schools $5,117,120. shell is at least of ego) subject alter is strumentality or building complete 12. The cost to the contract, Act, for paid if under done $1,590,780. “fit out” is at least This was the funds of a part by in whole or in remaining financed, part, in with the (or instrumentality or charter school Coun- million Chester portion $15.5 of total cost ego), alter and the estimated Development Authority Industrial ty $25,000. (empha- project exceeds of County In- Revenue Board and Chester added). sis Development Authority Reve- dustrial County Industri- nue Bond and Chester performance 2. The of construction Taxable Revenue Bonds in Federally al subject to the Act under work otherwise $190,000 and a loan body, the amount public with a the terms of a lease from of Foundation. Fulton Bank to entity or their instrumen- other covered added). (emphasis automatically tality ego or alter is not Rather, the lease exempt from the Act. Christopher and J. James Gorman under the agreement must be evaluated partners Knauer are in JHC. James J. Shareholder, to determine following Director is also Goiman if factors really is a contract Christopher J. president KGC. for of work, just a to serve the use contract Secretary Knauer is also Director added). temporally on a private premisеs (emphasis KGC. of of added). (emphasis .... basis out’ in- 14. Construction fit elevator, electrical, cludes installation portion building 3. The shell of of mechanical, walls, plumbing, heating, work,” by subject “public is a project doors, equipment. 2(5) fixtures, painting Act, 43 P.S. virtue of section 1715-A(10) work commenced at or about 165-2(5), This of § and section completed,. date the shell was 17-1715-A(10), CSL, § 24 P.S. added). (emphasis result, employed on all workmen as 11, 18, 2007, paid shall be portion project On June mini- predetermined than the not less Foundation advertised bids wage mum rates as determined Pennsylvania monwealth of any in- Secretary Industry, of Labor and in ac- strumentality or agency of the Common- Act, cordance with section 5 of the Pennsylvania. wealth of 165-2(5). added). § P.S. (5) constructiоn, “Public work” means 4. Grievants have not met their burden reconstruction, demolition, alteration proof proceeding, required repair work other than mainte- and/or § 213.8(j).[4] 34 Pa.Code work, nance done under contract and Decision, paid Board’s in whole part Conclusions Law or in out (C.L.) Nos. 1-4 at 21-22. body where the esti- funds of mated cost 'project total is in Wage Applied I. Whether To twenty-five excess thousand dollars The Entire Construction Contract ($25,000), but shall not include work per- Where The Of Construction formed under a rehabilitation or man- “Building Was Paid For Shell” With power training program, (emphasis add- Private Funds And The “Fit Out” ed). Was Paid For With Public Funds? Act, Section 4 of 43 P.S. appeal5, On Appellants contend 165-4, § provides that shall “[i]t be the that there are no provisions duty every public body which proposes Act that mandate the application of the making of a contract for any project of prevailing wage to a public work to determine from the secre- separate is divided into contracts. tary the prevailing minimum wage rates Specifically, Appellants assert paid by which shall be the contractor to *6 funding for construction “fit out” was fi the workmen upon such project....” with public subject nanced funds and to Act, Section 5 of the Wage 43 provisions Wage of the Act. On the P.S. 165-5, § provides other hand Appellants private “[n]ot secured a less than the prevailing wages minimum loan from the Fulton Bank to construct as determined shell,” hereunder shall pаid be to “building and contract all was not workmen employed public public financed with work.” subject funds and not add- ed). provisions Wage of the Act. Last, 2.2(e) Act, Section of the Wage 43 A. Pertinent Wage Sections The Act. Of § 165-2.2(e), P.S. provides Ap- “[t]he Act, Wage Section 43 P.S. peals Board shall have the power duty and 165-2, § defines following terms: ... to and any grievance [h]ear determine appeal arising out of the administration (4) body” “Public means the Common- of this act” and “[pjromulgate to rules and Pennsylvania, any wealth of of politi- regulations necessary carry out subdivisions, cal any authority created placed upon duties by board this act: [tjhat Assembly however, the General [pjrovided, Com- any such rules 213.8(j) provides § findings 4. 34 Pa.Code supported by Board's are "[t]he substantial govern evidentiary hearings General rules Lycoming County Nursing evidence. Home grievant.” burden shall be on the [t]he Association, Department Inc. v. Labor and of Board, Industry, Prevailing Wage Appeal 5. This Court's review is limited to a determi- Pa.Cmwlth. 627 A.2d 241 n. 4 rights nation of constitutional whether have (1993). violated, adjudication been whether the was law, in accordance with the and whether the labor on only workmen who quires that] for notice provide shall regulations paid be the mini- work’ must ‘public public appeals, grievances filing of wage.... prevailing all mum representation rights of hearings, process of by due required procedures
law.” ‘public work’ four to constitute Again, be satisfied: elements must And
B. The Board’s Conclusions
work;
(1) there must be certain
Why
To
The
Analysis As
contract;
(2)
must be under
such work
Applicable.
