[J-23-2015] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. CLIPPER PIPE & SERVICE, INC.,

Appellee

v. THE OHIO CASUALTY INSURANCE CO.; CONTRACTING SYSTEMS, INC. II,

Appellant : : : : : : : : : : No. 59 EAP 2014 Appeal from the Order granting Petition for Certification of Question of Law

ARGUED: April 7, 2015

OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: JUNE 15, 2015

We accepted certification from the United States Court of Appeals for the Third Circuit to determine whether a Pennsylvania statute go verning payments to contractors and subcontractors applies in the context of a public wor ks project. The subject statute is the Contractor and Subcontractor Pa yment Act, 1 which confirms and establishes certain rights and duties among “o wners,” “contractors,” and “subcontractors” with respect to “construction contracts.” 7 3 P.S. §502. Within the enactment, “owner” is a pivotal term, given its central ity and pervasive appearance. For instance, “contractor” is defined as “[a] person author ized or engaged by an owner to improve real property.” Id. (emphasis added).

1 Act of Feb. 17, 1994, P.L. 73, No. 7 (as amended, 73 P.S. §§501-516) (“CASPA”).[J-23-2015] - 2

Under CASPA, “owner” is defined, in pertinent part, as “[a] person who has an interest in the real property that is improved and wh o ordered the improvement to be

made.” Id. §502 (emphasis added). “Person,” in turn, is defined as “[a] corporation, partnership, business trust, other association , estate, trust foundation or a natural

individual.” Id. (emphasis added). In 2010, the United States Department of the Navy en tered into an agreement with Contracting Systems, Inc. II (“CSI”), per which the latter served as the general contractor for the construction of an addition to, and r enovations of, the Navy/Marine Corps Reserve Training Center in the Lehigh Valley. CSI, in turn, subcontracted with Appellee, Clipper Pipe & Service, Inc. (“Clipper”), f or the performance of mechanical and heating, ventilation, and air conditioning work. Subsequently, Clipper filed suit against CSI and its su rety, the Ohio Casualty Insurance Company (collectively “Appellants”), in the U nited States District Court for the Eastern District of Pennsylvania, asserting that CSI had failed to pay approximately $150,000 to Clipper, per the terms of their agreemen t. Among other claims, Clipper

advanced one under CASPA. Appellants moved for summary judgment, arguing that C ASPA does not apply to public works projects, because a governmental entity does not qualify as an “owner” under the statutory definition, as such an entity is nei ther a “person” nor an “other association.” 73 P.S. §502. Appellants acknowledged th at a federal district court had predicted that Pennsylvania courts would find that a go vernmental entity may be an owner for purposes of CASPA. See Scandale Associated Builders & Eng’rs, Ltd. v. Bell Justice Facilities Corp. , 455 F. Supp. 2d 271, 281 (M.D. Pa. 2006). They h ighlighted, however, the inconsistency of such prediction with several actual decisions issued by Pennsylvania state courts, albeit from the common pleas level. See, e.g. , Hoffmeister v.[J-23-2015] - 3

Skepton Constr., Inc. , 55 Northampton Cnty. Rep. 46, 48 (2006) (reasoning that CASPA did not apply to a Commonwealth public works project, b ecause “a ‘person’ is specifically defined in [CASPA] with a limited list of entities that does not include any agency of state or local government”), aff’d per curiam , 943 A.2d 327 (Pa. Super. 2007). Along these lines, Appellants noted that Pennsylvania co urts had also considered CASPA in concert with Subchapter D of Chapter 39 of th e Commonwealth Procurement Code, 2 commonly denominated the “Prompt Pay Act,” another st atutory regime directed at promoting prompt payment to contractors and subco ntractors. See, e.g. , Mastercraft Woodworking Co. v. Jim Lagana Plumbing & Heating Inc. , 9 Pa. D. & C. 5th 251, 259- 61 (C.P. Berks 2009). In this regard, Appellants expla ined, those courts had concluded that the Prompt Pay Act – and not CASPA – addresses pu blic works projects. See,

e.g. , id. The federal district court denied relief on Appellants’ motion. Among other aspects of its rationale, the court followed Scandale ’s reasoning that a governmental entity may be an “owner” under CASPA, since the statut ory definition of “person” does not exclude the federal government, and the purpose of CASPA is to protect contracting parties. Clipper prevailed at an ensuing jury trial, and the district court awarded interest, penalties, and counsel fees, such as are made available b y CASPA. See 73 P.S. §§505(d), 512. Appellants lodged an appeal in the U nited States Court of Appeals for the Third Circuit. Per this Court’s internal operatin g procedures, the federal appeals court subsequently applied for certification of a questi on of law, namely, “does [CASPA] apply to a project where the owner is a governmental entity, such as the federal

2 Act of May 15, 1998, P.L. 358, No. 57 §§3931-3939 ( as amended, 62 Pa.C.S. §§3931- 3939).[J-23-2015] - 4

government in this case?” Petition for Certification in Clipper Pipe & Service, Inc. v.

