500 James Hance Court v. Pennsylvania Prevailing Wage Appeals Board

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent.

In support of its position, the majority relies upon Mosaica Education, Inc. v. Pennsylvania Prevailing Wage Appeals Board, (Mosaica II), 925 A.2d 176 (Pa.Cmwlth.2007), petition for allowance of appeal denied, 598 Pa. 744, 953 A.2d 543 (2008). However, I find Mosaica II readily distinguishable from the instant matter.

In Mosaica II, we examined the issue of whether renovations of the building ultimately used by the Ronald H. Brown Charter School were subject to prevailing wages. The building renovation contract was entered into by the management company with a third-party contractor, approximately three weeks before the charter school executed a management agreement and building lease. Mosaica II, 925 A.2d at 184. The charter school had no say concerning the space and performance goals. Id. at 187. We rejected the argument that the company providing management services to the charter school was a “contractor” for purposes of the Pennsylvania Prevailing Wage (Wage Act).1 Id. at 183-184. At the time the renovations were conducted, the management company did not have a formal contract with the school and used no public funds for the renovations. Id. at 184. Thus, we determined that the renovation of the school was not a public work under the Wage Act. Id. at 187.

Unlike Mosaica II, the entity of 500 James Hance Court, LLC, intended to construct a facility solely for the Collegium Charter School and had a formal relationship with the school. Originally, construction of the building shell and fit out for the Collegium Charter School were established under one contract, which was entered into on September 25, 2006. Reproduced Record (R.R.) at 67a. The lease for the charter school was entered on October 1, 2006. The various leases and construction contracts all listed the project as the “Collegi-um Charter School” before the work was divided in March 2007. This building would not have been built but for the Collegium Charter School occupancy.

The construction contract was amended to divide the work on March 1, 2007. This occurred after a determination by the Bureau of Labor Law Compliance (Bureau) that prevailing wages for the construction of the entire project would be issued.2

The Prevailing Wage Appeals Board (Board) found that the contract was divided to evade prevailing wage requirements. As the Board opined, “[t]his is not a situation where the landlord executed a con*805struction contract before having a lease in hand, and thus embarked on construction without any legal commitment by or recourse against the ultimate tenant.” Board Op. at 10. The property was committed to be used as a charter school before the construction agreement was amended and the project divided into two phases.

The exceptions to prevailing wage coverage are to be narrowly construed because of the remedial nature of the Wage Act. DiLucente Corp. v. Pennsylvania Prevailing Wage Appeals Board, 692 A.2d 295, 299 n. 5 (Pa.Cmwlth.1997). Given the distinctions between this case and Mosaica II, I cannot agree that an exception to the Wage Act should apply here. For these reasons, I believe the Board was correct in its determination that the Wage Act applied to the construction of the building shell. Accordingly, I would affirm the order of the Board.

. Act of August 15, 196], P.L. 987, as amended, 43 P.S. § 165-1-165-17.

. By letter dated October 27, 2007, the Bureau determined that the Wage Act applied to the construction of the building shell and fit out for the Collegium Charter School. A notice of grievance was filed by Petitioners on December 7, 2006.