*1 53 file be to allow counsel to an amended P.C.H.A. granted petition.
The instant case one further presents difficulty. trial and represent at at the appointed appellant Counsel are both members of the Dauphin P.C.H.A. hearing County Public Defender’s Office. Because of the inherent conflict to one’s client on the one hand and to loyalties one’s other, associates on the we cannot assume that P.C.H.A. counsel will fully explore potential inadequacies of trial counsel’s representation. circumstances, Under similar we have that counsel required appointed at the new P.C.H.A. not be associated with the hearing public defender’s office. Crowther, 446, Commonwealth v. 361 Pa.Super. A.2d 861 Via, also Commonwealth v. 455 Pa. See Thus, A.2d 895 (1974). on remand not be appellant may member of the represented a Public Dauphin County Defender’s Office. reversed,
Order and case remanded for a P.C.H.A. hearing consistent with this opinion. INDUSTRIES, INC., Appellant,
VALLEY FORGE CONSTRUCTION, Surety ARMAND and INC. United
Financial Guarantee Co. Superior Pennsylvania. Court of
Argued 1976. March Decided June 1977. *3 Corriere, Bethlehem, Donald B. for appellant. Bethlehem, Center,
Lawrence for appellee. WATKINS, JACOBS, Before President and Judge, CERCONE, HOFFMAN, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge: that the not have Appellant contends lower court should because it granted summary judgment improperly construed the statute of limitations contained the Public Works Bond Law Contractors’ of 1967.1 This case draws into question and of an act of the application interpretation General regulating the affairs of subdivi- Assembly sions, officers, local authorities and the em- municipalities, We, therefore, and thereof. transfer this case ployes agents Commonwealth to the Court. 20, 1967, seq.; seq.
1. Act of Dec. et 8 P.S. et § (Supp.1976). are to the instant case not dispute. The facts rise giving of Armand as a subcontractor October, In appellant, furnished certain Construction, Inc., “Armand”) (hereinafter streets in the Borough materials to repave labor and the installation following County, Mucungie, Northampton its subcontractual obliga- performed of sewers. Appellant 16, 23, 30, 1972, and of October tions the weeks during 20, 1972, Ar- $37,715.46. On November Armand for billed retained the balance $31,015.47, and mand paid appellant The borough engineers of the work. final approval pending work, and negotia- appellant’s some of refused to approve additional in appellant providing ensued which resulted tions not submit June, 1973. did Appellant materials in labor and and, submitted, the Authori- work if this additional bills for payment. would have refused ty instituted suit 31,1974, against appellee May appellant On defense is that the sole Appellee’s Armand defaulted. after suit was limitations had before expired statute of applicable that the decision court determined commenced. lower of limitations: “No statute following was controlled by of one expiration year action be commenced after may last of the labor was performed on which the from the day of which such action is for the payment or material supplied The Public Works Contractors’ the claimant.” brought by court held 197(b). The lower Law, Bond supra; was not extended that the statute of limitations It reasoned performed. which appellant subsequent repairs for labor claiming payment that because appellant 30, 1972, and billed week of October before the performed recover on 20, 1972, could not appellant November before *4 the of limitations The court noted that statute the bond. on which the last labor to run from the date begins he claims payment” “for which performed claimant] [the ” . of which such action is . brought. and “for the payment taken to this 11, 1975, an Court. appeal On December to this jurisdiction. The has not Court’s objected appellee 31,1970, P.L. Act of July The Court Jurisdiction 402, (Supp.1976), 211.402 673, 223, IV, No. art. P.S. § § Court shall have exclusive “The Commonwealth provides: orders the courts of of from final of appeals jurisdiction cases, of . . .: following (4) common the pleas any drawn All actions or . . . where is into proceedings or enforcement of interpretation (i) the question application, act of the General the affairs of any Assembly regulating subdivisions, local authori- and other municipality officers, of corporations ties or other or public employes ” thereof, or their official . . . agents acting capacity, also provides: The Jurisdiction Act Appellate Court an to The to file “(a) appellee objection failure of on the hearing of an court or to jurisdiction appellate prior time be specified of the or within such earlier as appeal, may shall, court, appellate rule or rule of unless the general order, court shall to operate perfect appellate otherwise court, notwithstanding any of such jurisdiction appellate act, pursuant of this or of rule any general adopted provision act, this of such vesting jurisdiction appeal to section 505 of in another court. appellate
