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decided: March 17, 1977.


Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Justice; Paul J. Smith, Secretary, Department of Labor and Industry; Department of Labor and Industry; John M. Clark, Executive Director, Bureau of Employment Security; and Bureau of Employment Security v. James W. Knox, Executive Director, Allegheny County Housing Authority; and Allegheny County Housing Authority.


Edward A. Miller, Deputy Attorney General, with him J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiff.

Dennis J. Mulvihill, General Counsel, with him Harry M. Montgomery, Jr., Assistant General Counsel, for defendant.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 29 Pa. Commw. Page 303]

The Commonwealth of Pennsylvania filed in this Court an original action in assumpsit against Allegheny County Housing Authority (ACHA) seeking to collect amounts assessed against ACHA pursuant to Article X of the Unemployment Compensation Law*fn1 (Law). The Commonwealth essentially sought reimbursement for payments it made to the Unemployment Compensation Fund (Fund) because of unemployment compensation benefits the Fund paid to former employees of ACHA.*fn2

[ 29 Pa. Commw. Page 304]

ACHA raised two preliminary objections to the Commonwealth's complaint: one in the nature of a demurrer and one alleging failure to join a necessary party. The Commonwealth filed preliminary objections to ACHA's preliminary objections, requesting that certain factual allegations made by ACHA be stricken as not in conformity with Pa. R.C.P. No. 1017(b)(2) and (4). The preliminary objections of both parties are presently before us, and we must treat as true all well and clearly pleaded facts of the party whose pleading is attacked. See Coshey v. Beal, 27 Pa. Commonwealth Ct. 440, 366 A.2d 1295 (1976).

In furtherance of its objection that the Commonwealth has failed to plead a legally sufficient claim, ACHA contends that, as a housing authority created pursuant to the Housing Authorities Law,*fn3 it is without the unemployment compensation system and therefore not liable for assessments. ACHA also contends that even if it is liable it has no funds to satisfy the assessments unless such funds are made available by the United States Department of Housing and Urban Development (HUD). Moreover, this Court has been requested to take judicial notice of the facts necessary to support ACHA's position concerning its financial dependence on HUD. We will treat these contentions in reverse order.

[ 29 Pa. Commw. Page 305]

Even were we to consider the factual averments improperly made by ACHA in its preliminary objections and take judicial notice of certain facts as requested by ACHA in its brief, which we will not do here,*fn4 we would still be compelled to overrule its demurrer to the extent ACHA contends inability to satisfy the assessments. Clearly, such inability does not call in issue its legal liability for such assessments. Thus we will overrule ACHA's demurrer insofar as it does not challenge the legal sufficiency of the Commonwealth's complaint.

Unlike its contention concerning its inability to satisfy the assessments, ACHA's contention that it has no liability under Article X of the Law raises a question of law: whether ACHA is an agency or authority of the Commonwealth and therefore subject to Article X.*fn5 Before this Court, ACHA has conceded,

[ 29 Pa. Commw. Page 306]

    as it must, that it is an agency of the Commonwealth*fn6 and therefore that it is required to make reimbursement payments for monies expended by the Commonwealth to ACHA's former employees. Therefore, we overrule ACHA's demurrer.

ACHA also objects that the Commonwealth, by failing to join HUD, has failed to join a necessary party. ACHA's position is two fold: that HUD must make the funds available before ACHA can satisfy its liability to the Commonwealth and that the Commonwealth must first reach a reciprocal agreement with HUD before it may proceed against ACHA.*fn7

We do not agree that HUD is a necessary party. Surely, relief in the form of a judgment against ACHA could be granted without HUD's presence. Moreover, even assuming a reciprocal agreement is appropriate under the pertinent section of the Law, such agreement is not required.*fn8 Therefore, we must dismiss ACHA's objection that the Commonwealth has failed to join a necessary party.

Finally, we consider the Commonwealth's motion to strike the factual averments made by ACHA in its preliminary objections. We decline to strike the averments in light of our decision to merely disregard the facts averred and in lieu of an indication that our refusal to strike will prejudice the Commonwealth.

Accordingly, we enter our

[ 29 Pa. Commw. Page 307]


And Now, this 17th day of March, 1977, the preliminary objections of the Allegheny County Housing Authority to the complaint of the Commonwealth of Pennsylvania are overruled, the Commonwealth of Pennsylvania's preliminary objections thereto are overruled, and the Allegheny County Housing Authority is afforded twenty (20) days from receipt of a copy of this order to file an answer.


Preliminary objections of defendants and plaintiffs overruled.

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