Glenn Hawbaker, Inc. v. PennDOT, Aplts.

[J-15-2023]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

GLENN O. HAWBAKER, INC., : No. 20 MAP 2022

:

Appellee : Appeal from the Order of the

: Commonwealth Court at No. 138

: MD 2021, dated January 19, 2022.

v. :

: ARGUED: April 18, 2023

:

COMMONWEALTH OF PENNSYLVANIA :

DEPARTMENT OF TRANSPORTATION, :

YASSMIN GRAMIAN, INDIVIDUALLY AND :

MICHAEL CARROLL, IN HIS CAPACITY :

AS ACTING SECRETARY OF :

DEPARTMENT OF TRANSPORTATION, :

MELISSA J. BATULA, P.E., INDIVIDUALLY :

AND IN HER CAPACITY AS ACTING :

EXECUTIVE DEPUTY SECRETARY FOR :

THE DEPARTMENT OF :

TRANSPORTATION, :

:

Appellants :

OPINION

JUSTICE BROBSON DECIDED: November 22, 2023

The Commonwealth of Pennsylvania, Department of Transportation; Yassmin

Gramian, individually; Michael Carroll, in his capacity as Acting Secretary of the

Department of Transportation; and Melissa J. Batula, P.E., individually and in her capacity

as Acting Executive Deputy Secretary for the Department of Transportation (collectively,

PennDOT) appeal from an order of the Commonwealth Court that denied, in part, and

granted, in part, a “Motion for Adjudication of Civil Contempt or in the Alternative . . .

Motion for a Preliminary Injunction” (PI Motion) filed by Glenn O. Hawbaker, Inc.

(Hawbaker). Pertinently, the Commonwealth Court’s order preliminarily enjoined

PennDOT from proceeding with any action for the debarment of Hawbaker as a

prequalified bidder on PennDOT construction contracts based upon criminal charges filed

against Hawbaker or Hawbaker’s subsequent entry of a corporate nolo contendere plea

to those criminal charges. We reverse.

I. BACKGROUND

This procedurally and substantively complex matter implicates a multitude of

statutory and regulatory frameworks. To begin, the State Highway Law (SHL)1 tasks

PennDOT with “construct[ing] or improv[ing], and thereafter maintain[ing] and repair[ing],

at the cost and expense of the Commonwealth, the highways forming the plan or system

of the State highways, in the several counties and townships.” Section 401 of the SHL,

36 P.S. § 670-401. In connection with this obligation, the SHL empowers PennDOT to

establish and maintain a regulatory “system for the qualification of competent and

responsible bidders on highway projects.” Section 404.1 of the SHL, 36 P.S.

§ 670-404.1.2 PennDOT’s regulations implementing this directive, which we discuss in

detail below, are set forth in Chapter 457 of Title 67 of the Pennsylvania Code, 67 Pa.

Code §§ 457.1-.17 (hereinafter referred to as the “Prequalification Regulations”).

1 Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §§ 670-101 to -1102.

2 Section 404.1 of the SHL, titled “Prequalifications of bidders,” more fully provides that

PennDOT

shall, by regulations, establish and may, from time to time, modify or

supplement a system for the qualification of competent and responsible

bidders on highway projects . . . . In determining the qualifications of

bidders, [PennDOT] shall consider the following factors relating to the

contractors: (1) equipment, (2) past record, (3) experience, (4) personnel

of organization, [and] (5) financial condition. . . .

[PennDOT] shall not consider from any bidder who is not qualified.

[J-15-2023] - 2

Hawbaker—a highway construction contractor based in State College, Pennsylvania, with

approximately 1,000 employees—has been prequalified to bid on PennDOT construction

contracts for decades and regularly performs such contracts throughout the

Commonwealth.

On April 8, 2021, following an investigation, the Pennsylvania Office of Attorney

General (OAG) filed a criminal complaint against Hawbaker, charging Hawbaker with four

counts of theft by failure to make required disposition of funds received in violation of

Section 3927(a) of the Crimes Code, 18 Pa. C.S. § 3927(a). Section 3927(a) of the

Crimes Code defines this theft offense as follows:

A person who obtains property upon agreement, or subject to a known legal

obligation, to make specified payments or other disposition, whether from

such property or its proceeds or from his own property to be reserved in

equivalent amount, is guilty of theft if he intentionally deals with the property

obtained as his own and fails to make the required payment or disposition.

The foregoing applies notwithstanding that it may be impossible to identify

particular property as belonging to the victim at the time of the failure of the

actor to make the required payment or disposition.

The OAG based the criminal charges upon Hawbaker’s alleged withholding of fringe

benefit payments from its employees in violation of prevailing wage laws, including the

Pennsylvania Prevailing Wage Act (PWA)3 and the federal Davis-Bacon Act,4 during

calendar years 2015 through 2018.

By way of further background on Hawbaker’s alleged violation of state prevailing

wage laws, we observe that the PWA directs “all workmen employed on public work” to

be paid by contractors “[n]ot less than the prevailing minimum wages as determined”

3 Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1 to -17.

4 40 U.S.C. §§ 3141-3148.

[J-15-2023] - 3

under the PWA.5 43 P.S. § 165-5. The PWA’s attendant regulations6 define “[g]eneral

prevailing minimum wage rates, prevailing wage rates, minimum wage rates and wage

rates” as “[r]ates as determined by the Secretary [of the Pennsylvania Department of

Labor and Industry (L&I)], as payable in the locality in which the public work is to be

performed, for the respective crafts and classifications, including the amount of

contributions for employe benefits as required by the [PWA].” 34 Pa. Code § 9.102

(emphasis omitted). The PWA regulations further define “[c]ontributions for employe

benefits” as “‘[f]ringe benefits’ paid or to be paid, including payment made whether directly

or indirectly, to the workmen for sick, disability, death, other than Workmen’s

Compensation, medical, surgical, hospital, vacation, travel expense, retirement and

pension benefits.” Id. (emphasis omitted).

Of additional note, while the OAG brought criminal theft charges against Hawbaker

premised upon Hawbaker’s alleged noncompliance with the PWA, the PWA itself is

administered and enforced by L&I.7 500 James Hance Court v. Pa. Prevailing Wage

Appeals Bd., 33 A.3d 555, 557 (Pa. 2011); see also 43 P.S. § 165-14 (empowering

Secretary of L&I “to prescribe, adopt, promulgate, rescind and enforce rules and

regulations pertaining to the administration and enforcement of the provisions of the

5 The PWA defines “public work,” in relevant part, as “construction, reconstruction,

demolition, alteration and/or repair work other than maintenance work, done under

contract and paid for in whole or in part out of the funds of a public body where the

estimated cost of the total project is in excess of twenty-five thousand dollars ($25,000).”

43 P.S. § 165-2(5). The PWA defines “public body” to include “the Commonwealth of

Pennsylvania[] . . . and any instrumentality or agency of the Commonwealth of

Pennsylvania.” 43 P.S. § 165-2(4).

6 34 Pa. Code §§ 9.101-.112.

7 Indeed, Hawbaker characterizes the OAG’s criminal prosecution of Hawbaker for

purported prevailing wage law violations as “unprecedented,” noting further that PWA

violations historically have “been treated exclusively as civil matters handled by” L&I.

(Hawbaker’s Brief at 3.)

[J-15-2023] - 4

[PWA]”). The PWA places several duties on the Secretary of L&I—as well as public

bodies and contractors—that are particularly relevant here. For instance, Section 11(a)

of the PWA, 43 P.S. § 165-11(a), requires public bodies to notify the Secretary of L&I

when a contractor fails to pay prevailing wages in connection with public work performed

for the public body. Whenever the Secretary of L&I receives such a notification, “or

whenever any workman employed upon public work . . . file[s] a timely protest objecting

that he has been paid less than prevailing wages as required by the [PWA]” as permitted

under Section 11(b) of the PWA, the Secretary of L&I is to conduct an investigation that

entails “an appropriate hearing upon due notice to interested parties.” 43 P.S.

§ 165-11(b)-(c). Additionally, the Secretary of L&I is to “determine whether or not there

has been a failure to pay the prevailing wages and whether such failure was intentional

or otherwise.” 43 P.S. 165-11(c).

If the Secretary of L&I determines after notice and a hearing that a contractor has

unintentionally failed to pay prevailing wages, the Secretary of L&I “shall afford [the

contractor] a reasonable opportunity to adjust the matter by,” inter alia, making the

required payments. 43 P.S. § 165-11(d). If the Secretary of L&I determines after notice

and a hearing that a contractor has intentionally failed to pay prevailing wages, the

Secretary of L&I is to “notify all public bodies of the name” of the contractor and “no

contract shall be awarded to such [contractor] . . . until three years have elapsed from the

date of the notice to the public bodies.” 43 P.S. § 165-11(e). Also, in the event of a

contractor’s intentional violation, the PWA imposes civil penalties upon the contractor and

provides that the Secretary of L&I “may . . . request the Attorney General to proceed to

recover the penalties for the Commonwealth of Pennsylvania.” 43 P.S. § 165-11(e)-(f).

Section 12 of the PWA, 43 P.S. § 165-12, further provides that, “[i]n any case where the

[S]ecretary [of L&I] shall have determined that any person or firm has failed to pay the

[J-15-2023] - 5

prevailing wages under subsections (e) and (f) of section 11 . . . , he may direct the public

body to terminate, and the public body may terminate, any such contractor’s right to

proceed with the public work.”8

Returning to the facts of the present matter, in light of the criminal charges levied

against Hawbaker by the OAG, PennDOT issued a Notice of Immediate Suspension

(Suspension Notice) to Hawbaker on April 19, 2021, suspending Hawbaker from

contracting with, bidding on, or participating in the award of contracts for

Commonwealth-supervised or Commonwealth-funded highway construction work.

