Agony of Defeat Revisited

If you have followed my blog back in February, I posted about losing a case involving the township auditors in a surcharge action. I spent last week preparing my appellate brief for the Commonwealth Court and just sent it out yesterday. The issues on appeal are whether the auditors proved by a preponderance of the evidence that the supervisors improperly purchased the loader and paid a higher price than they had contracted for a different loader; whether the trial court decision to bifurcate the trial improperly shifted the burden of proof; whether the trial court decision violates the requirements for public bidding and public policy; and whether the trial court failed to recognize the "financial loss" to the township. It will be interesting to see what the Commonwealth Court does with the appeal. I will continue to update.

Buckwalter Update

Back in February, I had posted about the Buckwalter case which upheld an ordinance that changed the compensation of the Borough Council. On September 3, 2008 the Pennsylvania Supreme Court granted allocatur and will hear the appeal from the Commonwealth Court's decision.

Thank you to all of you readers that sent the link to me concerning the grant of allocatur.

Prevailing Wage Act Part 2

The Pennsylvania Supreme Court affirmed the Commonwealth Court's ruling that road milling and resurfacing projects fall under the definition of "public work" in the Prevailing Wage Act. Now, Townships will now be required to pay the prevailing wage for some projects that were previously considered to be routine maintenance work, which is exempt from the law's requirements. The Supreme Court examined the underlying principles of the Prevailing Wage Act, which the Court said is to protect workers employed on public works projects from receiving substandard pay.

The Department of Labor & Industry which sets the prevailing wage, has issued a list of common road projects and how they will be classified.

Prevailing Wage Act Applies to Road Milling/Resurfacing

The Commonwealth Court has issued a decision which could significantly impact municipal road budgets. In Borough of Youngwood v. Pennsylvania Prevailing Wage Appeals Board, 983 A.2d 1198 (Pa. Cwlth. 2007) the borough milled and resurfaced five streets at a cost of approximately $183,000.00. Liquid fuels funds paid $71,000.00. The borough believed the resurfacing was "maintenance" and therefore, not subject to the Prevailing Wage Act. It should be noted that the Act defines "public work" as "construction, reconstruction, demolition, alteration, and/or repair, other than maintenance work" that is performed under contract and paid for in whole or in part with public funds at a cost of more than $25,000.00. "Maintenance work" is defined in the Act as "repair of existing facilities when the size, type, or extent of such facilities is not thereby changed or increased."

After the borough had completed the project, the state Department of Labor & Industry's Bureau of Labor Law Compliance concluded that the major portion of the project (the milling and resurfacing) was reconstruction, not maintenance. Thus, the Bureau said the minimum wage requirements of the Prevailing Wage Act applied.

The borough appealed the decision to the Prevailing Wage Appeals Board which upheld the Department's interpretation of the Act. The borough then appealed to the Commonwealth Court. The Commonwealth Court agreed that the work was not maintenance and therefore, would be subject to the prevailing wage requirements.

An appeal to the Pennsylvania Supreme Court has been filed by the borough and the Supreme Court has decided to accept and hear the appeal.

New Law Passed for EMS and Townships

The Govenor recently signed Act 7 of 2008. This law requires townships to work with local fire and emergency medical services to determine appropriate levels of funding and assistance. The new act will require the township board of supervisors to consult with volunteer fire and ems providers on the township's needs to determine appropriate levels of financial and administrative assistance for these services. Both fire and ems providers will be required to give the township an annual itemized list of all expenditures of township funds before the board of supervisors may consider budgeting additional funding for the organizations.

There is no minimum level of financial assistance required by Act7. Also, the act does not give emergency service providers the right to demand a specific amount or to withhold services. The purpose of the law is to encourage dialogue and cooperation between townships and emergency service providers to ensure that the municipality's public safety needs are met.

A copy of the act is available at www.legis.state.pa.us under the heading "Law Information."

What a Mayor Does

Found some useful information from the Pennsylvania State Association of Boroughs about the role of a Mayor. In 1834 the first general law regarding boroughs was enacted. The governing body was established, consisting of five councilmen and one burgess. The burgess presided over the council and remained active in borough matters. Over time, the vote of the burgess was restricted to breaking tie votes in most situations of the council.

The late 1800s saw more changes in the role of the burgess. The council was now allowed to vote for its own president, the burgess went from a one year term of office to a four year term of office. In 1893 the borough changed to a city format of government with a weak mayor. In 1961 the term burgess was replaced by the term "mayor" and the council president was given the power to sign important papers and contracts.

