Original Jurisdiction in the case of Charles W. Brooks and Jo-Anne Brooks v. Commonwealth of Pennsylvania, Department of Agriculture and Richard E. Grubbs, in his capacity as Secretary of Agriculture.
G. David Pauline, Bricker and Pauline, for petitioners.
Gregory R. Neuhauser, Senior Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.
Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Judge MacPhail.
[ 105 Pa. Commw. Page 197]
Charles and Jo-Anne Brooks (Petitioners) have filed suit in this Court's original jurisdiction to recover $64,806 they claim is due them for the loss they sustained on the sale of 52,300 chickens infected with Avian Influenza. The Department of Agriculture (Department) has filed preliminary objections which are now before us for disposition.*fn1
This suit has a somewhat complicated procedural history. Petitioners originally filed suit in this Court in 1984,*fn2 seeking injunctive relief to prohibit the Department from expending any further monies out of the fund created to indemnify owners of chickens who suffered losses due to the Avian Influenza until they could
[ 105 Pa. Commw. Page 198]
obtain a judgment on the merits of their claim. This Court denied Petitioners' request for a preliminary injunction by order dated June 29, 1984, and thereafter Petitioners' action was dismissed for failure to prosecute.
Petitioners then commenced this suit on February 20, 1986 by filing a complaint addressed to this Court's original jurisdiction*fn3 in which they seek a money judgment against the Commonwealth. By order dated March 3, 1986, this Court, sua sponte, transferred this action to the Board of Claims. Upon reconsideration, this Court vacated its transfer order on April 7, 1986 and directed the parties to file briefs addressed to the question of this Court's jurisdiction. Both parties filed briefs on the jurisdictional question and, in addition, the Department filed preliminary objections.*fn4 No order with respect to the jurisdictional issue has ever been entered by this Court. We will address only the jurisdictional issue.
From the factual allegations set forth in the complaint, we ascertain that on November 3, 1983, the Department quarantined Petitioners' poultry farm because of the presence of chickens infected with Avian Influenza. Since Petitioners had already lost approximately 41,410 chickens to Avian Influenza, they immediately requested and were granted permission by the Department to sell the remainder of their flock of infected chickens to a New Jersey poultry processor who agreed to pay $.58 per chicken. While in transit to New Jersey,
[ 105 Pa. Commw. Page 199]
an additional 5,000 chickens died. Petitioners were paid $30,087.53 by the processor for the 52,300 chickens ...