Appeal from the Order of the Board of Arbitration of Claims in case of Carriage Tours, Inc. v. Commonwealth of Pennsylvania, Valley Forge Park Commission, No. 498.
Harvey Porter, with him Ira J. Pressman, and Cohen, Verlin, Sherzer & Porter, for appellant.
Patricia M. Jasper, Deputy Attorney General, with her J. Justin Blewitt, Jr., Deputy Attorney General, Chief, Civil Litigation, and Robert P. Kane, Attorney General, for appellee.
Judges Crumlish, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.
[ 37 Pa. Commw. Page 376]
This is a petition for review of an order of the Board of Arbitration of Claims (Board) which dismissed a complaint filed by Carriage Tours, Inc.
[ 37 Pa. Commw. Page 377]
(Tours) against the Commonwealth of Pennsylvania, Valley Forge Park Commission, for breach of an alleged oral contract. The complaint filed by Tours claimed that as a result of discussions with the Superintendent of Valley Forge State Park and the Chairwoman of the Valley Forge Park Commission, an oral agreement was reached between Tours, the Superintendent and the Chairwoman on February 16, 1976, permitting Tours to conduct horse-drawn carriage tours in Valley Forge State Park (Park). On or about June 4, 1976, on application by Tours, the Pennsylvania Public Utility Commission (PUC) issued the appropriate authority for Tours to commence its operation. Tours began the service, but after experiencing difficulties it was ordered by the Executive Director of the Pennsylvania Historical Commission to discontinue the operation on July 9, 1976. Immediately thereafter, Tours instituted this action in assumpsit, claiming damages for out of pocket expenses and for loss of profit.
The Attorney General, on behalf of the Valley Forge Park Commission, filed preliminary objections to Tours' complaint. After the filing of briefs by both parties, the Board sustained the Commonwealth's preliminary objections in the nature of a demurrer and dismissed Tours' complaint for failure to state a cause of action. A timely appeal by Tours to this Court followed.
It is well established that preliminary objections in the nature of a demurrer to a complaint admit every well pleaded material fact and should be sustained only where it appears with certainty, upon the facts averred, that the law will not allow the plaintiff to recover. International Union of Operating Engineers v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974).
[ 37 Pa. Commw. Page 378]
Tours' complaint sets forth the services which were to be provided under the oral ...