Dilucente Corp. v. Pennsylvania Prevailing Wage Appeals Board
Docket: No. 2214 C.D. 1996
Court: Commonwealth Court of Pennsylvania; April 3, 1997; Pennsylvania; State Appellate Court
The Court affirmed the Pennsylvania Prevailing Wage Appeals Board's decision that DiLucente Corporation and Domenic DiLucente underpaid wages on a public project in violation of the Pennsylvania Prevailing Wage Act. In 1992, Harmar Township awarded DiLucente a contract for the construction of the municipal building, which included predetermined prevailing wage rates. DiLucente submitted payrolls that were incomplete and falsely indicated compliance with wage requirements. Following a complaint in May 1993, an investigation revealed DiLucente had intentionally underpaid workers by $92,447.69. The Secretary of Labor and Industry imposed a three-year contract prohibition on DiLucente, prompting an appeal to the Board.
DiLucente's appeal raised several points: insufficient evidence for a violation, claims of unintentional violations, individual liability of Domenic DiLucente, and alleged payroll miscalculations. The Board upheld the Secretary’s decision, except for one case involving a worker not classified as a laborer, and ordered recalculation of underpayments.
In challenging the Board's findings, DiLucente argued that there was no evidence of notification regarding the prevailing rates. However, testimony from project engineer Larry Sieler established that the contract and specifications included the requirement to pay prevailing wage rates, countering DiLucente's claims. The Court concluded that DiLucente's argument centered on a technical evidentiary rule not applicable to the administrative hearing.
DiLucente is obligated to pay the prevailing wage as the project is classified as a public work, regardless of his alleged lack of knowledge. The Board's conclusion that DiLucente intentionally violated the Act is supported by substantial evidence, including witness testimony about two differing sets of payroll certifications. The first set, unsigned but showing compliant wage rates, was later contradicted by a signed set that revealed lower actual payments. This discrepancy suggests an attempt to conceal violations. DiLucente’s argument that the unsigned certification was merely indicative of what workers claimed they should be paid is dismissed as implausible for an experienced contractor. The obligation to pay the prevailing wage is unconditional and arises weekly, with no justification for passing business risks to workers. Further evidence of intent includes requiring workers to sign blank checks, which resulted in them not receiving their wages, and failing to provide required payroll records to the inspector. Collectively, this evidence affirms the Board's finding of intentional violation of the Act by DiLucente.
Domenic DiLucente argues against individual liability for liquidated damages related to a contract between his corporation and Harmar Township, asserting the contract was between the entities, not him personally. He contends that the precedent set in Duffy v. Department of Labor and Industry, which dealt with debarment, does not apply to statutory liquidated damages under 43 P.S. 165-11(e). However, the statute allows for individual liability if a person intentionally fails to pay prevailing wages. The Board agrees with the interpretation in Duffy that individual liability extends beyond debarment to include liquidated damages, affirming DiLucente's individual liability.
Additionally, DiLucente disputes the Board's finding that John Koroly did not qualify for the 'supervisory' exemption. Although Koroly had limited authority, the Board found he did not exercise sufficient independent judgment to classify him as a supervisor. Furthermore, DiLucente challenges the classification of James Kuhn as a carpenter rather than a laborer. The Board deemed Kuhn’s testimony sufficient to classify him as a carpenter, which DiLucente improperly paid as a laborer. The Board's findings are supported by substantial evidence, and thus, the classification is upheld. The order of the Pennsylvania Prevailing Wage Appeals Board is affirmed, and DiLucente is directed to provide job classification and hours worked records, which he failed to do, necessitating the inspector to verify this information independently.
The review's scope is confined to assessing potential violations of constitutional rights, errors of law, or whether findings of fact are supported by substantial competent evidence. Substantial evidence is defined as relevant evidence that a reasonable mind could accept to support a conclusion, with the presence of conflicting evidence not negating its existence. Credibility determinations are left to the Secretary of Labor and Industry. The Board claims that an issue raised by DiLucente was not preserved in his petition for review and is therefore waived. However, due to the seriousness of the charge, the review will address DiLucente's challenge to his individual liability. The 'supervisory' exemption cited by DiLucente for Koroly is not included in the Act but was created in the Scalise case. The Act is a remedial statute, and exceptions to its provisions are to be interpreted narrowly, as demonstrated in Linde Enterprises, Inc. v. Prevailing Wage Appeals Board, where the 'supervisory' exemption was not applied to working foremen.