Ohio Cas. Ins. Co. , No. 14-1716 (3d Cir. Oct. 24, 2014), at 8. Presently, Appellants maintain that governmental bodi es cannot be “owners” for purposes of CASPA, because the word “government” does n ot appear in the definition, and it is the Prompt Pay Act, not CASPA, which expressly governs public works projects. To the degree this is not plain from the face of CASPA, Appellants invoke principles of statutory construction. For example, Appel lants urge that, under the

doctrine of ejusdem generis , the phrase “other association,” as used in the definit ion of “person” (and, derivatively, “owner”) should take its m eaning from the words which precede it, i.e. , “[a] corporation, partnership, [or] business trust,” 73 P.S. §502. Accord 1 Pa.C.S. §1903(b) (“General words shall be construed t o take their meanings and be restricted by preceding particular words.”). Additionally, Appellants note that the term “associatio n,” as utilized in statutes enacted prior to December 7, 1994, refers to “any form of unincorporated enterprise owned by two or more persons other than a partnership or limited partnership.” 1 Pa.C.S. §1991. According to Appellants, this definiti on is obviously directed to nonpublic entities. Finally, Appellants believe that it w ould be untenable for both CASPA and the Prompt Pay Act to apply simultaneously to a con struction project, given that there are substantial differences in: the timing for provision of required notices,

compare 73 P.S. §511, with 62 Pa.C.S. §3934; the rate of interest on delayed payments, compare 73 P.S. §505, with 62 Pa.C.S. §3932(c); and the burden of proof associated with penalty and attorneys’ fee awards, compare 73 P.S. §512, with 62 Pa.C.S. §3935. Accord, e.g. , E. Coast Paving & Sealcoating, Inc. v. N. Allegheny Sch

. Dist. , 111 A.3d 220, 232 (Pa. Cmwlth. 2015) (concluding, b ased on the differences between CASPA and the Prompt Pay Act, that the latte r, “not CASPA, governs[J-23-2015] - 5

construction contracts between a government agency . . . and a contractor”);

Hoffmeister

, 55 Northampton Cnty. Rep. at 47 (“It is not reasona ble that the General Assembly intended to regulate conduct with two differen t requirements for the same entitlement to a penalty for a contractor’s late pay ment to a subcontractor.”). 3 Finally, Appellants contend that application of CASPA to federal public works projects would contravene the principle of federal supre macy, per which states may not regulate the federal government. See, e.g. , North Dakota v. United States , 495 U.S. 423, 434, 110 S. Ct. 1986, 1994 (1990) (“State law may run afoul of the Supremacy Clause in two distinct ways: The law may regulate the [ federal] Government directly or discriminate against it, . . . or it may conflict with a n affirmative command of Congress.” (citing, inter alia , M’Culloch v. Maryland , 17 U.S. 316 (1819))). Clipper, on the other hand, does not accept that the i dentity of the owner is fundamental to the application of CASPA. See, e.g. , Brief for Appellee at 4 (“The fact that a governmental entity is an owner is irrelevant where the contract at issue does not include a governmental entity as a party.”). Along t hese lines, Clipper references Imperial Excavating & Paving, LLC v. Rizzetto Constructio n Management, Inc. , 935 A.2d 557 (Pa. Super. 2007), as a decision which applied the terms of CASPA in determining the respective rights of a contractor and sub contractor on a public project. To the degree that identity is relevant to the status of an “owner” under CASPA, Clipper maintains that the federal government is both a “perso n” and an “other association,” since “the federal government is nothing more than an association of its citizens.” Brief

