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ALLEN N. LASHNER v. COMMONWEALTH PENNSYLVANIA (03/22/71)

decided: March 22, 1971.

ALLEN N. LASHNER, INC.
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF HIGHWAYS



Appeal from the Order of the Board of Arbitration of Claims, Docket No. 177, in case of Allen N. Lashner, Inc., v. Commonwealth of Pennsylvania.

COUNSEL

Erwin Lodge, with him Bernard Glassman, Lodge, Goldman & Glassman, for appellant.

Edward A. Hosey, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Fred Speaker, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 1 Pa. Commw. Page 488]

In May 1966, Allan (Allen) N. Lashner, Inc. and the Commonwealth of Pennsylvania, Department of Highways, entered into a contract providing for the demolition of certain premises within the right-of-way line of the Delaware Expressway in the City of Philadelphia. Implementing the contract were certain "General Specifications" and "Department of Highways Specifications, Form 408" of 1960. These provided, inter alia, that the demolition contractor is to obtain title to all machinery and equipment on the demolition site as salvage; that no claim would be entertained by the Board of Arbitration of Claims unless the claim was made within three months of the notice date of the Commonwealth's final computation of payment due; and, that the time limitation governing submission of claims to the Board would commence with the notice of the final computation.

On August 10, 1967, less than one month from the notification of payment due, Lashner filed a claim with the Board averring that on July 5, 1966, the Commonwealth sold at public auction several items of machinery which in fact were salvage items belonging to Lashner. There is no dispute that the equipment which was sold for three thousand eight hundred dollars was located upon the demolition site (right-of-way). The conflict which is presented to us arose when the Commonwealth claimed that a shear which was sold for ten thousand dollars was not located on the demolition site. Moreover,

[ 1 Pa. Commw. Page 489]

    the Commonwealth argued before the Board that Lashner's claim accrued on July 5, 1966, the date of the sale and hence his claim not having been filed with the Board within the six month statutory period provided by Section 6 of the Act of 1937, P.L. 728, as amended, 72 P.S. ยง 4651-6 was untimely as to all of the equipment sold.

"The Board shall have no power and exercise no jurisdiction over a claim asserted against the Commonwealth unless the claim shall have been filed within six months after it accrued." 72 P.S. 4651-6.

Curiously, the Board held that it did not have jurisdiction, finding that the claim did in fact accrue July 5, 1966, but nevertheless proceeded to make findings of fact based upon the evidence before it that the shear was not located on the demolition site but rather it was located on a landlocked area retained by the prior owner of the entire site. The Board, on the basis of these findings, denied the Lashner claim. This appeal followed.

I -- Jurisdiction in the Board

The Board's conclusion of law that Lashner's "claim or cause of action, if any, accrued on the date of the public auction sale" was erroneous. Under Section 6 of the Act of 1937 the jurisdictional period begins to run from the time the cause of action accrues; that is, from the time when the injured party is first able to litigate his claim. ...


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