April is National Safe Digging Month, reminding all contractors and homeowners to call 811 at least three business days before starting a digging project to ensure that all underground utility lines are properly marked and precautions are taken to ensure safety and damage prevention. Whether you are in Pennsylvania or another state, 811 is the nationally recognized number for reporting your planned digging project. According to Pennsylvania 811, "every six minutes an underground utility line is damaged because someone decided to dig without first dialing 8-1-1." Hitting a single utility line can cause severe bodily injury as well as repair costs and power outages. So whether you're planning to simply install a new fence or you're about to begin a major public construction project, Call Before You Dig!
In C.E. Pontz Sons, Inc. v. Purcell Constr. Co., 2015 Pa. Super. Unpub. LEXIS 3192 (Pa. Super 2015), the Pennsylvania Superior Court addressed the often disputed question regarding whether oral modifications to construction contracts have effect despite a contractual provision requiring written amendments to the contract. (A copy of this case is attached HERE) Holding with the prevailing case law, the Court found that oral modifications are enforceable for contracts that are not for the sale of goods.
The Commonwealth Court came out with a hallmark case in Pennsylvania construction law on March 6, 2015, definitively holding that the Prompt Payment Act applies to government entity owners and CASPA does not. East Coast Paving & Sealcoating, Inc. v. North Allegheny School District, No. 751 C.D. 2014, ___ A.3d ___ (Pa. Cmwlth. 2015). (This opinion is attached below for easy reference and review.) The Court reached this conclusion through analyzing not only the plain language of the text (the Prompt Payment Act explicitly calls out payments made by a "government agency," whereas CASPA calls out payments made by an "owner" or "party"), but also by comparing the threshold requirements to receive attorneys fees and penalties under both Acts. The requirements to impose penalties and attorneys fees under CASPA are relatively lower, requiring a showing that payments were "wrongfully withheld" and that the contractor has "substantially prevailed in litigation." The Prompt Payment Act requires an outright showing that the government agency acted in bad faith.
Jeffrey J. Ludwikowski