Builders v. Bucks County Cmty. College (Dec. 5, 2025)

Case details
Full caption
Associated Builders and Contractors v. Bucks County Community College
Country
United States
Jurisdiction
Pennsylvania (PA)
Court
Pennsylvania Supreme Court
Decided
Dec. 5, 2025
Disposition
Affirmed in Part, Reversed in Part
© 2025 Thomson Reuters. No claim to original U.S. Government Works.Associated Builders and Contractors, Inc., Eastern PennsylvaniaChapter, Appellant v. Bucks County Community CollegeCommonwealth Court of Pennsylvania. | December 5, 2025 | --- A.3d ---- | 2025 WL 3491625Document Detailsstandard Citation:Associated Builders & Contractors, Inc., E. Pennsylvania Chapter,Appellant v. Bucks Cnty. Cmty. Coll., No. 1172 C.D. 2025, 2025 WL3491625 (Pa. Commw. Ct. Dec. 5, 2025)All Citations:--- A.3d ----, 2025 WL 3491625Search DetailsSearch Query:adv: (openai "artificial intelligence" chatgpt "google gemini" "westlawcocounsel" "large language model") (hallucinat! fake fictitious spuriousnonexistent "non-existent" "made up" imagined /p (gpt ai "artificialintelligence" chatgpt chaton perplexity openai copilot "google gemini""google bard" grok "mata v. avianca" claude llm llms)) (hallucinat! fakefictitious spurious nonexistent "non-existent" "made up" imagined) +3(precedent case "legal authority" "legal case") & DATE(aft 1/1/2023)Jurisdiction:PennsylvaniaDelivery DetailsDate:December 8, 2025 at 8:56 AMDelivered By: Client ID:NOCLIENTIDOutlineOpinion (p.8)All Citations (p.12)
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3491625Only the Westlaw citation is currently available.Commonwealth Court of Pennsylvania.Associated Builders and Contractors, Inc.,Eastern Pennsylvania Chapter, Appellantv.Bucks County Community CollegeNo. 1172 C.D. 2025|Argued: November 5, 2025|FILED: December 5, 2025BEFORE: HONORABLE RENÉE COHNJUBELIRER, President Judge HONORABLEPATRICIA A. McCULLOUGH, JudgeHONORABLE ANNE E. COVEY, JudgeHONORABLE MICHAEL H. WOJCIK, JudgeHONORABLE LORI A. DUMAS, JudgeHONORABLE STACY WALLACE, JudgeHONORABLE MATTHEW S. WOLF, JudgeANNE E. COVEY, Judge*1 Associated Builders and Contractors, Inc., EasternPennsylvania Chapter (ABC Eastern) appeals fromthe Bucks County Common Pleas Court's (trialcourt) order dated September 3, 2025 (docketedSeptember 4, 2025): (1) vacating the trial court'sorder dated August 27, 2025 (docketed August 28,2025) that directed Bucks County Community College(College) to not open bids for the construction of theCenter for Advanced Technologies (CAT) Buildingheating, ventilation, and air conditioning (HVAC) Lab& Building Enhancement Project (Project) pendingfurther trial court order; (2) denying ABC Eastern'srequest for preliminary injunction; and (3) releasingABC Eastern's security. The issue before this Court iswhether the trial court erred by denying ABC Eastern'srequest for a preliminary injunction. After extensivereview, this Court reverses.FactsOn January 6, 2023, the College issued a PublicLabor Agreement (PLA) that required the exclusiveuse of union workers hired through the union hiringhall, but permitted use of workers from any sourceif union workers were not available. The PLA alsodefined its scope to include all construction projectscompleted on College property that met or exceededestimated construction costs of $500,000.00 during thenext five years, or until December 31, 2028. The PLAenumerated goals such as the need to avoid costlydelays of potential strikes, ensure reliable sourcesof skilled and experienced labor, and expedite theconstruction process.On September 23, 2024, the United States Departmentof Energy (DOE) awarded a grant to the College(Grant), which the College was using to fund a portionof the development of the HVAC curriculum, and tohire instructors to run the program, but that the Collegewould not use to pay for the costs of construction.According to the Grant's terms and conditions, theCollege was required to start the Project on July 1,2025, and have it at least 50% completed by September30, 2025. On July 24, 2025, the College issued anInvitation for Bids (IFB) for the Project. The IFBincorporated the PLA.On August 23, 2025, five days before the bids werescheduled to open on August 28, 2025 (as per theIFB), ABC Eastern filed a complaint in the trial courtseeking to preliminarily and permanently enjoin theCollege from proceeding with bid solicitation for theProject, and a declaratory judgment that the PLA wasunlawful because it discriminated against nonunionworkers and was implemented without extraordinarycircumstances, in contravention of Pennsylvania caselaw. On August 25, 2025, ABC Eastern filed anemergency motion for preliminary injunction in thetrial court.On August 27, 2025, the trial court held a temporaryrestraining order (TRO) proceeding and, from thebench, issued a TRO of the Project's solicitationprocess until a fuller review of the matter couldbe conducted. That day, the trial court scheduledan evidentiary hearing on ABC Eastern's emergencymotion for preliminary injunction for September2, 2025. At the hearing, ABC Eastern presentedtestimony from its President and Chief Executive
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2Officer Marissa Bankert, and Stephen Worth, thePrincipal of one of its members, Worth & Company.In response, the College presented its Chief OperatingOfficer Michael Harris and Vice President ofWork Force and Strategic Partnerships Tracy Timby(Timby).*2 On September 3, 2025, the trial court vacated theTRO and denied ABC Eastern's emergency motion forpreliminary injunction. On September 5, 2025, ABCEastern sought an emergency stay in the trial court,in compliance with Pennsylvania Rule of AppellateProcedure 1732(a), which the trial court denied bySeptember 9, 2025 order. On September 10, 2025,ABC Eastern filed an appeal from the trial court'sSeptember 3, 2025 order to this Court.1On September 11, 2025, ABC Eastern filed anEmergency Application for Stay in the Nature of aPreliminary Injunction Pending Appeal (EmergencyApplication) in this Court, which the College opposedby September 15, 2025 Answer. Following oralargument, on September 22, 2025, this Court grantedthe Emergency Application, issuing a preliminaryinjunction of the Project's bid solicitation untilresolution of the appeal from the trial court's orderdenying the preliminary injunction.2DiscussionInitially, in SEIU Healthcare Pennsylvania v.Commonwealth, 104 A.3d 495 (Pa. 2014), thePennsylvania Supreme Court declared:The six essential prerequisites that a moving partymust demonstrate to obtain a preliminary injunctionare as follows: (1) the injunction is necessaryto prevent immediate and irreparable harm thatcannot be compensated adequately by damages;(2) greater injury would result from refusing theinjunction than from granting it, and, concomitantly,the issuance of an injunction will not substantiallyharm other interested parties in the proceedings;(3) the preliminary injunction will properly restorethe parties to their status as it existed immediatelyprior to the alleged wrongful conduct; (4) the partyseeking injunctive relief has a clear right to relief andis likely to prevail on the merits; (5) the injunctionis reasonably suited to abate the offending activity;and[ ] (6) the preliminary injunction will notadversely affect the public interest. [See] Warehimev. Warehime, ... 860 A.2d 41, 46-47 ([Pa.] 2004)(citing Summit Towne [Ctr.], Inc.[ v. Shoe Show ofRocky Mount, Inc.], 828 A.2d [995,] 1001 [(Pa.2003))].SEIU Healthcare, 104 A.3d at 502.