PennDOT took this action pursuant to Section 457.13 of its Prequalification Regulations,

67 Pa. Code § 457.13, which provides that PennDOT “may” suspend or debar9 a

contractor on grounds including, inter alia, a contractor’s “[c]omission of . . . theft” or other

offenses, as well as a contractor’s “[v]iolation of a State or Federal law regulating . . .

prevailing wage standards”:

8 Furthermore, there exists a Pennsylvania Prevailing Wage Appeals Board that has “the

power and duty to[] . . .[h]ear and determine any grievance or appeal arising out of the

administrative of [the PWA].” 43 P.S. § 165-2.2(e)(1); see also 34 Pa. Code § 213.3(a)

(providing for appeal to Prevailing Wage Appeals Board from final determination of

Secretary of L&I in proceedings conducted under Section 11 of PWA).

9 Section 457.1 of the Prequalification Regulations, 67 Pa. Code § 457.1, defines

“debarment” and “suspension,” in relevant part, as follows:

Debarment—Action taken by [PennDOT] to prohibit a contractor,

subcontractor or individual from contracting with or participating in contracts

with [PennDOT] for a specified period. . . .

....

Suspension—Action taken by [PennDOT] to temporarily prohibit a

contractor, subcontractor or individual from contracting with or participating

in contracts with [PennDOT]. It may be for a period of up to 3 months,

pending the completion of an investigation which could lead to debarment

or legal proceedings. The period of suspension may be extended for good

cause. . . .

[J-15-2023] - 6

§ 457.13. Suspension or debarment.

(a) Reasons for suspension or debarment. [PennDOT] may

temporarily suspend or may debar, for a set period or permanently,

a contractor, subcontractor or individual from bidding on or

participating in State supervised or funded highway construction

work for any of the following reasons:

(1) Commission of . . . theft[] . . . .

(2) Commission of fraud or a criminal offense or other

improper conduct or knowledge or approval of, or

acquiescence in these activities by a contractor or an affiliate,

officer, employe or other individual or entity associated with

either obtaining, attempting to obtain or performing a public

contract or subcontract. The contractor’s acceptance of the

benefits derived from the conduct shall be deemed evidence

of knowledge, approval or acquiescence.

....

(6) Violation of a State or Federal law regulating hours of

labor, minimum wage standards or prevailing wage

standards; discrimination in wages; or child labor violations.

According to the Suspension Notice, PennDOT specifically relied upon

Sections 457.13(a)(2) and (a)(6) as the bases for suspension.

Of further relevance, Section 457.13 of PennDOT’s Prequalification Regulations

provides as follows concerning the evidence and circumstances supporting a suspension

and debarment, as well as the procedure and timing for suspensions:

(b) Substantial evidence. The filing of criminal charges or initiation of legal

proceedings for any of the reasons in subsection (a)(1)—(8) may constitute

substantial evidence for suspension.

(c) Debarment based on criminal conduct. Debarment solely on the basis

of any of the reasons in subsection (a)(1)—(8) shall be based on a

conviction or plea of guilty or no contest in a court of law or a finding, ruling

or adjudication of guilt for noncompliance by a court of law, commission,

board or administrative body. It is not required that the appeals process be

completed or that a sentence or other penalty be imposed.

....

[J-15-2023] - 7

(g) Suspension procedure. When a suspension is imposed against a

contractor or an affiliate, [PennDOT] will immediately notify the contractor

and any specifically named affiliate, officer, employe or other individual or

entity associated with the contractor, by certified mail, return receipt

requested and regular mail that it has been:

(1) Suspended for an initial period of up to 3 months accompanied

by a concise statement of the reasons for the suspension.

(2) Declared ineligible for [PennDOT] contracting and subcontracting

pending the completion of investigation and ensuing legal

proceedings. During the suspension period, the contractor shall

make available all relevant documents, records and information to

investigators.

(h) Reply to suspension. A contractor, subcontractor or individual

suspended by [PennDOT] may, within 21 days after the suspension mailing

date, submit, in person, in writing, or through a representative, information

in opposition to the suspension. Upon review of the information or the

completion of an investigation, or both, [PennDOT] will notify the contractor,

subcontractor or individual whether the suspension shall be continued or

withdrawn or whether debarment proceedings will be initiated.

67 Pa. Code § 457.13(b)-(c), (g)-(h). Here, PennDOT’s Suspension Notice provided that

the filing of criminal charges against Hawbaker and the underlying allegations constituted

substantial evidence for suspension for an initial period of up to three months under

Section 457.13(b) and (g)(1). Notably, while PennDOT’s Prequalification Regulations do

not afford a contractor a hearing in the suspension context either pre- or post-suspension,

PennDOT nonetheless scheduled an administrative hearing on Hawbaker’s

suspension.10

In response to the Suspension Notice, on May 4, 2021, Hawbaker filed a five-count

petition for review in the nature of a complaint in equity (Petition) in the Commonwealth

Court, requesting injunctive and declaratory relief. In its first count, Hawbaker claimed

that PennDOT’s suspension procedures violate due process because, inter alia, they

allow PennDOT to issue an immediate suspension without first conducting its own full

investigation into the alleged conduct and providing a hearing. In its second count,

10 The Commonwealth Court later stayed the hearing pending further order.

[J-15-2023] - 8

Hawbaker claimed that PennDOT lacked jurisdiction over the debarment proceedings

because L&I has exclusive jurisdiction over investigations and debarment actions

involving PWA violations pursuant to a different and more fulsome process. In its third

count, Hawbaker claimed that PennDOT was precluded from suspending or debarring

Hawbaker under the doctrine of laches, as PennDOT (and other agencies, including L&I)

had conducted several investigations into Hawbaker’s prevailing wage and fringe benefit

practices or were otherwise aware of those practices for decades and took no issue with

the same. Hawbaker asserted in its fourth count that there was not substantial evidence

of a crime sufficient to support a suspension under PennDOT’s Prequalification

Regulations, including through the OAG’s filing of criminal charges against Hawbaker.

Finally, in its fifth count, Hawbaker argued that PennDOT’s suspension proceedings were

premature and should be stayed pending conclusion of the criminal matter.

PennDOT filed an answer with new matter to Hawbaker’s Petition. While

PennDOT generally denied most of Hawbaker’s factual allegations, PennDOT admitted

that it did not perform its own investigation into Hawbaker’s conduct as alleged in the

OAG’s criminal complaint or Hawbaker’s prevailing wage fringe credit practices.

PennDOT maintained that it suspended Hawbaker because Hawbaker was formally

charged with crimes arising out of prevailing wage law violations, as PennDOT was

authorized to do. PennDOT further asserted, inter alia, that it was providing Hawbaker

with all the process that was due under the circumstances, that Hawbaker’s assertion of

laches was improper and meritless, and that Hawbaker failed to exhaust its administrative

remedies.

Simultaneous with its Petition, Hawbaker filed a motion for preliminary injunction,

which PennDOT opposed. Hawbaker filed a reply to PennDOT’s new matter, and the

parties entered into a stipulation of certain facts. Following a hearing and briefing by the

[J-15-2023] - 9

parties, the Commonwealth Court granted a preliminary injunction against PennDOT in a

single-judge memorandum opinion and order authored by Judge McCullough. Glenn O.

Hawbaker, Inc. v. Commonwealth of Pa., Dep’t of Transp., (Pa. Cmwlth., No. 138 M.D.

2021, filed June 30, 2021) (Hawbaker I). The Commonwealth Court applied the following

well-settled standard for awarding such relief:

The six essential prerequisites that a moving party must demonstrate

to obtain a preliminary injunction are as follows: (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 reasonable suited to

abate the offending activity; and, (6) the preliminary injunction will not

adversely affect the public interest.

SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 501-02 (Pa. 2014).

The Commonwealth Court began with the fourth prerequisite—i.e., whether

Hawbaker had a clear right to relief and was likely to prevail on the merits—and noted

that Hawbaker “need not prove the merits of the underlying claim, but need only

demonstrate that substantial legal questions must be resolved to determine the rights of

the parties” to establish a clear right to relief. Hawbaker I, slip op. at 20 (quoting SEIU

Healthcare, 104 A.3d at 506). The Commonwealth Court concluded that Hawbaker

raised several substantial legal questions, including various due process concerns

relative to PennDOT’s Prequalification Regulations. Relying particularly upon

Hawbaker’s argument that suspension of a contractor’s prequalification status without a

prior hearing violated due process, the Commonwealth Court noted that it had already

found that the Prequalification Regulations’ failure to provide a suspension hearing at any

point violated due process in Balfour Beatty Construction, Inc. v. Department of

Transportation, 783 A.2d 901, 909 (Pa. Cmwlth. 2001), but PennDOT had still not

[J-15-2023] - 10

amended the regulations. Unpersuaded by PennDOT’s attempts to distinguish Balfour,

the Commonwealth Court added that Hawbaker had also raised legitimate due process

concerns about the adequacy of a post-suspension hearing. In support, the

Commonwealth Court noted the “immediate and substantial” effects of the suspension,

which, as evidenced at the hearing on the preliminary injunction, prevented Hawbaker

from winning pending bids, serving as a subcontractor on projects where a contract had

not yet been finalized, and participating in scheduled bid lettings. Id. at 24. The

Commonwealth Court further observed that PennDOT’s “admissions and legal arguments

asserted before th[e Commonwealth] Court call[ed] into question whether a

post-suspension hearing for Hawbaker under these circumstances has any meaning

whatsoever.” Id. at 25.

