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STRATTON C. SCHAEFFER/BROSCH AND COWLEY v. DEPARTMENT GENERAL SERVICES (11/12/87)

decided: November 12, 1987.

STRATTON C. SCHAEFFER/BROSCH AND COWLEY, A JOINT VENTURE OF CONSULTING ENGINEERS, PETITIONERS
v.
DEPARTMENT OF GENERAL SERVICES, RESPONDENT



Appeal from the Order of the Board of Claims, in the case of Stratton C. Schaeffer/Brosch and Cowley, a Joint Venture of Consulting Engineers v. Commonwealth of Pennsylvania, Department of General Services, Docket No. 960.

COUNSEL

G. David Pauline, Bricker & Pauline, for petitioners.

Thomas M. Devlin, Assistant Counsel, with him, Michael D. Reed, Chief of Litigation, Anthony P. Krzywicki, Chief Counsel, for respondent.

Judges Craig, MacPhail, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 111 Pa. Commw. Page 61]

Petitioners Stratton C. Schaeffer/Brosch and Cowley appeal an order of the Board of Claims denying their Motion for Hearing and affirming a judgment of non pros with prejudice in favor of the Department of General Services (Respondent). We affirm.

Petitioners filed a complaint with the Board of Claims (Board) following Respondent's refusal to pay the sum of $2,396.00 for services allegedly rendered by the Petitioners in addition to those contracted for concerning alterations to a boiler plant at the Selinsgrove Center, Selinsgrove, Pennsylvania. A hearing was scheduled by the Board for December 4, 1985 at 10:00 a.m., but on that date neither Petitioners nor their counsel appeared. Respondent and its witnesses were present and ready to proceed. After waiting an hour, Respondent moved for a judgment of non pros. The transcript of the hearing discloses that at that point the hearing was recessed to give the chairman of the panel an opportunity to confer with the Board's Chief Judge, Judge Pace.

When Judge Pace reconvened the hearing, he confirmed that written notice of the hearing had been given

[ 111 Pa. Commw. Page 62]

    to the Petitioners on October 22, 1985, that no request for a continuance had been presented to the Board and that the Petitioners were not present to proceed with the hearing. He then granted Respondent's motion and entered judgment in favor of the Respondent.

On December 6, 1985 Judge Pace filed an opinion and a formal order again granting judgment in favor of the Respondent. In that opinion, he again noted Petitioners' failure to appear at the hearing or to request a continuance from the Board, that the attorney for the Petitioners had been contacted before he, the Judge, acted on Respondent's motion and that the attorney for the Petitioners said he had suggested the possibility of a continuance in a letter to Respondent's counsel but had not received a response thereto. No appeal was taken from the order of December 6.

On December 30, 1985, Petitioners filed a "motion for hearing" with the Board alleging, inter alia, that their counsel was contacted by the Board by telephone on December 4, 1985 and that in the course of that conversation he was advised that the hearing had been opened and that there was pending before the Board a motion for non pros. Petitioners' motion goes on to state that their counsel told the Board in that telephone conversation that he would be available in five minutes to appear at the hearing but that the Board refused to grant him that consideration.

Respondent replied to Petitioners' motion, admitting that such a telephone conversation did occur but that after reviewing the attorney's letter to Respondent and noting that Respondent did not agree to a continuance and that no request for continuance had been filed with the Board, Judge Pace concluded that there was no excuse for Petitioners' ...


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