Opinion

A. Abbonizio & C. Abbonizio Contractors, Inc. v. City of Philadelphia & Thomas P. Carney, Inc.

Court: Commonwealth Court of Pennsylvania
Filed: Jun 5, 2020
Status: Unpublished
On the bench: Covey, J.
Cited by: 0 cases
Authority: More cited than 11.8%

holding that where a statute prescribes certain activity, the court need only make a finding that the illegal activity occurred to conclude that there was irreparable injury for purposes of issuing a preliminary injunction

How later courts described this case

holding that where a statute prescribes certain activity, the court need only make a finding that the illegal activity occurred to conclude that there was irreparable injury for purposes of issuing a preliminary injunction
affirming issuance of a preliminary injunction and finding that irreparable harm was presumed where there was a credible violation of the state consumer protection statute

Written by the judges who cited it.

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Abbonizio and C. Abbonizio :

Contractors, Inc., :

Appellants :

v. :

City of Philadelphia and Thomas P. : No. 974 C.D. 2019

Carney, Inc. : Submitted: May 11, 2020

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: June 5, 2020

Anthony Abbonizio and C. Abbonizio Contractors, Inc. (collectively,

Appellants) appeal from the Philadelphia County Common Pleas Court’s (trial court)

July 8, 2019 order denying their Emergency Petition for Preliminary Injunction

(Petition). Therein, Appellants sought to enjoin the City of Philadelphia (City) and

Thomas P. Carney, Inc. (Carney) from proceeding with construction of the City

Water Department’s Residuals Lagoon Closure Plan and Raw Water Basin Dredging

at Queen Lane Water Treatment Plant (the Project) because the City awarded Carney

the public contract in violation of Section 17-109 of The Philadelphia Code

(Philadelphia Code).1 The issue before this Court is whether the trial court erred by

denying Appellants’ Petition. Upon review, we reverse.

Phila., Pa., The Philadelphia Code § 17-109 (2016).

Background

In January 2019, the City solicited sealed bids for general construction

services pursuant to Bid No. 2222/B1904380 (the Bid) relating to the Project. See

Petition ¶ 9 (Reproduced Record (R.R.) at 30a); see also Petition Ex. A (R.R. at 63a-

68a).2 On February 21, 2019, Appellants submitted a sealed bid for the Project in the

amount of $17,340,580.00. See Petition ¶¶ 10-11 (R.R. at 30a). On that same date,

the City publicly opened the sealed bids. Appellants were the lowest bidder, and

Carney was the second lowest bidder at $17,585,655.05. See Petition ¶¶ 14-15 (R.R.

at 31a).

On April 1, 2019, the City awarded the contract to Appellants and issued

a Notice of Award. See Petition ¶ 22 (R.R. at 32a); see also Petition Ex. E (R.R. at

136a-138a). On that same date, the City and Appellants entered into a Go-Ahead

Agreement.3 See Petition ¶ 23 (R.R. at 32a); see also Petition Ex. F (R.R. at 140a).

Thereafter, Appellants began working on the Project. See Appellants’ First

Emergency Application for Injunction Pending Appeal ¶ 32.

In mid-April, Appellants inquired of the City regarding the notice to

proceed and other requisite Project paperwork. See Petition ¶ 25 (R.R. at 32a). In

response, the City notified Appellants that there had been a challenge made to its

contract award to Appellants. See Petition ¶ 26 (R.R. at 32a). By April 16, 2019

Appellants’ Petition is supported by City taxpayer/C. Abbonizio Contractors, Inc. (CAC)

vice president Anthony Abbonizio’s and CAC president Peter Abbonizio’s affidavits. See Petition

Exs. 1, 2 (R.R. at 47a-61a). For ease of reference, the documents attached as exhibits thereto and

incorporated therein by reference are herein referred to as Petition exhibits.

The Go-Ahead Agreement provides, in relevant part:

[Appellants] ha[ve] agreed with the [City] to begin work in advance

of full conformance of Contract Number 19-5992 on a mutually

agreed start date. It is understood that no payments can be made until

the contract is fully conformed and the purchase order issued.

Petition Ex. F (R.R. at 140a).

letter, Appellants informed the City of its continued reliance on the City’s

representations, and that it was incurring costs due to the award and the City’s

subsequent direction. See Petition ¶ 27 (R.R. at 32a); see also Petition Ex. G (R.R. at

142a-143a).

On April 17, 2019, the City directed Appellants to cease all work on the

Project pending further notification. See Petition ¶ 28 (R.R. at 32a). By April 26,

2019 letter, the City informed Appellants that, since Carney was a qualified local

business entity (LBE) certified by the Commissioner of the City’s Procurement

Department (Department) pursuant to Section 17-109(3) of the Philadelphia Code,

Carney was entitled to the City’s LBE preference for the Project, which reduced its

bid by 5%. See Section 17-109(5)(d)(.3) of the Philadelphia Code, Phila. Code § 17-

109(5)(d)(.3); see also Petition Exs. H (R.R. at 147a-148a), J (R.R. at 161a-162a).

After the City applied the LBE preference, Carney’s bid was reduced to

$16,703,372.30, which made Carney the lowest bidder on the Project. See Petition ¶¶

16-18 (R.R. at 31a); see also Petition Exs. B (R.R. at 70a-74a), H at 1 (R.R. at 147a).