3 In this regard, Appellants also reference the principl e of statutory construction requiring that specific provisions control over general o nes. See Brief for Appellants at 26 (“Because the Prompt Pay Act is the more specific statu te, and was enacted after the more general CASPA, the Rules of Statutory Constr uction require that the more specific language in the Prompt Pay Act prevail over th e general language of ‘other association’ in CASPA.” (relying upon 1 Pa.C.S. §1933) ).[J-23-2015] - 6

for Appellee at 5; accord Scandale , 455 F. Supp. 2d at 281. According to Clipper, thi s approach is consistent with the policy of liberal constructi on to be implemented in discerning the meaning of ambiguous remedial statutes. See 1 Pa.C.S. §1928(c). Clipper also stresses the salient policy underlying CASPA -- in terms of protecting contractors and subcontractors and encouraging fair dealing among the parties to a construction contract – and observes that such salutary aims should not be confined to private projects. See, e.g. , Brief for Appellee at 16 (“The manifest intention of the General Assembly was to protect subcontractors from the exact type of conduct [in which] a jury determined CSI engaged.”). Further more, while recognizing that application of CASPA to claims against the federal gove rnment might raise supremacy concerns, Clipper suggests that such concerns are alleviat ed since such application would be preempted by the federal Prompt Pay Act, 31 U.S.C. §§3901-3907. Clipper does not find the Commonwealth-level Prompt Pay Act r elevant, since it is addressed to contracts involving state and local governmental units, see 62 Pa.C.S. §3902, not the federal government. Finally, Clipper develops that, pursuant to recent ame ndments to Section 102 of the Associations Code, 4 the term “association” expressly excludes governmental

entities. See Act of Oct. 22, 2014, P.L. 2640, No. 172 (amending, inter alia , 15 Pa.C.S. §102). It is Clipper’s position that such modification bolsters the conclusion that the Legislature did not previously intend to exclude gover nmental bodies from CASPA’s

reach. Upon review, we agree with Appellants’ position that CASPA does not apply in the context of public works projects. In the first instan ce, we find Clipper’s and the federal district courts’ proposition that the General Ass embly may have intended the

4 Act of Dec. 21, 1988, P.L. 1444, No. 177 (as amended , 15 Pa.C.S. §§101-9507).[J-23-2015] - 7

term “association” to encompass governments or governmen tal units to be unconvincing. Moreover, the United States and its Depa rtment of the Navy are dissimilar to a “corporation,” “partnership” “business tru st,” “estate,” “trust foundation,” and “natural individual,” among which the term “associa tion” appears. Cf. DEP v. Cumberland Coal Res., LP , ___ Pa. ___, ___, 102 A.3d 962, 976 (2014) (expla ining that, per the doctrine of ejusdem generis , catchall phrases “should not be construed in their widest context”). Even if this were not the case, another relevant rule of statutory construction prescribes that statutes in derogation of sovereignty shou ld be construed strictly in favor of the sovereign. See , e.g. , Meyer v. Cmty. Coll. of Beaver Cnty. , ___ Pa. ___, ___, 93 A.3d 806, 814 (2014). See generally 3 S UTHERLAND S TATUTORY C ONSTRUCTION §62:1 (7th ed. 2015) (“Statutory provisions which are writte n in such general language that they are reasonably susceptible to being construed as appl icable both to the government and to private parties are subject to a rul e of construction which exempts the government from their operation in the absence o f other particular indicia supporting a contrary result in particular instances.”). This approa ch derives, in part, from the immunity accorded to the government at common law (an d presently reaffirmed by statute, see infra note 6). See generally 3 S UTHERLAND S TATUTORY C ONSTRUCTION §62:1 (“[T]he rule exempting the sovereign from the operation of the general provisions of a statute is premised on a policy of preserving for the public the efficient, unimpaired functioning of government.”). 5 It is also grounded on the assumption that non-specific

5 Accord Vt. Agency of Natural Res. v. U.S. ex rel. Stevens , 529 U.S. 765, 780, 120 S. Ct. 1858, 1866 (2000) (“We must apply to this text ou r longstanding interpretive presumption that ‘person’ does not include the sovereig n.” (citations omitted)); United States v. Bd. of Fin. & Revenue , 369 Pa. 386, 396-97, 85 A.2d 156, 163 (1951) (“[T ]he word person is never generally construed to include a sov ereign whether the United States or a State.” (internal citations omitted)).[J-23-2015] - 8

statutes are most often directed to the affairs of the citizenry. See id. (“There is a further basis for the rule in that the purpose of most legislation is to govern, i.e. , to direct the application of the power of government to arrang e the affairs of people who are subject to it. For this reason most statutes are intend ed and understood to apply to members of the public instead of the government itself. ”). Per the application of this principle, the federal government is not an “association ” or a “person” or, derivatively, an “owner” for purposes of CASPA. 6

