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Philadelphia Construction Law Blog

President Obama Creates New Bureaucracy To Manage Federal Procurement Process

Posted by:  Josh Quinter  (jquinter@kaplaw.com)

President Obama signed an executive order that will have a huge impact on the construction industry on July 31, 2014. Amazingly, it has received little fanfare or attention until now.

President Barck Obama2.bmpThe Fair Play and Safe Workplaces EO, Number 13673, creates a new and sweeping regulatory scheme to manage federal contractors and the federal procurement process. This should be concern enough for any contractor interested or involved in federal public work given the additional red tape and difficulty it will add to an already cumbersome process. However, it also imposes a subjective standard that is ripe for mistakes and, worse, abuse.

The Executive Order directs federal agencies to determine whether a contractor seeking federal work is "responsible enough" to be awarded the project. There is little guidance for what constitutes "responsible enough" outside a subjective look back at 3 years of compliance history at the state and federal levels. There appears to be no carve out for whether the charges were found to be true or not and there is no mechanism to indicate how different state and federal agencies who already have trouble communicating will share this information. This could result in actual or constructive (due to the time it takes) exclusion of contractors from federal public work. It also represents further consolidation of power in the executive branch and leaves the door open to abuse in the form of favoring political allies of an administration according to some.

Kaplin Stewart Construction Department Takes Ice Bucket Challenge

Posted by:  Josh Quinter  (jquinter@kaplaw.com)

The Construction Department at Kaplin Stewart is doing its part to raise awareness and money to defeat ALS by taking the ice bucket challenge. The department has challenged other firm personnel and companies to accept the challenge by dumping ice cold water over their heads and/or contributing to the ALS foundation. The Kaplin Stewart lawyers and staff brave enough to take the challenge so far are:

Robert Korn

Lisa LaPenna

Joshua QuinterALS Logo.png

Lynn Scott

Jennifer Leister

Angela Wade

Andy Cohn

June Singh

Janet Flood

Karin Corbett

The ALS ice bucket challenge was a spontaneous phenomenon last summer when people across the country participated to raise money for a cure and awareness about ALS. Over $115 million was raised as a result. The ALS Foundation is encouraging people to participate again this year as part of its fundraising effort to support research. Please consider supporting one of our participants. At a minimum, check back later this week for photos and video of the frigid event. They should be great!

Philadelphia Updates Stormwater Regulations Effective July 1, 2015

Posted by:  Karin Corbett  (kcorbett@kaplaw.com)

General Photo of Stormwater Runoff.jpgEffective July 1, 2015, Philadelphia Water updated its Stormwater Regulations for development to meet requirements of the Clean Water Act. The changes claim to improve the health of Philadelphia's rivers, minimize local flooding, and encourage the use of green infrastructure throughout the city. The revised Stormwater Management Guidance Manual, Version 3.0 contains policies and procedures that reflect the new Stormwater Regulation requirements and offers enhanced resources to the development community with respect to stormwater management. A summary of changes can be found at the Philadelphia Watershed's website:


PA Supreme Court says CASPA does not apply to public projects

Posted by:  Josh Quinter  (jquinter@kaplaw.com)

It took a federal court to ask for guidance, but the Pennsylvania Supreme Court has finally formally declared as law a concept most construction lawyers already assumed to be the case: the Pennsylvania Contractor and Subcontractor Payment Act does not apply to public works projects.

The Supreme Court offered this opinion when asked by the federal Third Circuit Court of Appeals for guidance on the issue in the matter of Clipper Pipe & Service, Inc. v. The Ohio Casualty Insurance Company. The question arose after the District Court awarded CASPA damages against Ohio Casualty on work performed by Clipper Pipe under its agreement to help construct the Navy and Marine Corps Reserve Training Center in the Lehigh Valley. Citing conflicting case law, the District Court denied the defendants' summary judgment motion and permitted an award of CASPA damages after Clipper was successful at trial.

Generic Construction Project Picture.jpg

The analysis focused on the rules of statutory construction and, more specifically, the definition of an owner. The Court agreed with Ohio Casualty that use of the word "association" in the statutory definition was insufficient to include a governmental entity. The owner of the project in this case - the Department of Navy - was too dissimilar to a corporate or business entity owner to make the analogy work either. This logic, in combination with another standard rule of statutory construction requiring laws which infringe on the sovereignty of a public body to be narrowly construed, necessitated a conclusion that CASPA does not apply to public projects.

BREAKING NEWS: Ironworkers Union Boss Sentenced to 19 Years in Prison

Posted by:  Karin Corbett  (kcorbett@kaplaw.com)

Joseph Dougherty, 73, former head of Philadelphia's largest ironworkers union, was sentenced Monday to 19 years and two months in federal prison after being convicted of overseeing a campaign of sabotage and intimidation of nonunion contractors including the 2012 torching of a Quaker Meetinghouse in Chestnut Hill. In addition, Dougherty will have to pay over $500,000 in restitution.

Dougherty is the last defendant of 12 to be sentenced in this case.

Construction Trivia

Posted by:  Josh Quinter  (jquinter@kaplaw.com)

Among the most famous buildings in the world, the White House is the residence and working space for the President of the United States. Despite its unique name, it was not always white and not always known as the White House. Do you know how the White House came to be known by that name?