Indeed, turning to the underlying grounds for suspension, the Commonwealth

Court observed that Hawbaker raised a substantial challenge as to whether PennDOT

“can suspend a contractor based solely on the filing of criminal charges.” Id. Rejecting

the notion that PennDOT was authorized to take such action simply because

Section 457.13(b) of PennDOT’s Prequalification Regulations permitted it, the

Commonwealth Court observed that PennDOT’s position was untenable in light of

Section 457.13(a) of the Prequalification Regulations, which required “commission” of a

crime or a “violation” of prevailing wage laws. 67 Pa. Code § 457.13(a)(1)-(2), (a)(6). The

Commonwealth Court reasoned that “[t]he allegations in [the] OAG’s criminal complaint

have yet to be proven and cannot, in and of themselves, serve as substantial evidence

that Hawbaker committed a criminal offense or violated the law.” Hawbaker I, slip op.

at 26 (emphasis in original). The Commonwealth Court further explained that PennDOT

had made it clear that it did “not intend to produce actual evidence” during any suspension

hearing it would provide to Hawbaker, which ran “afoul of the concept that it bears the

[J-15-2023] - 11

burden of proof regarding a suspension.” Id. at 26-27. The Commonwealth Court

observed that, “[r]egardless of the fact that Hawbaker is defending itself in an

administrative process rather than a criminal prosecution, the nature of the deprivation to

Hawbaker is significant and it has raised substantial questions pertaining to due process

and the adequacy of any post-suspension hearing [Penn]DOT may provide.” Id. at 27.

Pertinently, in a footnote, the Commonwealth Court rejected PennDOT’s challenge

to the Commonwealth Court’s jurisdiction on the grounds that Hawbaker failed to exhaust

its administrative remedies. The Commonwealth Court observed that the exhaustion

doctrine “normally bars th[e Commonwealth] Court from hearing claims of declaratory or

injunctive relief with respect to agency action” but that the “doctrine is neither inflexible

nor absolute.” Id. at 28 n.22 (quoting Cnty. of Berks v. Pa. Office of Open Records,

204 A.3d 534, 540 (Pa. Cmwlth. 2019)). Observing that this Court “has recognized three

exceptions to the doctrine,” including “where (i) the jurisdiction of an agency is challenged,

(ii) the constitutionality of the statute is challenged[,] or (iii) the remedy at law is

inadequate,” the Commonwealth Court explained that at least two exceptions applied. Id.

(quoting Cnty. of Berks, 204 A.3d at 540). Specifically, the Commonwealth Court

explained that Hawbaker met the “constitutional attack” exception by claiming that

PennDOT’s Prequalification Regulations violate its right to due process. The

Commonwealth Court added that the exhaustion doctrine did not apply because “the

administrative remedy here would be of little, if any[,] value and is inadequate as

Hawbaker would continue to suffer irreparable harm throughout the administrative

process.” Id.

Next, the Commonwealth Court held that Hawbaker had established that a

preliminary injunction was necessary to prevent immediate and irreparable harm that

could not be adequately compensated by money damages. Rejecting PennDOT’s claim

[J-15-2023] - 12

that Hawbaker failed to prove this requirement because it does not have a right to do

business with the Commonwealth and claimed only speculative loss of bidding

opportunities, the Commonwealth Court explained that “[t]he crux of Hawbaker’s

claims . . . is that [Penn]DOT’s regulations violate due process” and that “alleged

violations of constitutional rights and statutory mandates constitute irreparable harm per

se.” Id. at 29-30. The Commonwealth Court added that “the impending loss of a business

opportunity is considered to be irreparable harm” for purposes of obtaining equitable relief

and that Hawbaker had presented uncontested evidence relative to its loss of business

since PennDOT issued the Suspension Notice. Id. at 30-31 (quoting Carlini v. Highmark,

756 A.2d 1182, 1188 (Pa. Cmwlth. 2000), appeal denied, 775 A.2d 809 (Pa. 2001)). The

Commonwealth Court further noted its cognizance “of the fact that Hawbaker may be

unable to recoup any damages from [Penn]DOT given various immunities the agency

may be entitled to assert.” Id. at 31 n.23 (relying upon Boykins v. City of Reading,

562 A.2d 1027, 1028-29 (Pa. Cmwlth. 1989) (holding that irreparable harm requirement

for preliminary injunctive relief was met where sovereign immunity precluded recovery of

damages for lost profits)).

The Commonwealth Court then conducted a “balancing of the harms” analysis and

reiterated that, in addition to the substantial constitutional issues raised, Hawbaker

presented credible evidence of the significant harm Hawbaker had already suffered and

would continue to suffer if the Commonwealth Court did not enjoin PennDOT’s

suspension. The Commonwealth Court explained that, conversely, PennDOT only

alleged that an injunction would impair its ability to promote the policy of integrity in

highway contracting, yet it had “not provided any evidence of Hawbaker’s alleged lack of

integrity beyond the filing of [unproven] criminal charges” that related to Hawbaker’s

conduct years prior. Id., slip op. at 31-32 (emphasis in original). Additionally, noting that

[J-15-2023] - 13

Hawbaker had been conducting business in the Commonwealth as a prequalified

contractor since the OAG served a search warrant in 2018, the Commonwealth Court

could not say that Hawbaker posed an immediate threat to the integrity of highway

contracting or the public interest, thereby concluding that these considerations weighed

in favor of granting the preliminary injunction. Finally, the Commonwealth Court

concluded that enjoining PennDOT from enforcing the Suspension Notice restored the

status quo between the parties but that the specific relief Hawbaker requested was too

broad because “it would prohibit [Penn]DOT from ever suspending or debarring

Hawbaker for anything arising out of [the] OAG’s criminal charges or for any violation of

the PWA or the Davis-Bacon Act.” Id., slip op. at 33 (emphasis in original). Accordingly,

the Commonwealth Court enjoined PennDOT from enforcing the Suspension Notice and

“proceeding with any further suspension or debarment action against Hawbaker as a

result of the issues addressed [in Hawbaker I].” Id. at Order Page.

Thereafter, on September 23, 2021, Hawbaker filed in the Commonwealth Court

a motion for leave to amend its Petition (Motion to Amend) based upon changes of

material facts occurring after the Commonwealth Court issued Hawbaker I. Hawbaker

specifically explained that, on August 3, 2021, Hawbaker entered a corporate plea of nolo

contendere to the four counts of theft through a plea agreement with the OAG. Pursuant

to the plea agreement, Hawbaker agreed to pay over $20 million to the alleged victims

who were purportedly underpaid and agreed to a proposed sentence of five years of

probation on each count of theft, with the sentences to run concurrently. Hawbaker also

agreed to submit to oversight by a corporate monitor at Hawbaker’s expense to oversee

Hawbaker’s compliance with all state and federal prevailing wage laws and regulations

as a condition of probation. In exchange, the OAG agreed not to bring any additional

criminal charges against Hawbaker or any of its shareholders, officers, and employees

[J-15-2023] - 14

for conduct occurring between January 1, 2015, through the time that Hawbaker and the

OAG entered the plea agreement. Hawbaker further averred that, according to its

understanding of its entry of the nolo contendere plea, Hawbaker did not plead guilty to

the underlying theft charges, which Hawbaker still disputed, and the nolo contendere plea

could not be used as proof of the underlying commission of any offense in a subsequent

civil or administrative proceeding. Hawbaker claimed that, despite Hawbaker’s

understanding, PennDOT initiated debarment proceedings against Hawbaker on

September 3, 2021, by filing at its administrative docket a request for an order to show

cause (Request) why Hawbaker should not be debarred for up to three years based on

Hawbaker’s entry of the nolo contendere plea.11 PennDOT cited Section 457.13(a)(1) of

11 We highlight that PennDOT’s initiation of debarment proceedings against Hawbaker

pursuant to the Request differed from the way it initiated the prior suspension

proceedings—i.e., through the issuance of the Suspension Notice. In this regard, we

observe that Section 457.14 of PennDOT’s Prequalification Regulations outlines a

“[d]ebarment appeals procedure” that, when read in conjunction with Section 457.13,

supra at pages 7-8, suggests debarment proceedings likewise begin under the

Prequalification Regulations via issuance of a notice of debarment, with further

proceedings to follow:

§ 457.14. Debarment appeals procedure.

(a) General provisions. A contractor, subcontractor or individual

debarred by [PennDOT] under § 457.13 (relating to suspension or

debarment) may appeal the debarment in writing within 10 working

days after the mailing date of the notice of debarment. The appeal

shall set forth the basis therefor.

(b) Conformity with administrative practice and procedures; requests

for hearing. Debarment hearings will be in conformity with 1 Pa.

Code Part II (relating to general rules of administrative practice and

procedure), as supplemented by Chapter 491 (relating to

administrative practice and procedure). A filing fee is not required

for a debarment hearing. In § 491.3 (relating to request for hearing),

requests for debarment hearings and all other papers relating to the

case shall be filed with [PennDOT’s] Administrative Docket Clerk

....

....

(continued…)

[J-15-2023] - 15

the Prequalification Regulations (relating to the “[c]ommission of . . . theft”) as the basis

for debarment. PennDOT also claimed that “Hawbaker . . . knowingly and intentionally

established . . . its commission of the crime of theft” for debarment purposes under

Section 457.13(c) of the Prequalification Regulations “[b]y entering a plea of no contest

to four counts of the crime of theft.” (Original Record (O.R.), Item No. 27, PI Motion,

Exhibit 1 (PennDOT’s Request for an Order to Show Cause), ¶¶ 7-8). On September 7,

2021, a PennDOT hearing officer issued the rule to show cause.

