Glenn O. Hawbaker, Inc. v. Com. of PA, DOT ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Glenn O. Hawbaker, Inc., :
Petitioner :
:
v. : No. 138 M.D. 2021
:
Commonwealth of Pennsylvania, : Argued: May 18, 2022
Department of Transportation, :
Yassmin Gramian, Individually :
and in Her Capacity as Secretary :
of Department of Transportation, :
Melissa J. Batula, P.E., Individually :
and in Her Capacity as Executive :
Deputy Secretary for the Department :
of Transportation, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 24, 2023
Before the Court in our original jurisdiction are the preliminary objections
of the Commonwealth of Pennsylvania, Department of Transportation (PennDOT),
Yassmin Gramian, individually and in her capacity as the Secretary of PennDOT
(Secretary), Melissa J. Batula, P.E., individually and in her capacity as the Executive
Deputy Secretary for PennDOT (Deputy Secretary) (collectively, Respondents) to the
amended petition for review in the nature of a complaint in equity filed by Glenn O.
Hawbaker, Inc. (GOH).
I. BACKGROUND
In a nutshell, this case is about Respondents’ attempt to suspend and later
disbar GOH from the bidding process for highway construction contracts. For
approximately 32 years, between 1986 and 2018, the Pennsylvania Department of
Labor and Industry (L&I), the United States Department of Labor (DOL), and
PennDOT investigated GOH regarding potential violations of the prevailing wage
laws, but no charges or actions were ever filed or taken. Then, in 2021, the Office of
the Attorney General (OAG) filed a criminal complaint against GOH based on the
following:
[GOH] is a highway construction contractor based in State
College, Centre County, Pennsylvania. [GOH] regularly
performs highway and bridge construction contracts
throughout the Commonwealth for various public owners,
including [PennDOT], and [GOH] has been prequalified to
bid on contracts let by [PennDOT] for decades. In June 2018,
investigators from the [OAG] served a search warrant on
[GOH’s] offices in State College and seized a large volume
of both paper and electronic files. The warrant related to
documentation demonstrating whether [GOH] complied with
prevailing wage laws and, more specifically, how [GOH]
calculated the credit for fringe benefits paid to its employees.
Subsequently, on April 8, 2021, OAG filed a criminal
complaint before a Magisterial District Judge in Centre
County, charging [GOH, in its corporate capacity,] with four
counts of theft by failure to make required disposition of
funds received, in violation of [s]ection 3927 of the Crimes
Code, 18 Pa.C.S. § 3927.[ ] Essentially, the complaint alleges
that for calendar years 2015 through 2018, [GOH] withheld
fringe benefit payments from its employees in violation of the
[Pennsylvania Prevailing Wage Act (PWA)1] and the Davis-
1
Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§165-1 – 165-17.
2
Bacon Act.[2] On April 19, 2021, just 11 days after OAG filed
the criminal complaint, [PennDOT] issued a Notice of
Immediate Suspension, suspending [GOH] from contracting
with, bidding on or participating in the award of contracts, for
Commonwealth[-] supervised or funded highway
construction work.
Glenn O. Hawbaker, Inc. v. Commonwealth of Pennsylvania, Department of
Transportation et al. (Pa. Cmwlth., No. 138 M.D. 2021, filed January 19, 2022)
(McCullough, J., single-judge op.) (Hawbaker II), slip op. at 2-3 (footnote omitted).
GOH commenced this matter when it filed a petition for review in this
Court on May 4, 2021. Thereafter, on June 30, 2021, a single judge of this Court
granted a motion for a preliminary injunction filed by GOH and enjoined Respondents
from enforcing the notice of suspension and from proceeding with any suspension or
debarment action arising out of the criminal charges that the OAG filed against GOH
based on any violation of the prevailing wage laws. See Glenn O. Hawbaker, Inc. v.
Commonwealth of Pennsylvania, Department of Transportation (Pa. Cmwlth., No. 138
M.D. 2021, filed June 30, 2021) (McCullough, J., single-judge op.) (Hawbaker I).