By May 2, 2019 letter, Appellants informed the City that if Appellants

did not receive a notice to proceed by May 8, 2019, they would seek to enjoin the

City from entering into any contract for the Project. See Petition ¶¶ 32-34 (R.R. at

33a); see also Petition Exs. I (R.R. at 150a-154a), J (R.R. at 160a-162a). Appellants

claimed that, since Carney failed to submit with its bid the current certification(s) and

recent affidavit(s) of the LBE subcontractor(s) it intended would assist Carney to

perform 51% of the work on the Project, as required by Section 17-109(5)(a)(.4) of

the Philadelphia Code,4 Carney was not entitled to the bid preference. See id.

Section 17-109(5)(a) of the Philadelphia Code specifies:

On any contract for which the City secures competitive bids pursuant

to Section 8-200(1) of the Home Rule Charter, the Commissioner

On May 17, 2019, Appellants emailed the City seeking the City’s

position on Appellants’ May 2, 2019 letter. See Petition Ex. J (R.R. at 160a). The

City responded that its April 26, 2019 letter was its official position. See Petition ¶

35 (R.R. at 33a); see also Petition Ex. J (R.R. at 160a). On May 20, 2019, Appellants

requested from the City a copy of Carney’s LBE certification. See Petition ¶ 36 (R.R.

at 33a); see also Petition Ex. K (R.R. at 163a). The City did not respond to

Appellants’ request. See Petition ¶ 37 (R.R. at 34a). On May 22, 2019, the City

awarded the contract for the Project to Carney. See R.R. at 329a.

shall award a [5%] bid preference . . . to any Local Business that

submits with its bid:

....

(.3) A certification by the [LBE] that, throughout the

entirety of the contract:

(A) The [LBE] or a subcontractor will perform the

majority of any work on the subject contract within the

geographic limits of the City;

(B) The [LBE] or a subcontractor will maintain within

the City a majority of the inventory or equipment that

will be used on the contract; and

3(b), and at least one of the requirements identified in

subsection 3(c).

(.4) If the [LBE] relies upon a subcontractor to

meet the requirements in subparagraph (a)(.3)(A) or

(a)(.3)(B) of this subsection:

(A) A current certification from the Commissioner

that the subcontractor itself is a[n] [LBE]; and

(B) The subcontractor’s most recent annual affidavit

provided to the Commissioner pursuant to subsection

4(a).

Phila. Code § 17-109(5)(a) (emphasis added).

Facts

On May 28, 2019, Appellants filed a Complaint in Equity (Complaint),

the Petition, and a memorandum of law in support of the Petition in the trial court.5

See R.R. at 25a-185a, 189a-316a. On May 29, 2019, after an emergency hearing, see

R.R. at 629a-648a, the trial court granted the Petition, thereby enjoining the City from

awarding the contract to Carney or any other bidder. See R.R. at 186a-188a.

On June 5, 2019, Carney filed an Emergency Motion for

Reconsideration (Reconsideration Motion), claiming that Carney had not received

notice of the May 29, 2019 emergency hearing. See R.R. at 317a-523a. On June 10,

2019, Appellants opposed Carney’s Reconsideration Motion. See R.R. at 524a-570a.

On June 20, 2019, Carney filed a reply brief. See R.R. at 571a-580a. On June 21,

2019, Appellants filed a sur-reply brief. See R.R. at 581a-588a. On July 2, 2019, the

City joined Carney’s Reconsideration Motion. See R.R. at 591a-592a.

On July 8, 2019, the trial court granted Carney’s Reconsideration

Motion, see R.R. at 594a, reheard argument on Appellants’ Petition, see R.R. at 649a-

676a, and denied the Petition. See R.R. at 593a. On July 23, 2019, Appellants filed a

notice of appeal from the trial court’s order and an Emergency Application for

Injunction Pending Appeal (First Emergency Application) with this Court. See R.R.

Carney repeatedly references in its brief that Appellants waited over a month before filing

the emergency Petition. However, the record reflects that between April 26, 2019 (when the City

notified Appellants that it should award the contract to Carney), and May 28, 2019 (when

Appellants filed the Complaint and Petition), Appellants notified the City (by May 2, 2019 letter) of

their position and demanded the notice to proceed from the City, but the City did not respond. After

Appellants followed up on May 17, 2019, the City confirmed its position; on May 20, 2019,

Appellants requested from the City a copy of Carney’s LBE certification, which the City

disregarded; on Wednesday, May 22, 2019, the City officially awarded Carney the contract.

Appellants filed the Petition a mere three business days later, on Tuesday, May 28, 2019 (Monday

May 27, 2019, was a court holiday). Under the circumstances, it cannot be said that Appellants

waited over a month and, thus, slept on their rights.

at 596a-612a. On July 26, 2019, the City issued Carney a Notice to Proceed. See

Hearing Ex. P-3.

On August 7, 2019, this Court conducted a hearing on Appellants’ First

Emergency Application. By August 15, 2019 order, this Court denied the First

Emergency Application because Appellants failed to first seek a stay from the trial

court pending appeal, as required by Pennsylvania Rule of Appellate Procedure

(Rule) 1732. See R.R. at 624a-628a. Also on August 15, 2019, Carney and the City

held a pre-construction meeting. See Original Record (O.R.) Item 33 ¶ 3.