Hawbaker alleged that the above new facts gave rise to additional legal issues,

which Hawbaker sought to advance in an amended petition for review (Amended

Petition). Hawbaker set forth seven counts in the Amended Petition, in which it invoked

the Commonwealth Court’s original jurisdiction and requested injunctive and declaratory

(c) Informal meeting. A contractor, subcontractor or individual

debarred by [PennDOT] may, after filing an appeal, request an

informal meeting with [PennDOT] prior to the holding of a debarment

hearing for the purpose of discussion of the debarment action or

presentation of additional evidence which the contractor,

subcontractor or individual may want [PennDOT] to take into

consideration. Requests for informal meetings shall be made in

writing to the Prequalification Office. [PennDOT] will issue, within 10

working days after an informal meeting, a written notification of

whether it is withdrawing or modifying the debarment action. The

contractor, subcontractor or individual may then, at his option,

continue with, amend or withdraw the appeal.

(d) Debarment by other agencies. A contractor, subcontractor,

supplier or individual debarred by the Commonwealth or an agency

thereof under the Commonwealth’s Contractor Responsibility

Program as set forth in Management Directive 215.9 shall be subject

to debarment by [PennDOT] without right of appeal.

67 Pa. Code § 457.14. Notwithstanding the above, in initiating debarment proceedings

against Hawbaker by filing the Request at its administrative docket, PennDOT explained

that it was taking such action pursuant to the General Rules of Administrative Practice

and Procedure (GRAPP), 1 Pa. Code §§ 31.1-35.251, and PennDOT’s supplemental

regulations pertaining to administrative practice and procedure before PennDOT

(Supplemental Regulations), 67 Pa. Code §§ 491.1-.13. We discuss this alternative

procedure below in further detail.

[J-15-2023] - 16

relief relative to: (1) whether Hawbaker I bars PennDOT’s debarment action; (2) whether

PennDOT’s Prequalification Regulations require an affirmative demonstration of the

commission of a crime before debarment can occur due to alleged criminal conduct, and

whether a nolo contendere plea can be used to demonstrate commission of a crime or

violation of the law; (3) whether PennDOT’s Prequalification Regulations are

unconstitutional to the extent they contemplate debarment based solely on a nolo

contendere plea; (4) whether PennDOT’s initiation of debarment proceedings under the

facts of this case is unconstitutional because it violates Hawbaker’s rights under the Fifth

and Eighth Amendments to the United States Constitution; (5) whether L&I has exclusive

jurisdiction over debarment actions relating to prevailing wage issues; (6) whether

PennDOT is precluded from issuing any suspension or debarment relating to Hawbaker’s

alleged conduct under the doctrine of laches; and (7) whether the prohibition against the

commingling of prosecutorial and adjudicatory functions precludes PennDOT hearing

officers from handling the debarment proceedings.

On the same date that Hawbaker filed its Motion to Amend, Hawbaker also filed

the PI Motion at issue in this appeal. Therein, Hawbaker asserted that the preliminary

injunction resulting from Hawbaker I prohibited PennDOT’s debarment action and sought

a ruling from the Commonwealth Court on that question. Hawbaker further claimed that

a motion for civil contempt was the proper procedural mechanism for seeking such a

ruling but also requested that, if the prior injunction did not preclude PennDOT’s

debarment action, the Commonwealth Court grant a second or amended preliminary

injunction. On October 1, 2021, the Commonwealth Court, inter alia, granted Hawbaker’s

Motion to Amend, docketed Hawbaker’s Amended Petition, and stayed all administrative

proceedings before PennDOT relating to Hawbaker’s debarment pending further order.

[J-15-2023] - 17

Thereafter, PennDOT filed an answer to Hawbaker’s PI Motion, the parties entered into

another stipulation of certain facts, and the Commonwealth Court held a second hearing.

On January 19, 2022, following further briefing by the parties, the Commonwealth

Court denied, in part, and granted, in part, Hawbaker’s PI Motion, again in a single-judge

memorandum opinion and order authored by Judge McCullough. Glenn O. Hawbaker,

Inc. v. Commonwealth of Pa., Dep’t of Transp. (Pa. Cmwlth., No. 138 M.D. 2021, filed

Jan. 19, 2022) (Hawbaker II). The Commonwealth Court specifically denied Hawbaker’s

PI Motion insofar as Hawbaker requested that court to hold PennDOT in contempt of the

decision and order in Hawbaker I, but the Commonwealth Court concluded that Hawbaker

established all of the essential prerequisites for the grant of a new, or amended,

preliminary injunction. The Commonwealth Court again began with the fourth prerequisite

for such relief—i.e., whether Hawbaker had a clear right to relief and was likely to prevail

on the merits—and concluded that Hawbaker raised several substantial legal questions,

such as whether PennDOT has jurisdiction to institute the debarment proceedings given

that “[t]he PWA establishes a thorough scheme for handling prevailing wage disputes,

including prosecuting and penalizing violations through an administrative hearing process

managed by L&I” and not PennDOT. Id. at 17. In doing so, the Commonwealth Court

rejected PennDOT’s position that “its debarment notice [arose] solely from the criminal

charges filed against Hawbaker and its nolo contendere plea, without implicating the

prevailing wage laws, and that a debarment on such grounds is specifically contemplated

by [Penn]DOT’s prequalification regulations.” Id. at 18. The Commonwealth Court

reasoned that the criminal charges filed against Hawbaker were for theft by failure to

make required dispositions of funds received, which requirement “specifically stem[med]

from the PWA and the Davis-Bacon Act” as demonstrated by [the] OAG’s criminal

complaint and the plea agreement. Id.

[J-15-2023] - 18

The Commonwealth Court also explained that Hawbaker “raise[d] legitimate

concerns that allowing multiple agencies to proceed against it for purported violations of

the PWA could subject Hawbaker to punitive, inconsistent, and unfair consequences.” Id.

The Commonwealth Court observed that, while “the PWA only contemplates debarment

of a contractor based upon a finding that the prevailing wage violation was intentional,”

PennDOT’s “[P]requalification [R]egulations do not contemplate such an inquiry” and

PennDOT claimed that Hawbaker had “knowingly and intentionally established, for

debarment purposes . . . its commission of the crime of theft” simply by entering the nolo

contendere plea. Id. (quoting Answer to PI Motion, Exhibit B (PennDOT’s Request), ¶7).

The Commonwealth Court observed that “[t]his undeniable conflict also call[ed] into

question the adequacy of the administrative remedy provided by [Penn]DOT through its

debarment proceedings.” Id. The Commonwealth Court further reasoned that Hawbaker

again raised significant due process concerns relative to PennDOT’s “administrative

process and regulations, including whether Hawbaker’s entry of the nolo contendere plea

can be used against it in a subsequent administrative proceeding and whether entry of

the plea is enough, in and of itself, to establish the commission of the crime of theft under

[Penn]DOT’s regulations.” Id. at 19 (emphasis in original). Additionally noting

Hawbaker’s assertion of laches, the Commonwealth Court concluded that Hawbaker had

satisfied the fourth prerequisite for the issuance of a preliminary injunction.

The Commonwealth Court next concluded that Hawbaker demonstrated that an

injunction was necessary to prevent immediate and irreparable harm that cannot be

compensated adequately by money damages. Referencing Hawbaker’s presentation of

substantial questions relating to PennDOT’s “statutory authority to suspend a contractor

for prevailing wage violations” and potential due process violations, the Commonwealth

Court noted Hawbaker’s additional argument that “it should not be forced to defend itself

[J-15-2023] - 19

at a debarment process in more than one forum, or in the wrong forum where it is subject

to an improper statutory burden and standard of review.” Id. The Commonwealth Court

reiterated that “[i]t is well established that statutory and constitutional violations constitute

irreparable harm per se and that no further showing on this prerequisite is necessary for

a preliminary injunction to issue.” Id.

The Commonwealth Court further concluded that “a balancing of the harms here

militates in favor of granting the preliminary injunction.” Id. at 20. The Commonwealth

Court reiterated that, while PennDOT maintained that an injunction would impair its ability

to promote the policy of integrity in highway contracting, the OAG’s criminal complaint

pertained to Hawbaker’s conduct during a set period of past years and PennDOT

admitted that Hawbaker subsequently changed its prevailing wage practices. The

Commonwealth Court further noted that a corporate monitor was overseeing Hawbaker’s

compliance with prevailing wage laws and that Hawbaker has been conducting business

in the Commonwealth as a prequalified contractor for decades but for a brief interruption

following PennDOT’s Suspension Notice. The Commonwealth Court, thus, disagreed

that “Hawbaker currently poses an immediate threat to the integrity of highway contracting

or that a preliminary injunction would adversely affect the public interest.” Id. Finally, the

Commonwealth Court held that Hawbaker’s request for injunctive relief would maintain

the status quo, which the Court identified as “the parties’ status prior to [Penn]DOT’s

institution of debarment proceedings,” and that “Hawbaker’s request that [PennDOT] be

enjoined from proceeding with any debarment action arising out of [the] OAG’s criminal

charges or Hawbaker’s entry of its nolo contendere plea is reasonably suited to abate the

offending activity.” Id. at 20-21. Based on the foregoing, the Commonwealth Court

granted Hawbaker’s PI Motion to the extent that it sought a preliminary injunction and

enjoined PennDOT “from proceeding with any debarment action arising out of the [OAG’s]

[J-15-2023] - 20

criminal charges against [Hawbaker] or [Hawbaker’s] entry of a corporate nolo contendere

plea.” Id. at Order Page.

