November 30, 2020

Volume X, Number 335

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November 30, 2020

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Pennsylvania Construction Amid COVID-19

COVID-19 has made its way into various industries throughout the world, and Pennsylvania’s construction industry is no exception. All commercial construction activities throughout the Commonwealth, with a few limited exceptions, have been halted indefinitely to assist in mitigating the ongoing spread of the coronavirus. Similarly, construction supply chains in Pennsylvania, the U.S., and abroad have either limited supply or halted material production altogether, which may result in severe construction delays throughout Pennsylvania once construction projects are cleared to continue. Given the current (and likely ongoing) state of flux faced by Pennsylvania’s construction professionals, it is important that contractors familiarize themselves with the state-specific legal concepts currently at play and consider practical efforts to help curtail the economic impact of COVID-19.

I. STATUS OF CONSTRUCTION IN PENNSYLVANIA

On March 19, 2020, Pennsylvania Governor Tom Wolf issued an Order requiring all “non-life-sustaining” businesses to cease operations immediately to help slow the spread of COVID-19. With the Order, Governor Wolf issued a list of non-life-sustaining businesses, which included an outright ban on forms of commercial construction (with the exception of emergency repairs and the construction of healthcare facilities), including the following:

  • Construction of Buildings

  • Heavy and Civil Engineering Construction

    1. Utility Subsystem Construction

    2. Land Subdivision

    3. Highway, Street, and Bridge Construction

    4. Other Heavy and Civil Engineering Construction

  • Specialty Trade Contractors

    1. Foundation, Structure, and Building Exterior Contractors

    2. Building Equipment Contractors

    3. Building Finishing Contractors

    4. Other Specialty Trade Contractors

Residential projects are likewise banned under the Governor’s Order. Only if the project is “substantially complete” (i.e., a final occupancy permit has been issued), or if limited activities are necessary to stabilize the site, prevent weather damage, or make emergency repairs, may the project continue.

Pennsylvania contractors and other construction professionals may request an exemption waiver from Governor Wolf’s Order to continue business operations. However, such waivers are not automatically granted and contractors should consult with an attorney before requesting a waiver.

Given the still-developing nature of COVID-19, Governor Wolf’s Order does not include a time duration for the ban on construction services. However, the Governor’s Order is clearly based on social distancing efforts and, on March 29, 2020, President Trump extended federal social distancing guidelines through April 2020. Thus, Pennsylvania commercial contractors should be prepared for the construction ban to last at least through April 2020, with further extensions possible.

However, contractors should be aware of proposed legislation, designated as Pennsylvania House Bill 2400, which seeks to allow all public and private construction activities to continue provided they adhere to social distancing practices and other mitigation measures. If approved, commercial and residential construction projects would be universally exempt from the non-essential-business ban issued under Governor Wolf’s Order.

II. COVID-19 AS FORCE MAJEURE EVENT FOR CONSTRUCTION PROJECTS

A force majeure clause is a provision of a contract that excuses a party from performance if an extraordinary event prevents one or both parties from performing their obligations. Construction contracts typically include force majeure clauses that allow contractors to suspend or excuse performance if events occur beyond the contractor’s control.

Under Pennsylvania law, the applicability of a force majeure clause is highly dependent on the specific wording of the clause and the circumstances existing at the time the clause is invoked. Ordinarily, only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party be excused. Furthermore, the conditions leading to the force majeure event must be ones that were beyond the reasonable control of the party seeking to enforce the provision and must not have been caused by that party’s negligence or fault. Many contracts will include one or more of the following as specified force majeure events, which may arguably apply to COVID-19:

  • Acts of God. This phrase is typically used to include natural disasters/events not expressly listed in the force majeure provision.

  • A public health emergency or communicable disease outbreak. COVID-19 is a communicable disease and was declared a public health emergency by U.S. authorities in January 2020.

  • Government or administrative action or changes in laws or regulations. Governor Wolf’s Order has imposed a closure of the majority of construction activities to contain the spread of COVID-19.

