COM. EX REL. UNIFIED JUD. SYS. v. Vartan

• Decision Date: 01 July 1999
• Citation: 733 A.2d 1258,557 Pa. 390
• Parties: COMMONWEALTH of Pennsylvania acting through the UNIFIED JUDICIAL SYSTEM by the agency of the Administrative Office of Pennsylvania Courts, Appellant, v. John O. VARTAN, trading as Independent American Investments, a registered fictitious name, Appellee.
• Court: Pennsylvania Supreme Court

557 Pa. 390

733 A.2d 1258

COMMONWEALTH of Pennsylvania acting through the UNIFIED JUDICIAL SYSTEM by the agency of the Administrative Office of Pennsylvania Courts, Appellant, v. John O. VARTAN, trading as Independent American Investments, a registered fictitious name, Appellee.

Supreme Court of Pennsylvania.

Argued September 17, 1997

Submitted February 18, 1999.

Decided July 1, 1999.

Paul H. Titus, Charlottesville, David G. Oberdick, Diane Calaboyias Wyrick, Pittsburgh, for Administrative Office of PA Courts.

Thomas W. Scott, Killian & Gephart, Harrisburg, for John O. Vartan.

Before CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

Submitted February 18, 1999 (on previously filed briefs).

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

NEWMAN, Justice.

We granted allocatur to determine whether the Board of Claims may issue a subpoena to former Chief Justice Robert N.C. Nix, Jr. (Chief Justice Nix) to give deposition testimony in a contract dispute arising out of the construction of a court house for the Commonwealth Court.

Facts

The Administrative Office of Pennsylvania Courts (AOPC) entered into a written lease agreement with John O. Vartan (Vartan) on October 10, 1989 for a parcel of land, on which Vartan was to build a courthouse for the Commonwealth Court. The contract was contingent upon AOPC obtaining all government approvals, which in its sole discretion, it deemed necessary for the project and the lease. Pursuant to the contract, AOPC had no obligation to seek or obtain the necessary approvals, and could terminate the contract without incurring liability. Paragraph 4(b) of the Lease provides

Tenant's Approvals. Promptly after the execution of this Lease, Tenant may, but shall not be obligated to seek to obtain such resolutions or enactments or approvals from the legislative, judicial and/or executive branches of the Commonwealth of Pennsylvania, as Tenant, in its sole opinion, deems necessary and appropriate with respect to this Lease.

If within 60 days from the execution of this Lease Tenant has not received such resolutions, enactments or other approvals as Tenant, in its sole opinion, deems appropriate, Tenant shall have the right, exercised in writing not later than five business days after the end of such 60 day period, to terminate this Lease by written notice to Landlord, whereupon this Lease shall become null and void and neither party shall have any further obligation to the other, provided that Tenant's contingency shall not lapse or expire unless and until Landlord shall have given to Tenant notice of Tenant's failure to exercise such termination right and Tenant shall have 30 days after receipt of such notice within which to timely exercise its termination right.

On February 26, 1990, Former President Judge James Crumlish, Jr. of the Commonwealth Court sent a letter to Vartan's counsel, stating

Pursuant to Section 4(b) of the Lease Agreement, this is to advise you that the tenant has sought to obtain such approvals from the legislative, judicial and/or executive branches, as the tenant deems necessary and appropriate.

It is the intention of the tenant to proceed pursuant to the terms of the lease.

By letter dated June 6, 1990, the Court Administrator of Pennsylvania, Nancy M. Sobolevitch (Sobolevitch) wrote to Vartan's attorney stating that AOPC was terminating their agreement pursuant to Paragraph 4(b) of the Lease, because "Tenant has sought the approval of the judicial branch of the Commonwealth of Pennsylvania, which it deems necessary and appropriate with respect to the Lease, and has not received such approval."

On November 20, 1990, Vartan filed a Complaint with the Board of Claims in which he asserted that representations made in President Judge Crumlish's letter of February 26, 1990 "were intended to foreclose the possibility of any termination of the Lease under the provisions ... of Paragraph 4(b)." Complaint at 3. The Complaint further states that in reliance upon the Lease and the representations of the AOPC's representatives, Vartan expended time, effort and funds, and experienced loss of revenue and preferential tax treatment in the estimated total amount of $6,500,000.00. Complaint at 5-6.