White House.jpg

If you know the answer, post it in the comments section below. We will reveal the answer this weekend.

Is the end near for Kvaerner in Pennsylvania?

Posted by:  Josh Quinter  (jquinter@kaplaw.com)

In one of the most impactful decisions of the last decade for both the insurance and construction industries, the Pennsylvania Supreme Court ruled in Kvaerner U.S., Inc. v. Commercial Union Insurance Co., that defective work was not an occurrence under a commercial general liability insurance policy when the underlying claims "triggering" coverage sound in contract. Courts in other jurisdictions, however, have been methodically swinging in the other direction. It may ultimately spell the end of the narrow reading the Kvaerner decision imposes on CGL policies in Pennsylvania.

roof leak.pngThe most recent example of the erosion of Kvaerner's narrow definition of the term "occurrence" came in a case captioned Pennsylvania Mutual Casualty Insurance Company v. St. Catherine of Siena Parish. The federal Eleventh Circuit Court of Appeals held that "unexpected and unintended property damage" is an occurrence. Significantly, the Court agreed that the standard contractual liability exclusion in CGL policies does not provide an avenue to disclaim coverage.

The case arose when St. Catherine of Siena Parish hired a contractor to replace the roof on two of its buildings. One began leaking almost immediately after installation and the other showed signs of leaking within 18 months. The leaks infiltrated the building and began causing damage to walls and ceilings which were, importantly, not part of the contractor's scope of work. Because the work was technically performed by a subcontractor, the "your work" exclusion could not be relied upon to deny coverage. Instead, the insurance company maintained that the failure to install the roof properly was a breach of contract claim and therefore excluded from coverage under the contractual liability exclusion clause of the policy.

Bethlehem Project at Martin Tower Hits Roadblock

Posted by:  Josh Quinter  (jquinter@kaplaw.com)

A large project to build retail and commercial space on a 52 acre plot in Bethlehem has been slowed. At issue are two items.

Martin Tower - Bethlehem.jpgFirst, the redevelopment would likely require the demolition of the Martin Tower. The current zoning laws in the area prohibit demolition of the building; but the planning commission is considering a change to City ordinances in order to permit the building to be torn down. In so doing, they are taking the opportunity to impose some of their vision for the project on the developer by voting to table the zoning change pending guidance from the developer as to how it proposes to include more residential components to the project.

The second component causing some contention - albeit seemingly less - is that the Martin Tower is a historically significant building in Bethlehem. Built approximately 40 years ago, it was the headquarters for Bethlehem Steel before operations shut down. It is also the tallest building in the Lehigh Valley and on the National Register of Historic Places. Some, as a result, see the building as worth preserving.

Pennsylvania Convention Center Authority files RICO claim against Metropolitan Regional Council of Carpenters

Posted by:  Karin Corbett (kcorbett@kaplaw.com)

The Pennsylvania Convention Center Authority recently filed a federal civil lawsuit against Metropolitan Regional Council of Carpenters, one of the two unions barred from working at the property, after failing to sign a new, more exhibitor-friendly customer satisfaction agreement. The lawsuit also names individual members of the Carpenters' union.

The Convention Center's lawsuit seeks to recover more than $1 million in damages suffered by the authority by the Carpenters union through its activity over the past year, which Convention Center management said included "illegal and disruptive mass picketing and protests; physical intimidation, harassment, stalking, and assault and battery; verbal intimidation, harassment, race-baiting, and threats; and the destruction of property."

Bad Faith Land Taking: New Jersey Superior Court Judge Slams New Jersey's Readington Township and Awards Attorney and Expert's Fees to Landowner

Posted by: Karin Corbett  (kcorbett@kaplaw.com)

Hunterdon County Superior Court Judge Paul Armstrong has invalidated Readington Township's taking of the property that is Solberg-Hunterdon Airport and ordered the Township to pay attorney and expert fees, citing "manifest abuse of the power of eminent domain."

In a 54 page opinion, the Court admonishes the Township stating "[i]ndeed, the evidence clearly and convincingly shows that these reasons were a pre-text for Readington Township's true purpose, which was to limit the airport's capacity to remain economically competitive and to limit its expansion." The decision notes a series of events occurring just after Solberg released a master plan to expand and improve upon its airport in 1997, including the Township's hiring of a public relations firm to handle the expansion which the PR firm identified as the Township's "main issue" and a "problem".

Subsequently, in 2006, the Township enacted an ordinance authorizing the taking of 724 acres of land owned by Solberg Aviation Co., which fueled a long legal battle captioned Readington Township v. Solberg Aviation, involving several appeals and has continued through to this most recent decision. This most recent opinion comes after the Appellate Division remanded the matter to the trial court in 2009 directing that the trial court determine whether the taking was proper under the New Jersey Eminent Domain Act. Armstrong's opinion, however, highlights that the critical issue is not whether a municipality has the right to condemn land for non-use purposes, but whether a township may "engage in concerted subterfuge to reach [an] objective".

The Township's attorney informs that he and his client are "disappointed in the outcome" and are reviewing options.

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