J.P. Wescott v. Delaware County IU

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James P. Wescott, :

Appellant :

: No. 781 C.D. 2017

v. :

: Argued: October 19, 2017

Delaware County Intermediate Unit :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: November 28, 2017

James P. Wescott appeals from the June 5, 2017 order of the Court of

Common Pleas of Delaware County (trial court) denying his petition for preliminary

injunction.

Facts and Procedural History

Wescott is an electrical contractor and a resident of Delaware County and

the applicable school district. On May 23, 2017, Wescott filed a complaint in equity

and petition for injunctive relief with the trial court. Wescott sought to enjoin the

Delaware County Intermediate Unit (IU) from awarding public construction work at

the IU’s Aston Campus based on the IU’s failure to conduct an appropriate bidding

process, i.e., failing to solicit separate bids for plumbing, HVAC, and electrical work.

The work included the construction of two new additions that would be connected to

an existing structure, the removal of a boiler system in that structure, and a new

centralized HVAC system that would serve all three connected structures. The

approximate cost of the project was $38,000,000.00. Wescott alleged that separate bids

were required under section 1 of what is commonly referred to as the Separations Act,1

which provides, in pertinent part, as follows:

Hereafter in the preparation of specifications for the erection,

construction, and alteration of any public building, when the

entire cost of such work shall exceed four thousand dollars,

it shall be the duty of the architect, engineer, or other person

preparing such specifications, to prepare separate

specifications for the plumbing, heating, ventilating, and

electrical work; and it shall be the duty of the person or

persons authorized to enter into contracts for the erection,

construction, or alteration of such public buildings to receive

separate bids upon each of the said branches of work, and to

award the contract for the same to the lowest responsible

bidder for each of said branches.

71 P.S. §1618.

Wescott noted a similar provision at section 751(a.2) of the Public School

Code (Code) of 1949,2 which provides, in pertinent part, as follows:

All construction, reconstruction, repairs, maintenance or

work of any nature, including the introduction of plumbing,

heating and ventilating, or lighting systems, upon any school

building or upon any school property, or upon any building

or portion of a building leased under the provisions of section

703.1, made by any school district where the entire cost,

value or amount of such construction, reconstruction, repairs,

maintenance or work, including labor and material, shall

exceed a base amount of eighteen thousand five hundred

1

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

2

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §7-751(a.2).

2

dollars ($18,500), subject to adjustment under section 120,

shall be done under separate contracts to be entered into by

such school district with the lowest responsible bidder, upon

proper terms, after due public notice has been given asking

for competitive bids.

24 P.S. §7-751(a.2).

Wescott asserted that the IU was attempting to avoid the requirements of

the Separations Act and section 751(a.2) of the Code by awarding a single public

construction contract for new public works by use of the process allowed under the

Guaranteed Energy Savings Act (GESA), 62 Pa.C.S. §§3751-3758. The IU filed an

answer to Wescott’s complaint and petition, asserting that its actions were justified

under GESA.

Trial Court Order and Subsequent Opinion

By order dated June 5, 2017, the trial court denied Wescott’s petition for

injunctive relief, concluding that Wescott did not have a clear right to relief. Because

Wescott did not request a hearing with respect to his petition and the trial court

considered the only issue to be resolved to be a purely legal question which did not

require a hearing, the trial court based its order on the pleadings filed by the parties. In

its order, the trial court explained that section 3752 of GESA, 62 Pa.C.S. §3752, which

it found controlled the matter, defines the term “[e]nergy conservation measure”

(hereafter, ECM) as:

A program, facility alteration or technology upgrade

designed to reduce energy, water, wastewater or other

consumption or operating costs. The term may include,

without limitation:

...

3

(4) [h]eating, ventilating or air conditioning system

modifications, extension of systems to new or renovated

areas or system replacements.

(Trial court order at 2) (emphasis in original). Additionally, the trial court noted that

this definition also includes “[w]ater and sewer conservation measures, including,

without limitation, plumbing fixtures and infrastructure.” Id. The trial court described

the project as including a centralized HVAC system for all three structures “put in

space created by first demolishing a boiler system in an existing structure and replaced

with a centralized system centered in the existing structure which will then be

extended” to the new structures via “a labyrinth of pipes, coils, electrical wiring and

all the other attendant equipment and electrical supplies and hook-ups necessary for

the unified system.” Id. at 2-3. The trial court concluded that such a project fit squarely

within the provisions of GESA. Wescott did not request reconsideration of this order,

but instead filed a notice of appeal with the trial court.

In a subsequent opinion in support of its order, the trial court, relying on

the Statutory Construction Act of 1972, 1 Pa.C.S. §§1501-1991, concluded that GESA

was the controlling statute and acted as an exception to the requirements of the

Separations Act. In this regard, the trial court noted that GESA was enacted after the

Separations Act and described GESA’s provisions as more specific than the general

provisions of the Separations Act. The trial court reiterated that the current project

qualifies as an ECM under subsection (4) of its definition as set forth in section 3752

of GESA. Thus, the trial court held that “the activity which [Wescott] sought to restrain

was not actionable and his right to relief was not clear thereby leading to the conclusion

that he was not likely to prevail on the merits,” a necessary element for preliminary

injunctive relief. (Trial court op. at 5-6.)