On August 23, 2019,6 Appellants filed in the trial court an Emergency

Motion for Stay and Injunction Pending Appeal (Stay Motion) “pursuant to [Rule]

1732,” O.R. Item 29 at 1, asking the trial court to “enter an [o]rder staying this action

and enjoining the [City] and [Carney] from proceeding with construction of the

Project in violation of public bidding laws pending a determination of [Appellants’]

appeal on the merits.” O.R. Item 29 at 21; see also O.R. Item 29 at 2. That same

day, the trial court issued the following ex parte order: “The emergency relief

requested is hereby DENIED; and [] [t]he underlying [Stay M]otion shall proceed

through the regular court process.” Trial Ct. August 23, 2019 Order. On August 27,

2019, Carney filed an answer, new matter and counterclaim to Appellants’

Complaint.7 See O.R. Item 31.

On August 28, 2019, the trial court issued its opinion in support of its

July 8, 2019 order pursuant to Rule 1925(a), concluding therein that it properly

denied Appellants’ Petition because Appellants failed to prove both their likelihood

Appellants filed the Stay Motion in the trial court on August 16, 2019. The delay occurred

because an electronic filing issue on August 16, 2019 prevented the trial court from hearing the Stay

Motion on an emergent basis; therefore, Appellants withdrew the Stay Motion and refiled it on

August 23, 2019. See Second Emergency Appl. for Stay and Injunction Pending Appeal ¶¶ 65, 67-

68.

Carney’s counterclaim was for tortious interference with contractual relations and

commercial disparagement. See O.R. Item 31.

of prevailing on the merits and that an injunction is necessary to prevent immediate

and irreparable harm that damages cannot adequately compensate. See Trial Ct.

August 28, 2019 Op.; R.R. at 618a-622a.

On September 11, 2019, Appellants filed a Second Emergency

Application for Stay and Injunction Pending Appeal (Second Emergency

Application) in this Court, wherein they declared that they filed the Stay Motion in

the first instance to the trial court which denied them the requested emergent relief.

They further asserted that because the trial court on multiple occasions denied them

the requested emergent relief and, due to the time-sensitive nature of the matter, it

was not practicable to continue to seek injunctive relief from the same trial court.

Based thereon, in their Second Emergency Application, Appellants asked this Court

to: (1) stay the underlying action in the trial court; and (2) enjoin the City and Carney

from proceeding with construction of the Project. On September 19, 2019, the City

filed its Response to Appellants’ Second Emergency Application, and Carney filed its

answer and a brief opposing the Second Emergency Application. Carney represented

in its opposing brief that it had “mobilized equipment to the site, had . . . several other

meetings on-site with the [City’s] Water Department, ordered materials[,] and [wa]s

actively engaged with personnel working on-site.” Carney Br. in Opp’n to Second

Emergency Appl. at 7.

On September 30, 2019, after consideration of Appellants’ Second

Emergency Application and the City’s and Carney’s opposition thereto, this Court

granted the Second Emergency Application.8 Therein, this Court concluded that

Appellants satisfied both the Pennsylvania Public Utility Commission v. Process Gas

Consumers Group, 467 A.2d 805 (Pa. 1983), and Summit Towne Centre, Inc. v. Shoe

This Court also held that Appellants satisfied the requirements of Rule 1732 and that this

controversy was not rendered moot by the City awarding the contract for the Project to Carney. See

September 30, 2019 Op. at 5, 8.

Show of Rocky Mount, Inc., 828 A.2d 995 (Pa. 2003), criteria for an injunction

pending appeal.9 See Tri-State Asphalt Corp. v. Dep’t of Transp., 582 A.2d 55 (Pa.

Cmwlth. 1990). Accordingly, this Court enjoined the City and Carney from

proceeding with the Project during the pendency of the instant appeal.10

On October 4, 2019, Carney filed an Emergency Application for

Reconsideration of this Court’s September 30, 2019 Order Granting Preliminary

Injunctive Relief Ancillary to Appeal (Reconsideration Application).11 See

Reconsideration Appl. at 2, 5, 7.

On October 10, 2019, Appellants responded, inter alia, that Carney

failed to meet the legal standard for reconsideration; the Reconsideration Application

must be denied because no new facts warranted consideration and Carney and the

City proceeded with the Project, thereby creating the circumstances of which Carney

complained. See Appellants’ Br. in Opp’n to Reconsideration Appl. at 5, 7, 13, 15.

On October 11, 2019, Carney filed a reply brief in support of its Reconsideration

Application (Carney Reconsideration Application Brief), in which the City joined.

This Court expressly determined that

Appellants are likely to prevail on the merits and have a clear right to

relief, there exists immediate and irreparable harm, Appellants will

suffer irreparable injury if the injunction is denied, greater injury

would result from refusing the injunction, issuing the injunction will

not substantially harm other interested parties, the injunction will

maintain the existing status quo, the injunction is reasonably suited to

abate the offending activity, and it will not adversely affect the public

interest[.]

September 30, 2019 Op. at 23.

Governor Tom Wolf’s March 19, 2020 Executive Order, which compelled closure of the

physical operations of all non-life sustaining Commonwealth businesses to reduce the spread of

COVID-19, may have also temporarily precluded Carney’s work on the Project.

The Reconsideration Application was supported by Carney’s president Robert Carney’s

affidavit. See Reconsideration Appl. Ex. A.

On October 23, 2019, this Court denied Carney’s Reconsideration

Application, concluding, among other things, that since this Court did not overlook or

misapprehend record material facts, Carney is not entitled to reconsideration. See

October 23, 2019 Op.

On November 12, 2019, Appellants filed their appellate brief with this

Court. On January 24, 2020, Carney filed its brief. Also on January 24, 2020, the

City notified the Court that the City does not take a position in this matter and would

not be filing a brief. On February 7, 2020, Appellants filed a reply brief.

