decided: July 8, 1983.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, BUREAU OF LABOR STANDARDS, PETITIONER
P. MASTRIPPOLITO AND SONS, INC., RESPONDENTS
Original Jurisdiction in case of Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Labor Standards v. P. Mastrippolito and Sons, Inc.
Mary Ellen Krober, Deputy Attorney General, with her Allen C. Warshaw, Deputy Attorney General, Chief of Civil Litigation, and LeRoy S. Zimmerman, Attorney General, for petitioner.
Eugene A. Steger, Jr., Steger & Howell, Ltd., for respondent.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 75 Pa. Commw. Page 432]
Before us are preliminary objections of the Commonwealth of Pennsylvania, Department of Labor and Industry, Bureau of Labor Standards (Commonwealth) to a counterclaim by P. Mastrippolito and Sons, Inc. (employer), to the Commonwealth's declaratory judgment action*fn1 against respondent, a mushroom grower, seeking a judicial declaration subjecting employer to the Seasonal Farm Labor Act (Act), 43 P.S. §§ 1301.101-1301.606.*fn2
The chronology of events is as follows. In January and February 1979, employes of the Bureau of Labor Standards (Bureau) of the Department of Labor and Industry, one of the agencies charged with responsibility for enforcing the Act, visited employer's business premises to conduct a wage record audit. Approximately six months after permitting the Commonwealth employes to examine the payroll records, in August 1979, the employer brought a Section 1983 action (42 U.S.C. § 1983) in the United States District Court for the Eastern District of Pennsylvania claiming that his facility was not subject to the Act, that the Bureau employes maliciously and willfully trespassed on his property and that, as a result, he was deprived of rights under the Fifth and Fourteenth Amendments to the United States Constitution.*fn3
[ 75 Pa. Commw. Page 433]
In May 1980, the Commonwealth instituted a declaratory judgment action in this Court to determine whether the employer's establishment was subject to the provisions of the Seasonal Farm Labor Act; the Commonwealth moved for judgment on the pleadings.*fn4
In late April 1982, the employer filed a counterclaim to the Commonwealth's Declaratory Judgment Petition alleging that agents of the Commonwealth, when they visited employer's business premises on three occasions in January and February, 1979, committed a trespass depriving employer of "equal protection and due process of law." The Commonwealth filed preliminary objections stating, inter alia, that this Court lacked subject-matter jurisdiction and that the counterclaim was time-barred by the applicable statute of limitations.
[ 75 Pa. Commw. Page 434]
The Commonwealth contends that Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1), as amended by the Act of December 5, 1980, P.L. 1104, ousts our jurisdiction over employer's counterclaim in trespass. As amended, 42 Pa. C.S. § 761(a)(1) pertinently provides:
(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:
(iv) actions or proceedings in trespass as to which the Commonwealth government formerly enjoyed sovereign or other immunity.
It is beyond dispute that this case is an action in trespass as to which the Commonwealth government would have enjoyed sovereign immunity prior to that doctrine's abrogation in Mayle v. Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). Thus, the type of action sub judice, trespass, is one which, after Mayle, the Commonwealth government "formerly enjoyed sovereign . . . immunity." See, Nagle v. Pennsylvania Insurance Department, 74 Pa. Commonwealth Ct. 400, 459 A.2d 925 (1983).
By reason of Section 761(a)(1)(iv) of the Judicial Code, we are constrained to transfer employer's counterclaim in trespass for all original jurisdiction proceedings to the Court of Common Pleas of Chester County. Pa. R.A.P. 751; 42 Pa. C.S. § 8523.
And Now, this 8th day of July, 1983, employer's counterclaim in trespass is hereby transferred to the Court of Common Pleas of Chester County for all further
[ 75 Pa. Commw. Page 435]
proceedings, including disposition of remaining outstanding preliminary objections and all other matters pertaining to original jurisdiction and trial if and when reached.
Employer's counterclaim and outstanding preliminary objections transferred to Court of Common Pleas of Chester County.