[This Court] ... examine[s] the record to determineif there were any apparently reasonable groundssupporting the [trial court's] denial of thepreliminary injunction. Summit Towne [Ctr.], Inc.,828 A.2d at 1000. [This Court] reiterate[s] that“apparently reasonable grounds” exist to supporta [trial] court's denial of injunctive relief where the[trial] court has properly found that any one of thesix prerequisites for a preliminary injunction isnot satisfied. Id. at 1002. Because [ABC Eastern's]focus in this appeal is on whether [ABC Eastern]has a clear right to relief and is likely to prevailon the merits of the underlying action, [this Court]address[es] that prong first.*3 SEIU Healthcare, 104 A.3d at 506 (bold and italicemphasis added).Clear Right to Relief/Likely to Prevail on the Merits“In the context of a motion for a preliminaryinjunction, only a substantial legal issue need beapparent for the moving party to prevail on the clear-right-to-relief prong.” Marcellus Shale Coal v. Dep'tof Env't Prot., 185 A.3d 985, 995 (Pa. 2018). “Thisimplicates a less deferential standard relative to theagency's interpretation of the governing statute thanwould be applicable to a trial court's final meritsdetermination.” Id.ABC Eastern argues that a plain reading of thePLA makes clear it is not limited to the Project,but rather, the PLA blankets any and all on-siteconstruction for the College and extends throughDecember 31, 2028. ABC Eastern further contendsthat the PLA's terms do not provide for exceptionsor exclusions, nor do they include any provisionscalling for a case-by-case assessment of whetherthe PLA is appropriate for a particular project.Instead, ABC Eastern asserts, the PLA applies to
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3all College construction projects, without discretionor consideration of whether there are extraordinarycircumstances. ABC Eastern maintains that the PLAcloses the door on nonunion contractors’ ability toemploy their own labor forces in favor of localunions with whom nonunion contractors do not haverelationships and whose skills they cannot accuratelyassess before bidding on public works projects.ABC Eastern emphasizes that the PLA at issuehere is a blanket PLA which the College enteredinto in 2023 - two years before the Project wascommenced - and which applies to virtually allconstruction projects at the College through 2028;thus, the College did not, because it could not, take intoconsideration any aspect of this Project or other futureprojects when it signed the PLA. ABC Eastern argues,therefore, the College did not show extraordinarycircumstances permitting the use of the PLA forthe Project. ABC Eastern claims that the recordis devoid of any credible evidence to demonstrateurgency, complexity or labor shortage giving rise toextraordinary circumstances warranting the impositionof a PLA. ABC Eastern contends that, with regardto the High Priority Occupation (HPO) List, atheoretical shortage of HVAC labor seven years fromnow does not constitute extraordinary circumstanceswarranting the imposition of a discriminatory PLA.ABC Eastern further proclaims that the Collegeoffered no credible evidence, apart from unsupported,speculative testimony, to support the trial court'sholding that the College's funding from the Grant wasactually at risk of being pulled. In addition, ABCEastern asserts that the College did not present anyevidence that future, theoretical grants from the federalgovernment would be impacted by a preliminaryinjunction and removal of the PLA from the bidrequirements.The Pennsylvania Supreme Court has explained:Bidding requirements “are for the purpose ofinviting competition, to guard against favoritism,improvidence, extravagance, fraud and corruptionin the awarding of municipal contracts and tosecure the best work or supplies at the lowestprice practicable, and are enacted for the benefitof property holders and taxpayers, and not for thebenefit or enrichment of bidders, and should be soconstrued and administered as to accomplish suchpurpose fairly and reasonably with sole referenceto the public interest.” (Footnotes omitted.) 10McQuillan, Municipal Corporations § 29.29, at266-67 (3[ ]d ed. 1950).*4 EZY Parks v. Larson, 454 A.2d 928, 932 (Pa.1982) (quoting Yohe v. Lower Burrell, 208 A.2d847, 850 (Pa. 1965)). “When competitive biddingis used and the procedures followed emasculate thebenefits of such bidding, judicial intervention isproper.” Id. This Court has held: “The use of aPLA is permitted where the contracting agency canestablish extraordinary circumstances[.]” Allan Myers,L.P. v. Dep't of Transp., 202 A.3d 205, 215 (Pa.Cmwlth. 2019) (en banc). Extraordinary circumstanceshave been held to include: (1) the need for promptcompletion of the project where used to reducepotential delays and inefficiencies, see id.; (2) wherethere is a labor shortage in the area, see id.; and(3) where the complexity of the project warrants itsuse. See also Associated Builders & Contractors,Inc., Keystone Chapter v. Dep't of Gen. Servs. (ABCKeystone II) (Pa. Cmwlth. No. 189 M.D. 2025, filedJuly 1, 2025) (single-Judge Opinion) (Covey, J.), slipop. at 39 (“that the Project is so urgent, complex, orthat there are valid concerns regarding the availabilityof a qualified workforce, that a PLA is necessary”).3Here, contrary to the trial court's conclusion, thePLA clearly favors union contractors. The trial courtfocused on Article 4, Section 3 of the PLA entitled“Non-Discrimination in Referrals,” which provides:The local Unions represent that their hiring hallsand referral systems will be operated in anondiscriminatory manner and in full compliancewith all applicable federal, state[,] and local lawsand regulations, which require equal employmentopportunities. Referrals shall not be affected in anyway by the rules, regulations, bylaws, constitutionalprovisions[,] or any other aspects or obligations ofunion membership, policies[,] or requirements andshall be subject to such other conditions as areestablished in this Article. No employment applicantshall be discriminated against by any referral systemor hiring hall because of the applicant's unionmembership, or lack thereof.Reproduced Record (R.R.) at 136a (emphasis added).However, Article 4, Section 2 of the PLA entitled“Union Referral,” mandates:
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Hiring Procedures. The Contractor shall havethe right to determine the required skills andcompetence of all employees, the right to determinethe number of employees required and the soleresponsibility for selecting the employees to be laid-off consistent with this [PLA] and regardless ofmembership or nonmembership in the Union(s).Subject to these rights, the Contractor shallhire employees through the referral system(s),if any, provided in the Collective BargainingAgreements [(CBA)] of the appropriate Union(s)set forth in Schedule A hereto. Any such referralsystem, whether by contract or practice, must beoperated in full compliance with [f]ederal, state[,]and local laws and regulations that require equalemployment opportunities and nondiscrimination.In the event that a local Union is unable to fillany requests for qualified employees within a48-hour period after such requisition is made bythe Contractor (Saturdays, Sundays[,] and holidaysexcepted), the Contractor may employ qualifiedapplicants from any other available source. Inthe event that the local Union does not have a jobreferral system, the Contractor shall give the localUnion first preference to refer applicants subject tothe other provisions of this Article. The Contractorshall notify the local Union of craft employees hiredwithin its jurisdiction from any source other thanreferral by the Union.Id. (emphasis added). Significantly, no CBAs wereattached to the PLA.