Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc.

Dissenting Opinion by

Judge Mencer:

I respectfully dissent. One reviewing the actions of the Pennsylvania Turnpike Commission in this case would find it difficult to reach a result contrary to that reached by the majority here. However, I reluctantly do so, because I am of the opinion that the appellee’s only recourse was to proceed under the provisions of the Act of May 20, 1937, P. L. 728 (Act), *15872 P.S. §4651-1 et seq., and present its claim to the Board of Arbitration of Claims.

Section 4 of this Act, as amended, 72 P.S. §4651-4, provides: “The Board of Arbitration shall have jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth where the amount in controversy amounts to $300.00 or more.” (Emphasis supplied.)

Recently our Supreme Court in Commonwealth v. Orsatti, Inc., 448 Pa. 72, 76-77, 292 A. 2d 313, 315-16 (1972), stated: “The Commonwealth of Pennsylvania is a sovereign state, and as such is immune from suit unless it gives its consent. Conrad v. Commonwealth, 441 Pa. 530, 272 A. 2d 470 (1971). Article I, Section 11 of the Pennsylvania Constitution empowers the Legislature to give the consent of the Commonwealth to suit by providing: ‘Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.’ The Legislature exercised this power by its enactment of the Act of May 20, 1937, P. L. 728, 72 P.S. §4651-1 et seq., which established the Board of Arbitration of Claims with: ‘. . . jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more.’ 72 P.S. §4651-4. The jurisdiction conferred therein was exclusive. See Kaufman v. Holcomb, 357 Pa. 514, 55 A. 2d 534 (1947). Since the Commonwealth, as a sovereign, can only be sued by its consent, and since its consent for contractual suits has been conditioned on the claimanfs use of the Board of Arbitration of Claims, Orsatti may only establish the full counterclaim before the Board of Arbitration of Claims.” (Emphasis supplied.)

*159More recently we reasoned likewise in Alger-Rau & Associates, Inc. v. General State Authority, 7 Pa. Commonwealth Ct. 71, 298 A. 2d 916 (1973), and Kreider v. Pennsylvania Human Relations Commission, 9 Pa. Commonwealth Ct. 491, 308 A. 2d 642 (1973).

Since appellee failed to follow the provisions of the applicable act, including compliance with the time limits established by the Legislature in its conditional granting of consent to be sued (Section 6 of the Act, 72 P.S. §4651-6), I would grant the Commission’s petition to vacate the arbitration award.