The powers of the mayor have diminished over time. Nevertheless, it is still an important positioon in local government. The mayor presides over the reorganization meeting of the council in even numbered years. The Mayor may attend all council meetings. He or she must approve all ordinances of a legislative nature and has the right to veto them if desired. The mayor administers the police department but does not have the power to hire or fire personnel. The mayor may set the schedule for the police officers. Finally, in a ceremonial role, the mayor may officiate marriages in the Commonwealth.

Agony of Defeat II

Just a quick follow up to a post from a few weeks ago. I had written about losing a surcharge trial. My clients, the Board of Auditors, have directed me to file an appeal. I filed my Notice to the Commonwealth Court last week. I will update as progress occurs on this case.

Sewer Service Fee Upheld

A recent Commonwealth Court opinion has uphled the municipality's fee for sewer service. In Washington Realty Co. v. Municipality of Bethel Park, 937 A.2d 1146 (Pa. Cmwlth. 2007) the municipality charged a $30 customer service fee for each of the premises. The owner of an apartment building argued that premises meant one building, but the municipality defined premises as each apartment unit. The Commonwealth Court ruled the fee was rational, not excessive and it affirmed the municipality's definition of premises.

Lawsuit Targets

Municipalities are frequent targets for lawsuits. A common theme is the disgruntled employee who sues after being terminated or demoted in some fashion. It is imperative that a municipality comply with any employment contract, civil service provision, or collective bargaining agreement. Also, there may be statutory rights involved for the employee. I recently came across an article where the former Dauphin Borough police chief was suing the Borough in federal court. The federal courts are the favorite venue for most of these types of actions. As always, you should consult with your solicitor or an employment/labor lawyer before taking any action with respect to terminating an employee.

Agony of Defeat

Well, I've spent most of this week preparing for a surcharge trial. I was appointed to represent the elected Township Auditors against the Township Supervisors. In the fall of 2004, the Township Supervisors decided to purchase a new front wheel loader and ordered a Volvo. There were problems with delivery and in April of 2005 the Supervisors cancelled the Volvo and purchased a Catepillar model loader. The problem was that the Catepillar was not publicly bid and cost more than the Volvo.

Our evidence was that the Volvo was still available in April of 2005 at the same price originally quoted to the Township in the fall of 2004. Our position was that the Catepillar was not legally purchased and therefore, the higher price paid led to the surcharge.

After a half day of trial, the Court ruled against the Auditors and in favor of the Supervisors. The Court stated that in order for the Auditors to prevail, they must show that the Catepillar was not worth what the Township paid for it, not that they paid more for it than the Volvo.

I don't know if my clients will appeal the decision or not. The Township has spent close to $10,000.00 in attorney's fees between their solicitor and myself. Disappointed to say the least.

New Open Records Bill Signed by Govenor Rendell

On February 14, Govenor Rendell signed Senate Bill1 which the Pennsylvania Senate had unanimously approved. The law makes some major revisions to the Pennsylvania Right-to-Know Law. Parts of the new law are immediately effective, such as the change in definitions. Included in these are new definitions for what is a "record." Other parts of the law will go into effect July 1, 2008 and the rest on January 1, 2009.

Some of the other highlights of the new law are:

- reverses the presumption and now puts the burden of proof on the government agency denying the access request

- establishes the Office of Open Records, housed in the Department of Community and Economic Development; this office will establish standard fees for photocopies and standard records request forms

-provides a list of 29 exceptions for executive agencies and local agencies, including criminal investigations, Social Security numbers, personal financial information, and individual medical records

-increases the fines for officials who violate the law and allows the awarding of legal fees for bad faith actions by government officials

Wind Farm Proposal Raises Land Use Questions

I had heard some rumblings about land being developed in the area for a proposed wind farm. A wind farm is a group of wind turbines clustered to generate power. Currently, there is a proposed wind farm being challenged on land use grounds in Tioga County, PA. An artcile in the Williamsport Sun Gazette can be found at www.sungazette.com.

Borough Can Eliminate Compensation for Council

In a recent case decided by the Commonwealth Court, a borough ordinance enacted pursuant to Section 1001 of the Borough Code was upheld on Constitutional grounds. In Buckwalter v. Borough of Phoenixville No.1361 CD of 2007 (January 8, 2008) the ordinance was found to be valid and did not violate Article III, Section 27 of the Pennsylvania Constitution.