*5 Moreover, the IFB mandated:PLA RequirementsAll Prime Contractors and Subcontractors shallcomply with the mandatory and bindingrequirements of the Project's [PLA][.] Biddersare expected to familiarize themselves with theserequirements (the full text of the PLA is attachedto this document for reference). Bidders that cannotfulfill these requirements should not submit a bid.Each contractor selected to perform work on theProject will be required to sign the PLA.R.R. at 101a (bold emphasis in original; italic emphasisadded). Thus, notwithstanding that the referral systemis operated in a non-discriminatory manner, and thatcontractors can hire their own employees if the Uniondoes not refer employees within 48 hours, the fact thatthe contractors are forced to use the Union referralsystem in the first place clearly puts the non-unioncontractors at a disadvantage.Further, and most significantly, the PLA states in nouncertain terms that it will apply to all projects onthe College's premises where the estimated costs areequal to or exceed $500,000.00 “commenced priorto December 31, 2028.” R.R. at 135a (PLA Art. 3 § 1)(emphasis added); see also R.R. at 133a (Art. 2 § 1).Moreover, it is undisputed that the study regarding theuse of the PLA for the Project was completed after thePLA was issued and before the IFB was disseminated.Given that the PLA discriminates against nonunioncontractors and PLAs are only permitted where“extraordinary circumstances” exist to justify theirusage, Allan Myers, L.P., 202 A.3d at 215, and here thePLA was issued before the study regarding use of thePLA for the Project was completed, ABC Eastern haspresented a “substantial legal issue,” Marcellus ShaleCoal, 185 A.3d at 995, as to whether the PLA's usein this instance was permissible. Accordingly, ABCEastern satisfied the fourth prerequisite to obtain apreliminary injunction.The Dissent maintains that the Majority and thisCourt's precedents hold that using a PLA is anexception to an otherwise strict rule effectivelyprecluding them. The Dissent disagrees with thisholding. However, neither the Majority nor this Court'sprecedents so hold. As stated above, the Allan MyersCourt ruled: “The use of a PLA is permitted wherethe contracting agency can establish extraordinarycircumstances[.]” Allan Myers, 202 A.3d at 215(emphasis added). Here, the College issued the PLAbefore the DOE awarded the College the Grant,which was the impetus for the Project. The PLAdefined its scope to include all construction projectscompleted on College property that met or exceededestimated construction costs of $500,000.00 during thenext five years, or until December 31, 2028, see R.R.at 133a, and enumerated goals such as the need toavoid costly delays of potential strikes, ensure reliablesources of skilled and experienced labor, and expeditethe construction process. See R.R. at 132a. Thus,because the PLA was in place before the Collegeconceived the Project, there is a substantial question as
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5to whether extraordinary circumstances truly existed towarrant the PLA.*6 The lack of extraordinary circumstances in thiscase is especially suspect because the urgency theCollege claims as the reason for supporting the needfor the PLA appears to be of its own doing. Toaccept that reasoning in this case would encouragesuch action in the future. For example, if an entitywishes to use exigency as a reason for using a PLA,it could delay a project until it was indeed urgentand claim extraordinary circumstances. Because thePLA included expediting the construction process as areason for the PLA before the Project was born, ABCEastern has clearly presented a substantial legal issueas to whether extraordinary circumstances existed topermit the College's use of the PLA in this instance.4Immediate and Irreparable HarmThe Pennsylvania Supreme Court has declared:“When the [l]egislature declares certain conduct to beunlawful it is tantamount in law to calling it injurious tothe public. For one to continue such unlawful conductconstitutes irreparable injury.” Pa. Pub. Util. Comm'nv. Israel, 52 A.2d 317, 321 (Pa. 1947); see also PhilipsBros. Elec. Contractors, Inc. v. Valley Forge SewerAuth., 999 A.2d 652 (Pa. Cmwlth. 2010).ABC Eastern argues that the PLA in question violatesthe Commonwealth's competitive bidding laws. ABCEastern contends that, as the trial court noted, “aviolation of competitive bidding laws would be asubstantial injury.” Trial Ct. Op. at 14. ABC Easternemphasizes that the Pennsylvania Supreme Courthas held that “to continue ... unlawful conductconstitutes irreparable injury[,]” and “[s]preadingunlawful conduct is irreparable injury of the mostserious nature[.]” Israel, 52 A.2d at 321.Indeed, our Supreme Court has declared that “caselaw hold[s] that where the offending conduct soughtto be restrained through a preliminary injunctionviolates a statutory mandate, irreparable injury willhave been established.” SEIU Healthcare, 104 A.3d at508. Because ABC Eastern raised a substantial issueas to whether the College's use of the PLA violatescompetitive bidding laws, irreparable harm per se wasestablished. See SEIU Healthcare; Wolk v. Sch. Dist.of Lower Merion, 228 A.3d 595 (Pa. Cmwlth. 2020).Further, since absent a preliminary injunction, theCollege intended to continue the bidding process (i.e.,the College opened bids for the Project on September5, 2025; posted bids to PennLive on September 11,2025; and issued letters of intent to three contractorson September 15, 2025), ABC Eastern's harm wasimmediate. Accordingly, ABC Eastern satisfied thefirst prerequisite to obtain a preliminary injunction.Greater Injury/Substantial Harm*7 The second preliminary injunction prerequisiterequires this Court to “examine whether [ABCEastern] has demonstrated that ‘greater injury wouldresult from refusing an injunction than from grantingit, and, concomitantly, that issuance of an injunctionwill not substantially harm other interested parties inthe proceedings.’ ” SEIU Healthcare, 104 A.3d at 509(quoting Summit Towne Ctr., Inc., 828 A.2d at 1001).ABC Eastern asserts that the trial court erred byholding that ABC Eastern failed to demonstrate thatgreater injury would result from refusing the injunctionthan by granting it, because an injunction wouldlikely result in the Project not meeting its Grantdeadlines,5 and the HVAC Training Program wouldbe delayed.6 See Trial Ct. Op. at 12-13. ABC Easterncontends that the College provided only speculativetestimony that the Grant would be in jeopardy ifan injunction were granted. ABC Eastern furthermaintains that the College's own witnesses admittedat the preliminary injunction hearing that the IFBcould be reissued within a week, and it afforded theCollege a 60-day window to award the bid. ABCEastern claims that, pursuant to the plain languageof the Grant's terms and conditions, the College wasrequired to achieve 50% completion of the Projectby September 30, 2025; however, the College hadnot yet even begun construction. Therefore, ABCEastern proclaims that the College has willinglymissed deadlines set forth within the Grant, withoutthe consequences its witnesses speculated could occur.Thus, ABC Eastern maintains that greater injury wouldresult in rejecting the preliminary injunction than ingranting it; and denying the preliminary injunctionwould permit the College to award the contracts, thus,
