TRUCK DRIVERS HAULING MATERIALS TO AREAS WITHIN AND CLOSE TO THE JOB SITE MAY BE ENTITLED TO THE PREVAILING WAGE UNDER THE PENNSYLVANIA PREVAILING WAGE ACT
COMMONWEALTH COURT CONCLUDES THAT A TRUCK DRIVER FELL UNDER THE DEFINITION OF “WORKMAN” UNDER 43 P.S. § 165-2(7) BECAUSE HE PERFORMED WORK “DIRECTLY UPON THE PUBLIC WORK PROJECT”
Matthew Chabal III, Esq.
James Smith Dietterick & Connelly, LLP
P.O. Box 650, Hershey, PA 17033
On October 28, 2011, the Commonwealth Court decided the case of Bockelman Trucking v. Prevailing Wage Appeals Board, 30 A.3d 616 (Pa. Cmwlth. 2011), and concluded that truck drivers who hauled materials to and from a public work project were entitled to prevailing wages under the Pennsylvania Prevailing Wage Act (the “Act”). The Court rejected the contractors’ arguments that they were not required to pay prevailing wages because (1) the drivers did not perform services “directly upon a public work project” and (2) the drivers were “material suppliers” exempt from the prevailing wage requirement.
The project involved reconstruction of the Pennsylvania turnpike in Lawrence and Beaver Counties. Bockelman Trucking and Delliquadri Trucking were third-tier subcontractors hired to haul excavated materials between the construction site and an off-site borrow pit. As established by the Department of Labor and Industry, the prevailing wage for truck drivers in Lawrence and Beaver County was $32.74 an hour. Bockelman (and perhaps Delliquadri), however, paid $12 an hour.
Bockelman and Delliquadri claimed their truck drivers were not “workmen” under the Act, but rather were “material suppliers,” which are specifically excluded from the definition of “workman” under the Act, and, further, did not perform services “at the job site.” See 43 P.S. § 165-2(7). They argued that the drivers had to leave the confines of the project site and travel into Ohio to turn around to reach the borrow pit, which the contract described as an off-site facility.
Citing the remedial nature of the Act, the Commonwealth Court rejected Bockelman’s and Delliquadri’s arguments. Because no Pennsylvania courts had interpreted the statutory language at issue, the Court sought guidance from federal regulations and federal court decisions interpreting similar provisions of the Davis-Bacon Act. The Davis-Bacon Act requires contractors and subcontractors on federally funded projects to pay prevailing wages to mechanics and laborers employed “directly on the site of the work.” 40 U.S.C. §§3142-3143. After citing several federal cases that seemed to support Bockelman’s and Delliquadri’s position, the Commonwealth Court relied upon the Department of Labor’s regulations, which were issued subsequently, apparently in response to those decisions. Under the regulations, the “site of the work” included “secondary sites other than the project’s final resting place,” if they are “dedicated to the covered project and are adjacent or virtually adjacent to a location where the building or work is being constructed.” 65 Fed. Reg. 80268 & 80270.
The Court was not moved by the fact that the trucks could not cross the turnpike lanes due to concrete barriers and were required to travel to the turnaround areas to go from one side to the other side of the construction site and to reach the borrow pit. The controlling factor was “the location of the pit adjacent or virtually adjacent to the reconstruction site and its exclusive or near exclusive dedication to the turnpike reconstruction, not the actual distance that the truck drivers had to travel on the turnpike to reach the pit.”
Further, the Court rejected Bockelman’s and Delliquadri’s contention, and the Pennsylvania Prevailing Wage Appeals Board’s ruling, that they were “materials suppliers.” Faced with the lack of a statutory definition for the term “material supplier,” the Court concluded that Bockelman and Delliquadri had been hired to perform “material hauling work,” not material supplying.
The lesson from this case is that work that may not even be within the actual confines of a public works job site may be subject to the Prevailing Wage Act. However, the case does not seem to establish a bright line standard and each case must be analyzed on its own facts.
For more information, please contact Matt Chabal, P.O. Box 650, Hershey, PA 17033 | 134 Sipe Ave., Hummelstown, PA 17036 | 717.533.3280 EXT 2070 | firstname.lastname@example.org.
The foregoing is provided for informational purposes only and does not constitute legal advice. Before taking any action related to the issues addressed above, you should consult with an attorney of your choice.