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SHOVEL TRANSFER AND STORAGE v. HUBERT SIMPSON (12/22/87)

decided: December 22, 1987.

SHOVEL TRANSFER AND STORAGE, INC., PETITIONER
v.
HUBERT SIMPSON, COMPTROLLER, PENNSYLVANIA LIQUOR CONTROL BOARD AND MICHAEL H. HERSHOCK, SECRETARY OF THE OFFICE OF BUDGET AND ADMINISTRATION, COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Original Jurisdiction in the case of Shovel Transfer and Storage, Inc. v. Hubert Simpson, Comptroller, Pennsylvania Liquor Control Board, and Michael H. Hershock, Secretary of the Office of Budget and Administration, Commonwealth of Pennsylvania.

COUNSEL

William G. Merchant, with him, James P. Sommers, Papernick & Gefsky, P.C., for petitioner.

Timothy D. Searchinger, Deputy General Counsel, with him, Andrew H. Cline, Deputy General Counsel, for respondent.

Kenneth B. Skelly, for intervenor, Pennsylvania Liquor Control Board.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 112 Pa. Commw. Page 130]

Shovel Transfer and Storage, Inc. (Shovel) has filed a petition for review*fn1 in the nature of mandamus and seeking declaratory and injunctive relief. The Respondents*fn2 have filed preliminary objections which are now before us for disposition.

[ 112 Pa. Commw. Page 131]

Shovel's petition for review sets forth that on or about November 10, 1986, Shovel and the LCB executed a written contract which would transfer LCB's Southwestern Distribution Center for District No. 4 from Youngwood, Pennsylvania to Pittsburgh, Pennsylvania. The contract, attached to the petition for review as Exhibit A, has provision on the signature page for the signatures of the Comptroller of the Liquor Control Board and the Secretary for Budget and Administration for the Commonwealth. Neither of those signature lines has a signature thereon. The chairman of the LCB has signed the contract.

Shovel alleges that the LCB refuses to honor the terms of the contract and gives as reason therefor the lack of Respondents' signatures. Shovel has filed an action against the LCB for damages with the Board of Claims.

In its action in this Court, Shovel requests that we direct the Comptroller and the Secretary to affix their signatures to the contract or, in the alternative, that we enjoin them from interfering with the LCB's performance of the contract or, again in the alternative, that we declare that Respondents' signatures are unnecessary to make the contract enforceable.

Respondents preliminarily object to the petition for review contending that this Court lacks jurisdiction, that the suit is barred by the defense of sovereign immunity, that Shovel has an adequate remedy at law and that declaratory relief cannot be granted ...


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