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6harming ABC Eastern's nonunion contractor membersand Pennsylvania taxpayers.Here, the trial court concluded:[A]n injunction which puts the Project on holdduring the course of this litigation would likelyresult in the Project not meeting its deadlinesunder the ... Grant. As a result, the College wouldlose a two million dollar ($2,000,000[.00]) federalgrant and would risk the loss of future federalgrants. Further, the HVAC Training Program wouldbe delayed, with resultant harm to the trainees,their potential employers, and the community'ssignificant need for additional trained HVACtechnicians.*8 Trial Ct. Op. at 15. However, while the potentialharm to the College may be concerning, “[t]heargument that a violation of law can be a benefit to thepublic is without merit.” Israel, 52 A.2d at 321.Moreover, here, the harm to the College is self-inflicted. The Grant was awarded on September 23,2024, and according to its terms and conditions, theCollege was required to start the Project on July 1,2025, and have it at least 50% completed by September30, 2025. However, the College did not even solicitbids until after the date it was to begin constructionon the Project. Given this Court's conclusion thatthere is a substantial issue as to whether the PLAwas permitted and, thus, bidding laws were potentiallyviolated, ABC Eastern has demonstrated that greaterinjury would result from refusing an injunction thanfrom granting it and that issuance of an injunction willnot substantially harm other interested parties in theproceedings. Accordingly, ABC Eastern satisfied thesecond prerequisite to obtain a preliminary injunction.7Status QuoTo satisfy the status quo requirement, “the party mustshow that a preliminary injunction will properly restorethe parties to their status as it existed immediatelyprior to the alleged wrongful conduct.” Summit TowneCtr., 828 A.2d at 1001. “Courts have defined theterm ‘status quo [ ]’ as ‘the last peaceable andlawful uncontested status preceding the underlyingcontroversy.’ ” Hatfield Twp. v. Lexon Ins. Co., 15 A.3d547, 555 (Pa. Cmwlth. 2011) (quoting In Re MiltonHershey Sch. Tr., 807 A.2d 324, 333 (Pa. Cmwlth.2002)).ABC Eastern argues that the injunctive relief soughtwould maintain the status quo. ABC Eastern contendsthat halting the procurement process now - at a pointwhen no contracts have been executed, no work hasbegun, and it is still possible for the College tocancel this procurement and re-issue an RFP - if thisCourt ultimately finds in ABC Eastern's favor - wouldmaintain the status quo while the trial court reviewsthe ultimate merits of ABC Eastern's case and preventsirreparable injury or gross injustice.Although the College maintains that, in defiance ofthe trial court's order, it has submitted letters ofintent to several contractors regarding the Projectand will be placed further behind schedule on theirconstruction plans if the preliminary injunction isgranted, halting the procurement process now - at apoint when no contracts have been executed, no workhas begun, and it is still possible for the College tocancel this procurement and re-issue an IFP if thisCourt ultimately finds in ABC's favor - would, atleast, maintain the current status quo pending thisCourt's review of the merits of ABC Eastern's case.Accordingly, ABC Eastern has satisfied the thirdprerequisite.Abate Offending Activity*9 To satisfy the abatement prerequisite, “the partymust show that the injunction it seeks is reasonablysuited to abate the offending activity.” Summit TowneCtr., 828 A.2d at 1001.ABC Eastern argues that the offending activity isthe College's inclusion of a discriminatory PLA inits IFB without necessary extraordinary circumstanceswarranting the same. ABC Eastern contends thatgranting a preliminary injunction pending the trialcourt's determination on the merits is reasonably suitedto ensure that contracts are not awarded under thecurrent IFB, which includes the discriminatory PLA.When there is a bid protest, “if the court determinesthat the solicitation or award of a contract is contrary
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7to law, then the remedy the court shall order is limitedto canceling the solicitation or award and declaringvoid any resulting contract.” Section 1711.1(j) ofthe Commonwealth Procurement Code, 62 Pa.C.S. §1711.1(j). Given the offending activity here is theuse of a PLA which violates the Commonwealth'scompetitive bidding laws, then granting a preliminaryinjunction pending the trial court's determination onthe merits is reasonably suited to ensure contracts arenot awarded under the current IFB, which includes thediscriminatory PLA. Accordingly, ABC Eastern hassatisfied the fifth prerequisite.Public InterestTo satisfy the public interest prerequisite, “the partyseeking an injunction must show that a preliminaryinjunction will not adversely affect the public interest.”Summit Towne Ctr., 828 A.2d at 1001.ABC Eastern argues that the public interest would beprotected if a preliminary injunction is entered becauseit will restrain the College from awarding contractsduring the pendency of litigation and, in turn, protectthe integrity of the public bidding process.The Pennsylvania Supreme Court has long held thatcompetitive bidding requirements “guard againstfavoritism, improvidence, extravagance, fraud[,] andcorruption in the awarding of ... contracts ... and areenacted for the benefit of property holders andtaxpayers, and not for the benefit or enrichment ofbidders[.]” Yohe, 208 A.2d at 850 (quotation marksomitted) (emphasis added). Clearly a preliminaryinjunction enjoining the use of a discriminatoryPLA would not adversely affect the public interest.Accordingly, ABC Eastern has satisfied the sixth andfinal prerequisite.Reasonable Grounds[This Court] conclude[s] that [ABC Eastern] satisfiedthe stringent criteria for the grant of a preliminaryinjunction, and can identify no reasonable ground forthe denial of interim relief. Thus, the [trial court's]denial of the request for injunctive relief is reversedand [this Court] issue[s] a preliminary injunction,instructing the [College to not open bids for theconstruction of the Project, until the merits of ABCEastern's action have been ruled upon].SEIU Healthcare, 104 A.3d at 509-10.ConclusionFor all of the above reasons, the trial court's orderis reversed, and a preliminary injunction is enteredprohibiting the College from opening bids or takingother action for the construction of the Project, until thetrial court decides the merits of ABC Eastern's action.*10 IN THE COMMONWEALTH COURT OFPENNSYLVANIAAssociated Builders and Contractors, Inc., EasternPennsylvania Chapter, Appellantv.Bucks County Community CollegeNo. 1172 C.D. 2025ORDERAND NOW, this 5th day of December, 2025, the BucksCounty Common Pleas Court's (trial court) order datedSeptember 3, 2025 (docketed September 4, 2025) isREVERSED.FURTHER, a PRELIMINARY INJUNCTION ISENTERED prohibiting Bucks County CommunityCollege from opening bids or taking further actionfor the construction of the Center for AdvancedTechnologies Building heating, ventilation, and airconditioning Lab & Building Enhancement Projectuntil the trial court rules upon the merits of AssociatedBuilders and Contractors, Inc., Eastern PennsylvaniaChapter's (ABC Eastern) action.ABC Eastern shall deposit with the trial court'sProthonotary $1,000.00 as security, in accordance withRule 1531(b) of the Pennsylvania Rules of CivilProcedure.