“(b) If an or other matter is taken to appeal erroneously or in a court which not have jurisdiction does brought matter, or other the court shall not appeal appeal such quash matter, thereof, or dismiss the but shall transfer the record at the cost of the appellant, petitioner plaintiff, Commonwealth, court where the proper of this appeal other treated as if filed originally matter shall be in that court on the date in the filed other court. erroneously and the
“(c) Commonwealth Court Superior rules, shall have on their own power pursuant general motion or to transfer upon petition any party, any appeal to the other court for consideration and decision with any matter in such other court the same or pending involving fact, 31, related law or discretion.” Act of questions July 223, V, No. art. 211.503 must, therefore, (Supp.1976). We make two determinations. First, we must determine over this whether Second, lies with the appeal Commonwealth Court. properly we must decide whether object failure to to our appellee’s *5 of the case. the merits deciding our warrants pro- Bond Law Contractors’ the Public Works
Section of two bonds shall secure “contracting body” vides that every $5,000 of for a in excess into contract any before entering bond at 100 percent a(1) performance works public project: the faithful perform- upon of the contract conditioned price and specifica- with plans ance of the contract in accordance which contracting body to protect tions of the contract bond for 100 contract, (2) a payment awarded the for the of claimants protection of the contract percent price contractor to materials to the prime labor and supplying of all awarded to insure payment whom the contract “contracting 2 of act defines subcontractors. Section bureau, board, officer, authority, employe, as: body” “any or institution of Com- commission, department, agency institution, or any State-aided Pennsylvania monwealth of munici- district, corporation, city, municipal any county, subdivision, school dis- authority, pality, municipal town, institution, trict, borough, incorporated educational district, in- institution other district, county township, poor which has instrumentality district or other public corporated reconstruction, construction, for the to contract authority or other public building public alteration or of repair any work.” including highway work public improvement, 7 of the act detailed specify procedures Sections 6 and an action which must claimants by bringing be followed limita- bond, on a the aforementioned statute including tions. contains a Bond Law
The Public Works Contractors’ the vari between relationships constructed set carefully by govern ous works contracts executed parties public serves two The law mental units of this Commonwealth. contract First, protect main it is designed purposes. contract. faithful ing assuring performance body by for subcontrac Second, remedy the law a substitute provides are excluded tors labor and materials and who who supply Lien Law from the afforded the Mechanics’ protections 497, art. No. 24,1963, of 1963. Act of August See 1303; Co. v. III, 303(b); Seating American An 434 Pa. interpre Philadelphia, will affect both necessarily tation of this scheme statutory *6 the act. We conclude required by and future bonds existing Bond Law is an “act of that the Public Works Contractors’ the affairs of regulating General Assembly subdivisions, and other local authorities or oth municipality officers, er or the public corporations employes agents ” thereof, in their acting official . . . within capacity, of 402 of the meaning Appellate Jurisdiction § Thus, Act. jurisdiction over this lies with appeal properly the Commonwealth Court.
Our however, does not inquiry terminate at this point, because the has not appellee filed an to our objection juris- diction. of 503(a) Section the Appellate Court Jurisdiction that, Act in the provides absence of a jurisdictional objec- tion, jurisdiction is which the perfected the court to is appeal taken unless the otherwise appellate court shall order. 503(b) however, that, Section if provides, appeal taken erroneously to a court jurisdiction without the court to which the appeal, is taken shall transfer appeal the record thereof to the court. These two subsec- proper tions are in apparent conflict. The first subsection perfects in a court jurisdiction which otherwise would not have jurisdiction; the second specifies that the court without jurisdiction shall transfer the case.
