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decided: August 9, 1983.


Appeal from the Order of the Board of Claims in the case of R. Riggs, J. Kubinsky, P. O'Connor and J. A. Hayes v. Commonwealth of Pennsylvania, Department of Transportation, No. FC-44-79.


Leo Jackson, with him Jonathan K. Walters, Kirschner, Walters, Willig, Weinberg & Dempsey, for petitioners.

Michael D. Reed, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

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

Author: Doyle

[ 76 Pa. Commw. Page 228]

Petitioners appeal an order of the Board of Claims (Board) which denied petitioners' claim against their employer, the Department of Transportation (DOT), for the value of work tools stolen from a DOT garage. We affirm.

Petitioners are mechanics for DOT and are stationed at the Christy Park garage, McKeesport, Pennsylvania.*fn1 As a condition of their employment, they were each required to supply their own set of work

[ 76 Pa. Commw. Page 229]

    tools, which, for their own convenience, they stored at the garage in their own locked cabinets. Sometime during the weekend of October 7, 1978, an unknown person broke into the garage and made off with the petitioners' tools.

Petitioners filed a letter with the Board of Claims seeking compensation from DOT for the stolen tools, and on July 17, 1979, the Board dismissed the claim without a hearing. The matter was appealed to this Court and remanded to the Board for a hearing.*fn2 On April 22, 1982, the Board again dismissed petitioners' claim which prompted the present appeal.

The Commonwealth Court's scope of review in such matters is limited; we must affirm the order of the Board unless we find that it is not in accordance with law or that there is not substantial evidence to support the findings of fact. State Highway and Bridge Authority v. E.J. Albrecht Co., 48 Pa. Commonwealth Ct. 491, 409 A.2d 1202 (1980).

Three of the petitioners, Riggs, Kubinsky and O'Connor, were included in a collective bargaining agreement entered into between DOT and Council 13 of the American Federation of State, County and Municipal Employees, under which all disputes arising from the terms and conditions of their employment were to be submitted to a grievance procedure. Initially, the petitioners followed this procedure and submitted their claim for compensation to binding arbitration.*fn3 On April 2, 1979 Arbitrator William C. Stonehouse, Jr. found that the petitioners had no right to compensation under the terms of their employment contract, and denied their claim. The Board

[ 76 Pa. Commw. Page 230]

    of Claims took note of this action and, concluding that it had no authority to review the arbitrator's decision,*fn4 denied the claim.

Petitioners do not now question the validity of the arbitrator's decision as to their rights under the collective bargaining agreement.*fn5 Rather, they assert a separate, implied contract of bailment under which DOT was responsible for the safety of tools left on its property. Petitioners allege that the Board erred in not allowing recovery on this separate theory. The fourth petitioner, Hayes, who was not subject to the collective bargaining agreement, joined in petitioners' claim with the Board and in their present appeal to this Court.*fn6

To constitute bailment, there must be a delivery of personal property to another, who accepts possession of the property, and exercises custody and control over it. Sparrow v. Airport Parking Co. of America, 221 Pa. Superior Ct. 32, 289 A.2d 87 (1972). While a contract of bailment may be implied, such contract can

[ 76 Pa. Commw. Page 231]

    arise only when the natural and just interpretation of the acts of the parties warrants such a conclusion. Id.

Evidence produced at the hearing before the Board indicated that DOT neither required nor encouraged its employees to leave their tools in the garage. Further, DOT did nothing to provide for this practice; the employees furnished their own cabinets and locks. No evidence suggested that DOT accepted or exercised custody or control over the tools; on the contrary, the existence of the locked cabinets suggests that DOT would have been prevented from doing so. On the basis of such evidence, the Board was correct in concluding that there was no implied contract of bailment between DOT and the petitioners. The order of the Board of Claims is affirmed.


Now, August 9, 1983, the order of the Board of Claims in the above mentioned matter, dated April 22, 1982, is hereby affirmed.



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