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COMMONWEALTH PENNSYLVANIA v. FRANK BRISCOE CO. (05/03/83)

decided: May 3, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, PLAINTIFF
v.
FRANK BRISCOE CO., INC., AND JAMES C. EASTLEY, INC., AND STEEL CITY PIPING CO., AND KEYSTONE ENGINEERING CORP., AND WESTINGHOUSE ELEVATOR CO. AND TRAVELERS INDEMNITY CO., DEFENDANTS



Original jurisdiction in the case of Commonwealth of Pennsylvania, Department of General Services v. Frank Briscoe Co., Inc. and James C. Eastley, Inc., and Steel City Piping Co., and Keystone Engineering Corp., and Westinghouse Elevator Co. and Travelers Indemnity Co.

COUNSEL

Bruce W. Kauffman, Dilworth, Paxson, Kalish & Kauffman, with him, Anthony Krzywicki, Chief Counsel, for plaintiff.

Kenneth M. Cushman, with him, Bruce W. Ficken and Kenneth I. Levin, Pepper, Hamilton & Scheetz, for defendant, Frank Briscoe Co., Inc.

Theodoree A. Adler, Widoff, Reager, Selkowitz & Adler, P.C., and Joseph K. Pierce, Tive, Hetrick & Pierce, P.C., for defendants, James C. Eastley, Inc. and Steel City Piping Co.

Steven A. Arbittier, for defendant, Keystone Engineering Corp.

Mary Jane Forbes, with her, David B. Disney and Rod J. Pera, for defendant, Westinghouse Elevator Co.

R. James Reynolds, Jr., with him, John Havas and Larry L. Miller, Pepper, Hamilton & Scheetz, for defendants, Travelers Indemnity Co.

Senior Judge Edwin H. Satterthwaite. Memorandum Opinion by Senior Judge Satterthwaite.

Author: Satterthwaite

[ 74 Pa. Commw. Page 149]

This litigation arises out of the construction of the David L. Lawrence Convention-Exposition Center in Pittsburgh for the Commonwealth of Pennsylvania, acting through the Department of General Services, under contracts aggregating more than $40,000,000. The threshold questions now before the Court involve determination of the subject-matter jurisdiction of the Commonwealth Court to hear and act upon certain aspects of an action brought therein by the Department, in the name of the Commonwealth, against Frank Briscoe Co., Inc. (hereinafter Briscoe), as well as its performance bond surety and four other prime contractors for the project.

The first four of the eleven counts of the complaint sound in assumpsit, seeking damages for delay in performance and other monetary compensation, in all approximating $10,000,000, for various items of allegedly defective construction and other violations of contract terms, against Briscoe and its surety only. Briscoe has filed an answer placing these claims in issue; it has also asserted its own cross-demand for money damages for alleged contract violations on the part of the Department, amounting to more than $28,000,000

[ 74 Pa. Commw. Page 150]

    in the form of a counterclaim in the instant proceedings in this Court. The Department has filed preliminary objections to the counterclaim, raising the question of the authority of the Commonwealth Court to hear and dispose of any affirmative contract action against an agency of the Commonwealth.

The original jurisdiction of the Commonwealth Court is set forth in Section 761 of the Judicial Code, 42 Pa. C.S. § 761, which provides, in presently relevant part:

§ 761. Original jurisdiction.

(a) General. rule -- The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:

(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity, except:

(iii) actions on claims in which immunity has been waived pursuant to Chapter 85 (relating to matters affecting government units) or the Act of May 20, 1937 (P.L. 728, No. 193), referred to as the Board of Claims Act;

(2) By the Commonwealth government, including any officer thereof, acting in his official capacity, except eminent domain proceedings.

In Department of Public Welfare v. Ludlow Chemical Laboratories, Inc., 22 Pa. Commonwealth Ct. 614, 350 A.2d 208 (1976), under substantially identical prior statutory provisions, a counterclaim by the defendant in an original action in this Court brought by the Department of Public Welfare, which counterclaim allegedly had arisen out of the same contractual relationship as the Department's claim in suit, was held to be beyond the power of the Commonwealth Court

[ 74 Pa. Commw. Page 151]

    to entertain. Judge Rogers, in his Opinion for the Court, declared that the question was controlled beyond further discussion by Commonwealth v. Orsatti, Inc., 448 Pa. 72, 292 A.2d 313 (1972).

The rationale in Orsatti was that the doctrine of sovereign immunity, being of constitutional dimension, precluded any action against the Commonwealth or its agencies unless, pursuant to Article I, Section 11, of the Pennsylvania Constitution, the Legislature had consented thereto by providing for the manner, courts and cases in which suit might be brought. The Legislature had so provided, in contract cases, by the Act of May 20, 1937, P.L. 728, 72 P.S. § 4651-1 et seq. (the statute referred to in § 761(a)(1)(iii), supra), by creating the Board of Arbitration of Claims (now the Board of Claims). Section 4 of that Act, as amended, provides that such Board

     shall have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, when the amount in controversy amounts to $300.00 or more.

In Orsatti, the Supreme Court held that, since the waiver of sovereign immunity from contract claims by the Act of 1937 was conditioned upon the claimant's resort to the Board of Claims, the use of such Board's procedure could be the claimant's only remedy under the Constitution. Accordingly, the Commonwealth Court had no power to hear the same, notwithstanding that the claim was in the form of a counterclaim and arose out of ...


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