Subsequently, GOH filed an amended petition for review (PFR) on
September 23, 2021, based upon changes of material facts that occurred after
Hawbaker I. The gist of the PFR can be summarized as follows:
[O]n August 3, 2021, [GOH] entered a corporate plea of nolo
contendere to four counts of theft through a plea agreement
with OAG. Pursuant to that plea agreement, [GOH]
consented 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. [GOH] further agreed to
submit to oversight by a corporate monitor, at [GOH’s]
expense, to oversee its compliance with all state and federal
2
40 U.S.C. §§ 3141-3144, 3146-3147.
3
prevailing wage laws and regulations, including the PWA and
the Davis-Bacon Act. In return, OAG agreed not to bring any
additional criminal charges against [GOH, in an individual
capacity,] or any of its shareholders, officers, and employees
for conduct occurring between January 1, 2015, through the
time the plea agreement was made.
Hawbaker II, slip op. at 7-8.
In the PFR, GOH avers that on September 3, 2021, PennDOT initiated
debarment proceedings against GOH by filing a request for an order to show cause why
GOH should not be debarred for up to three years. GOH asserts seven counts, sounding
in equity, which may be summarized as follows: Count I—injunctive/declaratory relief
based on Hawbaker I; Count II—injunctive/declaratory relief to the effect that a nolo
contendere plea cannot result in debarment; Count III—injunctive/declaratory relief to
the effect that debarment based solely on a nolo contendere plea violates due process;
Count IV—injunctive/declaratory relief to the effect that PennDOT’s debarment
proceedings violate Fifth and Eighth Amendment rights under the United States
Constitution;3 Count V—injunctive/declaratory relief to the effect that L&I must
determine whether the PWA was violated intentionally; Count VI—
injunctive/declaratory relief to the effect that PennDOT’s debarment proceedings are
barred by the doctrine of laches; Count VII—injunctive/declaratory relief to the effect
that PennDOT’s administrative proceedings would result in a commingling of
prosecutorial and adjudicatory functions.
In conjunction with the PFR, GOH filed another motion for a preliminary
injunction. On January 19, 2022, a single judge of this Court granted the motion and
enjoined Respondents from proceeding with any debarment action arising out of the
criminal charges that OAG filed against GOH or GOH’s entry of a corporate nolo
contendere plea. See Hawbaker II.
3
U.S. Const. amend VI and VIII, respectively.
4
In the interim of Hawbaker I and Hawbaker II, and following GOH’s
filing of the PFR, Respondents filed eight preliminary objections (POs) to the PFR.
The first PO contends that this Court lacks jurisdiction because GOH failed to exhaust
administrative remedies, and the remaining seven POs demur to Counts I through VII,
respectively.
II. DISCUSSION
“When considering preliminary objections, we must accept as true all
well-pleaded material facts alleged in the complaint and all reasonable inferences
deducible therefrom.” Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017). “A
preliminary objection should be sustained only in cases when, based on the facts
pleaded, it is clear and free from doubt that the facts pleaded are legally insufficient to
establish a right to relief.” Id.PO No. 1 – Lack of Jurisdiction
In their first PO, Respondents contend that this Court lacks jurisdiction to
address the issues raised in the PFR because GOH failed to exhaust all adequate and
available administrative remedies, namely, the debarment proceedings through
PennDOT’s administrative procedure. According to Respondents, PennDOT’s
administrative process is the sole forum to debar a contractor even where, as here, the
underlying factual basis for debarment involves, or at least implicates, violations of the
PWA.
In turn, GOH contends that PennDOT’s administrative procedure is not
adequate, among other reasons, because PennDOT is the incorrect forum. In GOH’s
view, L&I possesses exclusive jurisdiction to consider whether a contractor should be
suspended or debarred for alleged violations under the PWA, which only L&I can do
upon a finding of an intentional violation of the PWA.
5
“While the failure to exhaust a statutory or administrative remedy
normally bars this Court from hearing claims of declaratory or injunctive relief with
respect to agency action, the exhaustion doctrine is neither inflexible nor absolute.”
County of Berks v. Office of Open Records, 204 A.3d 534, 540 (Pa. Cmwlth. 2019)
(internal citation and quotation marks omitted). As such, the Pennsylvania Supreme
Court has recognized three exceptions to the doctrine, namely, “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.” Id.The issues raised by the parties were squarely addressed in Hawbaker II:
[GOH] has raised a legitimate question as to whether
[PennDOT] has jurisdiction to institute the debarment
proceedings herein. The PWA establishes a thorough scheme
for handling prevailing wage disputes, including prosecuting
and penalizing violations through an administrative hearing
process managed by L&I, not [PennDOT]. See, e.g., [section
2.2 of the PWA, added by the Act of August 9, 1963, P.L.