DEP Faces Legal Challenge

The Pennsylvania Department of Environmental Protection is facing a possible legal challenge from a large number of central Pennsylvania muncipalities. The proposed lawsuit stems from the Department's Chesapeake Bay clean-up strategy. The Department has mandated 183 sewage treatment plants to spend as much as $1 billion to reduce nitrogen and phosphorus discharges. Currently, 40 municipalities have voted to join the legal action.
A story in The Patriot News on the action can be found at www.pennlive.com/news/patriotnews

Cemetary Woes for Township

I found some archane provisions in the Second Class Township Code dealing with cemetaries. The Code directs that if a cemetary or burial ground is abandoned or is being neglected the township board of supervisors may give notice to the owner to clean up the weeds, debris, etc and after thirty days, the township may do the work at township expense. The statute goes on to state that the cemetary shall remain open to the public under the regulation and control of the board of supervisors.

Unfortunately, there is no other provisions for guidance to a township faced with an abandonded cemetary. One of my municipal clients has a defunct cemetary association. The supervisors are reluctant to sell any burial plots or otherwise be involved with the cemetary for fear of liability concerns. They are mowing, weeding and providing that sort of upkeep. They have asked me to give them input on how to hadle this problem.

I will update this post with my progress.

Selective Enforcement Ruled Okay

The Pennsylvania Commonwealth Court recently examined the effect of a municipality's prior decisions on requests for subdivision approval. The case is Zajdel v. Board of Supervisors of Peters Township,925 A.2d 215 (Pa. Cmwlth. 2007). In this case, the landowners filed an application with the township planning commission to subdivide their property and create two additional lots. The ordinance required lots to have direct access to a public road or to a private road that meets township specifications. In this case, the landowners sought a waiver because the additional lots would be accessed by a private road that didn't meet those requirements. The planning commission recommended denial of the request and the board of supervisors denied the landowner request for a waiver because the proposed new lots would be on a substandard private road.

The owner appealed to the trial court which affirmed the township's denial. The landowner argued to the trial court that the township had granted subdivision approval to a neighbor on the same substandard road. They further argued that the township had an unwritten policy of granting subdivsion approval on a private road where the applicant intended to convey a lot to a family member but denying approval when the lot would be conveyed to a non-family member.

The Commonwealth Court held that even if the township had such a policy "a failure to uniformly enforce an ordinance provision does not preclude the subsequent enforcement of the same." Moreover, the Court stated "the validity of the ordinance does not usually depend on a completely successful enforcement of its provisions, nor can one who violates it be discharged merely because it is shown that there are other violatiors who have not been convicted, or that those whose duty it is to perform the duties required by it have fallen short, through inattention or intentional omission or neglect."

Obviously, municipalities should apply their ordinances fairly to all applicants. However, the Zajdel case makes it clear that minor departures do not create precedent or unwritten "policy" that would entitle future applicants to some relief.

Update on Sales Tax Expansion

After nine hours of debate, the Pennsylvania House of Representatives voted yesterday afternoon on the legislation to expand the state sales tax to professional legal services. The vote was 148-47 against the expansion. Ironically, my representative voted in favor of the legislation and I had written to her personally last week, expressing my concerns and objections. My letter was never acknowledged by her. Then, today at lunch, I was approached to sign her campaign petition for reelection! Needless to say, I declined. At this point, I guess all's well that ends well.

Pennsylvania Construction Code Act Appealed to Supreme Court

In 1999, the Pennsylvania General Assembly enacted the Pennsylvania Construction Code Act(Act of November10, 1999, P.L.491, as amended, 35 P.S.Sec.7210.101-7210.1103). The legislature was concerned that many municipalities in the Commonwealth either had no construction codes at all or had a confusing multicplicity of construction codes. By adopting the Uniform Construction Code in the Act, the legislature hoped to insure the use of uniform and modern construction standards and regulations throughout Pennsylvania. The Pennsylvania Construction Code Act (PCCA) generally applies to the construction, alteration, repair and occupancy of all buildings in Pennsylvania and regulates inspections in various areas, including electrical, plumbing, energy, and fire accessibility.

A provision in the PCCA allowed municipalities to administer and enforce its provisions by the retention of one or more construction code officials or third-party agencies on behalf of the municipality. Many municipalites in the Commonwealth contracted with third-party agencies to administer and enforce the PCCA for them. Such a contract was authorized in Section 501(b)(2) of the Act.

Several cases were filed by Pennsylvania companies challenging the sole provider of inspection services that the municipalities were using. The Commonwealth Court ruled that a municipality cannot designate, appoint or contract with a single person or entity to be the exclusive inspector for determining PCCA compliance. The Court determined that inspections under the Act are separate and distinct functions from the administration and enforcement of the Act. Thus, a municipality would be required to recognize an inspection from any qualified company or individual. See, Alleheny Inspection Service, Inc., et al. vs. North Union Township, et al.