4

Discussion

Wescott thereafter filed a notice of appeal to this Court.3 On appeal,4

Wescott argues that the trial court erred in denying his request for a preliminary

injunction. More specifically, Wescott argues that the trial court erred in: failing to

require the IU to publicly bid and award the HVAC, electrical, and plumbing contracts

in accordance with the Separations Act; holding that the Separations Act was

superseded by GESA; and holding that the requirements for implementation of GESA

were met.5

Preliminary Injunction

In order to obtain a preliminary injunction, a petitioner must establish: (1)

relief is necessary to prevent immediate and irreparable harm that cannot be adequately

compensated by money damages; (2) greater injury will occur from refusing to grant

the injunction than from granting it; (3) the injunction will restore the parties to their

status quo as it existed before the alleged wrongful conduct; (4) the petitioner is likely

3

Shortly after filing his notice of appeal, Wescott filed an application for injunctive relief

pending our review under Pa.R.A.P. 1732. However, by single-Judge memorandum opinion and

order dated August 1, 2017, this author denied said application.

4

We note that on appeal from the grant or denial of a preliminary injunction, a reviewing

court does not inquire into the merits of the controversy, but only examines the record to determine

if there were any apparent reasonable grounds for the action of the court below. Roberts v. Board of

Directors of the School District of Scranton, 341 A.2d 475, 478 (Pa. 1975). Only if it is apparent that

no grounds exist to support the decree, or that the rule of law relied upon was palpably erroneous or

misapplied, will the court interfere with the decision of the common pleas court sitting in equity. Id.

5

Contrary to Wescott’s argument, the trial court never held that the Separations Act was

superseded by GESA. Rather, the trial court noted that the Separations Act was applicable to the IU

and that GESA acted merely as an exception to that Act.

5

to prevail on the merits; (5) the injunction is reasonably suited to abate the offending

activity; and, (6) the public interest will not be harmed if the injunction is granted.

Berwick Township v. O’Brien, 148 A.3d 872, 890 (Pa. Cmwlth. 2016), appeal denied,

___ A.3d ___ (Pa., No. 923 MAL 2016, filed May 17, 2017). To establish a likelihood

of prevailing on the merits, a petitioner must show that the activity which he seeks to

restrain is actionable and that his right to relief is clear. Firearm Owners Against Crime

v. Lower Merion Township, 151 A.3d 1172, 1175 (Pa. Cmwlth. 2016).

Public Bidding of HVAC, Electrical, and Plumbing Contracts

Wescott first argues that the trial court erred in failing to require the IU to

separately and publicly bid the HVAC, electrical, and plumbing contracts in

accordance with the Separations Act.

The parties agree that the provisions of the Separations Act, and similar

provisions later incorporated into the Code, generally apply to the IU. See Trial court

op. at 2. These provisions clearly require separate specifications/bids for plumbing,

heating, ventilating, and electrical work in relation to a school building or school

property and mandate awards of contracts for such services to the lowest responsible

bidder. However, a question remains as to whether GESA acts as an exception to these

bidding requirements, as the trial court found. Section 3753 of GESA addresses

contracting procedures under GESA, and provides, in pertinent part, as follows:

(a) General rule. — Notwithstanding any other contrary or

inconsistent provision of law, a governmental unit may enter

into a guaranteed energy savings contract with a qualified

provider in accordance with the provisions of this subchapter

or in accordance with another statutorily authorized

procurement process.

6

(b) Guaranteed energy savings contract. — If in

accordance with applicable law the award of a contract by a

governmental unit requires action at a public meeting, a

governmental unit may award a guaranteed energy savings

contract at a public meeting if it has provided public notice

in the manner prescribed under 65 Pa.C.S. Ch. 7 (relating to

open meetings), the notice including the names of the parties

to the contract and the purpose of the contract. For

governmental units that are not required to take actions on

contracts at public meetings, the governmental unit may

award a guaranteed energy savings contract in accordance

with the procedures adopted by the governmental unit and

the requirements of all applicable laws.

(c) Competitive sealed proposals. — For the purpose of

entering into a guaranteed energy savings contract, all

governmental units are authorized to utilize the competitive

sealed proposal method of procurement. The governmental

unit shall evaluate any proposal that meets the requirements

of the governmental unit and is timely submitted by a

qualified provider. The request for proposals shall be

announced through a public notice from the governmental

unit which will administer the program. The request for

proposals shall provide all interested parties with sufficient

information necessary to submit a timely and responsive

proposal.

(d) Selection and notice. — The governmental unit shall

select the qualified provider that best meets the needs of the

governmental unit in accordance with criteria established by

the governmental unit. . . After reviewing the proposals . . .

a governmental unit may enter into a guaranteed energy

savings contract with a qualified provider if it finds that the

amount it would spend on the energy conservation measures

recommended in the proposal would not exceed the amount

of energy, water or wastewater cost savings, operational cost

savings or revenue increases resulting from the energy

conservation measures within a period not to exceed 20 years

from the date of final installation. . . .

