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DAIRY INVESTMENTS v. COMMONWEALTH PENNSYLVANIA (06/02/82)

decided: June 2, 1982.

DAIRY INVESTMENTS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES AND COMMONWEALTH OF PENNSYLVANIA, BOARD OF CLAIMS, RESPONDENTS



Appeal from the Order of the Board of Claims in case of Dairy Investments, Inc. v. Commonwealth of Pennsylvania, Department of General Services, Docket No. 729.

COUNSEL

Theodore Goldberg, with him James J. Flaherty, Baskin and Sears, for petitioner.

Gary F. Ankabrandt, Assistant Counsel, with him Anthony P. Krzywicki, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Rogers, Craig and Doyle, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 67 Pa. Commw. Page 11]

Dairy Investments, Inc. has appealed from an order of the Board of Claims sustaining the preliminary objection of the Commonwealth, Department of General Services to the Board's jurisdiction and dismissing Dairy's claim for rents allegedly due and unpaid by the Commonwealth.

The facts as alleged in Dairy's claim, filed February 6, 1981 are that Dairy as lessor and the Commonwealth as lessee entered into a written lease for Dairy's property for a term of five years beginning December 1, 1977 for a monthly rent of $4,810.46 and

[ 67 Pa. Commw. Page 12]

    that the Commonwealth failed to pay the rent for the six months beginning with August, 1980 to and including January, 1981.

The Commonwealth filed a preliminary objection entitled "Demurrer-Bar of Non-waivable Statute of Repose," based on the six-month statute applicable to claims filed in the Board of Claims by Section 6 of the Act of May 20, 1937, P.L. 738, as amended, 72 P.S. ยง 4651-6. The Commonwealth's demurrer was "speaking" -- it recited that the Commonwealth notified Dairy in September, 1979 that it was about to vacate Dairy's property and that it would pay no more rent after December, 1979. Therefore, the Commonwealth contended, Dairy's cause of action based on the lease accrued not later than February 1, 1980, and expired by limitation in August, 1980.

First, a matter of pleading and practice:

Pa. R.C.P. 1017 states

(b) Preliminary objections are available to any party ...


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