653,] 43 P.S. §§ 165-2.2(e) (creating in L&I an Appeals
Board “with the power and duty to . . . hear and determine any
grievance or appeal arising out of the administration of” the
PWA), [section 11 of the PWA,] 43 P.S. § 165[-]11 (giving
the Secretary of L&I the duty to investigate alleged failure to
pay workmen prevailing wages under the PWA and to
determine, after notice and hearing, whether such failure was
intentional). See also 500 James Hance Court v.
Pennsylvania Prevailing Wage Appeals Board, 33 A.3d 555,
557 (Pa. 2011) (stating L&I “is the Commonwealth agency
charged with administration and enforcement of the PWA”).
[PennDOT] claims that its debarment notice arises solely
from the criminal charges filed against [GOH] and its [nolo
contendere] plea, without implicating the prevailing wage
laws, and that a debarment on such grounds is specifically
contemplated by [PennDOT’s] prequalification regulations.
Yet the criminal charges lodged against [GOH] are for theft
“by failure to make required disposition of funds received,”
18 Pa.C.S. § 3927(a), and the requirement to make disposition
of funds here specifically stems from the PWA and the Davis-
6
Bacon Act. Both OAG’s criminal complaint and [GOH’s]
plea agreement reinforce this fact as they refer to either the
prevailing wage laws generally, or to the PWA and the Davis-
Bacon Act themselves.
Moreover, [GOH] raises legitimate concerns that allowing
multiple agencies to proceed against it for purported
violations of the PWA could subject [GOH] to punitive,
inconsistent, and unfair consequences. As [GOH] points out,
the PWA only contemplates debarment of a contractor based
upon a finding that the prevailing wage violation was
intentional. See 43 P.S. §§165-11(e) and [section 12 of the
PWA,] 165-12; see also 43 P.S. § 165-11(d) (providing that
if Secretary determines the failure was not intentional, the
contractor shall be afforded a reasonable opportunity to make
payment). [PennDOT’s] prequalification regulations do not
contemplate such an inquiry. In fact, [PennDOT’s] request
for an order to show cause claims that simply “by entering a
plea of no contest to four counts of the crime of theft, [GOH]
has knowingly and intentionally established, for debarment
purposes . . . its commission of the crime of theft,” and that
[GOH] should therefore be debarred for up to three years.
This undeniable conflict also calls into question the adequacy
of the administrative remedy provided by [PennDOT]
through its debarment proceedings.
Hawbaker II, slip op. at 17-18 (some internal citations omitted).
In Hawbaker II, the Court recognized that the facts of this case fall within
the ambit of the three exceptions to the exhaustion of remedies doctrine. Here as well,
the Court concludes that it is not clear and free from doubt that PennDOT’s
administrative procedure is the sole and exclusive avenue for—or that PennDOT has
administrative jurisdiction over—debarment proceedings. Considering the nature of
the underlying facts that formed the bases for the nolo contendere plea and their
relationship to the PWA and Davis-Bacon Act, the Court cannot be certain that [GOH]
7
has failed to state a claim as a matter of law. Accordingly, the Court overrules
Respondents’ first PO.4
PO No. 2 – Demurrer to Count I
The second PO is Respondents’ demurrer to Count I of the PFR, which
seeks to enjoin the debarment action contemplated by PennDOT based upon this
Court’s single-judge decision in Hawbaker I. In response, GOH candidly concedes
that Respondents’ demurrer to Count I is meritorious. Indeed, in Hawbaker I, the
Court did not recognize or create a new cause of action, and it is beyond cavil that a
judicial decision is not by itself a cognizable cause of action. Accordingly, the Court
sustains Respondents’ second PO and dismisses Count I of the PFR with prejudice.
PO No. 3 – Demurrer to Count II
In their third PO, Respondents demur to Count II of the PFR, which asks
this Court to enjoin Respondents from proceeding with any debarment action based
solely on GOH’s nolo contendere plea. Respondents contend that the regulation at 67
Pa. Code § 457.13 authorizes it to debar a contractor based on a nolo contendere plea
to theft. In response, GOH contends that, by its nature, a nolo contendere plea cannot
constitute evidence that it committed a crime because, if it could, the purposes and
policy goals underlying the plea would be undermined.
In pertinent part, 67 Pa. Code § 457.13 states as follows:
(a) Reasons for suspension or debarment. The [PennDOT]
may temporarily suspend or may debar, for a set period or
4
While PennDOT relies on KC Equities v. Department of Public Welfare, 95 A.3d 918 (Pa.
