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Hanzel Const. v. Wehde & Southwick

OPINION FILED JANUARY 25, 1985.

HANZEL CONSTRUCTION, INC., ET AL., PLAINTIFFS-APPELLEES,

v.

WEHDE & SOUTHWICK, INC., ET AL., DEFENDANTS (WILLIAM SPANN, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Du Page County; the Hon. John Teschner, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, William Spann, appeals from a judgment for $23,601.25 entered in favor of plaintiffs, Dennis Hanzel and Hanzel Construction, Inc., in an action for tortious interference with a contract and for alleged violation of plaintiffs' civil rights under 42 U.S.C. § 1983 (1982).

As to the tort action, defendant contends he was immune from liability as a public official; that he had a conditional privilege and justifiably interfered with plaintiffs' contract; and that plaintiffs' claim was barred by the doctrine of sovereign immunity. Defendant contends he was also immune from liability in the civil rights action under Federal law and, in any event, his conduct did not violate plaintiff's right to due process. He further argues that plaintiffs failed to prove the damages recovered in the judgment.

This case arose after a contract was entered in 1982 between the Forest Preserve District of Du Page County and defendant-general contractor Wehde & Southwick, Inc., for building construction. The contract provided, inter alia:

"In compliance with the provisions of Chapter 48, secs. 39s-1, et seq., Illinois Revised Statutes, 1979, the Contractor, and each subcontractor shall pay all laborers, workers and mechanics performing work pursuant to this Contract not less than the prevailing rate of wages as has been ascertained by the Illinois Department of Labor."

The general contractor then entered into a subcontract with plaintiffs for carpentry work on the project which incorporated in its terms the master agreement between the owner and general contractor, including the requirement for compliance with the prevailing wage act (Ill. Rev. Stat. 1979, ch. 48, par. 39s-1 et seq.).

Plaintiffs commenced work in October 1982 and completed it in January 1983. Dennis Hanzel testified he had borrowed $20,000 to purchase materials and pay his employees for the job. When the general contractor, Wehde & Southwick, Inc., failed to make the final payment of $2,700 due under the subcontract in February 1983, the loan had to be extended, costing a "couple hundred dollars" in additional interest. Hanzel testified the general contractor told him it was withholding the contract payment at the request of the State until a prevailing wage investigation was completed. Hanzel also testified that he did not make the anticipated $1,500 profit on the project and, if he had believed it necessary to pay prevailing wages to his employees, his contract bid would have been higher.

Walter Carey is the chief labor conciliator for defendant Illinois Department of Labor and head of its Division of Conciliation and Mediation. Defendant William Spann is employed as a conciliator by the division, and his duties include investigation of disputes arising under the prevailing wage act. In November 1982, Carey assigned Spann to investigate a complaint of a wage violation on the project upon which plaintiffs were engaged. On February 3, 1983, Spann advised plaintiffs by letter that he was conducting a prevailing wage investigation of Hanzel Construction and requested payroll information regarding plaintiffs' employees on the forest preserve project. Plaintiffs responded by furnishing copies of their payroll records on February 17, and on that same day defendant Spann wrote to the general contractor, Wehde & Southwick, Inc., advising it of the investigation of Hanzel Construction, Inc., and stating therein, "I am requesting that your company withhold any funds due to Hanzel Construction until I have completed my investigation of their payroll records for this project."

On March 1, Spann completed his investigation, determining that Hanzel Construction owed two of its employees a total of $1,785.02 to bring their wages up to the prevailing rate. In a letter to plaintiffs on that date, Spann advised them of his findings that they were in violation of their obligation to pay prevailing wages on the project and requested that plaintiffs make out checks for the deficiencies to those employees and send them to the Department of Labor for forwarding. On March 22 and March 23, Spann also directed letters to the general contractor's attorney advising of the results of his investigation of plaintiffs and stating:

"Inasmuch as it is the duty of the general contractor to insure that all subcontractors working for them shall conform to these requirements, the Department of Labor is requesting that you hold up any monies due the above named contractor until this violation of the contract is corrected."

Plaintiffs did not remit the requested checks for the balance due its employees, and the general contractor did not pay over to plaintiffs the $2,700 balance on their contract prior to the initiation of this litigation. Before trial, the defendant general contractor was dismissed with prejudice after deposit of $2,753 in trust until the further order of the court, and the Department of Labor was dismissed as a defendant by agreement of the parties.

After a bench trial, judgment was entered in favor of plaintiffs under count II of the complaint (tortious interference with contract) and count III (Federal civil rights violation) in the sum of $15,000 against defendant Spann. The trial court found that defendant's intentional and unjustified actions had caused the general contractor to breach its contract with plaintiffs and that defendant's conduct had also deprived plaintiffs of their property interest in the contract without due process of law in violation of 42 U.S.C. sec. 1983. Attorney fees of $8,601.25 were also awarded to plaintiffs under count III.

We note initially that it is the declared policy of this State that a wage of no less than the general prevailing hourly rate paid for work of a similar character in the locality be paid to laborers and workers employed by contractors who are engaged in public works. (Hayen v. County of Ogle (1984), 101 Ill.2d 413, 416, 463 N.E.2d 124; Ill. Rev. Stat. 1981, ch. 48, pars. 39s-1, 39s-3.) A public body awarding a contract is required to insert a provision to that effect in its contracts (Ill. Rev. Stat. 1981, ch. 48, par. 39s-4), as the Forest Preserve District did in this case, which provision was also incorporated in the subcontract awarded to plaintiffs. The prevailing wage act mandates, too, that the Department of Labor "inquire diligently as to any violations" of the act and enforce its provisions. (Ill. Rev. Stat. 1981, ch. 48, par. ...


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