Discussion

In the Petition, Appellants sought to “enjoin[] the City from awarding a

contract to [Carney] for the [Project] in violation of public bidding laws pending a

determination of the claims on the merits.” Petition at 17.

Initially,

[p]reliminary injunctive relief is an equitable remedy

available in equity actions. Barcia v. Fenlon, 37 A.3d 1 . . .

(Pa. Cmwlth. 2012). ‘A preliminary injunction is designed

to preserve the subject of the controversy in the condition in

which it is when the order is made, it is not to subvert, but

to maintain the existing status quo until the legality of the

challenged conduct can be determined on the merits.’

Greater Nanticoke Area Educ[.] Ass[’]n v. Greater

Nanticoke Area Sch[.] Dist[.], 938 A.2d 1177, 1183 (Pa.

Cmwlth. 2007).

Our review of a trial court’s order granting or denying

preliminary injunctive relief is ‘highly deferential.’ Summit

Towne, . . . 828 A.2d [at] 1000 . . . . ‘[W]e do not inquire

into the merits of the controversy, but only examine the

record to determine if there were any apparently reasonable

grounds for the action of the court below.’ Id. (quoting

Roberts v. B[d.] of Dir[s.] of Sch[.] Dist[.], . . . 341 A.2d

475, 478 ([Pa.] 1975)). Only when it is clear no grounds

exist to support the decree, or the rule of law was ‘palpably

erroneous or misapplied,’ will such order be reversed. Id.

[(quoting Roberts, 341 A.2d at 478)]; accord Novak v.

Commonwealth, . . . 523 A.2d 318, 319 ([Pa.] 1987)). Such

reasonable grounds exist when the essential prerequisites

for the granting of an injunction are met. Summit Towne,

828 A.2d at 1000.

SPTR, Inc. v. City of Phila., 150 A.3d 160, 165-66 (Pa. Cmwlth. 2016).

There are six essential prerequisites a party must establish

before obtaining preliminary injunctive relief:

(1) the injunction is necessary to prevent immediate

and irreparable harm that cannot be compensated

adequately by damages; (2) greater injury would

result from refusing the injunction than from

granting it, and, concomitantly, the issuance of an

injunction will not substantially harm other

interested parties in the proceedings; (3) the

preliminary injunction will properly restore the

parties to their status as it existed immediately prior

to the alleged wrongful conduct; (4) the party

seeking injunctive relief has a clear right to relief

and is likely to prevail on the merits; (5) the

injunction is reasonably suited to abate the

offending activity; and, (6) the preliminary

injunction will not adversely affect the public

interest.

SEIU Healthcare P[a.] v. Commonwealth, . . . 104 A.3d

495, 502 ([Pa.] 2014) (citing Warehime v. Warehime, . . .

860 A.2d 41, 46-47 ([Pa.] 2004)). Because the grant of a

preliminary injunction is an extraordinary remedy, the

failure to establish a single prerequisite requires the denial

of the request for injunction. Summit Towne, 828 A.2d at

1000.

SPTR, Inc., 150 A.3d at 166. The burden of proving each prerequisite rests on the

moving party. Weeks v. Dep’t of Human Servs., 222 A.3d 722 (Pa. 2019); SEIU

Healthcare; Summit Towne. Moreover, Pennsylvania Rule of Civil Procedure No.

1531(a) specifies: “In determining whether a preliminary . . . injunction should be

granted . . . , the court may act on the basis of the averments of the . . . petition and

may consider affidavits of parties or third persons or any other proof which the court

may require.” Pa.R.C.P. No. 1531(a).

Here, the trial court denied the Petition, concluding:

[T]he trial court did not abuse its discretion in denying

Appellant[s’] request for a preliminary injunction because

Appellant[s] failed to prove that they are likely to

prevail on the merits. Here, Appellant[s] d[id] not

succeed in meeting the first prerequisite as they have failed

to show that this injunction is necessary to prevent

immediate and irreparable harm that damages cannot

adequately compensate. Specifically, at the hearing

before the Commonwealth Court, the City’s Water Engineer

Project Manager Trisha Grace (‘Grace’), testified that,

although the Project is important, it is not an emergency,

and that the City and [Carney] had not yet even conducted

their pre-construction meeting. Moreover, damages can

adequately compensate Appellant[s] for whatever work may

have been done between April 1, 2019, when the Go-Ahead

Agreement was issued by the City[,] and April 17, 2019,

when the City notified Appellant[s] to cease all work

related to the Project.

In accordance with [Summit Towne], this trial court does not

need to address the other [] prerequisites . . . .

Trial Ct. August 28, 2019 Op. at 5; R.R. at 622a (emphasis added; footnote omitted).

Because the trial court’s decision only addressed two prerequisites -

whether Appellants have a clear right to relief and are likely to prevail on the merits,

and whether an injunction is necessary to prevent immediate and irreparable harm

that damages cannot adequately compensate - this Court will address those

prerequisites first.

1. The Party Seeking Injunctive Relief Has A Clear Right

To Relief And Is Likely To Prevail On The Merits

In order to prevail on the Petition, Appellants had to show that they have

a clear right to relief and are likely to prevail on the merits. SPTR, Inc. Without

explanation or analysis, the trial court concluded: “Appellant[s] failed to prove that

they are likely to prevail on the merits.” Trial Ct. August 28, 2019 Op. at 5.