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8Jurisdiction is relinquished.ANNE E. COVEY, JudgeOpinionMICHAEL H. WOJCIK, JudgeI do not share this Court's ever-growing convictionthat the use of a PLA1 violates the Commonwealth'scompetitive bidding requirements or that their use isan exception to an otherwise strict rule effectivelyprecluding them. In fact, I believe that a faithfulreading of our precedent indicates the opposite.This, in tandem with my concern that the Collegewill suffer greater harm from the grant of thepreliminary injunction than from its refusal, leads meto respectfully dissent from the Majority's well-writtenOpinion.At the outset, I remain mindful that appellate courtsmay only review a trial court order refusing apreliminary injunction for an abuse of discretion.Summit Towne Centre, Inc. v. Shoe Show of RockyMount, Inc., 828 A.2d 995, 1000 (Pa. 2003). Here, wemay “not inquire into the merits of the controversy,but [may] only examine[ ] the record to determine‘if there were any apparently reasonable grounds forthe action of the court below.’ ” SEIU HealthcarePennsylvania v. Commonwealth, 104 A.3d 495, 501(Pa. 2014) (quoting Roberts v. Board of Directors ofSchool District of City of Scranton, 341 A.2d 475,478 (Pa. 1975)). “ ‘Apparently reasonable grounds’exists to support a lower court's denial of preliminaryinjunctive relief where the lower court has properlyfound that any one of the ‘six essential prerequisites’for a preliminary injunction is not satisfied.” Id.Preliminary injunctive relief is warranted when themoving party establishes six prerequisites:*11 (1) the injunction is necessary to preventimmediate and irreparable harm that cannot becompensated adequately by damages; (2) greaterinjury would result from refusing the injunctionthan from granting it; and, concomitantly, theissuance of an injunction will not substantiallyharm other interested parties in the proceedings;(3) the preliminary injunction will properly restorethe parties to their status as it existed immediatelyprior to the alleged wrongful conduct; (4) the partyseeking injunctive relief has a clear right to relief andis likely to prevail on the merits; (5) the injunctionis reasonably suited to abate the offending activity;and (6) the preliminary injunction will not adverselyaffect the public interest.SEIU Healthcare, 104 A.3d at 502 (Pa. 2014).Presently, I find our review of the trial court's denialof ABC Eastern's request for a preliminary injunctiona bit more awkward or challenging than usual.2 “Apreliminary injunction is designed to preserve thesubject of the controversy in the condition in whichit is when the order is made[;] it is not to subvert,but to maintain the existing status quo until thelegality of the challenged conduct can be determinedon the merits.” Greater Nanticoke Area EducationAssociation v. Greater Nanticoke Area School District,938 A.2d 1177, 1183 (Pa. Cmwlth. 2007). As JusticeWecht recounted in his dissenting opinion in Weeks v.Department of Human Services, the law concerningpreliminary injunctions has oscillated between a moredemanding showing of a movant's clear right to reliefand “a standard more harmonious with the idea thatpreliminary injunction proceedings should not becomean arena to decide the underlying challenge.” 222 A.3d722, 738 (Pa. 2019) (Wecht, J., dissenting). Hereinlies the tension with our review now: while we areadmonished to maintain the status quo and to refrainfrom turning this preliminary injunction proceedinginto a final merits determination, the exigency of theProject means that this decision may very well be thedispositive ruling on the underlying challenge.With that in mind, as it concerns the clear rightto relief prong, I am less convinced of ABCEastern's arguments than the Majority. In A. PickettConstruction, Inc. v. Luzerne County ConventionCenter Authority, 738 A.2d 20, 21-22 (Pa. Cmwlth.1999), a county authority adopted a PLA for theconstruction of a new arena-convention center andrequired bidders to sign the PLA as a requirement ofthe bid solicitation. The PLA also required that theawardee agree to employ a certain number of unionworkers notwithstanding the awardee's own unionstatus. Id. Critically, the project carried an “inflexibledeadline” because of state funding requirements and
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9because the anchor tenant (a hockey team) required useof the arena. Id. at 22.A non-union contractor challenged the inclusion ofthe PLA, in part, on the basis that the PLA favoredunion contractors and prevented non-union contractorsfrom bidding because the required inclusion ofunion workers necessitated “drastic revisions in theirworking relationships ....” Pickett, 738 A.2d at 25. Onappeal, this Court agreed that our “competitive biddingstatute precludes public bodies from discriminatingbetween union and non[-]union contractors in theaward of public contracts ....” Id. But this Courtconcluded that the PLA therein did not in fact favorunion contractors: “Quite simply, that it may bedifficult or distasteful for [non-union contractors] toaccept the provisions of the PLA does not mean it isanti-competitive.” Id. Importantly, we also noted thatthe “undisputed critical need for timely completion ofthe [p]roject” conferred the discretion upon the Countyauthority to enter the PLA. Id. at 24.*12 Nine years later, in Sossong v. Shaler AreaSchool District, 945 A.2d 788, 790 (Pa. Cmwlth.2008), a school district sought bids for work ontwo separate construction projects which required allbidders, regardless of union-affiliation, to enter aPLA. An individual contractor sought a preliminaryinjunction, challenging the PLA requirement on thebasis that it favored union contractors and frustratedthe “lowest responsible bidder” requirement under ourcompetitive bidding laws. Id. at 791-93. The trialcourt denied and this Court affirmed. In pertinentpart, relying on Pickett, we observed it was onceagain undisputed that the construction project requiredprompt completion for student use – the PLA identifiedthat the project had to be completed without delay –such that the school district “did not abuse its discretionby requiring that the lowest responsible bidder enterinto the PLA.” Id. at 794.In Glenn O. Hawbaker, Inc. v. Department of GeneralServices (Pa. Cmwlth., No. 405 M.D. 2009, filedDecember 1, 2009) (Pellegrini, J.) (single-judge op.),3the Department of General Services required thewinning bidder for the design and construction of a4,100-bed prison at the State Correctional Institution atGraterford to execute a PLA. The PLA mandated theintegration of local CBAs; required craft employeesto join and be hired through union hiring halls; didnot permit contractors to hire non-union personnel;but permitted bidding from all nonunion and