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UEC v. BOARD ARBITRATION CLAIMS (02/06/74)

decided: February 6, 1974.

UEC, INC., PLAINTIFF,
v.
BOARD OF ARBITRATION OF CLAIMS, DEFENDANT, AND COMMONWEALTH OF PENNSYLVANIA, INTERVENING DEFENDANT



Original jurisdiction in case of UEC, Inc. v. Board of Arbitration of Claims and Commonwealth of Pennsylvania, Intervening Defendant.

COUNSEL

A. Martin Herring, with him Ronald P. Wertheim, Meyer Feldman, Teitelman and Herring and Ginsburg, Feldman and Bress, for plaintiff.

Frederick W. Andrews, for defendant.

Allen Warshaw, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Israel Packel, Attorney General, for intervening defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 12 Pa. Commw. Page 55]

The plaintiff in this mandamus action seeks to have this Court order the Board of Arbitration of Claims, defendant, to enter a default judgment against the Commonwealth, intervenor-defendant. The essential facts of this case are as follows: On May 2, 1973, the plaintiff filed a complaint with the Board against the Department of Public Welfare, the complaint being endorsed with a notice to plead within twenty (20) days. The plaintiff sent a copy of the complaint to both the Attorney General and the Secretary of Public Welfare by certified mail. The Board, on May 3, 1973, acknowledged receipt of the complaint and wrote to the plaintiff that the "complaint is being served on the defendant this date and a responsive pleading will be required from them within thirty (30) days." No responsive pleading was received from the Commonwealth before the expiration of the thirty (30) day period on June 4, 1973.*fn1 The plaintiff, on June 5, requested by praecipe

[ 12 Pa. Commw. Page 56]

    the Board to enter a default judgment in favor of the plaintiff. The Board, through its Chairman, refused to enter a default judgment and this action in mandamus followed. The Commonwealth then intervened in the action before this Court and filed a motion for summary judgment and, alternatively, a motion for judgment on the pleadings. Plaintiff thereafter filed a motion for summary judgment.

The two issues before this Court are (1) whether plaintiff is entitled to relief in mandamus and (2) whether the Board of Arbitration of Claims is authorized by statute, by its own rules, or by the Pennsylvania Rules of Civil Procedure to enter a default judgment.

Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty only where there exists a clear legal right in the plaintiff and a corresponding duty in the defendant and a want of any other appropriate and adequate remedy. Boslover Ahavas Achim Belzer Association v. Redevelopment Authority of Philadelphia, 425 Pa. 535, 229 A.2d 906 (1967), M. Glosser & Sons, Inc. v. J. J. Micco, 10 Pa. Commonwealth Ct. 320, 309 A.2d 602 (1973). "Mandamus is a proper remedy to compel the prothonotary, the court's clerk, to perform a ministerial duty. . . ." Stewart v. Bechtel, 360 Pa. 123, 125, 61 A.2d 514 (1948), Warner v. Cortese, 5 Pa. Commonwealth Ct. 51, 288 A.2d 550 (1972). The primary thrust of plaintiff's argument is that it has a clear legal right to a default judgment against the Commonwealth and the Board has a duty to enter the default judgment. We disagree.

Default judgments are authorized by Rules 1037 and 1047 of the Pennsylvania Rules of Civil Procedure. Rule 1037(b), here applicable, reads, in pertinent part: "The prothonotary, on praecipe of the plaintiff, shall enter ...


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