  • Failure of upstream suppliers. If the force majeure clause provides for upstream supplier defaults or delays, a contractor may have an excuse for delayed performance while it finds another capable supplier.

However, even if the event is within the listed force majeure events, it must make the performance impossible.

III. COVID-19 AS IMPOSSIBILITY OF PERFORMANCE EVENT FOR CONSTRUCTION PROJECTS

Under Pennsylvania law, the defense of “impossibility of performance” may also be used as an avenue to excuse a contractor from performing certain contractual obligations as a result of the COVID-19 pandemic. This defense arises where, after a contract is made, a party's performance is made impracticable through no fault of his or her own. When such impossibility arises, the parties may waive the difficulties or terminate the agreement, ending all contractual obligations.”

With specific respect to the ongoing construction bans, Pennsylvania might recognize scenarios where performance may be made impracticable by having to comply with a domestic or foreign governmental regulation or order, such as Governor Wolf’s COVID-19 Order, the non-occurrence of which was a basic assumption on which the contract was made.

IV. FUTURE CONTRACTS

Due to the major impact COVID-19 is having on construction supply chains, contractors will likely continue to experience difficulties in performing contractual obligations and meeting major milestones long after projects are cleared to reopen. It is important that contractors keep this in mind when negotiating future contracts to account for the ongoing impacts the coronavirus will have on construction projects. Specifically, contractors should consider revisiting their standard force majeure provisions, delay provisions, time extension provisions, and related damage provisions to fairly allocate the ongoing risks resulting from COVID-19.

V. INSURANCE

Contractors should carefully consider current insurance policies and provisions and seek advice on the interplay between insurance claims and contractual obligations.

VI. SUPPLY CHAIN

Contractors should stay in touch with major suppliers and maintain a list of backup suppliers for alternative supply chain options.

VII. HEALTH AND SAFETY

Contractors should consider the health and safety of those on site, particularly in light of currently-mandated social distancing measures. Pennsylvania legislation may eventually be promulgated to ensure that businesses are operating with significant health and safety precautions in place. Now is a great time for contractors to revisit and revise currently-employed health and safety protocol.

Copyright 2020 K & L GatesNational Law Review, Volume X, Number 99
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About this Author

 Richard F. Paciaroni, Partner, Construction and Infrastructure, Climate Change and Sustainability, Complex Commercial Litigation and Disputes, e-Discovery Analysis and Technology (e-DAT) Group International Arbitration Latin America Liquefied Natural Gas Mass Tort Oil, Gas & Resources Product Liability
Partner

For the past thirty-two years, Mr. Paciaroni has concentrated his law practice in the area of commercial litigation with emphasis on engineering and construction law and international commercial transactions. He has extensive experience with construction disputes worldwide with a particular focus on projects in South America and the Middle East. In the construction field, his practice includes representation of owners, engineers, general contractors and specialty subcontractors in matters involving the offshore oil & gas, petrochemical, steel, heavy & highway, pulp and paper, power...

412-355-6767
Associate

Justin N. Leonelli is an associate in the firm’s Pittsburgh office. As a member of the construction and infrastructure practice group, Mr. Leonelli represents owners, general contractors, subcontractors, suppliers, and design professionals in a variety of public and private construction disputes nationwide. He frequently handles matters involving defective construction claims, delay claims, differing site conditions claims, mechanic’s lien claims, and bonding disputes. Mr. Leonelli also represents clients in connection with public procurement issues and assists in negotiating and drafting...

412-355-8220
Reymond E. Yammine Complex Commercial Litigation Attorney K&L Gates Newark, NJ
Associate

Reymond Yammine is an associate in the firm’s Newark office, where he focuses his practice on general commercial litigation matters with a particular focus on energy, construction, and infrastructure. In addition, Mr. Yammine focuses his practice on government enforcement matters with particular emphasis on compliance with the Foreign Corrupt Practices Act (“FCPA”), and matters in the field of cyber insurance.

Mr. Yammine has represented clients in state and federal court, as well as in arbitration matters. Mr. Yammine’s broader litigation experience includes fact investigation,...

973.848.4127
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