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ALBERT S. NILSEN v. COMMONWEALTH PENNSYLVANIA (09/18/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 18, 1986.

ALBERT S. NILSEN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE AND OFFICE OF ADMINISTRATION, RESPONDENTS

Appeal from the Order of the Board of Claims, in case of Albert S. Nilsen v. Commonwealth of Pennsylvania, Department of Public Welfare and Office of Administration, Docket No. FC-78-119.

COUNSEL

Steven P. Barsamian, for appellant.

Frank P. Clark, Assistant Counsel, with him, John D. Raup, Chief Counsel, for respondents.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Rogers, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 100 Pa. Commw. Page 569]

Albert S. Nilsen appeals a Board of Claims (Board) order dismissing his claim as untimely and dismissing

[ 100 Pa. Commw. Page 570]

    the Department of Public Welfare (DPW) as a party. We affirm.

On June 1, 1976, Nilsen, a DPW employee, submitted a suggestion under the Commonwealth's cost reduction program to combine four state employee fund-raising drives into one combined appeal. DPW informed Nilsen on September 23, 1976, that his suggestion would not be adopted. However, on September 16, 1977, Nilsen learned that the Commonwealth was implementing a state employee combined appeal (SECA) and he requested reconsideration of his proposal.

On December 15, 1977, upon Nilsen's request for reconsideration, DPW informed him that his proposal was deemed by the Secretary of the Office of Administration to have been under prior management consideration. Therefore, Nilsen was not eligible to receive a $10,000 award under the cost reduction program. Nilsen wrote Representative Francis J. Lynch and Auditor General Benedict asserting a grievance over the denial of the $10,000 award. Nilsen filed his claim on May 24, 1978, with the Auditor General who later transferred it to the Board.

Our scope of review of a Board order is limited to determining whether necessary factual findings are supported by substantial evidence and whether an error of law was committed. Camp Joy, Inc. v. Department of Public Welfare, 70 Pa. Commonwealth Ct. 142, 452 A.2d 891 (1982).

Nilsen contends that the Board erred in dismissing his claim because the six-month statute of limitations provision for filing a claim with the Board does not apply. He claims that (1) the statute of limitations is remedial, (2) its purpose was not served here because the Commonwealth was constantly apprised of his claim, and (3) the Commonwealth fraudulently led Nilsen through a bureaucratic maze which caused his claim to be untimely. We disagree.

[ 100 Pa. Commw. Page 571]

Section 6 of the Act of May 20, 1937*fn1 states, in pertinent part, "The board shall have no power and exercise no jurisdiction over a claim asserted against the Commonwealth unless the claim shall have been filed within six months after it accrued." Statute of limitations do not begin to run until the cause of action accrues. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa. Commonwealth Ct. 212, 375 A.2d 890 (1977), aff'd, 482 Pa. 615, 394 A.2d 491 (1978). Thus, we must determine when this cause of action accrued. We have recently held that the statute of limitations for filing a claim with the Board "begins to run from the time when the injured party is first able to litigate the claim." Commonwealth v. Town Court Nursing Centers, Inc., 97 Pa. Commonwealth Ct. 380, 386, 509 A.2d 950, 954 (1986). "A party is first able to litigate a claim when he or she knows the amount due under the claim." Department of Public Welfare v. Federated Security, Inc., 49 Pa. Commonwealth Ct. 411, 417, 411 A.2d 284, 288 (1980).

The Board held that Nilsen's claim accrued on September 16, 1977, since that date indicates his awareness of the Commonwealth's implementation of the SECA campaign. We agree. Nilsen knew at that time that had the Commonwealth credited him with the authoring of the SECA plan, he would have been entitled to a class G award equal to $10,000. which was the full amount due under his claim.*fn2 September 16, 1977 marks the date that Nilsen was on notice and able to fully ascertain the extent of his claim. See Penn-Jersey Contractors, Inc. v. General State Authority, 12 Pa. Commonwealth Ct. 203, 315 A.2d 920 (1974).

[ 100 Pa. Commw. Page 572]

Moreover, we are not persuaded by Nilsen's argument that the statute of limitations should have been tolled. Nilsen chose to pursue alternative governmental channels before filing his claim with the Board. If there were any bureaucratic maze through which Nilsen was guided, it was of his own creation. Nilsen's letter-writing campaign, although it apprised certain government representatives and officials of his grievance, did not constitute the assertion of a formal claim against the Commonwealth.*fn3

The Board of Claims' decision is affirmed.*fn4

Order

The Board of Claims' order, No. FC-78-119 dated July 5, 1985, is affirmed.

Disposition

Affirmed.


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