II. ISSUES

On appeal,12,13 PennDOT asks us to decide whether the Commonwealth Court

erred by: (1) exercising equitable jurisdiction where Hawbaker failed to exhaust

administrative remedies; (2) granting preliminary injunctive relief where Hawbaker failed

to meet all of the essential prerequisites for such relief;14 and (3) granting permanent

injunctive relief based solely on evidence adduced at a hearing for preliminary injunctive

relief.

12 PennDOT filed a direct appeal as of right from the Commonwealth Court’s order

granting preliminary injunctive relief. See Pa.R.A.P. 311(a)(4) (providing that appeal may

generally be taken as of right from order granting injunction).

13 During the pendency of this appeal, the Commonwealth Court issued a decision

disposing of preliminary objections that PennDOT had filed to Hawbaker’s Amended

Petition in the interim of Hawbaker I and Hawbaker II. Glenn O. Hawbaker, Inc. v. Dep’t

of Transp. (Pa. Cmwlth., No. 138 M.D. 2021, filed January 24, 2023) (Hawbaker III).

Specifically, the Commonwealth Court overruled PennDOT’s preliminary objections that

assert: (1) that the Commonwealth Court lacked jurisdiction to address the issues raised

in the Amended Petition based upon Hawbaker’s failure to exhaust administrative

remedies; (2) a demurrer to Hawbaker’s due process claim; (3) a demurrer to Hawbaker’s

jurisdictional challenge; and 4) a demurrer to Hawbaker’s claim relative to PennDOT’s

commingling of prosecutorial and adjudicatory functions. Id. at 5-13, 15. The

Commonwealth Court also sustained demurrers that PennDOT asserted relative to

Hawbaker’s claims regarding whether PennDOT’s debarment action should be enjoined

based on Hawbaker I, PennDOT’s Prequalification Regulations permit debarment based

solely on a nolo contendere plea, the debarment proceedings violate Hawbaker’s Fifth

and Eighth Amendment rights, and PennDOT’s debarment proceedings are barred

by laches. Id. at 8-9, 12-14. As such, the Commonwealth Court dismissed Counts I, II,

IV, and VI of Hawbaker’s Amended Petition with prejudice and directed PennDOT to file

an answer to the remaining counts.

14 The Pennsylvania Foundation for Fair Contracting (Foundation) has filed an amicus

curiae brief on behalf of PennDOT. The Foundation argues that the Commonwealth

Court erred in awarding preliminary injunctive relief to Hawbaker where Hawbaker failed

to establish a clear right to relief and a likelihood of prevailing on the merits.

[J-15-2023] - 21

III. ANALYSIS

We begin with PennDOT’s claim that the Commonwealth Court erred by exercising

equitable jurisdiction herein because Hawbaker failed to exhaust available and adequate

administrative remedies.15 “It is fundamental that prior to resorting to judicial remedies,

litigants must exhaust all the adequate and available administrative remedies which the

legislature has provided.” Cnty. of Berks ex rel. Baldwin v. Pa. Labor Rels. Bd., 678 A.2d

355, 360 (Pa. 1996); see also Dep’t of Pub. Welfare v. Eisenberg (Eisenberg I), 454 A.2d

513, 514-15 (Pa. 1982) (“Where injunctive relief is sought, our initial focus should be on

the threshold question regarding whether equity jurisdiction is appropriate. That equity

will not intervene where there is available an adequate statutorily prescribed remedy at

law[] is a principle well established in this Commonwealth.”). The exhaustion

doctrine is a court-made rule intended to prevent premature judicial

intervention into the administrative process. A court is [t]o defer judicial

review where the question presented is one within an agency specialization

and where the administrative remedy is likely to produce the desired result.

The doctrine operates as a restraint on the exercise of a court’s equitable

powers and a recognition of the legislature’s direction to comply with

statutorily-prescribed remedies.

Empire Sanitary Landfill, Inc. v. Dep’t of Env’t Res., 684 A.2d 1047, 1053 (Pa. 1996)

(alteration in original) (citations and internal quotation marks omitted). Nonetheless, the

exhaustion doctrine is not absolute. Feingold v. Bell of Pa., 383 A.2d 791, 793 (Pa. 1977).

Indeed, the parties do not contest the general applicability of the exhaustion doctrine but,

instead, focus their advocacy on whether any of the recognized exceptions apply. In

particular, while PennDOT argues that no exception to the exhaustion doctrine applies,

Hawbaker asserts that it meets three exceptions recognized by our courts—i.e., where

15 With regard to questions concerning the exhaustion of administrative remedies, “we

consider whether the lower court abused its discretion or committed an error of law.”

Rehab. & Cmty. Providers Ass’n v. Dep’t of Human Servs. Off. of Dev. Programs,

283 A.3d 260, 267 (Pa. 2022). “As to any question of law, our review is de novo and

plenary.” Id.

[J-15-2023] - 22

“the jurisdiction of the agency is challenged; . . . the constitutionality of [a] statutory

scheme is challenged; or . . . the remedy provided by the agency is inadequate.”

(Hawbaker’s Brief at 14.)

Beginning with the exception relating to jurisdictional challenges, Hawbaker is

correct that our courts have recognized an exception to the doctrine in cases involving

such attacks. See, e.g., Empire Sanitary Landfill, Inc., 684 A.2d at 1054 (identifying

exception to exhaustion doctrine “where the jurisdiction of an agency is challenged”); Nat’l

Solid Wastes Mgmt. Ass’n v. Casey, 580 A.2d 893, 897 (Pa. Cmwlth. 1990) (same).

Nonetheless, we reject the notion that this exception is so broad as to encompass any

instance in which a party has lodged a challenge to the jurisdiction of an agency. To this

point, we have observed that the exhaustion doctrine will not apply relative to jurisdictional

challenges when “a litigant makes a purely legal challenge to an agency’s jurisdiction.”

Se. Pa. Transp. Auth. v. City of Phila., 101 A.3d 79, 90 (Pa. 2014) (emphasis added).

This is as compared to a fact-based challenge to an agency’s jurisdiction, which is

insufficient to overcome application of the exhaustion doctrine. See Mercy Hosp. of

Pittsburgh v. Pa. Hum. Rel. Comm’n, 451 A.2d 1357, 1359 & n.1 (Pa. 1982) (concluding

that exhaustion doctrine applied where “[t]here [was] no question that the [Pennsylvania

Human Relations Commission (PHRC) was] vested with the authority to consider and

decide the challenge raised to its jurisdiction over the matter,” where challenge concerned

whether “employment relationship” existed between physician and hospital); Pa. Transp.

Auth., 101 A.3d at 90 (finding exhaustion doctrine inapplicable where party presented

“purely legal challenge to an agency’s jurisdiction, not a factual one” as was case in Mercy

Hospital of Pittsburgh); Cnty. of Berks v. Pa. Off. of Open Recs., 204 A.3d 534, 542 (Pa.

Cmwlth. 2019) (explaining that jurisdictional-challenge “exception applies where there is

a matter pending before an agency and the party seeking declaratory or injunctive relief

[J-15-2023] - 23

challenges the jurisdiction of the agency to proceed in that matter on purely legal grounds

that do not depend on the resolution of factual issues”).

Here, Hawbaker argues that the jurisdictional-attack exception to the exhaustion

doctrine applies based on its claim that L&I, and not PennDOT, has exclusive jurisdiction

over the instant debarment proceedings given that the proceedings are, at bottom,

premised upon PWA violations. PennDOT, however, argues that there is no question

that it has jurisdiction to debar contractors from bidding on highway projects pursuant to

Section 404.1 of the SHL and that it is not seeking to debar Hawbaker based upon

violations of the PWA. Rather, as evidenced by PennDOT’s Request and the

subsequently-issued rule to show cause, the sole basis PennDOT relies upon for

debarring Hawbaker is the “[c]ommission of . . . theft” as provided for in

Section 457.13(a)(1) of PennDOT’s Prequalification Regulations, irrespective of any

PWA violations. Moreover, PennDOT maintains that it will seek to prove Hawbaker’s

commission of theft through the fact of Hawbaker’s convictions for that criminal offense

as evidenced by Hawbaker’s nolo contendere plea, which Hawbaker argues PennDOT

cannot do. In view of these circumstances, Hawbaker’s jurisdictional challenge

implicates, in part, outstanding and disputed issues of fact, particularly as to the

underlying conduct of Hawbaker and circumstances serving as the basis for debarment.16

16 Of further note, in Mercy Hospital, the physician had also advanced an argument that

the Peer Review Protection Act, Act of July 20, 1974, P.L. 564, as amended, 63 P.S.

§§ 425.1-.4, prohibited the hospital “from introducing at any PHRC proceeding any

testimony or evidence pertaining to [a] peer review hearing” for purposes of establishing

that its basis for denying the physician staffing privileges was not based upon racial

prejudice. Mercy Hosp., 451 A.2d at 1359 n.2. This Court concluded that, in the event

that the PHRC determined that it had jurisdiction over the matter, it was also for the PHRC

to resolve in the first instance whether there was in fact a conflict between the

Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as

amended, 43 P.S. §§ 951-963, and the Peer Review Protection Act as alleged and, if so,

to “attempt to reconcile any tension.” Id. at 1359-60. As such, the Court was

unpersuaded by the physician’s “convoluted attempt to create a due process argument”

(continued…)

[J-15-2023] - 24

Accordingly, as the instant jurisdictional dispute calls for development of a factual record

before PennDOT, Hawbaker has failed to demonstrate that it has raised a purely legal

challenge to PennDOT’s jurisdiction over these debarment proceedings such that it

should be excused from compliance with the exhaustion doctrine.

