DVR Philly, LLC, Pеtitioner v. Philadelphia Regional Port Authority a/k/a PhilaPort (Board of Claims), Respondent
No. 74 C.D. 2023
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
January 9, 2024
Submitted: November 9, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS, Judge
MEMORANDUM OPINION BY JUDGE CEISLER
FILED: January 9, 2024
Petitioner DVR Philly, LLC, (DVR) petitions for review of the Pennsylvania Board of Claims’ (Board) December 29, 2022 opinion and order (Order), through which the Board sustained Respondent Philadelphia Regional Port Authority a/k/a PhilaPort‘s (PhilaPort) preliminary objections and dismissed DVR‘s Statement of Claim (Statement) with prejudice. Upon review, we vacate the Board‘s Order and remand this matter to the Board for further proceedings.
I. Background
In 2016, DVR and PhilaPort entered into an agreement, whereby DVR leased 125 acres of property from PhilaPort known collectively as “Southport Site 1, Site 2, Pier 98 Annex, Whiskey and Savage Yard.” Statement ¶10.1 Thereafter, in 2020, the parties amended the agreement, in response to unspecified issues that had arisen under the original version. Id. ¶11. As amended, the lease agreement requires
On March 21, 2023, DVR filed its Statement with the Board. Therein, DVR alleged that, per the terms of the amended agreement, PhilaPort had been obligated to provide DVR with the promised credits and rebates beginning in May and June of 2020, but had failed to actually do so until September and October of that year. Id. ¶¶32-39, 42, 45, 49, 53, 57.2 Consequently, DVR asserted that it was entitled to compensation from PhilaPort, in the form of interest at the legal rate of 6%3 on the amount of delayed credits and rebates, that totaled $27,212.50. Id. ¶¶40-41, 43-44, 47-48, 51-52, 55-56, 59-61. DVR also stated that it had already sought to directly recoup this interest from PhilaPort by filing a claim for payment with Jeffrey Theobald, PhilaPort‘s Executive Director and Chief Executive Officer, on February
PhilaPort responded to the Statement by filing preliminary objections in the nаture of a demurrer on May 21, 2023. Specifically, PhilaPort argued that DVR was seeking what was, in essence, prejudgment interest. Prelim. Objs. ¶¶9-10. According to PhilaPort, it is an instrumentality of the Commonwealth and, thus, is not obligated to pay such interest unless required to do so by contract or statute. Id. ¶12. PhilaPort asserted that there was no such agreement or law authorizing DVR to seek or secure prejudgment interest in this instance, thereby rendering DVR‘s demand legally
The Board assented to PhilaPort‘s request by sustaining the preliminary objections on December 29, 2022. In doing so, the Board explained that its authority to award interest was governed by Section 1751 of the Procurement Code. Board‘s Order at 6. This statute provides, in relevant part:
Interest on amounts ultimately determined to be due shall be payable at the statutory rate applicable to judgments from the date the claim was filed with the contracting officer.
II. Discussion
DVR maintains that the Board improperly sustained PhilaPort‘s preliminary objections for several reasons, which we summarize as follows.6 First, the Board
With regard to DVR‘s first argument, it is beyond cavil that an adjudicatory body must remain neutral when handling a legal dispute and “should not act as a party‘s advocate.” Battiste v. Borough of E. McKeesport, 94 A.3d 418, 423 n.7 (Pa. Cmwlth. 2014). It follows from this that an administrative tribunal “may not, sua sponte, augment the subject matter of a proceeding” by addressing issues that were not raised by the parties thereto. Sunoco Pipeline, L.P v. Pub. Util. Comm‘n, 295 A.3d 37, 52 (Pa. Cmwlth. 2023); see Follett v. Workers’ Comp. Appeal Bd. (Massachusetts Mut. Life Ins. Co.), 551 A.2d 616, 621 (Pa. Cmwlth. 1988) (”Sua
any issue going to the subject matter jurisdiction of a court or administrative tribunal to act in a matter ... cannot be waived by the parties[,] nor can the parties confer subject matter on a court or tribunal by agreement or stipulation. Since an issue of subject matter jurisdiction is nоt waivable, it may be raised at any stage of a proceeding by a party, or sua sponte by the court or agency.
Blackwell v. State Ethics Comm‘n, 567 A.2d 630, 636 (Pa. 1989) (internal citations omitted).
In this instance, PhilaPort did not cite to or discuss Section 1751 of the Procurement Code in its preliminary objections, or assert therein that the Board had no authority whatsoever to award prejudgment interest to a claimant. Rather, it predicated its entire argument upon its position that DVR could not recoup prejudgment interest because, first, PhilaPort is a component of the Commonwealth and, second, because there were no relevant contractual or statutory provisions allowing such relief. Prelim. Objs. ¶¶12-16. Despite this, the Board did not address PhilaPort‘s assertion of immunity, but instead relied exclusively upon Sеction 1751 when concluding that “pursuant to statute, [the Board] may only award interest upon
It appears that the Board treated Section 1751 of the Procurement Code as if that statute deprived it of jurisdiction to award the relief sought by DVR. To reiterate, Section 1751 reads, in relevant part:
Interest on amounts ultimately determined to be due shall be payable at the statutory rate applicable to judgments from the date the claim was filed with the contracting officer.
The object of statutory construction is to ascertain and effectuate legislative intent.
1 Pa. C.S. § 1921(a) . In pursuing that end, we are mindful a statute‘s plаin language generally provides the best indication of legislative intent. See Com[.] v. McClintic, ... 909 A.2d 1241 ([Pa.] 2006). Thus, statutory construction begins with examination of the text itself. [Se.] Pa. Transp. Auth. v. Holmes, 835 A.2d 851 (Pa. Cmwlth. 2003).In reading the plain language of a statute, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.”