Act Was
(3)
in whole
paid
work must be
such
that the
concluded
The Board
funds; and
part
public
or in
(1)
the construction of
applied because
(4)
the total
the estimated cost
(2)
work”,
“public
was
“building $25,000.
must be
excess
Collegi-
and the
Appellants
between
prior
into
was entered
case,
um Foundation
of this
the lower
the facts
Under
contract which divided
$109,000.00
the construction
that the
as-
tribunals found
“building
shell” and
met this definition.
removal work
bestos
separate
into two
“fit out”
the kind of
The asbestos removal was
(3)
contracts,
payments fund-
Act,
the lease
i.e.
[Wage]
covered
“building
contract,
ed the construction
work, it was under
demolition
each of
shall address
This Court
shell.”6
by the lower tribu-
determined
seriatim.
Board’s conclusions
nals,
part
in whole or
paid
body. The
out of
funds of
Of
II. Whether
Construction
$25,000
clearly met. The
threshold was
“Building
Was
Shell”
that because
lower tribunals then found
“Public Work”?
constituted
the asbestos removal
Pennsylvania National Mutual Ca-
In
work,
[Pennsylvania
entire PNI
Department
v.
sualty Insurance Co.
build-
Co.]
Mutual Insurance
National
Prevailing Wage Di-
Industry,
work,
Labor and
i.e.,
remaining
ing project,
*7
(1998),
vision,
Pa.
[Wage] Act.
Court[7]
The Board and Commonwealth
[Wage]
require-
Act’s
A review
of
that
the asbestos removal
....
found
‘public
...
works’
[re-
ments
of
Casualty
Pennsylvania
Mutual
National
foregone
sequence of the
7.
In
has
6. This Court
Co.,
Pennsylvania Supreme
our
Insurance
C.L.s.
Board's
erroneously con-
held that this Court
Court
removal was cov-
asbestos
cluded
"since
triggered
Pennsylvaniа
Casualty
National
public work which
Mutual
constituted
Co.,
394-98,
Insurance
Pa. at
715 A.2d
the en-
coverage
[Wage]
Act for
at 1072-74.
building project. Specifically,
tire PNI
found,
here
Board
and the Unions
Critically,
matter,
present
in the
[Wage]
speaks
that the
Act
argue,
of the “building
construction
project,’
not
con-
‘total
individual
not
whole or in
“paid
part
from the
cover-
phases,
or
and establishes
tracts
body.”
Pennsylva
public
funds of a
See
work.
any
where
work is
Mutual
age
Casualty
nia National
Insurance
Co.,
Tims,
at
the Board
at
the whole
552 Pa.
wage work.’ The *8 ture have could the crafted of definition ivork’
‘public
to include work that was
(b)....
part
not
in whole or
with
paid
(i)
for
pay
Maker shall
monthly install-
a public body, but instead it
prinсipal
of
ments of
based
funds
interest
to limit
to be
prevailing wage
paid
chose
(I) the
upon
principal
the
amount of
on
only
that work which
the
on
of
outstanding
day
Loan
the first
the
satisfies
’
(II)
‘public
Period,
element
work.
Term Loan
the
rate
interest
definition
four
1(a) hereof,
original).
added and in
under Section
effect
Act,
[Wage]
project
by the
ered
then the total
Id. at 397 n.