The municipalities involved in this litigation all file petitions for alllowance of appeal to the Pennsylvania Supreme Court. On July 31, 2007 that Court granted the Petitions and consolidated the cases for argument. The question raised on the appeal is whether the Commonwealth Court erred in ruling that a municipality which elected to enforce and administer the provisions of the PCCA, must allow any construction code officical, certified by the Department of Labor & Industry, to inspect construction to determine compliance with the provisions of the Uniform Construction Code.

Local Governments Pre-empted by Oil and Gas Act

The Commonwealth Court of Pennsylvania has issued two decisions that reject local municpalities' attempts to regulate oil and gas extraction. In Huntley & Huntley, Inc. v. Borough Council of Oakmont, 929 A.2d 1252, the Court ruled that a municipality could not regulate the location of a gas well through the denial of a conditional use permit and in Great Lakes Energy Partners v. Salem Township, 931 A.2d 101 the township's ordinance attempting to regulate surface and land development associated with oil and gas drilling was invalidated.

In Huntley, the Commonwealth Court reasoned that the Oil and Gas Act, 58 P.S. Sec.601.101 et seq. pre-empts the municipality's attempt to regulate the natural gas drilling. A provision in the Oil and Gas Act provided that "all local ordinances and enactments purporting to regulate oil and gas well operations... are hereby superseded...[and] no ordinances...shall contain provisions which impose conditions, requirements, or limitations on the same features of oil and gas well operations regulated by this act or that accomplish the same purposes as set forth in this act." The Court stated that this section of the law clearly provides that municipalities may not impose conditions, requirements or limitations on the same features of oil and gas operations as those that are regulated by the act. Since the issue in Huntley was the location of the location of the well and since Section 205 of the Oil and Gas Act specifically addresses the placement and location of wells, the municipal ordinance addressed a feature already in the Act. Thus, the ordinance was pre-empted.

In the other case, Great Lakes Energy Parnters, a group of oil and gas companies filed a complaint for declaratory judgment and an injunction arguing that the township's ordinance was pre-empted under the Oil and Gas Act. In that case the ordinance regulated surface and land development associated with oil and gas drilling operations. The Commonwealth Court upheld the trial court's decision that the ordinance contravened provisions in the Oil and Gas Act by attempting to regulate the same aspects of those operations.

The impact of these cases is still unclear. Both of these municipalities have sought an appeal to the Pennsylvania Supreme Court. However, there is a growing judicial trend to find that local regulations that go beyond items of local concern and attempt to regulate the same activity as state law, will be susceptible to invalidation.

Sales Tax on Legal Services

The Pennsylvania House of Representatives is again considering the expansion of the state's sales tax to include legal services. The measure is intended to provide property tax reform but shifts the tax from real property to goods and services. I'm writing my state representative urging a vote against any measure that expands the sales tax to legal services.

A tax on legal services is a tax upon the fundamental and constitutional right of citizens to have access to the justice system. The assertion of or defense of legal rights, whether in criminal or civil court, should not be taxed. The courts are a primary function of government, and indeed, the judiciary is one of our three branches of government. Effective representation requires legal counsel, people or businesses don't choose to use a lawyer as an elective measure any more than they choose to perform their own root canal or set their own broken leg. A sales tax on legal services places an undue and unfair burden upon the legal system. The very nature of the courts and access to the justice system is unique. It must be treated as such.

As I said, I've written to my representative and I am urging not only my fellow lawyers, but also my clients to voice their concerns with this proposed legislation. It doesn't just affect lawyers, this tax affects us all. Who knows when they will need legal services?

My First Blog

Well, here we go. Although I'm not the most tech savy of people, I've decided to try my hand at blogging. I'm a lawyer located in Towanda, Pennsylvania. Towanda is the county seat for Bradford County. My practice is diverse, however about one-third is devoted to municipal law matters. My clients are mostly townships of the second class, boroughs and a few municipal authorities. I really enjoy this area of my practice because I feel it allows me an opportunity to give back to the community. So much of what we lawyers do is win-lose oriented that it is refreshing to help a municipality with a new infrastructure project or enforce its ordinances, etc. In spending the last 12 years or so in the field of municpal law in Pennsylvania I've found that there aren't alot of resources out there on the topic, especially for those of us located outside of Philadelphia or Pittsburgh. Hopefully, this blog may help. Thanks for reading.