Opinion
Argued December 8, 1977
January 10, 1978.
Employment — Pennsylvania Prevailing Wage Act, Act 1961, August 15, P.L. 987 — Intentional violation — Remand — Opportunity to present evidence — Clerical oversight.
1. In a case in which the Secretary of Labor and Industry has determined that an employer has intentionally violated provisions of the Pennsylvania Prevailing Wage Act, Act 1961, August 15, P.L. 987, and the employer is as a result barred from public works projects for three years, it is appropriate to remand the case back to the hearing stage to give the employer an opportunity to present evidence, when the employer has a history of compliance with statutory requirements and failed to appear initially and present evidence because of a clerical oversight. [292-3]
Argued December 8, 1977, before Judges WILKINSON, JR., ROGERS and DiSALLE, sitting as a panel of three.
Appeal, No. 1965 C.D. 1976, from the Order of the Pennsylvania Prevailing Wage Appeals Board in case of In Re: Appeal of Ronca Utilities Construction Company, Inc., dated October 15, 1976.
Wage violation charge filed by Department of Labor and Industry. Intentional violation found. Penalty imposed by Secretary of Labor and Industry. Employer appealed to the Pennsylvania Prevailing Wage Appeals Board. Decision affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Paul C. Hensel, with him Maloney, Danyi, Goodman, Hensel Center, for appellant.
Herbert S. Cohen, Assistant Attorney General, with him Charles S. Solit, General Counsel, for appellee.
This is an appeal from the Order of the Pennsylvania Prevailing Wage Appeals Board (Board), dated October 15, 1976, affirming a determination by the Secretary of Labor and Industry (Secretary) finding that the petitioner had intentionally violated Section 5 of the Pennsylvania Prevailing Wage Act (Act), Act of August 15, 1961, P.L. 987, as amended, 43 P. S. § 165-5. We remand.
The chairman and two members of the Board voted to affirm and one member dissented.
In 1972 petitioner was a subcontractor on a public works project at East Stroudsburg State College in Monroe County. An audit of petitioner's payroll records and interviews with workmen led to an allegation by the Department of Labor and Industry that petitioner failed to pay predetermined prevailing wages to three workmen. After formal notice, a hearing was held on April 26, 1976 where the Commonwealth presented evidence but the petitioner failed to appear. The hearing examiner concluded that there was an underpayment and found this violation was intentional which was concurred in by the Secretary and resulted in a decision that petitioner be barred from future public work projects for a period of three years as mandated by Section 11(e) of the Act, 43 P. S. § 165-11(e). On appeal to the Board, counsel for petitioner explained the failure to appear at the hearing was due to a clerical oversight and asked the Board to remand the matter back to the hearing stage so that the contractor could present evidence on the alleged violation.
Due to all the circumstances in this case, including the harsh penalty imposed by Section 11(e) of the Act, the mandatory nature of the provision, petitioner's prior history of compliance, and facts relating to its failure to appear at the first hearing, we believe petitioner should be given an opportunity to present evidence regarding these violations at a second hearing.
Accordingly, we will enter the following
ORDER
AND NOW, January 10, 1978, the Order of the Prevailing Wage Appeals Board, dated October 15, 1976, is hereby reversed and the case remanded for an evidentiary hearing consistent with this opinion.