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FELIX ABRAMOVICH v. PENNSYLVANIA LIQUOR CONTROL BOARD AND W. W. ANDERSON (08/04/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 4, 1977.

FELIX ABRAMOVICH, INDIVIDUALLY AND T/A ABRAMS STORAGE COMPANY, PETITIONER
v.
PENNSYLVANIA LIQUOR CONTROL BOARD AND W. W. ANDERSON, DEPUTY ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS

Appeal from an Adjudication of the Attorney General as arbitrator in the case of In Re: Abrams Storage Company v. Pennsylvania Liquor Control Board, Service Contract No. 448817.

COUNSEL

Robert G. Sable, with him Lampl & Sable, for petitioner.

Kenneth W. Makowski, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for respondents.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 31 Pa. Commw. Page 374]

This involves a petition for review filed by Felix Abramovich individually, and trading as Abrams Storage Company (Abramovich), in response to an adverse arbitration adjudication of a dispute under a contract formed with the Pennsylvania Liquor Control Board (P.L.C.B.). The P.L.C.B. has raised a preliminary objection based upon sovereign immunity, which challenges this Court's jurisdiction to review the adjudication at this time.*fn1

Abramovich entered into a contract with the P.L.C.B. for the storage, handling, and transportation

[ 31 Pa. Commw. Page 375]

    of liquor and supplies for the P.L.C.B.'s Northwestern Pennsylvania Distribution Center. Shortly after the contract was formed, a dispute arose over a request by Abramovich that adjustments be made to the contract to reflect increased labor costs.

Provision 41 of the contract provides the following arbitration provision for the settlement of disputes:

41. Disputes -- Any dispute or controversy arising under this contract that is not disposed of by the parties within fifteen (15) days shall be referred to the Commonwealth Attorney General who shall, after hearing, make an adjudication within fifteen (15) days. Any court review of such adjudication shall be in appellate review, based on the record limited to pleadings, exhibits and testimony produced and considered before the Commonwealth Attorney General.

Pursuant to this provision, Deputy Attorney General, W. W. Anderson (Anderson) conducted a hearing on the dispute on April 8, 1976. An adjudication which was adverse to Abramovich was rendered on May 6, 1976, and supplemented on June 21, 1976. Abramovich subsequently filed the petition now at issue.

As is apparent from the language under provision 41 of the contract, though an arbitration procedure is provided for, no mention is made of the statute

[ 31 Pa. Commw. Page 376]

    which is to govern the steps to be taken in the procedure.*fn2 The Pennsylvania Supreme Court, however, stated in Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 427, 336 A.2d 609, 615 (1975), "that if a contract between the Commonwealth and another contains an arbitration provision but refers to neither statute,*fn3 the Act of 1927 will normally apply, since it operates to allow either party to assert claims against each other, and is not limited as to the amount in controversy." Under this reasoning, we conclude from the record that the Act of 1927 must govern the steps of the arbitration procedure under provision 41 of the contract.

Examining the Act of 1927, we find that it provides that appeals from arbitration adjudications are to be brought in "the court having jurisdiction."*fn4 This term is expressly defined under Section 18 of the Act, 5 P.S. § 178, as "the common pleas courts of the county having jurisdiction of the parties or the subject matter." Therefore, as the dispute at issue does not involve a public employer and employe, the reasoning of this Court's decision in Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 17 Pa. Commonwealth Ct. 231, 331 A.2d 921 (1975), implicitly indicates that the proper forum to entertain review of

[ 31 Pa. Commw. Page 377]

    this adjudication is the court of common pleas.*fn5

Abramovich, however, argues that Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.401(a)(2), supersedes the jurisdiction provided under the Act of 1927, and requires that where the Commonwealth is a party to an arbitration adjudication, review of such an adjudication is transferred to the Commonwealth Court. Section 401(a)(1) provides:

(a) The Commonwealth Court shall have original jurisdiction of:

(1) All civil actions or proceedings against the Commonwealth or any officer thereof, acting in his official capacity, except (i) actions or proceedings in the nature of applications for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the court, and (ii) proceedings under the Eminent Domain Code; . . . .

This argument is without merit.

As previously indicated in note 1, supra, the petition at issue was brought by Abramovich under Section 403 of the Appellate Court Jurisdiction Act of 1970.*fn6 This section is concerned with direct appeals to this Court from administrative agency decisions. Section 401(a)(1) of the Appellate Court Jurisdiction Act is concerned only with original causes of action in this Court. In this regard Section 401 cannot expand

[ 31 Pa. Commw. Page 378]

    upon this Court's jurisdiction under Section 403. Therefore, the Section 401(a)(1) argument raised by Abramovich is inapplicable to a discussion of this Court's jurisdiction in this case.

In conclusion, the express language of the Act of 1927 provides jurisdiction for review of the arbitrators' adjudication at issue in the court of common pleas. This jurisdiction has not been specifically superseded by the Appellate Court Jurisdiction Act of 1970.*fn7 Therefore, this Court lacks jurisdiction over this matter at this time.*fn8 In light of this, we will transfer this case to the Court of Common Pleas of Dauphin County, Pennsylvania.

Order

And Now, this 4th day of August, 1977, as this Court is without jurisdiction to review the matter at issue, pursuant to Section 403(b) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.503(b), this case is transferred to the Court of Common Pleas of Dauphin County.

The Chief Clerk shall certify to the Prothonotary of the Court of Common Pleas of Dauphin County a photocopy of the docket entries in this Court of the above matter and transmit to him the record thereof.

Disposition

Case transferred to the Court of Common Pleas of Dauphin County.


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