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COMMONWEALTH PENNSYLVANIA v. FRANK BRISCOE COMPANY (10/19/83)

decided: October 19, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, PETITIONER IN NO. 92, APPELLEE IN NO. 58 AND APPELLANT IN NO. 59,
v.
FRANK BRISCOE COMPANY, INC. AND TRAVELERS INDEMNITY COMPANY, PETITIONERS IN NO. 92, APPELLANTS IN NO. 58 AND APPELLEES IN NO. 59 AND JAMES C. EASTLEY, INC., STEEL CITY PIPING COMPANY, KEYSTONE ENGINEERING CORP., AND WESTINGHOUSE ELEVATOR COMPANY, RESPONDENTS IN NO. 92 AND APPELLEES IN NOS. 58 AND 59



No. 92 E.D. Misc. Docket, 1983, Nos. 58 & 59 E.D. Appeal Docket, 1983, Appeals from the Orders of the Commonwealth Court at No. 1524, entered May 3, 1983, Pa. Commw. , Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Roberts

[ 502 Pa. Page 452]

OPINION OF THE COURT

These are consolidated appeals from two orders of the Commonwealth Court entered in a contract action arising from delays alleged to have been incurred in the construction of the David L. Lawrence Convention Center in Pittsburgh, Pennsylvania. In a complaint filed in the original jurisdiction of the Commonwealth Court, the Department of General Services ("Department") seeks damages from the Frank Briscoe Company ("Briscoe") for delay as well as faulty construction. Briscoe, one of the five prime contractors responsible for the construction of the Convention Center, in turn has filed a counterclaim seeking damages from the Department for the Department's alleged delay. In addition to damages, the Department's complaint seeks a declaratory judgment that, as between Briscoe and the Commonwealth, Briscoe alone bears liability to the other contractors for construction delay.

By order dated May 3, 1983, the Commonwealth Court sustained preliminary objections filed by the Department challenging the jurisdiction of the Commonwealth Court to entertain Briscoe's counterclaim. In a separate order entered the same day, the Commonwealth Court dismissed those counts of the Department's complaint seeking declaratory relief on the ground that exclusive jurisdiction over the issue presented by the Department's request for relief was in the Board of Claims.

We agree with the Commonwealth Court that the counts of the Department's complaint seeking declaratory relief were not properly brought in the Commonwealth Court and, hence, affirm the order dismissing those counts. However, because we conclude that Briscoe was entitled to assert its counterclaim for damages in the Commonwealth Court, we reverse the order sustaining the Department's preliminary

[ 502 Pa. Page 453]

    objections and remand for a determination of the merits of the counterclaim.

I

In May of 1977, the Department awarded contracts for the construction of the Convention Center to Briscoe, for the general construction; James C. Eastly, Inc. ("Eastly"), for heating, ventilation, and air conditioning; Steel City Piping Company ("Steel City"), for plumbing; Keystone Engineering Corporation ("Keystone"), for electrical work; and Westinghouse Elevator Company ("Westinghouse"), for vertical transportation work. The contracts, which were to be funded with over $40,000,000 of state monies, included provisions for dispute resolution. Claims of a contractor against the Department were to proceed through a four-tier administrative procedure, concluding with the submission of unresolved claims to the Board of Claims. Disputes among the contractors not involving the Department were to be resolved by common-law arbitration.

Construction on the project began in June of 1977. The Convention Center was originally scheduled to be completed by October 1, 1979, but the date was later extended to February 1, 1980, by agreement of the parties. The Department alleges that the Convention Center was not available even for partial occupancy until February of 1981.

The Department's complaint, filed June 29, 1980, was separated into eleven counts. Counts I through IV set forth allegations of breach of contract against Briscoe and Travelers Indemnity Company, the performance bond surety for Briscoe, and sought damages for delays and faulty construction. Counts V through IX asserted claims in assumpsit against Briscoe individually and sought declarations that Briscoe, and not the Department, bore responsibility for various losses occurring during the course of construction.*fn1

[ 502 Pa. Page 454]

Counts X and XI, which contained the Department's request for declaratory relief, alleged that Eastly, Steel City, Keystone and Westinghouse "have presented, or are in the process of presenting" claims for delay damages against the Department pursuant to the provisions of the contracts relating to claims procedure, and that responsibility for these claims rested solely with Briscoe.*fn2 As relief, the Department sought a declaration that the Commonwealth bore no liability to any of the contractors for delays caused exclusively by Briscoe, a declaration that under the contracts the exclusive remedy for assertion of claims for delay damages against Briscoe was through common-law arbitration, a declaration that the Commonwealth was not obliged to be a party to any arbitration proceeding, and an ...


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