Cmwlth 2014), its reliance is misplaced as that case involved due process only with respect to the
availability of discovery. See id. at 933. Moreover, KC Equities does not negate the requirement that
the administrative remedy be adequate. See Keystone Relief LLC v. Pennsylvania Department of
Health, 186 A.3d 505, 517 (Pa. Cmwlth. 2018) (citing KC Equities and stating: “Notwithstanding,
the mere existence of a remedy does not dispose of the question of its adequacy; the administrative
remedy must be adequate and complete.”) (internal quotations omitted).
8
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 . . . .
....
(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 . . . .
67 Pa. Code § 457.13(a)(1), (c).
The Court concludes that 67 Pa. Code § 457.13(c) clearly permits the
initiation of a debarment proceeding based on a plea of “no contest” to criminal charges
of theft or any of the other offenses or violations set forth in 67 Pa. Code § 457.13(a)(1)-
(8). Accordingly, the Court sustains Respondents’ third PO and dismisses Count II
of the PFR with prejudice.5
PO No. 4 – Demurrer to Count III
In their fourth PO, Respondents demur to Count III of the PFR, which
asks this Court to declare unconstitutional PennDOT’s prequalification regulations
because they violate due process to the extent they allow debarment based solely on a
nolo contendere plea. According to Respondents, the provisions of the prequalification
regulations, the General Rules of Administrative Practice and Procedure (GRAPP),6
5
As set forth infra in our discussion of Respondents’ sixth PO, we dismiss Count II only on
the ground that a nolo contendere plea may itself form the basis for a debarment proceeding. We do
not decide whether, and to what extent, PennDOT (and not L&I) may initiate debarment proceedings
involving underlying alleged violations of prevailing wage laws.
6
Title 1 Pa. Code, Part II, Chapters 31-35, 1 Pa. Code §§ 31.1-35.251. “[GRAPP] appl[ies]
when agencies hold a hearing, unless the agency adopted alternate procedures.” KC Equities, 95 A.3d
at 932.
9
and PennDOT’s supplemental regulations at 67 Pa. Code §§ 491.1 - 491.17 will
provide GOH with adequate due process.
GOH counters that Respondents’ administrative procedure consists of
nothing more than the introduction of the nolo contendere plea and will deprive it of
the opportunity to exercise core due process rights, such as the right to confront and
cross-examine witnesses and have a meaningful opportunity to be heard. GOH further
argues that the PWA contemplates debarment of a contractor only based upon a factual
finding that the prevailing wage violation was intentional, which would require proof
above and beyond the nolo contendere plea itself and create a material issue of fact.
GOH also relies on the rationale set forth in Hawbaker I and Hawbaker II.
“Broadly speaking, the principles of due process require an
opportunity, among other things, to hear the evidence
adduced by the opposing party, cross-examine witnesses,
introduce evidence on one’s own behalf, and present
argument. In almost every setting where important decisions
turn on questions of fact, due process requires an opportunity
to confront and cross-examine adverse witnesses, and this
holds true even when administrative . . . actions were under
scrutiny.”
C.S. v. Department of Human Services, Bureau of Hearings and Appeals, 184 A.3d
600, 604 (Pa. Cmwlth. 2018) (internal citation and quotation marks omitted). Further,
“[p]rocedural due process is a flexible concept which varies with the particular
situation. Its central demands are an opportunity to be heard at a meaningful time and
in a meaningful manner.” Sutton v. Bickell, 220 A.3d 1027, 1032 (Pa. 2019) (internal
citations and quotations omitted) (emphasis added).
GOH’s due process claim was thoroughly discussed in Hawbaker I:
It is indisputable that [PennDOT’s] prequalification
regulations do not provide for an automatic hearing regarding
a suspension at any point, either pre- or post- deprivation. The
[] [C]ourt [in Balfour Beatty Construction, Inc. v. Department
10
of Transportation, 783 A.2d 901 (Pa. Cmwlth. 2001)],
stressed [PennDOT’s] failure to provide contractors with an
opportunity to be heard when it “concluded that the
regulations do not provide for a procedure that complies with
due process and Section 504 of the Administrative Agency
Law, 2 Pa.C.S. § 504 . . . .” Balfour, 783 A.2d at 910. It is
troubling that [PennDOT] has ignored the holding and
due process concerns raised in Balfour, failing to amend
its suspension regulations to provide for a hearing in the
almost 20 years that have passed since that case was
decided.