Appellants sought an injunction because Carney’s bid contained non-

waivable, material defects. Specifically, they argued that, based on Carney’s and the

City’s documentation, Carney will only be performing 20% of the work under the

contract;12 therefore, Carney was obligated to submit with its bid the LBE

certification(s) and most recent annual affidavit(s) of the subcontractor(s) that would

perform the remaining 31% of the work that qualified Carney for the LBE bid

preference that reduced its bid by 5%. See Section 17-109(5)(d)(.3) of the

Philadelphia Code, Phila. Code § 17-109(5)(d)(.3). Appellants claimed that since

Carney did not comply with Section 17-109(5)(a) of the Philadelphia Code, Carney

was not entitled to the bid preference and, thus, was not the lowest bidder.

Preliminarily, this Court has explained:

It is clear that the statutory requirements for competitive

bidding, and the ordinances enacted thereunder, do not exist

solely to secure work or supplies at the lowest possible

price, but also have the ‘‘purpose of inviting competition,

to guard against favoritism, improvidence,

extravagance, fraud and corruption in the awarding of

municipal contracts . . . and are enacted . . . not for the

benefits or enrichment of bidders . . . .’’ Yohe v. [City of]

Lower Burrell, . . . 208 A.2d 847, 850 ([Pa.] 1965)[.] . . .

The obvious intent . . . is thus also to ‘‘close, as far as

possible, every avenue to favoritism and fraud in its

varied forms.’’ Louchheim v. [City of] Phila[.], . . . 66 A.

1121 ([Pa.] 1907) [(]quoting Mazet v. City of Pittsburgh, . .

. 20 A. 693 ([Pa.] 1890)[)]. Therefore, . . . the courts will

not condone a situation that reveals a clear potential to

become a means of favoritism, regardless of [whether] the

Carney claims in its brief to this Court that Appellants’ 20% figure is incorrect, as Carney

testified at the August 7, 2019 hearing that the figure was between 20% and 25%. See Carney Br. at

20. However, the Bid Evaluation Checklist the City prepared and relied upon in awarding the

contract, reflects Carney’s 20% representation under “% OF WORK BY CONTRACTOR.” R.R. at 80a;

August 7, 2019 Notes of Testimony Ex. P-2 at 1.

[C]ity officials may have acted in good faith in the

particular case[.]

Conduit & Found. Corp. v. City of Phila., 401 A.2d 376, 379 (Pa. Cmwlth. 1979)

(emphasis added). Therefore, “[t]hose who bid for a public contract must be ‘on an

equal footing’ and enjoy the same opportunity for open and fair competition. Where

the bid process fails to place bidders on equal footing, the resulting contract will be

declared void.” Hanisco v. Twp. of Warminster, 41 A.3d 116, 123 (Pa. Cmwlth.

2012) (citation omitted).

LBE preference is derived from the Philadelphia Code enacted by the

City’s legislative body, the City Council. See Section 1-101 of the Philadelphia

Code, Phila. Code § 1-101. In order to qualify for the LBE preference, Section 17-

109(5)(a) of the Philadelphia Code specifies:

(a) On any contract for which the City secures competitive

bids pursuant to Section 8-200(1) of the Home Rule

Charter, the Commissioner shall award a [5%] bid

preference . . . to any Local Business that submits with its

bid:

(.1) A current certification from the

Commissioner as a[n] [LBE];

(.2) The [LBE’s] most recent annual affidavit

under subsection 4(a);

(.3) A certification by the [LBE] that,

throughout the entirety of the contract:

(A) The [LBE] or a subcontractor will

perform the majority of any work on the

subject contract within the geographic limits of

the City;

(B) The [LBE] or a subcontractor will

maintain within the City a majority of the

inventory or equipment that will be used on the

contract; and

subsection 3(b), and at least one of the

requirements identified in subsection 3(c).

(.4) If the [LBE] relies upon a

subcontractor to meet the requirements in

subparagraph (a)(.3)(A) or (a)(.3)(B) of this

subsection:

(A) A current certification from the

Commissioner that the subcontractor itself is a[n]

[LBE]; and

(B) The subcontractor’s most recent annual

affidavit provided to the Commissioner pursuant

to subsection 4(a).

Phila. Code § 17-109(5)(a) (emphasis added).

Section 17-109(5)(a)(.4) of the Philadelphia Code makes clear that if

Carney required the services of LBE subcontractor(s) to complete the other 31% of

the contract work, Carney had to submit the LBE subcontractor(s)’ current LBE

certification and recent annual affidavit with its bid.13 The City and Carney agreed

that Carney did not submit a current certification or annual affidavit of any LBE

subcontractor(s) with its bid.

The City claimed that the Philadelphia Code, the City’s Local Bidding

Preferences for Procurement Contracts (LBE Regulations)14 and the bid documents,

To the extent Carney asserts that the reference in Section 17-109(5)(a)(.4) of the

Philadelphia Code to “a subcontractor” means it must submit the certification and affidavit with its

bid only if it intends to rely on a single subcontractor to complete the other 31% of the work,

Section 1902 of the Statutory Construction Act of 1972, which states that “[t]he singular shall

include the plural, and the plural, the singular[,]” 1 Pa.C.S. § 1902, belies such an argument.