An of investigation understanding the purposes of 503 of disposes this conflict. seeming § Prior to the adoption Act, Court Jurisdiction it was settled law that could not parties to stipulate appellate court jurisdiction. Commonwealth v. Mills, Inc., Yorktowne Paper 363, 419 Pa. 214 (1965). Furthermore, A.2d 203 could be conferred through not of such approval agreements the court. Mills, Commonwealth v. Paper Yorktowne Inc., Case, 614, Disbarment supra; 356 Pa. 52 A.2d Fenerty 576, denied, cert. However, 332 773 when the (1947). U.S. legislature established the separate jurisdictions of the Su Court, the preme Court, Commonwealth and the Superior 60
Court, it
could arise.
that two distinct
recognized
problems
to the
First,
unwittingly appealed
if a
party inadvertently
court, his
time
run before the error
wrong
appeal
might
Act of
appeal.
discovered and he
lose his
See
might
right
502;
223,
V,
art.
17
31, 1970,
673,
No.
July
§
West Penn Tower
v. God
Company
211.502 (Supp.1976);
Smith,
v.
dard,
551,
(1975);
460 Pa.
We our must now decide whether to exercise discre to hear an matter tionary power appeal concerning subject which is in the of the Commonwealth Court. At jurisdiction, outset, the we note that the will suffer some addi parties tional and that a definitive decision will be expense delayed if These we transfer the case to our coordinate court. other against considerations must be balanced factors. is a matter of question presented important public policy and future bonds on thousands of existing public affecting considered decisions works While we have projects. always in Court to be persuasive authority Commonwealth we assume that our gives this Court and can sister Court decisions, similar to our there is no to weight guard way the that two inconsistent against possibility lines of authori- the ty might develop concerning same matter. It subject would be far better for this Court defer to the Common- Court, wealth which has been the designated by legislature as the forum for out appropriate resolving disputes arising the affairs of regulating of statutes interpretation at least until the law be- local governments agencies, in area. we note that Finally, comes settled this particular a division of labor among has established legislature Commonwealth, of this to distribute part, courts appellate so that resources of no one court judicial the work become overburdened. If we too con- freely accept appeals court, matter allocated to another cerning subject appellate we ordained division of labor. Of disrupt legislatively course, we will be to examine each trans- required potential fer on a basis. There be cases which case-by-case may factors more weigh However, transfer. this heavily against is not such a case. and record to be transferred to the
Appeal the Commonwealth Court. VOORT, J.,
VAN der files a in which dissenting opinion WATKINS, Judge, joins. President VOORT, der Judge, dissenting:
VAN Court, The Mem- case, arguments. Our in this heard oral our briefs. It became my bers of Court have examined the I one and responsibility Opinion. prepared to draft an a and now we are transfer- supplied copy my colleagues *8 the case to the ring Commonwealth Court.
No has of our Court and party objected jurisdiction to the jurisdiction has been in our (See Court. perfected 211.503(a)).
I this action which our Court respectfully dissent from No and of the taking. power authority of the question Commonwealth or or agencies any governmental of its any subdivisions or bodies to act is involved quasi governmental in this case. issue involved is the determination of what is simple on which the last labor was “day performed material the Bond Law of supplied” (See 197(b)),
where a contractor was summoned back to the job “by owner” to make after repairs adjustments the ostensible date held that Opinion said on completion. My day which the last labor was or material was performed supplied was or adjustments on which the were day repairs completed. I believe that this case at by transferring this late date we are of judicial not cause we are not serving economy, nor are we the often parties, clarifying helping any faint line of between our Court, hence the Commonwealth dissent. my WATKINS, Judge, joins President in this Dissenting Opinion. Pennsylvania
COMMONWEALTH of FLYNN, Monty Appellant. Superior Pennsylvania. Court of Argued June 1976. Decided June 1977.