unioncontractors. The PLA also identified that the projectwas costly (roughly $15 million) and complex,and that the PLA was necessary “to maintain anexpedited and uninterrupted construction schedule toensure completion and occupancy on or before theconstruction deadline.” Slip op. at 5. A true exigentcircumstance also existed: the overpopulation of theprison was becoming an emergency situation. Id. at29. A number of contractors sought a preliminaryinjunction in this Court's original jurisdiction underthe theory that the PLA “unlawfully discriminate[d]against non-union contractors and employees, because,among other things, the contractors, [were] notguaranteed that they [would] be able to use only theiremployees, lessening their ability to compete.” Id. at 7.Judge Pellegrini recognized that there was very littlePennsylvania case law on the question of whethera public body could mandate the use of only unionor non-union labor, finding a single Superior Courtdecision indicating that such discrimination wasillegal. Hawbaker, slip op. at 14-15 (citing Daniel B.VanCampen Corporation v. Building and ConstructionTrades Council of Philadelphia and Vicinity, 195A.2d 134 (Pa. Super. 1963)). Still, Judge Pellegriniexpressed “great doubts that the provisions of the SCI-Graterford PLA had taken the case ‘over the line’and resulted in illegal discrimination.’ ” Id. at 15.Rather, after surveying the PLAs at issue in Pickettand Sossong, Judge Pellegrini found many commonelements between the respective PLAs and concluded“[b]ased on the approval of the past PLAs, especiallyin Sossong, I cannot say that all PLAs or this one areillegal.” Id. at 15-17More recently, in Allan Myers, L.P. v. Departmentof Transportation, 202 A.3d 205, 207-08 (Pa.Cmwlth. 2019),4 albeit on a different proceduralposture, this Court considered whether the Secretaryof Transportation properly dismissed a non-unioncontractor's bid protest. The protest complained thata Department of Transportation's bid solicitation wasanti-competitive because it required the awardee tosign a PLA. The PLA therein stated that time was ofthe essence, but, more importantly, required all unionand non-union contractors to hire through the unions
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.10that were party to the PLA, with one exception: if thecontractor was a United Steelworker (USW) contractorthen it could use its USW workforce. Id. at 209.*13 Upon review, and relying on Pickett, Sossong,and Hawbaker, we reversed, reasoning that thepertinent PLA was discriminatory. In our view, thePLA clearly favored USW contractors. But it alsofavored union contractors more broadly. We explainedthat “[u]nlike contractors affiliated with the [l]ocal[u]nions or [USW], a non[-]union contractor thatbid[ ] on ... [the project could not] use its ownexperienced workforce.” Allan Myers, 202 A.3d at214. By requiring bidders to abide by the PLA, thisCourt determined that the Department had “effectivelyprecluded” non-union contractors from bidding as thenon-union contractor could not seriously put forth abid with an “unknown workforce.” Id. at 215. Further,this Court observed that no extraordinary circumstancewarranted the PLA. Unlike Pickett, which requiredprompt completion to obtain state funding and to keepits anchor tenant, and unlike Sossong, in which theproject required prompt completion for the upcomingschool year, the project at issue (a long-term roadimprovement project) was not actually urgent. Id.In my view, we must not read Allan Myersoverbroadly or countenance a change to our precedentwhich relegates Pickett, Sossong, and Hawbakeras exceptions to a general rule against PLAs. SeeAssociated Builders and Contractors, Inc., KeystoneChapter v. Department of General Services (Pa.Cmwlth., No. 30 M.D. 2023, filed February 27, 2023)(Wojcik, J.) (single-judge op.) (ABC Keystone I) (“TheCourt does not read Allan Myers so broadly as todeclare that all PLAs are impermissible, and the Courtdisagrees with Petitioners’ stance that Pickett, Sossongand Hawbaker are exceptions to a general rule.”);but cf. Associated Builders and Contractors, Inc.,Keystone Chapter v. Department of General Services(Pa. Cmwlth., No. 189 M.D. 2025, filed July 1, 2025)(Covey, J.) (single-judge op.) (ABC Keystone II). Infact, I believe that Allan Myers suffers from a greatirony: it relies on Pickett, Sossong, and Hawbaker inreaching its conclusion but none of those respectivePLAs could have survived Allan Myers’ scrutinyconcerning discrimination.For example, if we accept Allan Myers’ propositionthat a non-union contractor's inability to use its ownworkforce for the completion of a public body'sproject is discriminatory under the Commonwealth'scompetitive bidding requirements, how could we haveapproved Pickett’s mandate of employing a certainnumber of union employees? How could we haveapproved Sossong and Hawbaker’s PLAs which, ashere, also required the winning bidder to sign aPLA integrating union CBAs and required the useof union hiring halls? How could we approve anyPLA given that such a stipulation is a rather commoncharacteristic? See Hawbaker, slip op. at 4 (quotingAssociated Builders and Contractors, Inc. v. SouthernNevada Water Authority, 979 P.2d 224, 226 (Nev.1999) (“Under PLAs, ‘[t]he union is designated thecollective bargaining representative for all employeeson the project and agrees that no labor strikes ordisputes will disrupt the project. The contractor mustabide by certain union conditions, such as hiringthrough union halls and complying with union wagerules.”)).5I do not believe that engaging in an after-the-factanalysis of the required extraordinary circumstancesprovides the answer or otherwise harmonizes our caselaw on this point. In other words, while the trialcourt read Allan Myers as tolerating a discriminatoryPLA where an extraordinary circumstance justifiedthe discrimination, see Trial Court's Op. at 11-12, Ido not read Allan Myers as establishing an analyticalframework by which we first assess whether the PLA isdiscriminatory and then assess whether extraordinarycircumstances permit the PLA anyway.6 Read strictly,the Court's discussion distinguishing Pickett andSossong was primarily for the purpose of rejectingPennDOT's arguments. Allan Myers, 202 A.3d at214. If anything, the Allan Myers Court found anydiscrimination or differing bidding standards to beintolerable. See id. at 215-16 (“[W]e need not considerwhether PennDOT acted in good faith in revising thePLA ... This is because courts will not authorize a bidwith ‘a clear potential to become a means of favoritism,regardless of the fact that the ... officials may haveacted in good faith in the particular case.’ PennDOT'sgood faith, or lack thereof, is irrelevant because thePLA places [USW] contractors in a favored position.”)(internal citation omitted).