Section 6 of the LBE Regulations similarly provides, in relevant part:

Bidder, in order to be eligible to receive the bid preference, must

submit with its bid the following information:

a. Current LBE certification number from the

[Procurement Commissioner];

b. If requested by [the Department], most recent annual

affidavit provided pursuant to Section 5 above; and

taken together, mandate that Carney merely certify with its bid submission that it will

comply with the requirement that 51% of the work performed on the contract be

performed by LBEs. The City further asserted that, since Section 17-109(5)(a)(.3) of

the Philadelphia Code ends with a period, Carney only had to submit the items

referred to in Section 17-109(5)(a)(.1), (.2) and (.3) of the Philadelphia Code with its

bid, and the separate requirement in Section 17-109(5)(a)(.4) of the Philadelphia

Code was not required at bid submission.

Under the Statutory Construction Act [of 1972 (SCA),15] it

is fundamental that ‘[t]he object of all interpretation and

c. A certification that, throughout the entirety of the

contract:

i. The LBE or a subcontractor will perform, on the

site with its own workforce, the majority of any work

(which shall mean work with a value of at least 51% of

the original total contract price) on the subject contract

within the geographic limits of the [C]ity; and

ii. The LBE or subcontractor will maintain within the

City a majority of the inventory or equipment that will

be used on the contract or the amount of inventory that

is customary for that industry; and

iii. The [LBE] will satisfy Sections 3(a), 3(b), 3(c),

and at least one of the requirements identified in 3(d)

above.

d. If the Bidder relies upon a subcontractor to meet the

requirements in subsection 6(c)(i) or 6(c)(ii), the Bidder

must submit the following:

i. A current certification from the Procurement

Commissioner that the subcontractor itself is a[n]

[LBE]; and

ii. Subcontractor’s most recent annual affidavit

provided pursuant to Section 5(a) [(relating to

annual recertification)] above.

LBE Regulations § 6.

1 Pa.C.S. §§ 1501-1991. Section 1504 of the SCA provides: “In all cases where . . .

anything is directed to be done by any statute, the directions of the statute shall be strictly

pursued[.]” 1 Pa.C.S. § 1504. Although the Philadelphia Code is an ordinance and not a statute,

this Court has declared that “[t]he rules of statutory construction are applicable to statutes and

ordinances alike.” In re Thompson, 896 A.2d 659, 669 (Pa. Cmwlth. 2006).

construction of statutes is to ascertain and effectuate the

intention of the General Assembly[,] and that [e]very

statute shall be construed, if possible, to give effect to all

its provisions.’ 1 Pa.C.S. § 1921(a). In this regard, the

[SCA] instructs that ‘[w]hen the words of a statute are

clear and free from all ambiguity, the letter of it is not to

be disregarded under the pretext of pursuing its spirit.’

1 Pa.C.S. § 1921(b). When, however, the words of the

statute are not explicit, the General Assembly’s intent is to

be ascertained by considering matters other than the

statutory language. 1 Pa.C.S. § 1921(c).

Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 939 A.2d 290, 294 (Pa. 2007)

(emphasis added). Moreover, “[w]here the language of a statute is explicit and clear,

this Court will not disturb the plain meaning of that language by resorting to the rules

of statutory construction.”16 Temple Ass’n of Univ. Prof’ls, Am. Fed’n of Teachers

Local 4531 AFL-CIO v. Temple Univ. of Commonwealth Sys. of Higher Educ., 582

A.2d 63, 65 (Pa. Cmwlth. 1990).

Section 17-109(5)(a) of the Philadelphia Code begins with “the

Commissioner shall award a [5%] bid preference . . . to any [LBE] that submits with

its bid: . . . .” Phila. Code § 17-109(5)(a). Thereafter are listed four parts – (.1), (.2),

(.3) and (.4). The items listed in all four parts must be submitted with the bid.

Subsection (.3) does not end with a semicolon like subsections (.1) and

(.2) because subsection (.3) contains additional subsections thereunder.17 Subsection

(.3)(C) ends with a period since it completes subsection (.3)’s inclusive criteria list

(of (A), (B) and (C)), as in subsection (.4). Moreover, the mere fact that subsection

(.3) ends with a period rather than a semicolon cannot subvert the plain meaning of

Because the Philadelphia Code language at issue in this appeal is not ambiguous, Carney’s

reliance in its brief to this Court on City Council’s interpretation during 2016 discussions related to

proposed amendments to Philadelphia Code Chapter 17 is misplaced.

Like in subsection (.4), a colon (rather than a semicolon) appropriately follows a complete

phrase and introduces the list that follows subsection (.3). Also, just as in subsection (.4), a period

ends the additional list. There is no proper place to put a semicolon after subsection (.3) in these

circumstances.

Section 17-109(5)(a) of the Philadelphia Code (i.e., a complete list of required

submissions). If such a conclusion was to be drawn, then the Philadelphia Code’s

careful delineation of subsection (.4) would be nullified. Certainly, if City Council

had intended the period after Section 17-109(5)(a)(.3) of the Philadelphia Code to

mean that (.4) was not required at the time of bid submission as the City contends, it

would have drafted the provision differently. Nevertheless, the plain meaning of

Section 17-109(5)(a) of the Philadelphia Code clearly mandates that Carney must

satisfy all four requirements with its bid if it relied upon a subcontractor to satisfy

the requirements in subparagraph (a)(.3)(A) or (a)(.3)(B) of that subparagraph.

Because Section 17-109(5)(a) of the Philadelphia Code is clear and unambiguous,

this Court need not look to the City’s LBE Regulations18 and bid documents for

clarification.

