Appeal from the Judgment entered November 17, 1975 of the Court of Common Pleas of Northampton County, Civil Action, Law Division at No. 37 May Term, 1974.
Donald B. Corriere, Bethlehem, for appellant.
Lawrence Center, Bethlehem, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, joins.
[ 248 Pa. Super. Page 55]
Appellant contends that the lower court should not have granted summary judgment because it improperly construed the statute of limitations contained in the Public Works Contractors' Bond Law of 1967.*fn1 This case draws into question the application and interpretation of an act of the General Assembly regulating the affairs of political subdivisions, municipalities, local authorities and the officers, employes and agents thereof. We, therefore, transfer this case to the jurisdiction of the Commonwealth Court.
[ 248 Pa. Super. Page 56]
The facts giving rise to the instant case are not in dispute. In October, 1972, appellant, as a subcontractor of Armand Construction, Inc., (hereinafter "Armand") furnished certain labor and materials to repave streets in the Borough of Mucungie, Northampton County, following the installation of sewers. Appellant performed its subcontractual obligations during the weeks of October 16, 23, and 30, 1972, and billed Armand for $37,715.46. On November 20, 1972, Armand paid appellant $31,015.47, and retained the balance pending final approval of the work. The borough engineers refused to approve some of appellant's work, and negotiations ensued which resulted in appellant providing additional labor and materials in June, 1973. Appellant did not submit bills for this additional work and, if submitted, the Authority would have refused payment.
On May 31, 1974, appellant instituted suit against appellee after Armand defaulted. Appellee's sole defense is that the applicable statute of limitations had expired before suit was commenced. The lower court determined that the decision was controlled by the following statute of limitations: "No action may be commenced after the expiration of one year from the day on which the last of the labor was performed or material supplied for the payment of which such action is brought by the claimant." The Public Works Contractors' Bond Law, supra; 8 P.S. § 197(b). The lower court held that the statute of limitations was not extended by the subsequent repairs which appellant performed. It reasoned that because appellant was claiming payment for labor performed before the week of October 30, 1972, and billed before November 20, 1972, appellant could not recover on the bond. The court noted that the statute of limitations begins to run from the date on which the last labor is performed "for which he [the claimant] claims payment" and "for the payment of which such action is brought. . . ." On December 11, 1975, an appeal was taken to this Court. The appellee has not objected to this Court's jurisdiction.
The Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. IV, § 402, 17 P.S. § 211.402 (Supp.1976),
[ 248 Pa. Super. Page 57]
provides: "The Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following cases, . . .: (4) All actions or proceedings . . . where is drawn into question the application, interpretation or enforcement of (i) any act of the General Assembly regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employes or agents thereof, acting in their official capacity, . . ." The Appellate Court Jurisdiction Act also provides:
"(a) The failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the hearing of the appeal, or within such earlier time as may be specified by general rule or rule of court, shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this act, or of any general rule ...