All posts by Patrick J. Kearney

Legislation Proposed to Allow ERISA Trusts to Pursue Mechanics’ Liens

On April 17, 2014, the Supreme Court of Pennsylvania issued a decision in Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s Development Company, et al., that held that union workers (employees of the primary contractor) were not “subcontractors” as that term is defined in the Pennsylvania’s Mechanics’ Lien Law of 1963, and that trustees of the union’s employee benefits trust funds were not entitled to file mechanic’s lien claims on the employees’ behalf for unpaid contributions to the trust funds.

Following this ruling, Rep. William Keller, D-Philadelphia, introduced HB 2319 to the General Assembly which would amend the Mechanic’s Lien Law to classify union benefit fund trustees as subcontractors allowed to pursue claims for non-payment against employers and property owners under the Mechanic’s Lien Law.

Duane Morris will continue to monitor the progress of this legislation.

The Service-Disabled Veteran-Owned Business Act Becomes Law in New York

The Service-Disabled Veteran-Owned Business Act (the “Act”) was signed into law by Governor Andrew M. Cuomo on May 12, 2014. Under this new law, veteran business owners will be eligible to become certified as a New York State Service-Disabled Veteran-Owned Business (SDVOB). The goal of the Act is to encourage and support eligible businesses to play a greater role in the economy of the State by increasing participation in New York State’s contracting opportunities. Towards that end, New York will award 6 percent of state contracts to businesses owned by disabled veterans and create the new Division of Service-Disabled Veterans’ Business Development within the New York State Office of General Services (“OGS”) for the establishment of a statewide certification program. The Division will be responsible for certifying eligible SDVOBs, and assist and promote the compliance of SDVOB participation in the state’s procurement activities.

The statute provides that rules and regulations must be issued within 90 days of the effective date of the Act. However, understanding the strong interest in the program and the need to commence certifying businesses as soon as possible, OGS will be issuing emergency regulations on or before the week of June 2, 2014 prior to the adoption of permanent regulations.

Managing Snow and Weather Related Delays on a Construction Project

This winter it seems like no one has been able to escape the fury of Mother Nature. As a result, construction projects all over the country are now behind schedule. Because “time is money” for all of the project participants, disputes related to time extensions, liquidated damages, acceleration claims, and other delay damages are expected. In anticipation of these disputes, contractors and owners should review their contracts and consult with an attorney before submitting or responding to a weather related claim.

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Beware Partial Releases and Waiver of Claims are Enforceable, But Can Be Waived

In the construction industry, the payment application process usually requires contractors and subcontractors to complete a great deal of paperwork. In addition to submitting traditional payment applications that identify the contractor’s or subcontractor’s schedule of values, work completed to date, and balance to finish, contractors and subcontractors may also be required to submit certain lien waivers, certifications, affidavits, and other types of sworn representations. While these additional submissions may seem clerical, or even ceremonial in nature, they can have serious legal ramifications.

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Ohio Reduces the Statute of Limitations Period for Written Contracts by Seven Years

On September 28, 2012, Ohio Senate Bill 224 became effective and reduced the statute of limitations period for written contracts from 15 years to 8 years. This new law applies retroactively to causes of action which accrued prior to September 28, 2012, and provides that “an action upon a specialty or an agreement, contract, or promise in writing shall be brought within eight years after the cause of action accrued.” See Ohio Rev. Code § 2305.06.

This new law, however, does not alter the six-year statute of limitations applicable to promissory notes or the four-year statute of limitations applicable to contracts for the sale of goods. Ohio Rev. Code §§ 1303.16 and 1302.98.

Generally, statutes of limitations are enacted to ensure that plaintiffs pursue legal action with reasonable diligence and protect defendants from having to disprove a stale claim. Historically, Ohio had one of the longest statutes of limitations for written contracts in the country. Because Ohio’s statute of limitations period for written contracts has almost been cut in half, all parties to a contract must re-evaluate the manner in which they assess potential causes of actions in order to ensure that all claims are prosecuted in a timely manner.

Delaware Revises its Payment Act and Mandates that All Construction Contracts Be Governed by Delaware Law

On June 25, 2012, Governor Jack A. Markell signed legislation that provides for significant revisions to a statute formerly known as the “Delaware Building and Construction Payments Act.” By enacting House Bill 109, the statute has been renamed the “Building Construction Procedures Act” (the “Act”).

More significantly, the scope of the Act has been expanded to include all services provided on construction projects. In addition, the Act now provides that all construction contracts must be governed by Delaware law and all litigation, arbitration, mediation or other dispute resolution procedures must take place in the state of Delaware. Specifically, the Act states:

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Georgia Joins National Trend By Enacting Taxpayer Protection False Claims Act

On April 16, 2012, Governor Nathan Deal signed the Georgia Taxpayer Protection False Claims Act (House Bill 822) into law. The Georgia Taxpayer Protection False Claims Act, which goes into effect on July 1, 2012, establishes civil penalties for any person or legal entity that commits or conspires to engage in certain fraudulent acts, including but not limited to:

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Court Refuses to Impose Mandatory Civil Penalties in False Claims Act Case

The United States District Court for the Eastern District of Virginia recently issued a decision that may have broad implications to the calculation and imposition of civil penalties in False Claim Act (FCA) cases, because, for the first time, a court refused to issue mandatory civil penalties against a contractor that was found to have violated the FCA.

More specifically, United States ex rel. Bunk v. Birkart Globalistics GmbH & Co., et. al., No. 1:02-CV-1168 (E.D. Va. February 14, 2012), involves a qui tam claim that was filed against a contractor for violations of the FCA. The alleged violations stem from a bid submitted to the Department of Defense, which included a Certificate of Independent Pricing that stated:

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Bill that Includes Major Revisions to Pennsylvania’s Mechanic’s Lien Law Passes House and Moves to Senate

Prior to 2007, the Pennsylvania Mechanic’s Lien Law of 1963, 49 P.S. §1101-§1902 (the “Mechanic’s Lien Law”) operated for over 40 years in its original form, without any significant or substantive modifications. In 2007, however, amendments to the Mechanic’s Lien Law went into effect that significantly changed the statute. For example, the 2007 amendments changed, inter alia, the enforceability of upfront waivers and the definition of a “subcontractor.” In 2009, additional amendments to the Mechanic’s Lien Law went into effect which changed some of the 2007 amendments.

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NRC Will Issue New Safety Orders that Implement Fukushima-Related Recommendations

On March 9, 2012, the Nuclear Regulatory Commission (NRC) announced that it directed its staff to issue three Orders, which are effective immediately, to United States commercial reactor plants. According to the NRC, this expedited mandate attempts to implement “lessons learned from the accident at Japan’s Fukushima Daiichi nuclear power plant.”

Two of the Orders will apply to every U.S. commercial nuclear power plant, including those under construction and the recently licensed new Vogtle reactors. More specifically, the first Order requires the plants to better protect safety equipment installed after the 9/11 terrorist attacks and to obtain sufficient equipment to support all reactors at a given site simultaneously.

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