Neither Carney nor the City can choose to disregard Section 17-

109(5)(a)(.4) of the Philadelphia Code. The law is “well settled that [the City] has no

discretion to waive defects in the bidding process if the result would violate

applicable . . . city ordinance competitive bidding requirements.” Shaeffer v. City of

Lancaster, 754 A.2d 719, 722 (Pa. Cmwlth. 2000); see also Rainey v. Borough of

Derry, 641 A.2d 698 (Pa. Cmwlth. 1994); Conduit & Found. Corp. “When

competitive bidding is used and the procedures followed emasculate the benefits of

such bidding, . . . judicial intervention is proper.” Rainey, 641 A.2d at 702 (quoting

Am. Totalisator Co., Inc. v. Seligman, 414 A.2d 1037, 1041 (Pa. 1980)). Moreover,

“[i]n cases where public contract bidding irregularities are shown, it is proper for a

Notwithstanding, the LBE Regulations mirror and support this Court’s interpretation of

Section 17-109(5)(a) of the Philadelphia Code. In order for Carney to receive the LBE preference,

it was obligated to provide a current certification and annual affidavit of the LBE subcontractor and

the subcontractor’s most recent annual affidavit, which is the same requirement in Section 17-

109(5)(a)(.4) of the Philadelphia Code.

reviewing court to enjoin the contract awarded according to those faulty procedures.”

Stapleton v. Berks Cty., 593 A.2d 1323, 1332 (Pa. Cmwlth. 1991).

Based upon this Court’s strict reading of Section 17-109(5)(a) of the

Philadelphia Code, Carney had to fulfill the requirements in Section 17-109(5)(a)(.1),

(.2), (.3) and (.4) of the Philadelphia Code when it submitted its bid in order to

receive the LBE preference in accordance with the Philadelphia Code. It being

undisputed that Carney did not satisfy the specific LBE preference requirements,

Carney should not have received the benefit thereof. Without the LBE preference,

Carney was not the lowest bidder. Rather, Appellants submitted the Project’s lowest

bid. Accordingly, Appellants are likely to prevail on the merits and their right to

relief is clear.

Based upon the foregoing, there were no apparently reasonable grounds

to support the trial court’s conclusion that Appellants failed to establish that they are

likely to prevail on the merits and their right to relief is clear. SPTR, Inc.

2. Injunction Is Necessary To Prevent Immediate And

Irreparable Harm That Cannot Be Compensated

Adequately By Damages

In order to prevail on the Petition, Appellants also had to demonstrate

that an injunction is necessary to prevent immediate and irreparable harm that cannot

be adequately compensated by money damages. SPTR, Inc. The trial court held:

Appellant[s] d[id] not succeed in meeting the first

prerequisite as they have failed to show that this

injunction is necessary to prevent immediate and

irreparable harm that damages cannot adequately

compensate. Specifically, at the hearing before the

Commonwealth Court, [Grace] testified that, although the

Project is important, it is not an emergency, and that the

City and [Carney] had not yet even conducted their pre-

construction meeting. Moreover, damages can adequately

compensate Appellant[s] for whatever work may have been

done between April 1, 2019, when the Go-Ahead

Agreement was issued by the City[,] and April 17, 2019,

when the City notified Appellant[s] to cease all work

related to the Project.

Trial Ct. August 28, 2019 Op. at 5.

Notwithstanding Grace’s August 7, 2019 testimony that the Project is

not an emergency, and that the City and Carney had not yet conducted their pre-

construction meeting, see August 7, 2019 Notes of Testimony (N.T.) at 48, 53, 55,

Carney and the City had expressed their clear intention to quickly proceed with the

Project, all the while fully aware of the ongoing litigation and resulting potential

liability of the Project’s increased costs upon the taxpayers.19 Accordingly, the harm

is immediate.

Relative to irreparable harm, the Pennsylvania Supreme Court has

declared that “[f]or one to continue [] unlawful conduct constitutes irreparable

injury[,]” and “[s]preading unlawful conduct is irreparable injury of the most serious

nature[.]” Pa. Pub. Util. Comm’n v. Israel, 52 A.2d 317, 321 (Pa. 1947); see also

Philips Bros. Elec. Contractors, Inc. v. Valley Forge Sewer Auth., 999 A.2d 652 (Pa.

Cmwlth. 2010). Our Supreme Court has further ruled:

[W]here the offending conduct sought to be restrained

through a preliminary injunction violates a statutory

mandate, irreparable injury will have been established. See

Commonwealth v. Coward, . . . 414 A.2d 91 . . . ([Pa.]

1980) (holding that where a statute prescribes certain

activity, the court need only make a finding that the illegal

activity occurred to conclude that there was irreparable

injury for purposes of issuing a preliminary injunction); . . .

Israel . . . (holding that when the Legislature declares

certain conduct to be unlawful, it is tantamount to calling it

injurious to the public, and to continue such unlawful

conduct constitutes irreparable injury for purposes of

seeking injunctive relief); Commonwealth ex rel. Corbett v.

On August 15, 2019, the same date this Court denied the First Emergency Application on

procedural grounds, the City and Carney conducted their pre-construction meeting, and Carney

proceeded with construction on the Project.

Snyder, 977 A.2d 28 (Pa. Cmwlth. 2009) (affirming

issuance of a preliminary injunction and finding that

irreparable harm was presumed where there was a credible

violation of the state consumer protection statute).

SEIU Healthcare, 104 A.3d at 508.

Here, the purported unlawful conduct is the City’s and Carney’s

violation of the Philadelphia Code.20 In Shaeffer, this Court ruled specifically

regarding competitive bidding that “[s]tatutory violations are sufficiently injurious to

constitute irreparable harm, and a preliminary injunction may be upheld based upon

the violation of competitive bidding requirements[.]”21 Id. at 723 (citation omitted).

