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COMMONWEALTH PENNSYLVANIA v. DAVID L. LICHTENSTEIN (12/14/87)

decided: December 14, 1987.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA TURNPIKE COMMISSION, APPELLANT
v.
DAVID L. LICHTENSTEIN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of David L. Lichtenstein v. Pennsylvania Turnpike Commission, G.D. 85-19062.

COUNSEL

George E. Yokitis, with him, Michael J. Reilly and Alison G. Rona, Alder, Cohen & Grigsby, P.C., and Kevin F. Longenbach, for appellant.

Francis C. Rapp, Jr., with him, Harold Gondelman, Gondelman, Baxter, McVerry, Smith, Yatch & Trimm, for appellee.

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

Author: Colins

[ 111 Pa. Commw. Page 612]

This is an appeal by permission by the Pennsylvania Turnpike Commission (Commission) challenging the jurisdiction of the Court of Common Pleas of Allegheny County (the Court of Common Pleas) to entertain this contract action initiated against the Commission by David L. Lichtenstein (Lichtenstein). The Commission contends that exclusive jurisdiction over this dispute lies in the Board of Claims (Board).

Lichtenstein served as Chief Legal Counsel to the Commission from January, 1976 to April, 1980 when criminal charges were filed against him by the United States attorney. Consequently, Lichtenstein requested and was granted an unpaid leave of absence. The federal criminal charges were subsequently dismissed in August, 1983. In January, 1984 Lichtenstein notified the Commission of this dismissal and requested reinstatement with back pay and benefits. This request was based upon a purported discussion he had with one or

[ 111 Pa. Commw. Page 613]

    more commissioners in or about April, 1980, which he alleges resulted in an oral agreement that he would be reinstated with back pay and benefits if the charges against him were resolved in his favor. The Commission, which denied the existence of such an agreement, replaced Lichtenstein during his absence and denied his request for reinstatement and back pay.

On October 31, 1985, Lichtenstein filed a Complaint in Equity seeking specific performance of the alleged oral agreement requiring his reinstatement. The Commission responded to the Complaint with Preliminary Objections, one of which challenged the jurisdiction of the Court of Common Pleas, arguing that contract actions over $300.00 against the Commonwealth were within the exclusive jurisdiction of the Board pursuant to Section 4 of the Act of May 20, 1937.*fn1

Argument was heard before the Honorable I. Martin Wekselman. In his Opinion and Order dated May 8, 1986, Judge Wekselman denied the Commission's Preliminary Objection to the subject matter jurisdiction of the Court, holding that the Commission is not the Commonwealth for purposes of jurisdiction. This Court subsequently granted the Commission's petition for permission to appeal this interlocutory order.

The Commission avers that in the Fall of 1986 it became aware for the first time of an amendment to its enabling legislation which became effective on October 30, 1985, the day before Lichtenstein filed his Complaint. This amendment, Section 651.7(a)(3) of the Turnpike Organization Extension and Toll Road Conversion Act (the Act), ...


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