....
Moreover, it is clear from the representations made to the
Court and the stipulations of the parties that [PennDOT] does
not intend to produce actual evidence during any hearing it
would provide [GOH] regarding the Notice of Suspension.
....
Regardless of the fact that [GOH] is defending itself in an
administrative process rather than a criminal prosecution, the
nature of the deprivation to [GOH] is significant and it has
raised substantial questions pertaining to due process and the
adequacy of any post-suspension hearing [PennDOT] may
provide.
Hawbaker I, slip op. at 22, 26, 27 (emphasis added).
In Hawbaker II, the due process issue was addressed as follows:
[GOH] again raises significant due process concerns
regarding [PennDOT’s] administrative process and
regulations, including whether [GOH’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 [PennDOT’s] regulations.
Hawbaker II, slip op. at 19 (emphasis in original).
11
As previously mentioned, in Balfour, this Court concluded that
PennDOT’s prequalification regulations violate due process. Although GRAPP and
PennDOT’s supplemental regulations apply when an agency holds a hearing, that
hearing must nonetheless provide GOH with the right to cross-examine witnesses,
introduce evidence on its own behalf, and present argument at a meaningful time and
in a meaningful manner. As explained above, there is a potential issue of fact regarding
whether GOH violated the PWA intentionally that would require full implementation
of the due process rights associated with an adversarial proceeding. For these reasons,
and the reasons discussed in Hawbaker I and Hawbaker II, we conclude that it is not
clear and free from doubt that GOH’s due process claim fails as a matter of law.
Accordingly, the Court overrules Respondents’ fourth PO.
PO No. 5 – Demurrer to Count IV
In their fifth PO, Respondents demur to Count IV of the PFR, which asks
the Court to declare PennDOT’s initiation of debarment proceedings unconstitutional
under the Fifth and Eighth Amendments to the United States Constitution.
Respondents assert that GOH’s debarment via an administrative proceeding does not
run afoul of the double jeopardy clause of the Fifth Amendment or the excessive fines
clause of the Eighth Amendment.
In response, GOH argues that if debarment is added to the punishment that
it already has received as a result of its nolo contendere plea, it would be prosecuted
twice for the same offense in violation of double jeopardy principles. GOH further
argues that if it is debarred, the overall punishment would amount to an excessive fine
and contravene the Eighth Amendment.
Contrary to GOH’s arguments, debarment of a license or a privileged right
through the administrative process does not violate the double jeopardy clause because
12
debarment serves the remedial goal of protecting the integrity of the bidding process.
See, e.g., United States v. Payne, 2 F.3d 706, 710-11 (6th Cir. 1993); Manocchio v.
Kusserow, 961 F.2d 1539, 1542 (11th Cir. 1992); United States v. Furlett, 974 F.2d
839, 844 (7th Cir. 1992). Nor does debarment constitute an excessive fine for purposes
of the Eighth Amendment. See, e.g., Browning-Ferris Industries of Vermont, Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 265 (1989); United States v. Stoller, 78 F.3d 710,
719 (1st Cir. 1996).
Accordingly, the Court sustains Respondents’ fifth PO and dismisses
Count IV of the PFR with prejudice.
PO No. 6 – Demurrer to Count V
In their sixth PO, Respondents demur to Count V of the PFR, wherein
GOH alleges that PennDOT has no authority to initiate debarment proceedings because
only L&I can handle debarment actions related to prevailing wage issues.
In turn, GOH reiterates that the underlying basis for the debarment
proceedings and nolo contendere plea are violations of the PWA or Davis-Bacon Act
and, accordingly, L&I’s administrative regime is the sole mechanism through which
its license may be debarred.
For the reasons discussed in connection with our disposition of
Respondents’ first PO, we conclude that it is not clear and free from doubt that
PennDOT’s administrative procedure is the exclusive avenue to debar GOH, and an
issue of fact remains as to whether L&I may be the appropriate administrative forum.
Accordingly, the Court overrules Respondents’ sixth PO.
PO No. 7 – Demurrer to Count VI
In their seventh PO, Respondents demur to Count VI of the PFR, wherein
GOH asserts that PennDOT is precluded from initiating a debarment action under the
13
doctrine of laches. Respondents contend that laches is a defense that must be asserted
in the administrative proceeding, that PennDOT in any event acted without delay, and
that GOH has failed to aver prejudice.
