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Balfour Beatty Construction, Inc. v. Department of Transportation

Dismissal of appeal of DOTs suspension of plaintiff as a prequalified contractor reversed; plaintiffs failure to file a reply to DOTs suspension letter within 21 days did not preclude it from seeking review; DOTs regulations violated plaintiffs right to due process of law by depriving it of a substantial property interest in its prequalified status.

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Argued: June 7, 2001

Balfour Beatty Construction, Inc. (Balfour) has filed a petition for review from the decision of a Hearing Officer of the Department of Transportation (Department) that granted a Department motion and dismissed Balfour’s appeal and request for a hearing from the Department’s suspension of Balfour as a prequalified contractor and denied Balfour’s alternative request to treat the appeal as one properly filed nunc pro tunc.*fn1 Balfour also filed an Application for Summary Relief asserting that the Department lacked jurisdiction because Balfour was not a “contractor” as defined in the regulations when the suspension was imposed and the dismissal was an improper final determination outside the context of a proposed report. The Department has filed a motion to quash reasserting various jurisdictional challenges.

Balfour states the following questions involved in this appeal. They are: (1) whether the notice of suspension was adequate under 67 Pa. Code �457.13(g), where it was not sent by both regular and certified mail and it did not identify specific acts or incidents; (2) whether the suspension was invalid where no findings of fact supported it; (3) whether a reply pursuant to 67 Pa. Code �457.13(h) was a mandatory prerequisite to a hearing request; (4) whether the time for requesting a suspension hearing runs from the notice that the suspension has been imposed rather than notice that it might be imposed; (5) whether the denial of a request for a hearing nunc pro tunc was an abuse of discretion; (6) whether a three-month suspension of a contractor’s license is an adjudication pursuant to 2 Pa. C.S. �101, such that suspension without a hearing violates Section 504 of the Administrative Agency Law, 2 Pa. C.S. �504, and due process; (7) whether the opportunity to submit information under 67 Pa. Code �457.13(g) is an adequate substitute; and (8) whether the dismissal is void where the Hearing Officer was a supervisor of the individuals and office prosecuting the action.

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