The Shaeffer Court reached that conclusion without considering whether monetary

damages could compensate the second lowest bidder for any losses incurred if the

injunction was denied. Rather, the Court held, based solely on the fact that the lowest

bidder’s bid “contained an unlawful deviation from the [bid s]pecifications and

violated competitive bidding requirements[,]” that “[t]he irreparable harm

requirement was satisfied[.]” Id. at 723. The harm in the instant case is likewise

irreparable.

Based upon the foregoing, there were no apparently reasonable grounds

to support the trial court’s conclusion that Appellants failed to establish that this

injunction is necessary to prevent immediate and irreparable harm that damages

cannot adequately compensate.

Having determined that Appellants satisfied two of the six prerequisites

to obtain a preliminary injunction, SPTR, Inc., and since Appellants and Carney

addressed all six prerequisites in their briefs, this Court will examine the remaining

four factors. See SEIU Healthcare.

“A municipal ordinance is in reality a statute[.]” Cloverleaf Trailer Sales Co. v. Borough

of Pleasant Hills, Allegheny Cty., 76 A.2d 872, 875 (Pa. 1950).

Although Shaeffer involved the violation of mandatory bid requirements, because Section

17-105(a)(.4) of the Philadelphia Code is a mandatory bid requirement, Shaeffer is controlling.

3. Greater Injury Would Result From Refusing The

Injunction Than From Granting It, And,

Concomitantly, The Issuance Of An Injunction Will

Not Substantially Harm Other Interested Parties In

The Proceedings

Appellants assert that greater injury would result to them and the City’s

taxpayers than the City and Carney if the injunction is denied.

Preliminarily,

[l]aws that require competitive bidding for public projects

seek to apportion awards fairly and economically.[22]

Mandatory compliance with statutory procedures and bid

instructions serves this goal in two ways. Initially, clear-cut

ground rules for competition guarantee that none of the

contractors will gain an undue advantage through better

information of the bid solicitor’s operation. Second, the

strict adherence principle lessens the possibility of fraud

and favoritism. In the opinion of the Pennsylvania

judiciary, moreover, the appearance of propriety is so

important that genuine deviations may not be tolerated even

if all available evidence suggests that the parties acted in

good faith.

Hanover Area Sch. Dist. v. Sarkisian Bros., Inc., 514 F. Supp. 697, 703 (M.D. Pa.

1981) (citations omitted); see also Jay Twp. Auth. v. Cummins, 773 A.2d 828 (Pa.

Cmwlth. 2001).

By not requiring Carney to submit the documentation required by

Section 17-109(5)(a)(.4) of the Philadelphia Code, “which exist[s] to invite

competition and to guard against favoritism, improvidence, extravagance, fraud and

This Court has held:

[C]ompetitive bidding serves to enhance competition which, in turn,

encourages offering services at the best price. Thus, it is important

that the bidding process foster confidence among potential bidders

that their bids will be considered fairly and that they will not be

denied a substantial benefit afforded to their competitors.

Marx v. Lake Lehman Sch. Dist., 817 A.2d 1242, 1247 (Pa. Cmwlth. 2003) (citation omitted).

corruption in the award of municipal contracts[,]” Shaeffer, 754 A.2d at 723,

Appellants and the other bidders did not “enjoy the same opportunity for open and

fair competition.” Hanisco, 41 A.3d at 123. Moreover, the City and Carney

conducted their pre-construction meeting on August 15, 2019, and Carney proceeded

to work on the Project. By denying the injunction, the trial court authorized the City

and Carney to forge ahead on the Project obtained by unfair advantage, to the

detriment of Appellants and the other bidders, creating the appearance of impropriety

by the City and Carney. In addition, while fully aware of the ongoing litigation and

resulting potential consequences, the City and Carney proceeded with utmost speed.

Therefore, granting the injunction would not substantially harm Carney or the City.

Conversely, if the trial court had granted the injunction, Carney’s work on the Project

would have ceased until the trial court decided the merits of Appellants’ case.

The City and Carney had every opportunity to wait until the trial court

decided the merits of Appellants’ case since, as the City’s own witness testified, the

Project was “not an emergency bid.” August 7, 2019 N.T. at 53. By waiting, the

City and Carney would have maintained an appearance of propriety and also

demonstrated the good faith exalted by competitive bidding laws. Thus, greater

injury resulted from refusing the injunction than by granting it, and there were no

apparently reasonable grounds on which the trial court could have held otherwise.

4. The Injunction Will Properly Restore The Parties To

Their Status As It Existed Immediately Prior To The

Alleged Wrongful Conduct

In the Petition, Appellants sought to “enjoin[] the City from awarding

[the] contract to [Carney] for the [Project] in violation of public bidding laws pending

a determination of the claims on the merits.” Petition at 17 (R.R. at 44a). Because

Appellants’ Complaint included a general prayer for relief, the City’s awarding of the

contract did not moot this controversy. See Abbonizio v. City of Phila. (Pa. Cmwlth.

No. 974 C.D. 2019, filed September 30, 2019), slip op. at 5-8. Courts may grant any

relief that is consistent with the action’s theory and purpose, see id., including

Appellants’ request to “enjoin[] the City and Carney from proceeding with

construction on the Project in violation of public bidding laws pending a

determination of Appellants’ appeal on the merits.” Second Emergency Appl. at 41;