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MEDIQ MGMT. SERVS. v. KERNS

March 25, 1985

MEDIQ MANAGEMENT SERVICES, DIVISION OF MEDIQ, INC.
v.
DONALD KERNS



The opinion of the court was delivered by: HUYETT

HUYETT J.

 MEMORANDUM AND ORDER

 Presently pending before me is defendant's motion to dismiss. For the reasons set forth below, this motion will be denied.

  Plaintiff alleges in its complaint *fn1" that it is a Delaware Corporation with its principal place of business in New Jersey. It apparently entered into a contract to perform certain services for the County of Schuylkill, Pennsylvania. As part of this contract, plaintiff was to submit monthly invoices and was to be paid on a monthly basis.

 On November 7, 1984, the defendant who is the Schuylkill County Controller, refused to pay certain of these invoices. On December 19, 1984, the Schuylkill County Commissioners voted to direct the Controller to make these payments. Notwithstanding this vote, defendant has failed to pay the invoices submitted by plaintiff. This suit was brought pursuant to 16 Pa. Stat. Ann. § 1752 (Purdon 1956) for an order directing defendant to pay these invoices.

 Defendant has asserted three arguments in support of his motion. Each of these is without merit. Defendant's first argument is that the complaint fails to state a claim upon which relief can be granted. Specifically, defendant contends that the complaint is fatally defective because it failed to plead facts sufficient to show that a legal wrong has been committed. The complaint alleges that plaintiff entered into a valid contract with Schuylkill County, that it performed the required services, and that the defendant has refused to pay the valid invoices he has received in spite of the fact that the commissioners have voted to pay the bills. Plaintiff did not name either the county, or the county commissioner as defendants. Defendant contends that because plaintiff has not alleged that the controller "owed plaintiff any duty to pay the invoices," the complaint must be dismissed.

 Defendant's argument might have merit if this were a straightforward breach of contract suit. It is not. Plaintiff is seeking to proceed under 16 Pa. Stat. Ann. § 1752 (Purdon 1956) which states:

 
If the controller does not approve a claim, bill or demand presented to him, he shall within thirty days forward it to the county commissioners together with his notice that he has refused to approve the same and his reasons therefor. The county commissioners shall consider the claim, bill or demand and, if they consider that it should be paid by the county, they shall so notify the controller. If the controller thereafter continues to refuse his approval no payment shall be made thereon by the county except pursuant to an order of court upon a proper issue thereto directing the controller to approve payment.

 Defendant has completely failed to address the application of this statute to the facts of this lawsuit and has directed me to no authority which would lead me to conclude that plaintiff has not stated a valid claim under this section. The facts as alleged certainly seem to fit the scenario contemplated by this section.

 In spite of defendant's silence on this matter, it is not entirely clear to me from the face of this statute that it is designed to provide a cause of action by a citizen against a county controller for what is essentially breach of contract. As a logical matter, it would seem unlikely that the legislature would contemplate that a plaintiff could get a mandatory order seeking payment from a county controller without first having been adjudicated deserving of that payment. If this reasoning is correct, then defendant's argument is well taken and plaintiff has failed to name the necessary defendants. On the other hand, the language of the statute is susceptible of the construction urged by plaintiff. The phrase "except pursuant to an order of Court upon a proper issue thereto directing the controller to approve payment" may be construed as allowing a cause of action for equitable relief against a controller independent of existing breach of contract claims.

 
The question of whether or not the basis used in determining the mileage was proper is not and has never been a part of this case. It may eventually become the duty of the court in another action to determine whether the mileage allowed to these plaintiffs has been properly calculated, and in the present case whether or not the controller can, in any event, set off an unliquidated claim against a salary check.

 Id., 24 Pa. D.&C.2d at 395. One interpretation of this passage is that a cause of action exists under § 1752 separate from that for breach of contract.

 In the last analysis, I think that defendant's argument must fail here because plaintiff has alleged sufficient facts to assert a cause of action for breach of contract against defendant even if it is not entitled to relief under § 1752 until it has been determined that a breach has occurred. As a county controller, defendant is allowed under statute to refuse claims made against a county under certain circumstances. 16 Pa. Stat. Ann. § 1750 (Purdon 1956). As such, the controller can decide to dishonor claims made pursuant to a contract made by the commissioners. In such a case, the commissioners have not committed any action which could be considered a breach. The controller, on the other hand, can be said to have caused the breach, should it be determined that a breach has occurred. Thus, the failure to ...


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