GOH contends that there was substantial delay because PennDOT and
L&I have been investigating its prevailing wage practices regarding fringe benefit
credits on multiple occasions over the course of three decades and failed to unearth any
wrongdoing or file any charges. GOH further argues that it has been prejudiced
because it relied on both professional opinions and PennDOT’s and L&I’s implicit
approval to establish and continue its practices regarding fringe benefit credits for
prevailing wage purposes.
While GOH may be correct that there appears to be a long period of
apparent acquiescence to its wage practices by L&I and PennDOT, the fact remains
that the OAG did file charges against GOH, to which it entered a plea of nolo
contendere. PennDOT promptly instituted suspension proceedings and later
debarment proceedings after the OAG filed the criminal charges and GOH entered a
plea of nolo contendere, respectively. In these circumstances, GOH has not sustained
any meaningful prejudice. See Weinberg v. State Board of Examiners of Public
Accountants, 501 A.2d 239, 244-45 (Pa. 1985). Moreover, laches is a defense that
must be raised at the administrative level, and it is not a viable means through which
to preemptively bar an administrative proceeding via a complaint in equity. See
Commonwealth of Pennsylvania, State Board of Nurse Examiners v. Kathryn A. Kindle,
R.N., 515 A.2d 1342, 1344 (Pa. 1986); Smires v. O’Shell, 126 A.3d 383, 393 (Pa.
Cmwlth. 2015).
Accordingly, the Court sustains Respondents’ seventh PO and dismisses
Count VI of the PFR with prejudice.
14
PO No. 8 – Demurrer to Count VII
In their eighth PO, Respondents demur to Count VII of the PFR, wherein
GOH contends that PennDOT’s debarment action must be enjoined because
PennDOT’s administrative procedure consists of a commingling of prosecutorial and
adjudicatory functions. Respondents assert that GOH’s argument that PennDOT will
not separate its prosecuting authority from its adjudicatory authority is presumptuous
and speculative.
In rebuttal, GOH argues that it is entitled to have someone other than the
Secretary or PennDOT’s Chief Counsel decide the issue of debarment. In the PFR,
GOH alleges that these individuals were involved in the decision to institute suspension
and/or debarment proceedings and will be involved in the deliberative process.
According to GOH, during an administrative hearing before PennDOT, the Secretary
or her designee will be provided with a recommended “report” and, therefore, the
individuals who participated in bringing the debarment action would also be the final
decisionmakers tasked with determining whether GOH should be debarred.
Accepting the well-pled allegations in the PFR as true, the Court
concludes that it is not clear and free from doubt that the procedure utilized by
PennDOT would not result in an impermissible commingling of prosecutorial and
adjudicative functions in violation of due process. See Lyness v. State Board of
Medicine, 605 A.2d 1204, 1207-11 (Pa. 1992); Behm v. Wilmington Area School
District, 996 A.2d 60, 64-66 (Pa. Cmwlth. 2010).
Accordingly, the Court overrules Respondents’ eighth PO.
15
III. CONCLUSION
For the above-stated reasons, the Court overrules Respondents’ first,
fourth, sixth, and eighth POs and sustains Respondents’ second, third, fifth, and seventh
POs. The Court accordingly will dismiss Counts I, II, IV, and VI of the PFR with
prejudice.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Dumas dissents.
Judges Covey and Wallace did not participate in the decision of this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Glenn O. Hawbaker, Inc., :
Petitioner :
:
v. : No. 138 M.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Yassmin Gramian, Individually :
and in Her Capacity as Secretary :
of Department of Transportation, :
Melissa J. Batula, P.E., Individually :
and in Her Capacity as Executive :
Deputy Secretary for the Department :
of Transportation, :
Respondents :
ORDER
AND NOW, this 24th day of January, 2023, it is ORDERED that
Respondents’ first, fourth, sixth, and eighth POs are OVERRULED, and
Respondents’ second, third, fifth, and seventh POs are SUSTAINED. Counts I, II,
IV, and VI of the Amended Petition for Review (PFR) hereby are DISMISSED, with
prejudice. Respondents shall file an answer to the PFR and to Counts III, V, and VII
specifically within 20 days of the exiting of this order and accompanying
memorandum. Respondents need not respond to Counts I, II, IV, and VI in their
answer.
________________________________
PATRICIA A. McCULLOUGH, Judge