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MERCER RACEWAY v. COMMONWEALTH PENNSYLVANIA (10/14/81)

decided: October 14, 1981.

MERCER RACEWAY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Order of the Board of Arbitration for Claims in the case of Mercer Raceway, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 670.

COUNSEL

William G. McConnell, with him P. Raymond Bartholomew, Cusick, Madden, Joyce and McKay, for petitioner.

Carleton O. Strouss, Assistant Attorney, with him Ward T. Williams, Chief Counsel, for respondent.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 62 Pa. Commw. Page 207]

Mercer Raceway, Inc. sued the Commonwealth, Department of Transportation (PennDOT) in the Board of Arbitration for Claims for breach of the terms of a written lease by which Mercer rented to PennDOT a tract of ground 300 feet by 600 feet for the storage of material and equipment. Mercer alleges that the

[ 62 Pa. Commw. Page 208]

    boundaries of the area leased did not include adjacent land owned by Mercer which was encumbered by an electric power line right-of-way; that certain PennDOT employees promised Mercer that the written lease would contain provisions securing Mercer against damages which might arise through PennDOT's activities on the site; that Mercer's owners signed a form of lease provided by PennDOT which PennDOT was to complete; that the provisions for security against damages were not thereafter placed in the lease by PennDOT; that Mercer was sued in the Court of Common Pleas of Allegheny County by a PennDOT employee who lost his legs as the result of electrical burns while working on a materials pile in the area of the electrical right-of-way not included in the leased premises; and that Mercer incurred more than $13,000 in attorneys' fees in successfully defending the suit, for which it seeks judgment against the Commonwealth for the latter's breach of the lease.

In addition, Mercer also seeks judgment in the amount of about $300 because PennDOT left its materials on the leased property after the termination of the lease. On this subject, Mercer alleges that it refused PennDOT permission to remove its materials until the Commonwealth provided "indemnification" -- for its attorneys' costs in the other suit, we presume.

PennDOT filed a number of preliminary objections. It demurred to the claim for reimbursement of attorneys' fees declaring: (1) that Mercer failed to state a cause of action in its claim filed with the Board, (2) that Mercer failed to state a cause of action "which can be sustained" because the claim sets forth the same facts as those pleaded by Mercer in a complaint joining PennDOT as an additional defendant in the Allegheny County suit by the PennDOT employee against Mercer and (3) that Mercer failed to state a cause of action because the attorneys' fees sought to

[ 62 Pa. Commw. Page 209]

    be reimbursed were incurred in a tort action and attorneys' fees are not recoverable in a tort action.

With respect to the claim for rent for retention of the property, PennDOT filed a petition raising a question of jurisdiction based on the assertion that Mercer's claim was not filed within six months of the time it accrued. Section 6 of ...


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