The Board sustained preliminary objections filed by the AOPC, and dismissed the Complaint on June 30, 1991. The Commonwealth Court reversed the Board's decision and remanded the matter. The AOPC filed a Petition for Allowance of Appeal, which this Court denied on July 19, 1993. The matter proceeded to the discovery phase, during which AOPC responded to Vartan's interrogatories. Vartan also took the depositions of Court Administrator Sobolevich, the Executive Administrator of the Commonwealth Court, G. Ronald Darlington, and Former President Judge David Craig of the Commonwealth Court. On April 25, 1995, Vartan forwarded to counsel for the AOPC a Notice of Deposition to Chief Justice Nix, with an attached subpoena issued by the Board. On May 10, 1995, the AOPC filed a Motion to Quash the Subpoena, which the Board denied on July 5, 1995.

The AOPC filed a Petition for Review of Governmental Determination in the Nature of a Petition for a Writ of Prohibition and/or Mandamus in the Commonwealth Court on August 7, 1995. Vartan filed Preliminary Objections, in response to which the AOPC filed an Amended Petition on September 15, 1995. Vartan again filed Preliminary Objections, which the Commonwealth Court granted on April 15, 1996, thus dismissing the Amended Petition. The AOPC then filed a Petition for Allowance of Appeal, which this Court granted.

Discussion

I.

The Commonwealth Court granted Vartan's Preliminary Objections on the basis that AOPC had failed to establish a clear right to either a writ of prohibition or a writ of mandamus. With regard to the writ of prohibition, the Commonwealth Court cited this Court's decision in Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 98, 61 A.2d 426, 428 (1948), in which we stated:

Its principal purpose is to prevent an inferior judicial tribunal from assuming a jurisdiction with which it is not legally vested in cases where damage and injustice would otherwise be likely to follow from such action. It does not seek relief from any alleged wrong threatened by an adverse party; indeed it is not a proceeding between private litigants at all, but solely between two courts, a superior and an inferior, being the means by which the former exercises superintendence over the latter and keeps it within the limits of its rightful powers, and jurisdiction.

The Commonwealth Court noted that the Board has jurisdiction to issue and enforce subpoenas pursuant to Section 7 of the Board of Claims Act, Act of May 20, 1937, P.L. 728, as amended, 72 P.S. § 4651-7, which provides in relevant part:

The secretary of the Board shall have the power to issue subpoenas at the request of either the Commonwealth or the claimant....

. . .

Any person who refuses to obey such subpoena, or who refuses to be sworn to testify, or who fails to produce any papers books or documents touching upon the case in which he is subpoenaed, or who is guilty of any contempt after summoned to appear, may be punished for contempt of court.

Accordingly, since the Board of Claims may issue subpoenas, the Commonwealth Court reasoned that it could not issue a writ of prohibition preventing the Board from exercising its jurisdiction. The Commonwealth Court also denied a writ of mandamus, noting that such relief is inappropriate, "to control an official's discretion or judgment where that official is vested with a discretionary power." Porter v. Bloomsburg State College, 450 Pa. 375, 376-377, 301 A.2d 621, 622 (1973), cert. denied, 414 U.S. 844, 94 S.Ct. 105, 38 L.Ed.2d 82 (1973)(quoting Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A.2d 738, 741 (1956)). Asserting that the Board's power to issue subpoenas is discretionary, and that the AOPC had no clear legal right to the relief, the Commonwealth Court denied the requested writ.

Furthermore, the Commonwealth Court emphasized that neither prohibition nor mandamus is available to a petitioner who fails to exhaust other available remedies. Relying on its decision in Robertshaw Controls v. Human Relations Commission, 67 Pa.Cmwlth. 613, 447 A.2d 1083 (1983), the Court noted that orders requiring compliance with a subpoena or refusing to quash a subpoena are interlocutory and unappealable. Accordingly, the Court held that rather than seeking prohibition or mandamus, AOPC had the alternate remedies of waiting until entry of final judgment to file an appeal as of right or to seek certification of an interlocutory appeal by permission, as set forth in Section 702(b) of the Judicial Code, which provides:

(b) Interlocutory appeals by permission. — When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.

The Court recognized that because an appeal pursuant to Section 702(b) is by permission, it might not always provide a petitioner with adequate relief. However, because the AOPC did not seek certification of the Board's order, the Court concluded that it had failed to exhaust its statutory remedies, and therefore could not seek the extraordinary relief of prohibition or mandamus.

In determining that it could not issue a writ of mandamus or prohibition to the Board of Claims because the Board has jurisdiction to issue subpoenas, the Commonwealth Court ignored this Court's decision in Glen Mills Schools v. Court of Common Pleas, 513 Pa. 310, 520...