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WILLIAM RICH v. COMMONWEALTH PENNSYLVANIA (12/04/89)

decided: December 4, 1989.

WILLIAM RICH, JR., T/D/B/A AMERICAN CONTRACTORS AND AMERICAN CONTRACTORS, INC., A CORPORATION, PETITIONERS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, A CORPORATION, RESPONDENTS



PETITION FOR REVIEW ยง 761 WITH NOTICE TO PLEAD.

COUNSEL

John F. Hooper, with him, Thomas J. Schuchert, Schuchert & Sheerer, P.C., Pittsburgh, for petitioners.

M. Shirley Young, Asst. Counsel, with her, John J. Buchy, Chief of Litigation, Harrisburg, and William W. Warren, Jr., Chief Counsel, Scranton, for respondent, Dept. of General Services.

Mary Jane Forbes, McNees, Wallace & Nurick, Harrisburg, Pennsylvania, with her, Kenneth I. Jonson, Steptoe & Johnson, Washington, D.C., for respondent, Fidelity and Deposit Company of Maryland.

Doyle, Palladino and Smith, JJ. Doyle, J., dissents.

Author: Palladino

[ 130 Pa. Commw. Page 72]

Before us are the preliminary objections of Fidelity and Deposit Company of Maryland (F & D) and the Department of General Services (DGS) to a petition seeking a declaratory

[ 130 Pa. Commw. Page 73]

    judgment*fn1 (petition) filed in our original jurisdiction by William Rich, t/d/b/a American Contractors (American).*fn2 For the reasons that follow, we dismiss the petition for failing to state a cause of action.

American contracted with DGS to perform construction work on the roof of the Fort Pitt Museum (contract). F & D executed a performance bond (bond) becoming surety for American for this project. After construction began but before the completion of performance of the contract, DGS found that the roof leaked. A letter from H.P. Anderson, Deputy Secretary for Public Works, informed American that it was in default on the contract. American filed this petition.

This court sua sponte transferred the case to the Board of Claims, American filed a motion to reconsider, and thereafter this court vacated the order of transfer and ordered the respondents to respond. F & D and DGS each filed preliminary objections.*fn3

American's petition, in counts I and II, seeks declaratory judgment "for the purpose of obtaining a full and complete declaration of the rights, duties and obligations of the parties"*fn4 under the contract and bond. In count III, American alleges that DGS violated American's constitutional right to due process and equal protection. DGS's preliminary objection in the form of a demurrer alleges that American fails to state a cause of action under the Declaratory Judgments Act.

Declaratory relief is not available unless an actual controversy exists, is imminent or inevitable. Colonial School District v. Romano's School Bus ...


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