1 Pa. C.S. § 1903(a) . Further, every statute shall be construed, if possible, to give effect to all its provisions so that no provision is “mere surplusage.”1 Pa. C.S. § 1921(a) .Moreover, although we must “listen attentively to what a statute says[;] [o]ne must also listen attentively to what it does not say.” Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., ... 788 A.2d 955, 962 ([Pa.] 2001). We may not insert a word the legislature failed to supply into a statute.
Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa. Cmwlth. 2004).
Malt Beverage Distribs. Ass‘n v. Pa. Liquor Control Bd., 918 A.2d 171, 175-76 (Pa. Cmwlth. 2007). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
A statute is ambiguous when there are at least two reasonable interpretations of the text. ... In cоnstruing and giving effect to the text, ““we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.“” Roethlein v. Portnoff Law Assoc., ... 81 A.3d 816, 822 ([Pa.] 2013), citing Mishoe v. Erie Ins. Co., ... 824 A.2d 1153, 1155 ([Pa.] 2003)[; a]ccord [Pa. Gaming Control Board v. Off. of Open Recs.], ... 103 A.3d 1276, 1285 ([Pa.] 2014) (party‘s argument that statutory language is ambiguous “depends upon improperly viewing it in isolation;” when language is properly read together and in conjunction with rest of statute, legislative intent is plain).
A.S. v. Pa. State Police, 143 A.3d 896, 905-06 (Pa. 2016) (some citations omitted).
Applying these precepts to Section 1751 of the Procurement Code, we observe that this statute explicitly authorizes an award of interest calculated from when a claim was filed with the appropriate contracting officer. By contrast, it is entirely silent regarding whether interest may be awarded prior to the filing of such a claim. Wе also note that there are no other applicable provisions, in the Procurement Code or elsewhere, that expressly permit an award of pre-claim interest regarding this type of contractual dispute. Therefore, we read Section 1751 as plainly vesting the Board
However, this does not mean that Section 1751 is jurisdictional in nature. Rather, it is an object example of a statute that limits a tribunal‘s power, rather than its jurisdictional authority.
‘Jurisdiction’ and ‘power’ are not interchangeable although judges and lawyers often confuse them. Jurisdiction relates solely to the competency of the particular court or administrative body to determine controvеrsies of the general class to which the case then presented for its consideration belongs. Power, on the other hand, means the ability of a decision-making body to order or effect a certain result.
Del. River Port Auth., 182 A.2d at 686 (internal citation omitted). “The pertinent consideration [regarding jurisdictional issues] is whether the court could ‘enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case.‘” Domus, Inc. v. Signature Bldg. Sys. of Pa., LLC, 252 A.3d 628, 636 (Pa. 2021) (quoting Cnty. of Allegheny v. Workers’ Comp. Appeal Bd. (Parker), 177 A.3d 864, 872 n.10 (Pa. 2018)).
Even if a plaintiff ha[s] no standing to bring his action, even if his statement of claim or bill in equity be demurrable, even if he fail[s] to establish the allegations in his complaint, even if the court ultimately conclude[s] that the relief he seeks should not be granted in whole or in part, not any or all of these circumstances would enter into, much less determine, the question whether the court has jurisdiction of the litigation.
No such jurisdictional concerns exist here. By law, our General Assembly expressly established PhilaPort “as a public authority and instrumentality of the Commonwealth[,]” and vested it with the ability to “exercise the powers of the Commonwealth as an agency of the Commonwealth.”
The [B]oard shall have exclusive jurisdiction to arbitrate claims arising from all of the following:
(1) A contract entered into by a Commonwealth agency in accordance with this part and filed with the [B]oard in accordance with [S]ection 1712.1 [of the Procurement Code] (relating to contract controversies).
....
(3) Unless otherwise provided by law, a contract entered into by a Commonwealth agency involving real property interests in which the Commonwealth agency is the respondent.
In accordance with the foregoing analysis, we vacate the Board‘s Order and remand this matter to the Board, with instructions that it issue an amended opinion and order within 30 days that adjudicates the specific argument made by PhilaPort in its preliminary objections.10
ELLEN CEISLER, Judge
DVR Philly, LLC, Petitioner v. Philadelphia Regional Port Authority a/k/a PhilaPort (Board of Claims), Respondent
No. 74 C.D. 2023
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ORDER
AND NOW, this 9th day of January, 2024, it is hereby ORDERED that Pennsylvania Board of Claims’ (Board) December 29, 2022 opinion and order is VACATED. It is FURTHER ORDERED that this matter is REMANDED to the Board, with instructions that it issue an amended opinion and order within 30 days that adjudicates the specific argument made by Respondent Philadelphia Regional Port Authority a/k/a PhilaPort in its preliminary objections.
Jurisdiction relinquished.
ELLEN CEISLER, Judge
Notes
(d) Determination.--The contracting officer shall review a claim and issue a final determination in writing regarding the claim within 120 days of the receipt of the claim unless extended by consent of the contracting offiсer and the contractor. If the contracting officer fails to issue a final determination within the 120 days unless extended by consent of the parties, the claim shall be deemed denied. The determination of the contracting officer shall be the final order of the purchasing agency.
(e) Statement of claim.--Within 15 days of the mailing date of a finаl determination denying a claim or within 135 days of filing a claim if no extension is agreed to by the parties, whichever occurs first, the contractor may file a statement of claim with the [B]oard.