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COMMONWEALTH PENNSYLVANIA v. FRED C. PACE (01/27/82)

decided: January 27, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
FRED C. PACE, AS CHIEF ADMINISTRATIVE JUDGE OF THE BOARD OF CLAIMS, BOARD OF CLAIMS AND WESTMORELAND ENGINEERING CO., INC., RESPONDENTS



Appeal from the Order of the Board of Claims in case of Westmoreland Engineering Company, Inc. v. Commonwealth of Pennsylvania, Department of Transportation, No. 526.

COUNSEL

Mark F. Brancato, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

Thomas P. Shearer, with him George I. Bloom, and Lawrence A. Layton, for respondent, Westmoreland Engineering Co., Inc.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.

Author: Craig

[ 64 Pa. Commw. Page 274]

Westmoreland Engineering Co. Inc. has filed two claims with the Board of Claims against the Pennsylvania Department of Transportation (PennDOT), each claim seeking compensation for professional services rendered in connection with the engineering design of a portion of Legislative Route (LR) 1015 in Westmoreland County.

Westmoreland filed the first claim (Board Docket No. 526) in May, 1977, relating to work on Section 4 of LR 1015. After hearings extending from December, 1978 to April, 1979, the board rendered a decision in Westmoreland's favor September 3, 1980. PennDOT appealed that decision to this court, and we recently affirmed it, in Department of Transportation v. Westmoreland Engineering Co., 63 Pa. Commonwealth Ct. 318, 438 A.2d 1005 (1981).

That affirmance occurred after the events involved in the second claim, out of which the present issue arises. Westmoreland filed its second claim with the board in July, 1977, relating to Section 3A of LR 1015. When the board hearings on that second claim began in January, 1980, PennDOT counsel advised the board and Westmoreland that, when the board reached its decision on the first claim, PennDOT intended to file

[ 64 Pa. Commw. Page 275]

    an amended answer asserting the board's resolution of the first claim as a bar to the second one. However, PennDOT did not at that time plead the pendency of a prior action as a defense or otherwise actually raise a defense on the basis that Westmoreland's one and only cause of action was embodied in the first claim. Hearings on the second claim ended in July, 1980; not until after the board's decision on the first claim in September, 1980 did PennDOT, on September 26, move for leave to file an amended answer to the second claim to plead the first claim decision as res judicata.

From the board's denial of that motion, we have PennDOT's appeal, presently before us.

Initially we decline to agree with Westmoreland that the issue before us is interlocutory; on the basis of Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966), we are obligated to treat the rejection of a res judicata defense as a matter sufficiently final for resolution upon appeal.

Hence the issue before us is whether the board committed an error of law or abused its discretion in refusing PennDOT leave to amend its pleadings in order to put forward Westmoreland's first claim, or the board's decision upon it, as a bar to the second claim. See Pinksky v. Master, 343 ...


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