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.11*14 I would consequently summarize this Court'sprecedent as follows. Public bodies retain a greatdeal of discretion in developing specifications for bidsolicitations, requests for proposals, or the award ofcontracts generally. Extraordinary circumstances, likethe need for prompt completion of the project, interalia, routinely warrant the use of a PLA. Pickett, 738A.2d at 24; Sossong, 945 A.2d at 791; Hawbaker,slip op. at 29. However, the proffered extraordinarycircumstance must be genuine; this Court will set asidePLAs that nominally, but disingenuously, claim anextraordinary circumstance by way of “lip service” or“boilerplate language.” Allan Myers, 202 A.3d at 215.Finally, while the public body may not discriminateon the basis of union affiliation, “the mere inclusionof a PLA does not constitute illegal discrimination.”Pickett, 738 A. 2d at 25; see also Hawbaker, slip op. at14-15; Allan Myers, 202 A.3d at 214. Where the PLAconfers a tangible benefit upon specific contractors,like the ability for some union contractors to usetheir own workforce but no other union or non-unioncontractors, Allan Myers, 202 A.3d at 214-15, the PLAwill constitute discrimination. Where the terms of thePLA are simply distasteful or difficult to accept forcertain contractors, Pickett, 738 A.2d at 25, like therequired use of union hiring halls, Hawbaker, slip op.at 15-17, the PLA will not be deemed anti-competitiveor discriminatory.As such, here, I disagree with the Majority's conclusion“that the PLA clearly favors union contractors.”Associated Builders and Contractors, Inc., EasternPennsylvania Chapter v. Bucks County CommunityCollege, __ A.3d __, (Pa. Cmwlth., No. 1172 C.D.2025, filed December 5, 2025), slip op. at 7 (ABCEastern). Indeed, as explained above, the use ofunion hiring halls is a routine characteristic of PLAsand a characteristic we have approved in the past.Moreover, while the PLA guarantees that hiring willoccur through union hiring halls, the PLA also requiresnon-discrimination in referrals, e.g., “[n]o employmentapplicant shall be discriminated against by any referralsystem or hiring hall because of the applicant's unionmembership, or lack thereof.” Reproduced Record at136a. Stated differently, yes, the unions will play asignificant role in the hiring process. But the unionsare bound not to discriminate on the basis of unionmembership, such that all union contractors, likenon-union contractors, must bid with an unknownworkforce. Thus, bidders for the Project are “ ‘on anequal footing’ and enjoy the same opportunity for openand fair competition.” Allan Myers, 202 A.3d at 211(quoting Philadelphia Warehousing and Cold Storagev. Hallowell, 490 A.2d 955, 957 (Pa. Cmwlth. 1985)).Further, the Majority finds it significant that the PLApredates the IFB. ABC Eastern, __ A.3d at __, slip op.at 9. I do not. Our precedent concerning PLAs and theextraordinary circumstances that warrant them placessubstance over form. Allan Myers, 202 A.3d at 215(disregarding a PLA's “boilerplate language” claimingtime was of the essence where it was not). In my view,if we are going to scrutinize purported extraordinarycircumstances in this manner it must cut both waysand I would not fault a PLA on this basis where, ashere, a genuine extraordinary circumstance exists. Iam therefore satisfied that the incredibly urgent needto complete the Project within the Grant's deadlineprovides the necessary extraordinary circumstance towarrant the PLA. In any case, I observe that it isnot clear that the PLA has been used for any otherconstruction project aside from the instant Project,see Trial Court's Op., 9/18/25, at 2, and that theCollege nevertheless commissioned a study regardingthe PLA's use before issuing the IFB. See Trial Court'sExhibit 2 at 452. Thus, setting aside the pedanticdebate concerning the use of a preceding PLA, theCollege commissioned a study concerning the need fora PLA,7 determined that a PLA was appropriate giventhe urgency of the Project, and utilized a PLA which itfound satisfactory to address the need for it.*15 For all these reasons, if ABC Eastern's burdenon this prong is simply to demonstrate that substantiallegal questions exist, SEIU Healthcare, 104 A.3d at506, ABC Eastern may only have done so becausethis Court began deviating from its own precedent inAllan Myers. To put a finer point on it, this Court'sdecision to continue Allan Myers’ misreading of ourprecedent means that any non-union contractor canrather easily raise a “substantial legal question” andobtain a preliminary injunction forestalling the useof a PLA. Non-union contractors may even do sowhere, as here, there is not discrimination betweenunion and non-union contractors and the project'scompletion is sufficiently urgent to warrant one's use.This same misreading risks creating a chilling effect:public bodies might refrain from entering PLAs even
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12where the situation is truly urgent. After all, theremay be greater risk of delay in litigation, like here,than there would be in simply foregoing the PLA.Consequently, I am greatly concerned that this decisionwill perpetuate the errors that I have discussed aboveby disposing of the underlying challenge concerningthe use of a PLA and effectively serving as the finalmerits decision.Without belaboring this final point, I also believeapparently reasonable grounds exist to affirm the trialcourt's order because the balance of harms weighs inthe College's favor. Here, the Grant requires that theProject must be substantially completed by February2026 and it also requires that the first cohort ofstudents begin the HVAC-training program in April2026. If further halting the bid process means theCollege is unable to comply with the terms of theGrant, it may lose the $2 million in funding and itmay become ineligible for future federal funds. AsI explained in Associated Builders and Contractors,Inc., Eastern Pennsylvania Chapter v. Bucks CountyCommunity College (Pa. Cmwlth., No. 1172 C.D.2025, filed October 20, 2025) (Wojcik, J.) (single-judge op.), “[t]hese concerns are made only moredire by the now heavily litigated, politically delicatequestion of federal funding in academia, a tightropethe College, like other higher education institutions,must now walk.” Slip op. at 13. To the extent myanalysis now differs from my analysis therein, it isbecause our standard of review requires us to affirmwhen there are “apparently reasonable grounds” forthe denial of a preliminary injunction. With the benefitof further review, I am convinced that the trial courthad reasonable grounds to find in the College's favorbecause the Project's time sensitivity and the attendantrisks for failing to comply with the terms of the Grantoutweigh any alleged harm to ABC Eastern.Accordingly, because I would affirm the trial court'sorder, I respectfully dissent.All Citations--- A.3d ----, 2025 WL 3491625Footnotes1[O]n an appeal from the grant or denial of a preliminary injunction, [this Court] do[es] not inquire into the meritsof the controversy, but only examine[s] the record to determine if there were any apparently reasonablegrounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or thatthe rule of law relied upon was palpably erroneous or misapplied will [this Court] interfere with the decisionof the [trial court].Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003) (quoting Robertsv. Bd. of Dirs. of the Sch. Dist. of the City of Scranton, 341 A.2d 475, 478 (Pa. 1975)).2On November 3, 2025, the College filed a Motion for Leave to File an Amended Brief (Application), thereinalleging that the attorney who wrote the initial brief notified the College's current counsel that the initial briefcontained Artificial Intelligence-generated case citations and factual representations. By November 24, 2025Order, this Court denied the Application and struck the initial brief. Accordingly, this Court did not considerthe College's brief herein.3This unreported single-judge opinion is cited as persuasive authority pursuant to Section 414(a), (b) of thisCourt's Internal Operating Procedures, 210 Pa. Code § 69.414(a), (b).4The Dissent counters that the College commissioned a study concerning the need for a PLA, determinedthat a PLA was appropriate given the urgency of the Project, and utilized a PLA which it found satisfactoryto address the need for it. However, the trial court sustained ABC Eastern's objection to the study, i.e.,the Keystone Report, as it was inadmissible hearsay. See Notes of Testimony, Sept. 2, 2025, at 112-113.Further, Timby testified that the College made the decision to include the PLA for the Project before theKeystone Report's preparation. See id. at 115. Thus, the Dissent's reliance on said study to substantiateextraordinary circumstances is unsupported by the record evidence.
