10 Pa. Commw. 320 | Pa. Commw. Ct. | 1973
Opinion by
The plaintiffs herein, M. Glosser & Sons, Inc. (Glosser) and Harry Savior, have instituted this action in mandamus against the defendant, the Comptroller of the Department of Highways of the Commonwealth, seeking to compel payment to the plaintiffs of $11,000.00 which is held by the defendant.
In 1965, plaintiff Savlov, an employee of plaintiff Glosser, received an award from the Commonwealth for a purchase of steel pipe and other materials. Thereafter, Savlov entered into a contract with Tioga Pipe Supply Co. (Tioga) for the purchase of those items covered by the Commonwealth’s award, but for a price higher than that Savlov was to receive from the Commonwealth. The contract was completed and Savlov received payment from the Commonwealth, but allegedly Savlov’s payment to Tioga was $10,570.00 less than the price called for in their contract. Thereafter, Tioga filed an action in the Court of Common Pleas of Dauphin County and had a Fraudulent Debtor’s Attachment Writ issued against funds in excess of $25,000.00 held by the Commonwealth and due to Savlov for materials purchased from him other than the materials supplied Savlov by Tioga.
As part of this above action, the defendant filed a Report in Form of Affidavit stating that he was holding for the Commonwealth certain sums in excess of $25,000 which were “due” to Savlov but that he would “retain said check and said money in its possession pending further order of the Court.” The parties to that action thereafter entered into a Stipulation by which all sums held by the defendant in excess of $11,000.00 were released from the attachment and were to be paid to Savlov. It was asserted by Tioga and the defendant, as garnishee, that “said garnishee and plaintiff have asserted [that the sum attached] is the prop
Thereafter, upon motion of Savlov and following several hearings, the attachment was dissolved.
Upon the dissolution of the attachment, the plaintiffs herein
Findings op Fact
1. The defendant had in his possession $25,784.84, which he stated in an affidavit was “due” to plaintiff Savlov.
3. In his affidavit filed in these proceedings, the defendant stated that he would retain the property of plaintiff Savlov which he had in his control and which consisted of money in the amount of $25,784.84, pending further order of the court.
4. By stipulation among the parties to the above action, $14,784.84 was later released from the attachment and was immediately transferred from the defendant to plaintiff Savlov.
5. The defendant retained in his possession $11,000.00 of the original sum which he said was “due” plaintiff Savlov.
6. By opinion and Order Nisi of August 12, 1969, the lower court dissolved the aforesaid attachment, and, no exceptions having been filed to the said Order Nisi, a final order was entered on September 3, 1969.
7. Following the dissolution of the attachment, the defendant still refused to pay to plaintiff Savlov the money held by him, and he continues to refuse to make such payment.
8. The $11,000.00 which is being held by the defendant is the property of plaintiff Savlov.
In an action in mandamus, the guidelines which this Court must follow have been set out by our Supreme Court in Travis v. Teter, 370 Pa. 326, 330-331, 87 A. 2d 177, 179 (1952), as follows: “Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is clem legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy. . . . However, even in such cases its issuance is not a matter of right but in certain cir
The defendant contends that mandamus would be improper here because Savlov has another remedy at law available, specifically either an appeal to the Board of Arbitration of .Claims pursuant to the Act of May 20, 1937, P. L. 728, 72 P.S. §4651-1 et seq., or an appeal to the Auditor General pursuant to the Act of March 30, 1811, P. L. 145, 72 P.S. §4087 et seq.
We do not agree.
The Board of Arbitration of Claims was intended to arbitrate claims against the Commonwealth arising from contract disputes. Here, although there certainly was a contract between Savlov and the Commonwealth, tMs action did not arise because of any problem concerning that contract. There is no question arising from that contract, therefore, which can be arbitrated. The defendant has not denied that money is owing to Savlov under the contract, but claims only that, because of other matters, such money should not be paid to Savlov at this time. The Board of Arbitration of Claims could not provide a remedy for the issue here at hand. It should also be noted that Section 6
As to the Act of March 30, 1811, its purpose was to allow the Auditor General to adjust an unappropriated claim, but we are not dealing here with a question of unappropriated funds. This is an attempt to recover money already appropriated and now held by the defendant, which is owed to Savlov.
The defendant contends as well that the granting of a writ of mandamus would violate Article I, Section 11,
It would appear to us that the real problem here is that the defendant continues to retain possession of money which he has previously admitted to be the property of Savlov. Our Supreme Court has held that ad
In fact, the only reason offered by the defendant for refusing to pay out the money is that it may be used as a “set-off” in an action brought by Tioga before the Board of Arbitration. That action, however, is not part of the record in this case, we are not aware of its current status, nor do we know Savlov’s part, if any, in that action. In any case, no authority is cited by the defendant as a basis for his claim that he may retain these funds for that avowed purpose.
It would not appear to us that the defendant has any discretion to retain these funds when there is no allegation that they are not clearly the property of Savlov. And the mere fact that Savlov may or may not have acted fraudulently towards a third party in a completely separate transaction would not make the retention of these funds valid.
It would appear to us, therefore, that the defendant is holding funds to which Savlov has a clear legal right, that the payment of such funds to Savlov by the defendant is mandatory and not discretionary, and that there is no valid basis for the defendant’s refusal to pay over such funds. We, therefore, make the following
Conclusions op Law
1. The defendant is holding $11,000.00 which is the property of plaintiff Savlov.
3. There is no legal justification for defendant to continue to retain such funds.
Order
Now, September 18, 1973, judgment is entered in favor of Harry Savlov and against Joseph J. Micco, defendant herein, and said defendant is directed to pay Savlov |11,000.00, plus interest thereon at the rate of six percent (6%) per annum from September 3, 1969, unless exceptions be filed hereto within thirty (30) days. The Prothonotary is directed to notify forthwith the parties hereto or their counsel of this decree.
Tioga Pipe Supply Co., Inc. v. Savlov, 91 Dauph. 288 (1969).
Plaintiff Glosser contends that as Savlov’s employer he is entitled to the $11,000.00, despite the fact that Savlov was the sole party in interest throughout all earlier proceedings. Glosser and Savlov have agreed, however, that it is immaterial who receives payment and, therefore, we will treat Savlov as the proper plaintiff in this action.
For a consideration of this Section, see Brown v. Commonwealth, 453 Pa. 566, 305 A. 2d 868 (1973).