70 Pa. Commw. 90 | Pa. Commw. Ct. | 1982
Opinion by
In this contractor suspension case, E. Smialis Painting Company appeals from a decision by the Department of Transportation, holding in abeyance the award of a February 1981 contract to the company and suspending the firm from bidding on any future work.
The petitioner contends, however, that because the Court had not yet imposed sentence upon Mr. Smalis, the company had no obligation to submit a statement of conviction under Section 457.4(e). We disagree.
Both parties concur that this case turns on the proper definition of “conviction,” as found in DOT’s regulations, and that, in Pennsylvania, the word “conviction” has a common or popular as well as a technical or legal meaning. Commonwealth v. Minnich, 250 Pa. 363, 366, 95 A. 565, 566 (1975).
“As commonly understood, it means a verdict of guilty, or perhaps a plea of guilty, and for some purposes this is the meaning attributed to it by the courts. . . . For other purposes it has been held to imply ‘judgment’ or ‘sentence,’ upon the verdict of plea....”
Bycer v. State Board of Pharmacy, 57 Pa. Commonwealth Ct. 205, 210, 425 A.2d 1213, 1216 (1981), quoting Commonwealth v. Palarino, 168 Pa. Superior Ct. 152, 77 A.2d 665 (1951).
Moreover, as our Supreme Court has instructed in Minnich, we are to give the term its technical meaning “except where such construction would defeat the ap
Here, by authority of his appointment under the Administrative Law
Because an administrative agency’s interpretation of its own regulation is controlling unless (1) that interpretation is plainly erroneous or inconsistent with the regulation or (2) the regulation is inconsistent with the statute under which it is promulgated, Barr v. Department of Public Welfare, 62 Pa. Commonwealth Ct. 211, 435 A.2d 678, 680 (1981), citing Department of Public Welfare v. Forbes Health System, 492 Pa. 77, 422 A.2d 480 (1980), and because we can find nothing plainly erroneous or inconsistent with DOT’S interpretation of the word “conviction,” we affirm.
Indeed, the hearing officer’s interpretation of “conviction” squares with other regulatory provisions promulgated by the department under 36 P.S. §670-
We note, for example, that one of the stated purposes of the regulations is “[t]o assure the integrity and competence of all bidders ’ ’
Moreover, the regulations require, under penalty of suspension for non-compliance, that all contractors notify DOT promptly not only of misdemeanor or felony convictions but of ‘ Any significant changes affecting their capacity."
Clearly, then, the Act vests DOT with broad powers to ensure the integrity of its private contractors,
Order
Now, November 18, 1982, we hereby affirm the order of the Department of Transportation suspending E. Smalis Piainting Go., Inc. as a prequalified bidder.
Section 404.1 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, added by Section 1 of the Act of September 20, 1961, P.L. 1529, 36 P.S. §670-404.1, empowers ¡the Department of Transportation to establish by regulation a system for the qualification of competent and responsible bidders on highway projects.
67 Pa. Code §457.4 provides:
Statements to be furnished under oath.
(e) Complete statement of misdemeanor convictions involving moral turpitude and all felony convictions of the contractor, as well as the contractor’s directors, principal officers, and hey employees.
67 Pa. Code §457.16 provides:
All contractors are required to promptly notify in writing this Department of any significant changes affecting their capacity as well as changes of information required by Section 457.4(b), and (e) of this Chapter. Failure to mahe such notification shall be cause for suspension of prequalification.
January 20, 1981 letter from F. Peter Dixon, Assistant District Attorney, Allegheny County to George O’Friel, Office of Inspector General, Department of Transportation.
The trial court found Mr. Smalis guilty of arson (two counts) and theft by deception (two counts). Mr. Smalis’ attorney, however, filed post-trial motions and so, the court had not yet imposed final sentence when .the department suspended the company’s contracting privileges. As indicated in a letter from Judge Henry Smith to Mr. O’Friel dated April 9,1981:
*93 In summary, although there was a verdict of guilty with respect to the Moon-raker [Restaurant] charges, there will not be a final conviction or judgment, until such time and if the post-trial motions have been ruled upon adversely to him and sentence imposed.
2 Pa. C. S. §501 et seq.
Apparently, the hearing officer was not alone in his decision to construe the word “conviction” in a papular sense. The record reveals that the Deputy Secretary for Highway Administration was also well aware of the Allegheny County assistant district attorney’s letter and of its stated distinction between “conviction” and “sentencing” ; he nevertheless notified the company of its suspension by letter of March 25, 1981. Also, before the company’s June 3, 1981 hearing, Mr. Smalis met twice with representatives of DOT and each time the parties discussed the letter’s contents.
36 P.S. §670-404.1 provides, in pertinent part:
The department, after consultation with and receiving the advices of the secretaries of Pennsylvania associations representing highway constructors and other parties in interest who have notified the Secretary of Highways, in writing, of such interest, shall, by regulations, establish and may, from time to time, modify or supplement a system for the qualification of competent and responsible bidders on highway projects and furnish to such secretaries and others in interest copies of such regulations.
67 Pa. Code §457.2 (b) (3).
67 Pa. Code §457.3 (b).
67 Pa. Code §457.13(6).
67 Pa. Code §457.13(10).
67 Pa. Code §457.16.