Mechanical Contractors Ass'n v. Commonwealth, Department of Education

DISSENTING OPINION BY

Judge COHN JUBELIRER.

Respectfully, I dissent. I do not agree that a statutorily authorized waiver, exercised on a case-by-case basis, “supersedes” or “abrogates” what is colloquially known as the Separations Act.1 In order to give effect to all the statutory provisions at issue, I would allow the Secretary of Education (Secretary) to grant the disputed waivers.

Whether the Secretary can waive compliance with Section 1 of the Separations Act involves an examination of the interplay between four different statutory provisions. First, Section 1 of the Separations Act requires separate bids and contracts for “the erection, construction, or alteration of public buildings.” The second statutory provision is Section 751 of the Public School Code of 1949 (School Code),2 which requires separate contracts for “[a]ll construction, reconstruction, re*1154pairs, maintenance or work ... of any nature upon any school building.” The Separations Act requirement of separate bids and contracts for public buildings is thus incorporated, in substance, into Section 751 of the School Code, which mandates separate bids and contracts for school buildings, a type of public building.

The General Assembly recently enacted an amendment to the School Code known as the Education Empowerment Act.3 Section 1714-B of the Education Empowerment Act, the third relevant statute statutory provision, authorizes the Secretary to issue waivers “to any provision of [the School Code].” 24 P.S. § 17-1714(B)(a). This Section also contains a very specific list of School Code provisions that absolutely cannot be waived. Importantly, the separations requirement in Section 751 of the School Code is not on that list. Thus, under Section 1714-B of the Education Empowerment Act, the Secretary is authorized to waive the separations requirement in the School Code, and the requirements of the Separations Act, to the extent those requirements are incorporated by inference into Section 751 of the School Code.

Complicating the analysis is Section 1715-B of the Education Empowerment Act, the fourth relevant statutory provision. 24 P.S. § 17-1715(B). Section 1715-B, in pertinent part, states:

Nothing in this article shall be construed to supersede or abrogate the following:
(3) Section 1 of the act of May 1, 1913 (P.L. 155, No. 104), entitled “An act regulating the letting of certain contracts for the erection, construction, and alteration of public buildings [i.e., the Separations Act],” the act of August 15, 1961 (P.L. 987, No. 442), known as the “Pennsylvania Prevailing Wage Act,” and the act of March 3, 1978 (P.L. 6, No. 3), known as the “Steel Products Procurement Act.”
(Emphasis added.)

The majority defines “supersede” as “to set aside, to force out of use as inferior, or to displace in favor of another,” and defines “abrogate” to mean “abolish ... annul, cancel, revoke, repeal or destroy.” (Op., p. 1151). While I do not disagree with these definitions, I do, respectfully, disagree that the Secretary’s waiver falls within these definitions. ■

The Secretary’s authorization to grant a waiver on a case-by-case basis does not “supersede” or “abrogate” the Separations Act, as those terms are defined, because even when a waiver is granted, the Separations Act, itself, remains viable. The Secretary, in accordance with Section 1714-B of the Empowerment Act, is permitted to issue a waiver only if doing so “will enable the school district to improve its instructional program or operate in a more effective, efficient or economical manner.” There may well be circumstances where the Secretary, in his or her discretion, concludes that a waiver is inappropriate. In such a ease, clearly, the Separations Act requirements would apply as they would in all situations where no waiver is even sought. Therefore, in my view, the Secretary’s action in issuing case-by-case waivers does not supersede {i.e., set aside, force out of use, displace) or abrogate (i.e., annul, cancel, revoke, repeal or destroy) the Separations Act.

This Court is mandated to construe statutory law, if possible, to give effect to all provisions of a statute. See Black v. Billy Penn Corp., 72 Pa.Cmwlth. 628, 457 A.2d 192, 193 (1983); see also Section 1922(2) of *1155the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(2). My interpretation of the applicable law does so. In addition, my interpretation allows for an effectuation of the stated purpose of the Education Empowerment Act, which is “[to] enable the school district to improve its instructional program or operate in a more effective, efficient or economical manner.” 24 P.S. § 17-1714-B(a).

Accordingly, because I believe that Section 1715-B of the Empowerment Act allows the Secretary to issue, on a case-by-case basis, waivers of Separations Act requirements, I would deny Petitioner’s application for summary relief and grant Respondents’ cross-application for summary relief.

Judge LEADBETTER did not participate in the decision in this case.

. Act of May 1, 1913, P.L. 155, as amended, 71 P.S. § 1618.

. Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 7-751(a).

. Act of May 10, 2000, P.L. 44, as amended, 24 P.S. §§ 17-1701-B — 17-1716-B.