Next, Hawbaker argues that it need not exhaust its administrative remedies

because it has raised a facial challenge to the constitutionality and validity of PennDOT’s

Prequalification Regulations insofar as they permit debarment solely based on a nolo

contendere plea. PennDOT, in contrast, asserts that Hawbaker has failed to launch a

constitutional attack upon any statutory scheme or otherwise that is sufficient to justify

disregarding the exhaustion doctrine here. In presenting their arguments, however,

Hawbaker and PennDOT appear to accept the premise that, so long as Hawbaker

presents a substantial constitutional or validity challenge to PennDOT’s regulations,

Hawbaker is not required to exhaust its administrative remedies. This is not so. Of

particular relevance here, our precedent is clear that raising a substantial constitutional

or validity challenge alone is not enough to forgo application of the exhaustion doctrine

and that, in asserting such challenges, a litigant must also demonstrate the absence or

inadequacy of an administrative remedy.17

and concluded that the Commonwealth Court’s intervention was likewise improper insofar

as it had also sought to supervise how the PHRC should exercise its jurisdiction once

established. Id. at 1359-60 & n.4.

17 See Commonwealth ex rel. Nicholas v. Pa. Lab. Rels. Bd., 681 A.2d 157, 161

(Pa. 1996) (“We have held that the doctrine of exhaustion of [administrative] remedies

would not bar equitable intervention where there [is] both a substantial question of

constitutionality and the absence of an adequate statutory remedy.” (alterations and

emphasis in original) (internal quotation marks omitted)); Kowenhoven v. Cnty. of

Allegheny, 901 A.2d 1003, 1012 n.8 (Pa. 2006) (rejecting notion “that ordinary

administrative review may be bypassed as a matter of course simply by adding a

constitutional claim, no matter how tenuous, to a[ tax] assessment grievance” and that

“what is required to confer jurisdiction on an equity court is the existence of a substantial

question of constitutionality (and not a mere allegation) and the absence of an adequate

(continued…)

[J-15-2023] - 25

Indeed, our Court has enforced this requirement under circumstances similar to

the instant matter. In Eisenberg I, the Department of Public Welfare (DPW) issued a letter

to a physician, suspending him from participating in the Pennsylvania Medical Assistance

Program (Program) for three years and advising him of his right to appeal before the

Hearing and Appeals Unit of DPW. Eisenberg I, 454 A.2d at 513. The physician initiated

the appeal process but, before the hearing on his suspension took place, filed an

application for special relief with the Commonwealth Court in which he raised for the first

time a constitutional challenge to DPW’s power to suspend him prior to a hearing. Id.

at 514-15 & n.8. In disposing of the physician’s application for special relief, the

Commonwealth Court concluded that DPW’s action constituted an adjudication within the

meaning of the Administrative Agency Law,18 and, as such, the physician was entitled to

a pre-suspension hearing. Id. at 514. Accordingly, viewing the physician’s application

for special relief as addressed to its equitable powers, the Commonwealth Court enjoined

DPW from taking further action against the physician. Id. On appeal, this Court

concluded that the Commonwealth Court had erred in exercising equitable jurisdiction

and awarding injunctive relief because the physician “had available legal means of

redress which he did not fully pursue before resorting to equitable jurisdiction.” Id. at 515.

In particular, the Court explained that the physician could have fully pursued his

administrative appeal, or he could have brought an action for money damages against

statutory remedy” (quoting Borough of Green Tree v. Bd. of Prop. Assessments, Appeals

and Rev. of Allegheny Cnty., 328 A.2d 819, 822 (Pa. 1974) (plurality)); Cnty. of Berks,

678 A.2d at 360 (“A party cannot avoid the requirement to exhaust administrative

remedies merely by raising a constitutional challenge to the validity of a statute; ‘[t]he

additional element required to confer equitable jurisdiction is either the absence of a

statutorily-prescribed remedy or, if such a remedy exists, then a showing of inadequacy

in the circumstances.’” (alteration in original) (quoting Borough of Green Tree, 328 A.2d

at 822)).

18 2 Pa. C.S. §§ 501-508, 701-704.

[J-15-2023] - 26

the Commonwealth before the Board of Claims on a breach-of-contract theory. Id. at 515

& n.7.

Notably, the physician argued that the Commonwealth Court’s actions were

“proper because he had raised a constitutional due process challenge to [DPW]’s action

of suspending him prior to a hearing,” that “[a]dministrative agencies . . . are without power

to resolve such constitutional questions,” and that “equitable relief was proper since the

available legal remedies did not provide relief for a due process violation.” Id. at 515. In

rejecting the physician’s position, the Court explained:

If we were to accept this argument, it would be a simple matter for

any litigant to avoid the rulings of an administrative agency merely by

challenging its authority on a constitutional basis. It is precisely in an effort

to avoid this problem, that we have consistently held that equity will not

intervene where a statutorily prescribed remedy at law is available without

a clear showing that the remedy was inadequate.

Id. The Court added that the physician had “raise[d] only a constitutional question in

support of his inadequacy argument” without setting forth a “separate allegation that the

available statutory remedy is inadequate,” which was “not enough.” Id. at 515 n.9 (quoting

Borough of Green Tree, 328 A.2d at 823). The Court explained that the physician was

seeking reinstatement in the Program and yet he [did] not allege that the

Appeals Unit lacks the power to lift his suspension by [DPW]. Furthermore,

in view of the fact that [the physician] strenuously asserts that he has valid

defenses against these charges, we are left to wonder why he sought an

injunction before his statutory hearing . . . was held. Assuming that the

Appeals Unit had the power to reinstate [the physician] and accepting the

notion that [the physician] possessed valid defenses, we must conclude that

[the physician] saw advantage in thwarting the administrative process by

resorting to equity in Commonwealth Court, and disadvantage in pursuing

a hearing before the Appeals Unit, in accordance with the legal remedy

provided by statute. Whatever may be [the physician’s] reasons for this

choice, they do not offer adequate justification for judicial interference with

the administrative process.

Id. The Court added:

[W]e refuse to allow equity to intervene where available statutory remedies

have not been exhausted and where there is a lack of sufficient challenge

to the adequacy of these remedies. The administrative process should not

[J-15-2023] - 27

be weakened by unpredictable judicial intrusions in the absence of those

circumstances which this Court has indicated are necessary prerequisites

to such interference. The [Commonwealth Court], therefore, was without

power to exercise equitable jurisdiction or impose injunctive relief.

Id. 515-16 (citation omitted). In view of the foregoing, even if we were to agree that

Hawbaker raised a substantial constitutional or validity challenge to PennDOT’s

Prequalification Regulations for purposes of analyzing whether the exhaustion doctrine

applies, Hawbaker still needs to demonstrate the absence of an adequate administrative

remedy. As such, we turn to an analysis of that requirement.

PennDOT argues that Hawbaker has failed to make a clear showing that

PennDOT’s administrative debarment proceeding is unavailable or inadequate because:

(1) any issues or defenses Hawbaker may seek to raise can be heard and decided in the

proceedings on the order to show cause or the administrative debarment proceeding,

which also affords full appellate rights to Hawbaker; (2) the only relief Hawbaker seeks is

the avoidance of debarment, which relief can be obtained in the administrative

proceedings or on appeal therefrom; and (3) Hawbaker may continue to bid on PennDOT

contracts during the pendency of the administrative proceedings and, thus, will sustain

no harm during that time. In retort, Hawbaker argues that it has demonstrated that

PennDOT’s debarment procedure is inadequate in that it will be held in the “wrong forum”

under improper standards, will violate Hawbaker’s due process rights, and is “futile” in

that it will “result i[n] a foregone conclusion” of debarment. (Hawbaker’s Brief at 22-25.)

Hawbaker adds that it raises issues that should be resolved in a judicial forum, not an

administrative proceeding, and, as such, its pursuit of administrative remedies would be

“pointless.” (Id. at 25 n.8 (quoting Parsowith v. Dep’t of Revenue, 723 A.2d 659, 662

(Pa. 1999)).)

We agree with PennDOT. In doing so, we return to PennDOT’s decision to initiate

debarment proceedings against Hawbaker pursuant to the rule-to-show cause procedure

[J-15-2023] - 28

as provided by GRAPP and PennDOT’s Supplemental Regulations.19 In this regard,

Section 35.14 of GRAPP provides:

Whenever an agency desires to institute a proceeding against a person

under statutory or other authority, the agency may commence the action by

an order to show cause setting forth the grounds for the action. The order

will contain a statement of the particulars and matters concerning which the

agency is inquiring, which shall be deemed to be tentative and for the

purpose of framing issues for consideration and decision by the agency in

the proceeding, and the order will require that the respondent named

respond orally, or in writing (as provided in § 35.37 (relating to answers to

orders to show cause)) or both.

1 Pa. Code § 35.14. Section 491.9 of PennDOT’s Supplemental Regulations add to the

above provision of GRAPP and outline a procedure by which, inter alia: (1) PennDOT

files a written request for the order to show cause; (2) a PennDOT hearing officer issues

the order to show cause; (3) “the docket clerk . . . forward[s] a copy of the order to the

respondent, directing the respondent to show cause why the subject action should not be

taken by . . . [PennDOT];” and (4) the respondent is afforded the opportunity to file a

written answer within 30 days of the mailing of the notice upon pain of waiving any

19 GRAPP generally “governs the practice and procedure before agencies of the

Commonwealth.” 1 Pa. Code § 31.1(a). GRAPP, however, “is not applicable to a

proceeding before an agency to the extent that the agency has promulgated inconsistent

regulations on the same subject.” 1 Pa. Code § 31.1(c). To this point, Section 491.1 of

PennDOT’s Supplemental Regulations provide:

This chapter supplements and supersedes inconsistent provisions in

[GRAPP].