7

62 Pa.C.S. §3753(a)-(d).6

Generally, if two statutes are in dispute, we turn to the Pennsylvania rules

of statutory construction to resolve the dispute. In such cases, section 1933 of the

Statutory Construction Act of 1972 states that:

Whenever a general provision in a statute shall be in conflict

with a special provision in the same or another statute, the

two shall be construed, if possible, so that effect may be

given to both. If the conflict between the two provisions is

irreconcilable, the special provisions shall prevail and shall

be construed as an exception to the general provision, unless

the general provision shall be enacted later and it shall be the

manifest intention of the General Assembly that such general

provision shall prevail.

1 Pa.C.S. §1933; see also In re Downingtown, 161 A.3d 844, 871 (Pa. 2017) (when

two statutes are irreconcilable, the statute which is more specific prevails).

The trial court in this case concluded that the Separations Act and GESA

were in conflict, applied section 1933 of the Statutory Construction Act of 1972, and

held that the later enacted and more specific GESA provisions trump the general

provisions of the Separations Act. Because the project qualified as an ECM under

section 3752 of GESA, the trial court concluded that Wescott’s claim was not

actionable and his right to relief was not clear, and, therefore, Wescott was not likely

6

While these provisions of GESA are found in Title 62 of Purdon’s Consolidated Statutes,

generally known as the Commonwealth Procurement Code, Wescott notes that another statute of the

same name is found in Title 73 of Purdon’s, relating to Trade and Commerce. See Act of May 10,

1996, P.L. 153, 73 P.S. §§1646.1-1646.8. The provisions of both statutes are nearly identical, but

there is some variation in the definition sections of each statute. While Wescott argued before the

trial court that the latter provisions were applicable to the IU in the present case, he concedes in his

brief that the IU would fit within the definition of a “government unit” under section 3752 of GESA,

62 Pa.C.S. §3752. Indeed, the trial court found the Commonwealth Procurement Code provisions of

GESA to be applicable to the IU herein.

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to succeed on the merits. As a result, the trial court concluded that Wescott could not

meet all of the elements necessary for preliminary injunctive relief.

However, contrary to the trial court, we are not persuaded that the

Separations Act and GESA are in conflict. Instead, we believe that a compelling

argument can be made that these statutes can function together such that effect could

be given to both, thereby obviating the need for any statutory construction analysis.

The Separations Act generally requires separate bidding and award of contracts to the

lowest responsible bidder for any construction or alteration of a public building that

exceeds $4,000.00. GESA’s application is very narrow and limited to specific

situations involving energy, water, or wastewater projects which would result in a cost

savings that would effectively pay for the projects themselves. The fact that a project

may include an element of energy, water, or wastewater savings does not make the

entire project subject to GESA. Indeed, in this case, the IU could have bid out the

construction of the additions separately in accordance with the Separations Act and

limited the GESA project to demolition of the existing boiler system and replacement

with a centralized HVAC system.

Nevertheless, while we disagree with the trial court’s conclusions in this

regard, we are constrained to affirm the trial court’s denial of the preliminary injunction

on other grounds, i.e., Wescott failed to establish that greater injury will occur from

refusing to grant the injunction and that the public interest will not be harmed if an

injunction were to be granted. Our Supreme Court has stressed that “For a preliminary

injunction to issue, every one of these prerequisites must be established; if the

petitioner fails to establish any one of them, there is no need to address the others,”

County of Allegheny v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988), and that the

“burden is on the party who requested preliminary injunctive relief,” Warehime v.

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Warehime, 860 A.2d 41, 47 (Pa. 2004). Here, Wescott failed to meet at least two of

the required elements.

More specifically, the project here involves the upfront expenditure of a

significant amount of public funds, with an estimated cost of $38,000,000. The grant

of an injunction will result in significant delays in the completion of the project, which,

in turn, will undoubtedly result in increased costs to the IU, including, inter alia, costs

for new specifications for bids, mobilization costs, and material costs. Moreover, any

delay in the completion of the project would require the IU to sustain additional and

substantial facility costs to house and teach its students. Indeed, during previous

argument with respect to Wescott’s application for injunctive relief pending our

review, the IU noted that it currently leases outside facilities, that said leases are set to

expire as of July 1, 2018, the project’s expected completion date, and that it would cost

approximately $2 million to extend these leases for an additional year. Wescott did

not dispute these costs.

Accordingly, the trial court’s order is affirmed, on the other grounds set

forth above.7

________________________________

PATRICIA A. McCULLOUGH, Judge

7

Based upon our determination above, we need not reach Wescott’s remaining argument that

the project did not meet the requirements for implementation under GESA.

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James P. Wescott, :

Appellant :

: No. 781 C.D. 2017

v. :

:

Delaware County Intermediate Unit :

ORDER

AND NOW, this 28th day of November, 2017, the order of the Court of

Common Pleas of Delaware County, dated June 5, 2017, is hereby affirmed, albeit on

the other grounds discussed in the opinion.

________________________________

PATRICIA A. McCULLOUGH, Judge