Municipal Law Colloquium

I'm spending today and tomorrow in Hershey PA for continuing legal education dealing with municipal law

Pennsylvania Construction Code Litigation Update

Last week, the Pennsylvania Supreme Court announced its decision in several cases which had been consolidated on the appeal. The cases involved the use of third party agencies to administer and enforce the provisions of the Pennsylvania Construction Code Act in those municipalities which opted in to the enforcement of the Act. I posted on the decisions made by the Commonwealth Court last January. The Supreme Court reversed the Commonwealth Court and upheld the right of a municipality to exclusively use one third party agency for inspections.

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."