(1) This chapter applies to activities and proceedings before

[PennDOT] in matters under 2 Pa.C.S. §§ 501--508 and 701--704

(relating to the Administrative Agency Law) which are not vested in

other bodies by law.

(2) To the extent this chapter does not supplement nor supersede

[GRAPP], [GRAPP] will apply to activities and proceedings before

[PennDOT].

67 Pa. Code § 491.1.

[J-15-2023] - 29

objections to PennDOT’s proposed action. See 67 Pa. Code § 491.9(a)-(b), (d).

Section 491.9 further provides:

(e) Notification to parties. Upon timely filing of an answer to an order to

show cause, the docket clerk will notify all parties of referral of the matter to

the [PennDOT] hearing officer for the scheduling of a hearing.

(1) Timely filing of an answer to the order to show cause will not

operate as an automatic stay or supersedeas of action taken by

[PennDOT] prior or subsequent to the receipt of the order to show

cause.

(2) Persons initiating a formal request for stay or supersedeas shall

direct their applications to the [PennDOT] hearing officer.

(f) Scheduling of hearing. The [PennDOT] hearing officer will schedule a

hearing and will direct the docket clerk to issue notice to all parties of the

time and place of the hearing.

(g) [PennDOT] hearing officer. The [PennDOT] hearing officer will preside

at the hearing or scheduled prehearing conference and will rule on

questions regarding the admissibility of evidence or other matters relating

to the conduct of the hearing.

(h) Waiver. Upon the failure of the respondent to file a timely answer to the

order to show cause, the [PennDOT] hearing officer may direct the docket

clerk to send to all parties a notice that objections to the order to show cause

are deemed irrevocably waived and the proposed action of [PennDOT] is

deemed approved.

67 Pa. Code § 491.9(e)-(h).20

20 GRAPP and PennDOT’s Supplemental Regulations also contain various provisions

that govern administrative hearings and motions practice before PennDOT and outline

the authority of PennDOT hearing officers. See, e.g., 1 Pa. Code §§ 35.121-.128 (GRAPP

provisions pertaining to hearings); 1 Pa. Code §§ 35.177-.180 (GRAPP provisions relating

to motions); 1 Pa. Code §§ 35.185-.190 (GRAPP provisions pertaining to presiding

officers); 67 Pa. Code §§ 491.3 (Request for Hearing); 67 Pa. Code § 491.6 (Notice and

Conduct of Hearing); 67 Pa. Code § 491.10 (Hearings). These provisions indicate that,

at the hearing, “[p]arties and staff counsel shall have the right of presentation of evidence,

cross-examination, objection, motion and argument.” See e.g., 1 Pa. Code § 35.126(a).

Moreover, the presiding officer is generally tasked with, inter alia, ruling on evidentiary

matters and motions. See, e.g., 1 Pa. Code § 35.162 (explaining that “[t]he presiding

officer, subject to [Section] 35.190 [of GRAPP] (relating to appeals to agency head from

rulings of presiding officers), shall rule on the admissibility of evidence”); 1 Pa. Code

§ 35.128 (“At a stage of the hearing the agency head or the presiding officer may call for

further evidence upon an issue, and require the evidence to be presented by the party or

(continued…)

[J-15-2023] - 30

PennDOT’s Supplemental Regulations further provide that, “[f]ollowing the hearing

and the timely submission of any posthearing filings, the [PennDOT] hearing officer will

prepare and file a proposed report” that contains, inter alia, findings of fact and

conclusions of law. 67 Pa. Code § 491.11(a)-(b); see also 1 Pa. Code §§ 35.201-35.207

(GRAPP provisions relating to proposed reports generally). Thereafter, “[a] party desiring

to appeal to the Secretary [of PennDOT] may file exceptions to the proposed report

within 30 days after the mailing date of the proposed report by the docket clerk.” 67 Pa.

Code § 491.12(a); see also 1 Pa. Code §§ 35.211-14 (relating to exceptions to proposed

reports). GRAPP further provides that “[a]djudications of an agency head shall be final

orders,” including “[a]djudications by the agency head upon appeal of proposed reports

by participants[] by filing exceptions.” 1 Pa. Code § 35.226(a)(2). As concerns a right of

appeal from agency adjudications, the Administrative Agency Law provides that “[a]ny

person aggrieved by an adjudication of a Commonwealth agency who has a direct interest

in such adjudication shall have the right to appeal therefrom to the court vested with

jurisdiction of such appeals.”21 2 Pa. C.S. § 702. Pertinent here, the Commonwealth

Court has “exclusive jurisdiction of appeals from final orders of government agencies,”

including “[a]ll appeals from Commonwealth agencies under Subchapter A of Chapter 7

parties concerned or by the staff counsel, either at that hearing or at the adjournments

thereof.”); 1 Pa. Code § 35.187(4), (7), (9) (providing that presiding officers shall have

authority “to rule upon offers of proof and receive evidence,” “dispose of procedural

matters,” and submit proposed reports); 67 Pa. Code § 491.6(c), (g), (h) (providing

PennDOT hearing officer with authority to decide all motions, including dispositive

motions, as well as “petitions, requests for supersedeas, discovery requests or other

matters presented by the parties”); 67 Pa. Code § 491.10(c) (providing that PennDOT

hearing officer will preside at hearing and rule on admissibility of evidence or other matters

relating to conduct of hearing).

21 An “[a]djudication” is defined for purposes of the Administrative Agency Law as “[a]ny

final order, decree, decision, determination or ruling by an agency affecting personal or

property rights, privileges, immunities, duties, liabilities or obligations of any or all of the

parties to the proceeding in which the adjudication is made.” 2 Pa. C.S. § 101.

[J-15-2023] - 31

of Title 2 (relating to judicial review of Commonwealth agency action).” 42 Pa.C.S.

§ 763(a)(1); see also 67 Pa. Code § 491.13 (requiring certified record to be forwarded to

Commonwealth Court “[i]f a final order of the Secretary [of PennDOT] is appealed to [that

court] under 42 Pa. C.S. § 763”).

The foregoing provisions support PennDOT’s position that the issues Hawbaker

raises can be adjudicated through PennDOT’s administrative proceedings on the rule to

show cause or in a subsequent appeal. Indeed, Hawbaker’s arguments fail to

demonstrate otherwise.22 Nor does Hawbaker dispute that it will sustain no harm during

the pendency of the administrative proceedings as concerns its ongoing business and

that, ultimately, PennDOT has the power to decide not to debar Hawbaker. See 67 Pa.

Code § 457.13(a) (providing that PennDOT “may temporarily suspend or may

debar[] . . . a contractor” for listed reasons).23 Moreover, while Hawbaker argues that

PennDOT’s administrative remedy is inadequate because PennDOT is the wrong forum

22 We note that, insofar as Hawbaker argues that PennDOT’s administrative remedy is

inadequate because “an administrative agency cannot find its own enabling legislation to

be unconstitutional,” (Hawbaker’s Brief at 20), Hawbaker is challenging the

constitutionality of the Prequalification Regulations, not the SHL. As such, Hawbaker fails

to convince us that the exhaustion doctrine does not apply based upon this precept.

23 To the above point, we observe that, following this Court’s decision in Eisenberg I, DPW

terminated the contractual right of the physician involved to participate in the Program

and declared him ineligible to reapply for preferred provider status for five years on the

basis of his nolo contendere plea to federal mail fraud charges. Eisenberg v. Dep’t of

Pub. Welfare, 516 A.2d 333, 334 (Pa. 1986) (Eisenberg II). While this Court held on

appeal that imposition of the physician’s federal sentence on the nolo contendere plea

constituted a “conviction” under the applicable DPW regulation governing suspension and

that the physician was not entitled to introduce evidence of his innocence in the

administrative proceedings before DPW, the Court further concluded that DPW erred by

not holding a hearing on the appropriateness of the penalty because the imposition of a

penalty on conviction was not automatic pursuant to the regulation at issue. Id. at 334-38.

Rather, because the regulation provided that DPW “may” impose a penalty for conviction,

thereby requiring DPW to exercise its discretion in determining the penalty to be imposed,

the Court concluded that DPW erred by imposing a penalty without giving the physician

an opportunity to present evidence on the appropriateness of the penalty. Id. at 337-38.

[J-15-2023] - 32

to adjudicate debarments based on PWA violations, PennDOT will apply an improper

standard by not considering whether Hawbaker intentionally violated the PWA,

PennDOT’s administrative proceeding will violate its due process rights by failing to

provide Hawbaker a meaningful opportunity to be heard, and PennDOT’s proceeding will

be “futile” or “pointless” and result in a “foregone conclusion” of debarment, (Hawbaker’s

Brief at 23-25), Hawbaker has failed to make a clear showing of these alleged

inadequacies. Put simply, all of Hawbaker’s arguments are grounded upon facts that

have yet to be borne out.24

24 Pertinently, notwithstanding any representations or arguments PennDOT has made as

advocate relative to Hawbaker’s debarment, the administrative rule-to-show cause

procedure to which Hawbaker is subject will be held before PennDOT in its distinct role

as adjudicator. Insofar as this matter implicates both the “adjudicatory functions” and

“representative functions” of PennDOT, we observe that PennDOT’s Supplemental

Regulations provide the following safeguards against the commingling of those functions:

(a) Separation of adjudicatory function. The adjudicatory function

performed in accordance with [the Supplemental Regulations] and

[GRAPP] will be separated from the function of representing [PennDOT] in

administrative hearing matters. [The Supplemental Regulations] prescribe[]

that an administrative hearing officer will preside over any hearing and, if

exceptions are filed by any party, the decision ultimately is made by the

Secretary[ of PennDOT]. [PennDOT]’s Chief Counsel advises the

Secretary [of PennDOT] in his adjudicatory capacity.

