G. Kevin Fasic, Esquire, Wilmington, Delaware
Jeffrey M. Weiner, Esquire, Wilmington, Delaware
Joseph C. Handlon, Esquire, Wilmington Delaware
Laura L. Gerard, Esquire, Wilmington, Delaware
JOHN A. PARKINS, JR., JUDGE
Presently before the court are Plaintiffs' requests for costs, including attorneys' fees. The litigation arises from a dispute between the two plaintiff roofing contractors and the Department of Labor over the classification under the Prevailing Wage Act of laborers who install sheet metal roofing. After unsuccessful attempts to get a meaningful opportunity to redress their grievances with the Delaware Department of Labor, the plaintiffs understandably became frustrated and separately filed suits seeking declaratory relief and a writ of mandamus. The parties were able to resolve their differences and arrived at a settlement agreement. That agreement left open the question of whether any party was entitled to costs. That question has now been brought to a head by Plaintiffs' applications.
It might be useful to summarize the underlying dispute before addressing the award of costs. In general terms the Delaware Prevailing Wage Act requires contractors doing work for the state and its political subdivisions to pay their laborers at least the prevailing wage for specified by the Delaware Department of Labor for the particular class of laborer involved. The statutory scheme provides for a committee to meet regularly to set or adjust prevailing wage rates. There is an administrative protocol for affected parties to raise grievances they may have concerning the Department of Labor's application of Prevailing Wage Act. One supposes there could be almost an infinite variety of disputes which could arise under the Act, including the classification of laborers into various wage classifications. Indeed it is a dispute over the classification of workers who install sheet metal roofs which gave rise to this controversy.
At this juncture the court must digress even further with a brief discussion about the installation of sheet metal roofs. Because of their durability sheet metal roofs are popular in the construction of schools and similar buildings. The roof consists of a frame, often wooden, insulation and the sheet metal itself. The initial stage of the construction of a sheet metal roof is the construction of the frame and the installation of insulation. This work is usually performed by carpenters and roofers. Until this point not one piece of sheet metal has been installed.
Once the frame is constructed and the insulation is installed the contractor takes precise as-built measurements of the roof structure and provides them to the sheet metal supplier. Using the architect's drawings and the contractor's as-built measurements, the supplier fabricates the necessary sheets at an off-site location. After the fabricated sheets are delivered to the job site they are installed by sheet metal workers. Those workers are classified to a significantly higher wage rate than carpenters and roofers. The contractors' primary bone of contention with the Department of Labor here was that the department required the contractors to pay much higher sheet metal worker rates to the carpenters and roofers who built the frame and installed the insulation, notwithstanding that in many (if not most) cases the sheet metal for the roof had not even been fabricated yet. The ultimate installation of the sheet metal roof had little to do with the skill set needed of the carpenters and roofers who did the preparatory work. With considerable logic the contractors argued that they should be allowed to pay the carpenters and roofers at their regular rate. The Department of Labor resisted, insisting that the carpenters and framers be paid at sheet metal workers rates. Hence, these suits followed.
Happily the parties were able to resolve their differences once the lawyers were unleashed. The terms of the settlement agreement, except to note that it contains no provision for the award of costs, are not germane to the issue here. The court will therefore not rehash them.
B. The claims for costs
Plaintiffs advance several theories why they are entitled to costs, including attorneys' fees. Among them are that their efforts created the equivalent of a common fund and that the department acted in bad faith as evidenced by both its pre-litigation and post litigation conduct. The bulk of the briefing on both sides was devoted to these issues. The court need not reach them, however, because it finds that an award of fees and costs is barred by the doctrine of sovereign immunity.
C. Sovereign immunity and the award of costs.
The history and purpose of sovereign immunity has been discussed at length on several occasions by the Delaware Supreme Court. This court will not gild the lily by attempting to expand upon those discussions. Suffice it to say that a fundamental purpose of the doctrine is to protect the State's treasury. Therefore, absent a clear ...