cluded both the undertaken by “fit out.” then Trustees or a contractor of the The Board concluded applied Appellants required because School CSL. Mosaica record application intended contends that: indicates that to circumvent Mosaica, project when it contracted undertaken prevailing wage was School; Clifford, original independent & con- Mosaica’s Pancoast contractor, Ritter struction the con- contractor divided *9 Brothers; Ritter had no “building struction and Brothers relationship out” separate “fit into two contractual School, only but entered the con- Essentially, contracts. the Board deter- into with Mosaica. separately, agreement mined that struction “[e]valuated argues Penn- Mosaica that it alone require shell fit out construction financed wages given private ... the renovations with own sylvania prevailing that, Act; third, II, accordingly, Wage in Mosaica Mosaica was the funds EFA, not apply. Act should sole shareholder of LLC and con- tracted for the renovation ... Department argues building both the Here, with Ritter Brothers. Knauer agreement management lease and the Gorman, JHC, partners agreement were that Mosaica contracted with contracts Clifford, School, Pancoast and and EFA had with the Inc. for the entered con- struction of the building. so Mosaica was a contractor of The Collegium such, School. Foundation and the Department As con- Charter School were tends that the construction work that not parties to the construction contract. Last, performed Property, by observe, Mosaica on the as Appellants astutely “the way (lease of its construction contract with Rit- contractual relationship between Brothers, ter should subject be to the Mosaica and the Ronald Brown Charter School) Wage Act as the work of a contractor. not they did arise until entered case, however, into a management agreement In this Mosai- no School after Education, ca Inc. were had contracted Proper- used to renovate the funds renovations to ty. building.” This seems to remove the construc- See Brief of Here, Appellants at 21. the ambit “the being contractual from public relationship work. between 500 James Hance Court and (by Foundation Additionally, we do not find that Mosai- lease) was concluded on March ca was a contractor purposes JHC contracted with Knauer Wage Act. Alternatively, even we ac- after if Co., Gorman Construction Inc. on ceрt Septem- the Department’s argument 25, 2006, ber contractor, building to build the and after Mosaica was a the construc- Co., Knauer and Gorman Construction relationship tional between Inc. Mosaica Clifford, contracted with and the Pancoast and School did not arise until Inc. 2, 2006, management two entered the October construct the agreement, build- ing.” which was See Brief of Appellants Mosaica entered the at 21. after Thus, construction contract. it cannot To contrary, the Board determined be said that Mosaica entered agree- distinguishable: Mosaica II was School, ment on because at behalf of however, portion, The shell was later the time agreement, it had no separated out’ сosts by con- from ‘fit relationship with the School. formal tract amendment dated March (emphasis added and in original). day the same that JHC entered into a II, Mosaica 925 A.2d at and 182-84. (FF 5). building Here, II, regard, In this the present like in case Mosaica the facts differs first, from Mosaica II. public are similar: no This toas not a funds were sittia- in either used Mosaica II8 or here tion where the landlord executed a con- shell”; second, the “building construct struction having Mo- contract a lease before hand, profit saica was a for corporation and not a and thus embarked on con- pursuant “contractor” Act. struction any legal without commitment Likewise, profit corporation JHC is a for against or recourse the ultimate ten- and not a “contractor” under the stipulated ant. Indeed the exhibits re- II, In Mosaica no funds of the Ron- tion or the Charter School were used for the ald Brown Charter School were used for the “building cost of construction of the building. Presently, renovation of the no shell.” funds of either the Founda-
802 executed, 25, 2006, about original September was that or “[o]n that an lease
fleet
a
contracted with
to construct
JHC
KGC
Collegium
and
between JHC
the
Charter
68,000
...”
foot
11
1,
square
building on Lot
Foundation
on October
School
added).
Decision,
Board’s
See
Therefore,
com-
property
....
was
that
Appellants emphasize
F.F. No. 1.
a charter
school
mitted to be used as
was
finding,
stipulated
which
was
agreement
when the construction
the con-
parties, established that when
split
amended on March
Septem-
signed
struction contract was
on
add-
phases, (emphasis
into two
project
2006,
25,
with the
ber
there
no lease
was
ed).
Appellants point
Collegium Foundation.
at
Decision
10-11.
Board’s
original
signed
that the
was not
out
lease
However,
1,
Appellants persuasively
comprehensive
until October
and a
respond
factfinding
signed
that
the Board’s
was not
until March
Therefore,
Specifically,
directly
point.9
the Board found
Mosaica II is
on
incorrect.
rejects
Nothing
presented
also
determi-
9. This Court
the Board’s
the evidence
at
from
Appellants
hearing
nation that
were either the instru-
on
Mosaica
remand establishes
mentality
ego
body.
рublic
alter
EFA are
egos
or
of a
alter
or instrumentali-
JHC,
owner,
Department stresses that
that
ties
School. While it seems
Gorman,
have,
fairly
with
contracted
Knauer
Mosaica
EFA
what could
manager,
symbiotic relationship,
for the "shell construc-
be described as a
principals
establishing
...