(b) Ex parte discussions. Under no circumstances may any [PennDOT]

attorney representing [PennDOT] in an administrative hearing matter, or

any [PennDOT] employee involved in such a matter, discuss the case ex

parte with the Administrative Hearing Officer, the Chief Counsel or the

Secretary[ of PennDOT].

(c) Prohibited discussions with employees. The Administrative Hearing

Officer, the Chief Counsel and the Secretary [of PennDOT] may not discuss

with, or exercise any supervisory responsibility over, any employee with

respect to an administrative hearing matter with which that employee is

involved.

(d) Designation by Chief Counsel and Secretary [of PennDOT]. If it

becomes necessary for the Chief Counsel or the Secretary [of PennDOT]

to become involved on behalf of [PennDOT] in any administrative hearing

matter, they are prohibited from participating in the adjudication of the case

(continued…)

[J-15-2023] - 33

Moreover, with respect to Hawbaker’s inadequacy arguments, we find our decision

in County of Berks to be instructive. In that case, the Pennsylvania Labor Relations Board

(PLRB) “certified the United Steelworkers of America, Local 3733, ([]Steelworkers[]) as

the bargaining representative of all assistant district attorneys and assistant public

defenders in Berks County ([]County[]).” Id. at 357. After the Steelworkers and County

entered into a collective bargaining agreement (CBA), and in the midst of negotiating a

successor contract, the County filed a unit clarification petition with the PLRB. In

response, the Steelworkers filed an unfair labor practice charge with the PLRB, claiming

that the County failed to bargain with the Steelworkers as a representative of the collective

bargaining unit. While proceedings on the unit clarification petition and unfair labor

practice charge were ongoing before the PLRB, and after unsuccessfully seeking

extraordinary relief from this Court, the County filed a petition for review in the

Commonwealth Court’s original jurisdiction. The County sought declaratory and

injunctive relief on three claims relevant here: (1) whether the collective bargaining unit

violated criminal defendants’ Sixth Amendment right to effective assistance of counsel;

(2) whether application of the Public Employe Relations Act (PERA), Act of July 23, 1970,

P.L. 563, as amended and repealed, in part, 43 P.S. §§ 1101.101-.2301, to the matter

violated the exclusive jurisdiction of this Court over the supervision of the conduct of

attorneys and violated the rules of professional conduct; and (3) whether assistant district

attorneys and assistant public defenders were management level or confidential

employees not entitled to protections afforded by PERA. Id. at 357-58. The PLRB and

and shall designate appropriate individuals to exercise their adjudicatory

functions.

67 Pa. Code § 491.2a. In view of these safeguards in particular, we trust that PennDOT

will give due consideration to the issues Hawbaker raises in the context of the

administrative proceedings.

[J-15-2023] - 34

Steelworkers filed preliminary objections in response, arguing, inter alia, that the County

had failed to exhaust its administrative remedies. The Commonwealth Court agreed and,

thus, sustained the preliminary objections.

This Court affirmed on appeal. Notably, the County argued before the Court that

it lacked “an adequate remedy at law because the PLRB has not been given any statutory

authority or implicit power to address suitably either the Sixth Amendment rights of

criminal defendants or the ethical rules governing attorneys.” Id. at 360. The County also

emphasized that this “Court has exclusive jurisdiction over the supervision of the conduct

of attorneys.” Id. This Court rejected the County’s contentions:

In these arguments, [the County is] not focusing on whether [it] can

obtain an adequate remedy from the PLRB, but rather are focusing on

whether [it] can obtain that adequate remedy via disposition of particular

issues. That is not the appropriate inquiry. In determining whether a litigant

will be excused from exhausting administrative remedies, we look to

whether that litigant has an adequate administrative remedy. Thus, in Ohio

Casualty Group, supra, and Feingold v. Bell of Pennsylvania, . . . 383 A.2d

791 ([Pa.] 1977), we allowed the litigants to bypass the agency in question

because the agency had no mandate to provide the requested remedies.

We have not, however, allowed a litigant to circumvent the administrative

process where the litigant can achieve full relief in front of the agency but

the relief may be granted on bases different from those advocated by the

litigant.

The County . . . can attain from the PLRB the remedies it requests.

In resolving the County’s pending petition for unit clarification, the PLRB

could, for example, divide the unit into two units, one consisting of assistant

district attorneys and the other consisting of assistant public defenders.

Such a remedy could fully address the County’s concerns raised in Count I

that the combined bargaining unit could violate the Sixth Amendment rights

of criminal defendants. Furthermore, the PLRB could accept the County’s

contention that all members of the bargaining unit are managerial and/or

confidential employees who are precluded from joining any bargaining unit

under PERA. This would provide the County with the remedy that PERA

would not be applied to the assistant district attorneys or the assistant public

defenders; such a remedy would render moot any concerns the County has

over whether application of PERA to these parties infringes on this [C]ourt’s

exclusive jurisdiction over the regulation of attorneys. Thus, because the

County has, in the PLRB, a forum through which it could obtain the very

relief it ultimately desires in this matter, we hold that the Commonwealth

[J-15-2023] - 35

Court was correct in determining that the County had failed to exhaust

administrative remedies.

Id. Of further significance, this Court also rejected the County’s claim “that requiring the

County to submit itself to the PLRB would deny the County procedural and substantive

due process because the PLRB is incapable of guaranteeing a fair decisional process.”

Id. The Court explained:

In support of this contention, [the County] refer[s] to several matters where

issues similar to the ones in the matter sub judice have been presented to

the PLRB; [the County] focus[es] on how the PLRB has either ruled in a

manner which would be unfavorable to [the County’s] position or did not rule

at all on the Sixth Amendment or professional ethics issues. This argument

fails. Simply because the weight of decisions from a forum are against a

party, or they provide no guidance on issues concerning that party, does

not mean that party will be denied due process by that forum.

Id. at 360-61 (citations omitted). The Court continued by observing that its

determination in no way deprived the County of its opportunity to have these

issues fully explored. Issues identical to the ones presented in this matter

are pending before the PLRB. The administrative process, which could

culminate in appellate review of the PLRB’s decision, ensures that the

County’s rights will be protected.

Id. at 361 n.5.

Here, we similarly see no obstacle preventing PennDOT, in resolving the rule to

show cause, from adjudicating Hawbaker’s challenges in an adequate manner. We

likewise conclude that PennDOT’s administrative process, “which could culminate in

appellate review of [PennDOT’s] decision,” is not futile25 and will “ensure[] that

[Hawbaker’s] rights will be protected.” Cnty. of Berks, 678 A.2d at 361. n.5. As such, we

conclude that PennDOT is entitled to relief on its claim that Hawbaker is not entitled to

preliminary injunctive relief on the ground that Hawbaker has failed to exhaust its

administrative remedies. It is our expectation that PennDOT will discharge its

25 In rendering this conclusion, we observe that “[i]t may not be assumed that an agency

will act in an irresponsible or arbitrary manner without judicial supervision and direction.”

Mercy Hosp. of Pittsburgh, 451 A.2d at 1360.

[J-15-2023] - 36

adjudicatory functions in good faith by allowing Hawbaker to raise and develop every

issue it chooses to advance and by giving each issue its due consideration, so that an

adequate record is created should appellate review become necessary.

IV. CONCLUSION

For the foregoing reasons, we agree with PennDOT that the Commonwealth Court

erred in exercising equitable jurisdiction to award Hawbaker preliminary injunctive relief

in this matter.26 Accordingly, we reverse the order of the Commonwealth Court, and we

remand the matter for further proceedings consistent with this Opinion.27

Chief Justice Todd and Justices Donohue, Dougherty, Wecht and Mundy join the

opinion.

26 Given our conclusion above, we need not address PennDOT’s remaining issues on

appeal.

27 On March 10, 2023, PennDOT filed in this Court an “Application to Reinstate Automatic

Supersedeas” (Application). PennDOT submitted that its instant appeal from the

Commonwealth Court’s decision awarding Hawbaker preliminary injunctive relief in

Hawbaker I served as an automatic supersedeas, effectively lifting the injunction,

pursuant to Pa.R.A.P. 1736(b) (providing generally that appeal by Commonwealth or any

officer thereof acting in his or her official capacity “shall operate as a supersedeas in favor

of such party, which supersedeas shall continue through any proceedings in the United

States Supreme Court”). PennDOT further asserted that, in light of those circumstances

and the Commonwealth Court’s subsequent disposition of PennDOT’s preliminary

objections in Hawbaker III, PennDOT again proceeded administratively against

Hawbaker by issuing an amended order to show cause why Hawbaker should not be

debarred on February 13, 2023. In response, Hawbaker filed in the Commonwealth Court

an application to vacate the automatic supersedeas, which the Commonwealth Court

granted by per curiam order dated March 2, 2023. In its Application to this Court,

PennDOT argues that the Commonwealth Court erred in terminating the automatic

supersedeas and requests that this Court reinstate it. Upon review of the Application and

Hawbaker’s answer thereto, filed on March 20, 2023, and based upon our disposition

herein, we dismiss PennDOT’s Application as moot.

[J-15-2023] - 37