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decided: June 4, 1985.


Appeal from the Order of the Commonwealth Court dated June 25, 1984, sustaining Preliminary Objections and transferring Petition for Review to the Board of Claims, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Mcdermott

[ 508 Pa. Page 14]


Spanning the Delaware River, from Philadelphia to Pennsauken, a concinnity of steel, stone and river, is the Betsy Ross Bridge, named in honor of a placid seamstress who, story tells, stitched the Stars and Stripes. A limited access highway to the bridge was proposed and named in honor of Casimir Pulaski, a great general of the Revolution, who came from Poland, that free men might build such like bridges. The Pulaski Highway, a main artery from the heart of the Philadelphia area to be served, remains unconstructed and therefore the purpose of the bridge unfulfilled.

The Delaware River Port Authority (DRPA) and this Commonwealth, who were involved in the conception and construction of the bridge, have fallen into quarrel over the responsibility for the construction of the Pulaski Highway. That ultimate question of responsibility is not before us. What is before us is this: In what form and before what forum should that question be resolved? The question was raised by an action in mandamus brought by DRPA, contending that, by statute and contract, the Commonwealth and the Department of Transportation (PennDOT) are obligated to build the highway, and can be compelled to do so in mandamus. The Commonwealth, on the other hand, contends that, if it is ultimately obliged to build the highway, it

[ 508 Pa. Page 15]

    is by contract, for which only damages would follow if it failed to perform. Further, the argument goes, since the claims sound in contract and state no statutory cause of action, the Commonwealth Court lacks jurisdiction and the matter properly lies before the Board of Claims. It is that issue that lies before us now.

The DRPA initiated these proceedings by filing a petition for review addressed to the original jurisdiction of the Commonwealth Court. Named as respondents in that petition (appellees herein) were the Commonwealth Department of Transportation, the Secretary of Transportation, the Governor, and the General Assembly. The petition alleged that the Commonwealth has violated its statutory obligations under the Delaware River Port Authority Compact (Compact)*fn1 by failing to fulfill a contractual promise to construct the Pulaski Highway to connect with the Pennsylvania approach to the bridge. The DRPA sought a writ of mandamus compelling the Commonwealth to take all necessary and proper steps to effectuate construction of the highway, and an injunction precluding the Commonwealth from hindering said construction, or from disposing of any property previously acquired for the construction of the highway. The DRPA also has pending an action before the Board of Claims seeking contractual damages.

[ 508 Pa. Page 16]

In response to the petition for review, appellees filed preliminary objections alleging, inter alia, a lack of subject matter jurisdiction in the Commonwealth Court. That court, determining that the claims sounded in contract, sustained the preliminary objections and found that the Board of Claims had exclusive jurisdiction. Delaware River Page 16} Port Authority v. Thornburgh, 56 Pa. Commw. 459, 425 A.2d 479 (1981). On appeal we reversed, and remanded the case to the jurisdiction of the Commonwealth Court for consideration on the merits. Delaware River Port Authority v. Thornburgh, 500 Pa. 629, 459 A.2d 717 (1983).*fn2 We there held, in a unanimous opinion authored by then-Chief Justice Roberts, that the Commonwealth Court had erred in characterizing appellant's claim as solely contractual and in declining to accept jurisdiction over the mandamus action. We further stated that, inasmuch as the petition for review sought to restrain appellees' alleged interference with the performance of DRPA's statutory duties and to enforce appellees' compliance with their statutory duties under interstate compact, the issue was statutory, rather than simply contractual, and thus was cognizable in Commonwealth Court. Id., 500 Pa. at 634, 459 A.2d at 719-20.

On remand the Commonwealth Court reinstated and considered those preliminary objections which it had not previously addressed, and again decided that jurisdiction properly lay in the Board of Claims, determining that the DRPA petition for review failed to state a cognizable claim for the relief requested. Delaware River Port Authority v. Thornburgh, 83 Pa. Commw. 343, 479 A.2d 626 (1984). In so holding, that court concluded that no statutory obligations under the Compact were herein implicated, and that the Commonwealth's only remaining obligations, if proven, were contractual in nature. Thus, the matter is now before us for the second time, and arises in the posture of an appeal by DRPA from the Commonwealth Court order sustaining preliminary objections in the nature of a demurrer. We reverse.

Jurisdiction over matters arising exclusively out of contractual or quasi-contractual claims against the Commonwealth

[ 508 Pa. Page 17]

    lies in the Board of Claims.*fn3 Xpress Truck Lines, Inc. v. Pennsylvania Liquor Control Board, 503 Pa. 399, 469 A.2d 1000 (1983); Ezy Parks v. Larson, 499 Pa. 615, 454 A.2d 928 (1982). On the other hand, where an obligation derives from statute rather than from contract, a petition for review is properly entertained in Commonwealth Court. Delaware County v. Commonwealth, Department of Public Welfare, 34 Pa. Commw. 165, 383 A.2d 240 (1978). The question before us is whether the ...

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