Opinion
Argued September 9, 1986
October 27, 1986.
Summary judgment — Fact questions — Preliminary objections — Matters previously decided — Pennsylvania Prevailing Wage Act, Act of August 15, 1961, P.L. 987 — Appointment of advisory board.
1. A summary judgment may be granted when there exists no genuine issue of material fact and a party is entitled to judgment as a matter of law in a case free from doubt. [535]
2. In a summary judgment proceeding where the nonmoving party submits no depositions, interrogatory answers or affidavits and raises no material fact issues but only attempts to make legal arguments previously raised and disposed of in rulings upon preliminary objections, summary judgment may be granted where the movant is entitled to judgment as a matter of law. [535]
3. In the absence of factual conflicts, facts averred to support a legal defense or any other legal defense not previously disposed of, summary judgment will be granted requiring the Governor to make advisory board appointments as required by provisions of the Pennsylvania Prevailing Wage Act, Act of August 15, 1961, P.L. 987. [535]
Argued September 9, 1986, before Judges CRAIG and BARRY, and Senior Judge KALISH, sitting as a panel of three.
Original Jurisdiction No. 904 C.D. 1985, in the case of Keystone Chapter, Associated Builders and Contractors, Inc. v. Dick Thornburgh, Governor of the Commonwealth of Pennsylvania, and James W. Knepper, Jr., Secretary of the Department of Labor and Industry, of the Commonwealth of Pennsylvania.
Petition for review filed in Commonwealth Court of Pennsylvania seeking to compel the Governor to make appointments to advisory board. Respondents filed preliminary objections. Preliminary objections dismissed. Petitioners filed motion for summary judgment. Held: Motion granted. Respondents ordered to appoint an advisory board in Department of Labor and Industry.
Stephen J. Weglarz, with him, Stephen C. Townsend and Gina Ameci, Pechner, Dorfman, Wolffe, Rounick Cabot, for petitioner.
Ellis M. Saull, Deputy Attorney General, with him, Peter Layman, Assistant Counsel, Department of Labor Industry, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.
This is before the Court, in its original jurisdiction, as a mandamus matter, whereby petitioner, Keystone Chapter, Associated Builders and Contractors, Inc. (Keystone), seeks to compel the Governor to make certain appointments to an Advisory Board, as provided for in section 2.1 of the Pennsylvania Prevailing Wage Act (Wage Act), Act of August 15, 1961, P.L. 987, as amended, 43 P. S. § 165-2.1. The respondents, Dick Thornburgh, Governor of the Commonwealth of Pennsylvania, and James W. Knepper, Jr., Secretary of the Department of Labor and Industry, of the Commonwealth of Pennsylvania, had filed preliminary objections which were dismissed. Keystone Chapter, Associated Builders and Contractors, Inc. v. Thornburgh, 92 Pa. Commw. 646, 500 A.2d 211 (1985). The respondents had contended that mandamus would not lie because the acts of the Governor were discretionary.
In Keystone, this Court found that the Wage Act of the Legislature created in the Department of Labor and Industry an Advisory Board of seven members, six of which were to be appointed by the Governor. This Court discussed the function of the Advisory Board and the power of the Secretary of the Board to set the prevailing wage rates after consultation with the Advisory Board. We further stated that the Governor cannot thwart the will of the Legislature by substituting his method of determining the prevailing wage rate. Following the dismissal of their preliminary objections, the respondents filed an answer and new matter, and petitioner now moves for summary judgment.
A motion for summary judgment is an amplification of the motion for judgment of the pleadings, as a technique for summary disposition of the case before trial, where there is no genuine issue of fact and a party is entitled to judgment as a matter of law in a case free of doubt. Pa. R.C.P. No. 1035; Richland Mall Corp. v. Kasko Construction Co., Inc., 337 Pa. Super. 204, 486 A.2d 978 (1984).
The lack of a genuine issue of fact can be shown through the pleadings; depositions, if any; answers to interrogatories, if any; and affidavits, if any. We are to accept as true all well-pleaded facts in the non-moving party's pleadings. The record must be examined in the light most favorable to the non-moving party. Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971).
No depositions, answers to interrogatories, or affidavits have been filed. In examining the non-moving party's pleading, except for the issue of laches, no material questions of fact were raised. It dealt with legal conclusions drawn from the Wage Act, all of which were dealt with in the preliminary objections matter and ruled upon by this Court. The present contention appears to be an attempt to reargue the previous ruling of this Court, which is not permissible. See Dunn v. Orloff, 414 Pa. 636, 201 A.2d 432 (1964).
The respondents, in their answer, made a bald pleading of laches. The record is devoid of any factual averments to support this claim. In fact, at argument respondents appeared to have withdrawn this claim.
The motion for summary judgment is granted.
ORDER
NOW, October 27, 1986, petitioner's motion for summary judgment is granted. Respondents are ordered to appoint an Advisory Board in the Department of Labor and Industry within sixty (60) days.