Hance
no
ei-
[t]he
of 500 James
there is
evidence
general
relationship
and this
Court
construction contrac-
ther has such a
with the
[t]herefore, prevailing
tor are the same ...
School.
wages
required
Additionally,
dealings
are
for their work on this
as to their
with
nothing
...
because Knauer and Gorman Con-
each other
in the evidence
presented
struction Co. is a
contractor for
establishes that Mosaica and
a
this chаrter school which contracted with
EFA acted on
in a
the School's behalf
School,
image.”
legally binding
developer that is mirror
See Brief
manner
added).
(citations
Department
emphasis
at 24.
omitted and
II,
II,
Mosaica
A.2d at 178-79 and 184-87.
In Mosaica
this Court a
such
addressed
Here,
Ap-
the record
fails to establish
an issue:
pellants
instrumentality
were an
either the
argues
Mosaica
that neither the
nor
facts
Collegium
Charter School or the
Foundation.
supports
the law
that the
the conclusion
(Mosaica, EFA,
private
are
Appellants
business entities in-
three entities
and the
profit.
in a
School)
volved
business to earn
were so
alter
interwoven as to be
Collegium Foundation and the Charter
egos.
argues
Mosaica
is a
School
non-profit corporations. Appel-
School are
separate corporation, paying market rate in
lants are neither
officers
length
an arms’
valid lease.
Foundation nor
of the Charter
trustees
turn,
In
School.
Foundation
We conclude
was not
that Mosaica
sub-
relationship
Charter do
and the
not have a
ject
piercing
Act under a
Clifford,
Appellants
with
&
Inc.
corporate
theory
veil
Pancoast
because it was not
(P&C),
party general
Ap-
a third
instrumentality
contractor.
an
the School....
case,
present
pellants
correctly
...
have
"There is no
there were no
noted:
[I]n
Hance,
expended
relationship
LP
and there was no
between James
funds
Clifford, Inc.,
Ly-
рublic project. Additionally,
Appel-
&
unlike
Pancoast
between
Foundation,
County
coming
[Nursing
[Collegium]
Home Associa-
lants and the
or be-
Hance,
Department
Industry,
tion v.
tween James
LP and the Charter
Labor
for,
Board,
School,
Prevailing Wage Appeal
any support
Pa.
there
nor is
or even
that,
(1993)],
suggestion
any
Cmwlth.
Mo-
Bifurcation Of And Public supports dation Appellants’ position that it Responsibilities Funding And For intended to maintain control over its prop- “Building The Erection Of erty for a years leased term of and not to Completion Shell” Versus Of The sell the property to the Collegium Founda- Building? “Fit Out” Of The tion.11 The rent paid by The record fails to establish that Foundation inwas consideration for the payments the rent were the equivalent of use occupancy and of the land or building. funding for the construction of the “build- See Black’s Law Dictionary 970 (9th ed. contract, Pursuant to the construction Col- 19. Condition The Leased Premises. 10. Of legium responsible Foundation was (60) sixty days Tenant shall have following construction of the “fit out” which included notify the commencement date to Landlord electrical, mechanical, all plumbing and heat- any defects or omissions in the work walls, doors, fixtures, ing systems, the interior performed by pursuant Landlord to Para- equipment total cost of 2(a) graph hereof and repair Landlord shall $1,180,000.00. See Construction Contract replace or perform such defects or such Between Knauer Gorman Construction omitted promptly upon the receipt of Clifford, Inc., Company, Inc. and Pancoast & subject delays such notice caused fac- 1; March Appel- at R.R. at 302a. beyond tors Landlord’s reasonable control. responsible lants were for the construction of shell”, “building among which included 25. Tenant's Covenants. work, fence, things, other per- site chain link concrete, seeding, cast-in-place manent unit (d) permit To Landlord to make routine steel, masonry, carpentry, roofing, structural periodic inspections of the Leased Premises windows, elevator, hydraulic sprinklers, fire during reasonable business hours and in electric, plumbing, and HVAC a total cost emergencies any at time.... $5,527,800.00. See Construction Contract (e) 1; expiration At the or earlier termination at R.R. at 302a. promptly yield Leased Term instance, Agreement For the Lease estab- neat, up, clean and the Leased Premis- Appellants’ lished that retained the title and es.... reversionary property: other interest in the (f) declaration, any sign, To not affix notice 2.