55 A.2d 534 | Pa. | 1947
By this litigation plaintiff is attempting to have the merits of its claim against the Commonwealth judicially reviewed in spite of an express statutory provision denying it that right.
Plaintiff entered into a contract with the Commonwealth for the construction of a highway and bridges and the grading of a railroad roadbed in Dauphin County. After the work was completed it asserted that the Department of Highways had caused delays which resulted in damages to plaintiff in the amount of $65,406.61. The contract provided that all questions and disputes thereunder should be referred to the Board of Arbitration of Claims, a tribunal created by the Act of May 20, 1937, P. L. 728, whose decisions and awards, if any, should be final and conclusive upon the parties *516 without right of appeal; all rights of "any action at law or in equity" in respect to the subject-matter of the contract were expressly waived. Accordingly, plaintiff presented its claim to that Board. The Department of Highways filed an answer. The Board, after hearing testimony, argument and re-argument, disallowed the claim for the several reasons set forth in the opinion which it filed in support of its decision. Plaintiff thereupon petitioned the Court of Common Pleas of Dauphin County for a writ of alternative mandamus directing the Board to show cause why its disallowance of the claim should not be revoked and an award made in favor of plaintiff for the full amount of its claim. The Commonwealth moved to quash the writ on the ground that the court was without jurisdiction. The Court overruled the motion, whereupon the Commonwealth took the present appeal under the Act of March 5, 1925, P. L. 23.
Subject to the limitations arising from the federal nature of our government and the provisions of the federal Constitution the Commonwealth of Pennsylvania is a sovereign State, and, as such, it cannot be sued except with its own consent:Merchants' Warehouse Co. v. Gelder,
By the Act of May 20, 1937, P. L. 728, the Legislature established a new tribunal, the so-called Board of Arbitration of Claims, consisting of three members appointed by the Governor, with jurisdiction to hear and determine claims against the Commonwealth arising from contracts entered into by it. It was expressly provided in section 4 of this act that "The award of the Board of Arbitration shall be final, and no appeal from such award to any court shall be allowed." This prohibition was re-asserted and enlarged upon in section 8: "The action of the Board dismissing said claim or making an award shall be final and no appeal shall lie therefrom." In this respect, therefore, the Act of 1937 differs sharply from the Fiscal Code which provided for a right of appeal.
Where a statute expressly denies the right of appeal to a court from the action of some agency of government, or to an appellate court from the decision of a court of original jurisdiction, to what extent is a disappointed claimant thereby prevented from obtaining a complete judicial review of his claim? After some vacillation by the courts in regard to the proper answer to that question — (as to which see Rimer'sContested Election. Geary's Appeal,
In the present case, not only did plaintiff agree in its contract that the decision of the Board of Arbitration should be final, but, as already stated, the Act of 1937 itself, under which the Board functioned, expressly denied the right of appeal to any court. It follows that the Court of Common Pleas of Dauphin County had no appellate jurisdiction over the controversy, there being no question raised as to the regularity of the proceedings before the Board. This denial of a right of appeal may seem, on first blush, unduly harsh, but it must be remembered that, as already stated, the Commonwealth is not obliged to entertain claims against it at all. Moreover the Board of Arbitration, though referred to in the amendatory Act of June 26, 1939, P. L. 1081, section 1, as a "departmental administrative board in the Department of the Auditor General", is in reality itself a judicial body.
The question may naturally be asked: What is the need of thus determining whether the Dauphin County Court had jurisdictionon appeal in view of the fact that plaintiff did not in fact appeal from the decision of the Board of Arbitration but, instead, petitioned for a writ of alternative mandamus directed to that body? *520
The obvious answer is that, since plaintiff could not, by appeal or writ of certiorari, vest jurisdiction in the court to consider the merits of its case, it cannot, by indirection, in order to accomplish that same object, circumvent the statutory prohibition by resort to some other process. Indeed a writ of mandamus is here especially inappropriate because plaintiff's petition is to have the disallowance of its claim revoked and an award made in its favor for the amount of its claim whereas such a writ may be used only to compel the performance of a purely ministerial or mandatory duty, as, for example, inHotel Casey Co. v. Ross,
Order reversed, and record remanded with direction to quash the writ of alternative mandamus.