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.13In addition, the Dissent states that if ABC Eastern's burden on this prong is simply to demonstrate thatsubstantial legal questions exist, ABC Eastern may only have done so because this Court began deviatingfrom its own precedent in Allan Myers. However, as stated above, this Court continues to follow Allan Myers,as the Majority has in the instant case. Further, the Pennsylvania Supreme Court has instructed: “In thecontext of a motion for a preliminary injunction, only a substantial legal issue need be apparent for themoving party to prevail on the clear-right-to-relief prong.” Marcellus Shale, 185 A.3d at 995 (emphasisadded). Thus, there is no question that ABC Eastern met its burden in accordance with Marcellus Shaleand Allan Myers.5The trial court explained:[U]nder the Grant, the Project must be complete and ready for students by March 30, 2026, so that thefirst cohort of students can start in the HVAC Training Program in April 2026.... [T]his $2,000,000[.00.]Grant is the largest federal grant the College has received ..., and that failure to meet the Grant timetablewill not only deprive the College of these Grant funds but will also likely impact the College's ability toreceive future federal grants.Trial Ct. Op. at 5 (internal record citations omitted).6The trial court expounded:The HVAC Training Program itself is also time-sensitive, beyond the time-sensitivity of the Grantfunding.... [T]he [HPO L]ist for Bucks County has identified a compelling need for the new HVAC workersthat the [HVAC Training] Program will train. Indeed, the Bucks County HPO [List] identified a significantshortage of labor in HVAC and anticipated a need for 1,300 HVAC workers in [Bucks C]ounty for 2032.Trial Ct. Op. at 5 (internal record citations omitted).7The Dissent would rule that the Project's time sensitivity and the attendant risks for failing to comply with theterms of the Grant outweigh any alleged harm to ABC Eastern. However, as stated above, it is well-settledlaw that “a violation of law can[not] be a benefit to the public[.]” Israel, 52 A.2d at 321. Because there is asubstantial question as to whether the College's use of the PLA was permitted, this Court cannot find thatany harm to the College outweighs any risk to the public.1For ease of discussion, I will incorporate the Majority's definitions as my own. For example, here, a projectlabor agreement will be referred to as a PLA. “A PLA is an agreement between a government authority anda collection of unions represented by a council (often a construction trades council) which applies to partsof a construction project. The terms of PLAs vary according to the terms negotiated in each agreement.” A.Pickett Construction, Inc. v. Luzerne County, 738 A.2d 20, 21-22 (Pa. Cmwlth. 1999).2As our Supreme Court has explained:It is somewhat embarrassing to an appellate court to discuss the reasons for or against a preliminarydecree, because generally in such an issue we are not in full possession of the case either as to thelaw or testimony; hence our almost invariable rule is to affirm the decree, or if we reverse it to give onlya brief outline of our reasons, reserving further discussion until appeal, should there be one, from finaljudgment or decree in law and equity.Hicks v. American Natural Gas Co., 57 A. 55, 55-56 (Pa. 1904).3“Except as provided in subsection (d) (relating to single-Judge opinions in election law matters), a single-Judge opinion of this Court, even if reported, shall be cited only for its persuasive value and not as bindingprecedent.” 210 Pa. Code § 69.414(b).
Associated Builders and Contractors, Inc., Eastern Pennsylvania..., --- A.3d ---- (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.144See also J.D. Eckman v. Department of Transportation, 202 A.3d 832 (Pa. Cmwlth. 2019) (Allan Myercompanion case).5See also 51A Corpus Juris Secundum (C.J.S.) Labor Relations § 316 (May 2025) (same).6Even if Allan Myers may read that way at first blush, to date, the issue of whether a discriminatory PLAis justified by extraordinary circumstances has never manifested. In other words, where we have foundthat extraordinary circumstances warranted a PLA, we have found that the PLA was not discriminatory.See Pickett, 738 A.2d at 25-26; Sossong, 945 A.2d at 788-89 (did not violate lowest bidder requirement);Hawbaker, slip op. at 15-17. Conversely, where the PLA was discriminatory there were also no extraordinarycircumstances to warrant the imposition of a PLA. Allan Myers, 202 A.3d at 14-15; J.D. Eckman, 202 A.3dat 832; ABC Keystone II, slip op. at 34-36.7The scholarly Majority rightly notes, ABC Eastern, __ A.3d at __, slip op. at 10 n.4, that the trial court excludedthe content of the report as inadmissible hearsay as in Keystone II. To the extent I reference the same, it isonly for the fact of it, i.e., I do not reference it for the substance of the report. ABC Eastern's own counsel,notwithstanding their objection, did the same at the hearing. See, e.g., Trial Court's Hearing, 9/2/25, Notesof Testimony (N.T) at 113 (ABC Eastern's counsel stated: “For that very narrow purpose I think the question[relating to the fact of the report and timeline of events] would be okay. I wouldn't object to it. Thank you,[j]udge.”); see also id., N.T. at 114-15. As such, I believe that the sheer fact of the report suggests theCollege's inclusion of the PLA was far more thoughtful than the Majority gives it credit for. So too, I find theMajority's reliance on Tracy Timby's testimony to be misplaced and uncharitable. Although Timby testifiedthat the decision to use the PLA preceded the issuance of the report, Timby also testified that this was herbelief because she did not have firsthand knowledge of that portion of the bidding process. Id., N.T. at 115.However, as discussed infra, it is not dispositive to my analysis: I find the urgency of the College's situationto be plain on its face. The Majority therefore slightly misapprehends my analysis on this point.End of Document© 2025 Thomson Reuters. No claim to original U.S.Government Works.
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