(a). Option: Op- Rеnewal No Renewal any or other attachment of kind descrip- or tion. any part tion on or to of the Leased Premis- es, Building, except or the Tax Parcel Except 15. Alterations. for the Tenant’s approved by Landlord. Work, approval hereby given for which is Landlord, by the Tenant shall make no al- 27. Tenant’s Remedies. Default/Landlord’s terations or additions to the Leased Premis- (a) full, pay Fails to when due.... Building es or the or the Tax Parcel without (b) perform Violates or fails to or otherwise prior written consent of tire Landlord. any agreement breaks covenant or of this agrees any Tenant further that: alterations Lease.... or except additions to the Leased Premises 28. Further Remedies Landlord. fixtures, Of movablе trade shall at Landlord’s option part realty become belong (c) Judgment. ... Confession Of to the Landlord.... 35. Surrender Premises/Holding Leased Assignment Subletting. And Of (a)Tenant Over..... assign, mortgage, shall not or Agreement Lease, Lease Between Founda- hypothecate this or sublet or other- tion, Court, LP, permit Tenant and 500 Hance
wise James use of the Leased Premises Landlord, 2, 15, 18-19, 25, 27-28, any part Paragraphs any person per- or thereof 2, 7-11, 13, 17; express sons other than Tenant at without the R.R. at 145a, 150a-154a, I56a, 158a, written consent of the Landlord.... and 160a. *12 804
2009).
rejected
argu-
a
at 187.
the
goals.
at
times retained
Id.
We
Appellants
all
manage-
the company providing
un- ment that
reversionary
property
interest
in the
a
to the charter school was
ment services
the
The Board
lease as
landlord.
der the
Pennsyl-
the
purposes
“contractor”
Court, neither
guidance
no
to this
provided
Act).1
Prevailing
Id. at
Wage (Wage
vania
law,
by
justify
to
its
by statute nor
case
At
the time the renovations
183-184.
syn-
that the rent was somehow
conclusion
conducted,
company
the management
were
payments
to
onymous with
tantamount
have a
with the
did not
formal contract
“building
the
the
construction of
and used no
funds for
school
by
Collegium
Foundation.
leased
Thus,
at
we deter-
renovations.
Id.
184.
this
Accordingly,
Court reverses.
of the school
mined
renovation
a
Act.
was not
under
ORDER
at 187.
Id.
NOW,
day
August,
AND
31st
II,
entity of
Mosaica
Unlike
2009,
Prevailing Wage
order
Court, LLC,
intended to
James Hance
in the
mat-
above-captiоned
Board
Appeals
facility
Collegium
solely
construct a
ter is reversed.
School and
a formal relation-
Charter
had
Originally,
with the school.
construc-
ship
DISSENTING OPINION BY Senior
building
fit out for the
tion of
shell and
Judge KELLEY.
Collegium Charter School were established
respectfully
I
dissent.
contract,
entered into
under one
which was
25,
Reproduced Rec-
September
2006.
majority
support
position,
In
(R.R.) at 67a. The lease for the charter
ord
Education,
upon Mosaic
Inc. v.
relies
1, 2006.
school was entered on October
Pennsylvania Prevailing Wage Appeals
various leases
con-
The
and construction
Board,
(Pa.
(Mosaica II),
925 A.2d
“Collegi-
all
project
tracts
listed
as
Cmwlth.2007), petition
allowance of
um Charter School” before the work was
denied,
744,
appeal
598 Pa.
hand, and thus embarked on construction any legal commitment or re-
without against the ultimate tenant.”
course *13 Op. property
Board at 10. The was com- a charter
mitted to be used as school agreement
before the construction
amended and the into two divided
phases. exceptions prevailing wage cover
age narrowly are to be construed because
of the remedial nature of the Act. Corp. Pennsylvania
DiLucente v. Prevail Board,
ing Wage Appeals 692 A.2d (Pa.Cmwlth.1997).
299 n. 5 Given the dis
tinctions between this case and Mosaica
II, agree I cannot that an exception to the
Wage Act apply should here. For these
reasons, I believe the Board was correct in ap determination
plied to the construction of the building I Accordingly,
shell. would affirm the or
der Board.
Mary TURK, Appellant L.
v. Pennsylvania,
COMMONWEALTH of
DEPARTMENT OF TRANSPORTA-
TION, Licensing. Bureau of Driver of Pennsylvania.
Commonwealth Court
Submitted on Briefs June Oct.
Decided