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In an extraordinary legal maneuver, the Pennsylvania Supreme Court has granted a King’s Bench petition filed by the governor, the Eagles and the Phillies against the Philadelphia Authority for Industrial Development to try to overturn an appellate court decision that would prevent construction of the Eagles stadium and Phillies ballpark to continue as planned. The petitioners filed suit in the Philadelphia Court of Common Pleas and then immediately filed an emergency application with the state supreme court last Wednesday. The court answered by Friday, an exceptionally quick response time for the state’s highest court. The state supreme court has the statutory right to assume plenary jurisdiction in any matter of “immediate public importance.” The sports teams hope the state’s highest court will overrule a Commonwealth Court ruling that would prevent the sports teams from using an expedited bidding process for the projects. “The Eagles and the Phillies had already planned and designed their projects and entered into contracts for the new Eagles stadium and the new Phillies ballpark, and the teams had already expended very substantial amounts for the development of the stadiums, before the Commonwealth Court issued its decision … on August 10, 2001,” the complaint in the declaratory judgment action says. “All of the work and transactions completed and contemplated to date by the teams were based upon having only to solicit three bids for general contracted work … “ The goal to open the Eagles’ stadium is Aug. 1, 2003, and the goal for the Phillies’ new ballpark’s completion is spring 2004. The case causing headaches for the Eagles and Phillies is Pleasant Hills Construction Co. Inc. v. Public Auditorium Authority of Pittsburgh, which arose from a dispute involving a plumbing contract for PNC Park in Pittsburgh. But, since PNC Park is already built and the plumbing work is completed, the suit in Pittsburgh was limited to a claim for money damages. However, the decision established the guidelines for the bidding process in projects such as the new Philadelphia stadium and ballpark. The Pleasant Hills case was decided by a unanimous five-judge panel led by President Judge Joseph T. Doyle. Doyle was joined by Judges James Gardner Colins, Doris A. Smith, Dan Pellegrini and Rochelle S. Friedman. The Commonwealth Court said the pertinent bidding statutes that govern the project are Section 11 of the Public Auditorium Authorities Law (PAAL) and Section 1 of the Separations Act. Section 11 provides that contracts for construction should go to the lowest responsible bidder. Section 1 of the Separations Act provides that it is the duty of the decision-maker to receive separate bids for the different branches of work — such as plumbing, heating, air conditioning — and award the contract to the lowest responsible bidder. In 1999, the General Assembly passed the Capital Facilities Debt Enabling Act (Act 1) and the Capital Budget Project Itemization Act (Act 35) for 1999-2000, both of which the governor signed. Act 1 provides that a minimum of three bids are required for all contracted work in “redevelopment assistance capital projects.” Act 35 provides that Act 1 is the “sole and exclusive” requirement for such construction projects. The court’s ultimate decision hinged on whether Acts 1 and 35 nullified the requirements set forth in the PAAL and the Separations Act. The common pleas court in Pleasant Hills determined that Act 1 simply modified the usual bidding process by requiring at least three bids for contract work such as the Pittsburgh stadium project, but the stricter requirements under the earlier statutes were still applicable. The appeals court then agreed with the trial court’s reasoning. The new Phillies ballpark and Eagles stadium were both funded under the CFDEA. The petitioners in the most recent case, however, assert that the CFDEA provides the sole authority for bidding procedures. The complaint says the Eagles have already expended more than $40 million of their own funds and have completed necessary demolition and begun construction of the new stadium. The Phillies have already spent $16 million of their own money and are spending at least $5 million a month in costs related to the new ballpark. Both teams have also secured private funding in amounts more than double the funding that the commonwealth provided in public funding. “If the Eagles are required to rebid any of the construction contracts for their stadium as a result of PAID’s adherence to the Pleasant Hills decision, or to bid any contracts in a manner other than as permitted by the Eagles sublease, the Eagles will not be able to maintain the guaranteed construction prices upon which their private financing is conditioned and will not be able to complete construction of their new football stadium by August 2003, and accordingly, will not be able to close their contemplated private financing,” the complaint says. The complaint also said the Phillies are in the final stages of negotiating a guaranteed maximum price contract with their construction manager for a fast-tracked construction. The Pennsylvania Supreme Court has ordered that the matter be submitted on briefs, ordered due to the court by Sept. 24, 2001. William H. Lamb of Lamb Windle & McErlane in West Chester, Pa., is one of several lawyers who is special counsel for the governor and the Commonwealth of Pennsylvania. Lamb said the supreme court’s action granting the King’s Bench petition is “very rare.” Lamb also said the fact that the supreme court did not schedule oral argument — and instead asked only for briefs — suggests that the high court is going to decide the case “promptly.” Other attorneys working on the case are: D. Michael Fisher, Gregory R. Neuhauser, James M. Sheehan, James D. Neilson and Brian D. Zweiacher, for the Commonwealth of Pennsylvania and the governor; James C. Sargent and Maureen M. McBride, special counsel for the commonwealth and the governor; David F. Girard-diCarlo, G. Craig Lord, Matthew J. Siembieda and Thomas H. Chiacchio for the Eagles; Alan J. Davis and Raymond A. Quaglia for the Phillies; and David Smith, Carl A. Solano and Deena Jo Schneider for the Philadelphia Authority for Industrial Development.

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