6 In the Meyer

decision, cited previously, the relevant principle of n arrow construction was applied upon review of a legislative enactment whi ch predated this Court’s decision to abrogate common-law sovereign immunity. See Mayle v. Pa. Dep’t of Highways , 479 Pa. 384, 406, 388 A.2d 709, 720 (1978). Thus, strictl y speaking at least, it remains an issue of first impression whether the precept should be e xtended into the context of a post-abrogation statute such as CASPA. Accordingly, we pa use to explain why continued application is appropriate. Very soon after the issuance of Mayle , the General Assembly reaffirmed and reinstated the doctrine of sovereign immunity through a legislati ve enactment. See 1 Pa.C.S. §2310. Per the statutory regime, the Commonwealth “ shall continue to enjoy sovereign immunity . . . and remain immune from suit except as the General Assembly shall specifically

waive the immunity.” Id. (emphasis added). Notably, this Court already has implemented this plain directive to maintain the trad itional strict construction of statutes in derogation of sovereignty. See, e.g. , Pyeritz v. PSP , 613 Pa. 80, 94, 32 A.3d 687, 696 (2011) (“The legislature's intent in enacting the Sovereign Immunity Act was to shield government from liability except as provided fo r in the statute itself, and we must apply a rule of strict construction in interpreting the e xceptions .” (emphasis added)). Furthermore, although Appellants have not specificall y referenced the strict-construction precept in their arguments, application of the principl e is entirely consistent with Appellants’ position that general statutory terms such a s “person” and “association” should not be construed to encompass the Commonwealth, at least in the absence of some specific evidence of a legislative intention supporti ng such an expansive construction. Moreover, we believe that our present re ference to the relevant principle of narrow construction is salutary in terms of affording broader guidance, particularly given that several federal district courts have construed general terms to encompass the Commonwealth in a context in which there is no spe cific evidence that the Legislature intended such a construction. See, e.g. , Scandale , 455 F. Supp. 2d at 281.[J-23-2015] - 9

We recognize that the government is not directly invo lved in the present dispute between CSI, a contractor in the generic sense, and i ts subcontractor, Clipper. Nevertheless, our analysis circles back to the centrality of the concept of an “owner” to CASPA. Where there is no “owner” for purposes of CASP A -- because a “person” did not commission the construction in the first instance, 73 P.S. §502 (defining “owner” in

terms of a person with an interest in real estate) -- there also can be no “contractor” under the statute, given that a “contractor” must be engaged by an “owner.” Id. Whether by intention or oversight, the Legislature sim ply did not design CASPA to apply independently to subcontracts in scenarios in which the foundational contract resides outside its boundaries. Thus, although we do not discou nt that the policy of CASPA would seem to be served by applying it to the present ci rcumstances, such application is too disharmonious with the statutory mechanics to suppo rt the extension. 7

In terms of the soon-to-be-effective amendment to the Associations Code, which will indicate expressly that the term “association” does no t encompass governmental units, we differ with Clipper’s assumption that this nec essarily reflects changed legislative intent. Other jurisdictions recognize that t he purpose of amendments, in fact, may be to clarify what the governing legislature body intended from the outset. 8 Indeed,

7 In a similar vein, while recognizing the remedial na ture of CASPA, we conclude that the policy of liberal construction has its limits as well.

8 Along these lines, the Michigan Supreme Court has exp lained that the principle suggested by Clipper:

is a rule for construction of the amendment when ... the meaning of the statute before amendment is settled and the question presented is the meaning and effect to be give n the amendment. The rule is not applied in reverse for the purpose of determining the meaning of the statute be fore amendment by presuming that it must have been something different than that which is the clear intent of the statute after (Rcontinued)[J-23-2015] - 10

interpretive judicial decisions, such as the federal distri ct courts’ opinions pertinent to this case, are sometimes the impetus for such clarificati on. In summary, we conclude that CASPA does not apply to a construction project where the owner is a governmental entity.

The matter is returned to the Third Circuit.

Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.

(continuedR) the amendment. ... While in many and perhaps most

instances it undoubtedly is the legislative intent, in enacting an amendment, to change existing law, there are, as undoubtedly, other instances, particularly if uncertaint y exists as to the meaning of a statute, when amendments are adopted for the purpose of making plain what the legi slative intent had been all along from the time of the statu te's original enactment.

In re Detroit Edison Co. , 87 N.W.2d 126, 130 (Mich. 1957) (emphasis added); accord Colonial Pipeline Co. v. Neill , 251 S.E.2d 457, 461 (N.C. 1979) (“In construing a st atute with reference to an amendment, it is presumed that th e Legislature intended either (1) to change the substance of the original act or (2) to cla rify the meaning of it.”).