Foley Bros., Inc. v. Com. Dept. of Highways

• Decision Date: 30 June 1960
• Parties: FOLEY BROTHERS, INC., v. COMMONWEALTH of Pennsylvania DEPARTMENT OF HIGHWAYS, Appellant.
• Court: Pennsylvania Supreme Court

Page 80

163 A.2d 80

400 Pa. 584

FOLEY BROTHERS, INC., v. COMMONWEALTH of Pennsylvania DEPARTMENT OF HIGHWAYS, Appellant.

Supreme Court of Pennsylvania.

June 30, 1960.

Rehearing Denied Aug. 3, 1960.

John R. Rezzolla, Jr., and Nelson M. Galloway, Harrisburg, David E. Abrahamsen, Deputy Atty. Gen., Anne X. Alpern, Atty. Gen., for appellant.

John J. McCreesh, Jr., Thomas S. Weary, John B. Martin, Duane, Morris & Heckscher, Philadelphia, for Foley Bros., Inc., appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN BOK and EAGEN, JJ.

BOK, Justice.

In 1947 the plaintiff, a contractor, made a contract with the Department of Highways of the Commonwealth to build the Penrose Avenue Bridge over the Delaware River in Philadelphia. The Commonwealth and the City of Philadelphia had, a year before, put in contract form their respective responsibilities vis-a-vis each other arising out of the construction of the bridge and its approaches. Plaintiff also contracted with the City in 1947 for certain of the peripheral work.

Plaintiff's construction contract required it to finish the bridge in 290 working days, but there were delays arising out of the Department's telling plaintiff to stop work while a railroad branch line was re-located and certain drainage problems were solved. Having begun work in March, 1948, plaintiff was unable to finish its job until November, 1950.

The Department of Highways did not issue its final certificate until 1953 and in 1954 plaintiff began suit before the Board of Arbitration of Claims, as provided in its contracts, against the Department and the City. There followed considerable sparring over jurisdictional and procedural matters, with the result, in 1957 and 1958, that this court decided that the Board of Arbitration had no jurisdiction over the City and that it did have jurisdiction over the Department.

Twenty-one hearings were held, in consequence, between June 25 and October 30, 1958, on three claims advanced by plaintiff. The Board unanimously allowed the first and third claims, without interest, and disallowed the second. The Commonwealth has appealed.

The case is now before us on narrow certiorari. The contract between the parties expressly provided for arbitration under the Act of May 20, 1937, P.L. 728, No. 193, Sec. 1, as amended; 72 P.S. § 4651-1 et seq., which created the Board of Arbitration to hear claims against the Commonwealth. It provides for a Board of three members appointed by the Governor: two of them shall constitute a quorum. They are appointed for staggered terms and receive compensation per diem. If any member shall die or resign, the Governor shall appoint a successor who shall serve the unexpired term.

In Section 8, 72 P.S. § 4651-8, it is provided: 'The action of the board dismissing said claim or making an award shall be final and no appeal shall lie therefrom.' Under such provision expressly denying appeal, our review is by narrow certiorari only. Kaufman Construction Co. v. Holcomb 1947, 357 Pa. 514, 55 A.2d 534, 536, 17 A.L.R. 189. We said in that case:

'The distinction thus made has been reiterated and reinforced in a multitude of subsequent cases holding that where a statute expressly provides that there shall be no appeal the scope of appellate review is limited to the question of jurisdiction and the regularity of the proceedings; the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the governmental agency or the court below may have been erroneous.'

The scope of jurisdiction and regularity of the proceedings is declared as follows in Scott Township Appeal, 1957, 388 Pa. 539, 130 A.2d 695, 697:

'The First Class Township Code expressly provides that there shall be no appeal from a decree of a quarter sessions court changing the ward structure of a township. The Court will therefore consider the matter as on certiorari only, and will direct its inquiry to (1) the jurisdiction of the court below, (2) the regularity of the proceedings therein held, and (3) the scope of the powers possessed by the court.'

To which need be added only questions of fraud and good faith on the part of the Board. Land Holding Corp. v. Board of Finance and Revenue, 1957, 388 Pa. 61, 130 A.2d 700, which is not involved in the instant case.

The Commonwealth's vast brief argues points that have nothing to do with the narrow field to which our powers of review are limited, and this is so even if the Board made errors of law or fact. In general, these points present the following questions that have to do with the area of decision and that are not matter for review:

1. The Board's refusal to be bound by the parties' Agreement that all members should sit at every hearing.

2. The Board's decision that appellant was bound by its several stipulations that did not involve the Board, and these stipulations could not be withdrawn.

3. The interpretation and effect of the stipulation on damages and whether it was binding on appellant.

4. The Board's decision that the Commonwealth was liable for the damages for delay.

5. The Board's decision that the Commonwealth must pay the actual necessary cost of removal of the piles.

6. The Board's refusal of appellant's motion to amend its answer.

7. The 'failure of the Board to consider' the Wallace deposition, that was never offered into evidence.

The only point offered by the Commonwealth that is jurisdictional or has to do with the regularity of the proceeding is whether the Board could lawfully decide the case after the death of one of its members without a trial de novo.

The facts are that only member Reilly heard all of the testimony at all twenty-one sessions. Chairman Groover heard all but 71 pages out of 1,234 that were taken; these had to do with the cross-examination of Young, plaintiff's Vice-President, out of 666 pages devoted to this witness. Member Henry sat at the first eleven hearings and then died. The Governor appointed John P. McGrath in his place, and Mr. McGrath sat at the last six sessions and participated in the decision.

At the first session on June 25, counsel for both parties agreed that there should be no sessions at which fewer than all three arbitrators were present. At the session of September 10, all arbitrators being then present and having been present at all sessions thitherto, the Board rejected the stipulation about full membership. This was before member Henry died.

The applicable rule is that the parties may stipulate, and be bound by their act as the law of the case, in all matters affecting them without affecting the jurisdiction and prerogatives of the court. In Muir v. Preferred Accident Ins. Co., 1902, 203 Pa. 338, 53 A. 158, 160, we said:

'The court, it is true, has inherent authority, except as against a mandatory statute to control the proceedings as the equities of the case may require, and where the accommodation asked is of doubtful merit, or involves material consequences, the court will pretty certainly be applied to. But it is not necessary to subject parties or the court inexorably to such applications, and in all nonessentials it is safe to let parties or counsel fix their own conditions. It may, therefore, be stated as the settled law and practice in Pennsylvania, that whatever does not affect the jurisdiction, or the due order of business and convenience of the court is capable of arrangement between the parties or their counsel, and an agreement by them will become the law of the case.'

In Strickler v. Strickler, 1939, 138 Pa.Super. 34, 10 A.2d 69, the court said:

'The order was for the sole benefit of the wife and her stipulation in respect to its amount, concurred in by the husband, should have been accepted by the Court, in the absence of fraud or overreaching, of which no evidence was produced.

'The order was not one which affected the dignity or prerogatives of the Court, but related to a matter which concerned only the parties themselves.'

We are of clear opinion that the parties had no greater right to stipulate more than the legal number of arbitrators, which, under the Act, was two, than they would have to bind a three-judge Common Pleas Court by an agreement...