Shovel Transfer and Storage, Inc. v. Simpson

• Decision Date: 22 December 1987
• Citation: 112 Pa.Cmwlth. 129,535 A.2d 251
• Parties: SHOVEL TRANSFER AND STORAGE, INC., Petitioner, v. Hubert SIMPSON, Comptroller, Pennsylvania Liquor Control Board and Michael H. Hershock, Secretary of the Office of Budget and Administration, Commonwealth of Pennsylvania, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 251

535 A.2d 251

112 Pa.Cmwlth. 129

SHOVEL TRANSFER AND STORAGE, INC., Petitioner, v. Hubert SIMPSON, Comptroller, Pennsylvania Liquor Control Board and Michael H. Hershock, Secretary of the Office of Budget and Administration Commonwealth of Pennsylvania Respondents.

Commonwealth Court of Pennsylvania.

Argued Oct. 5, 1987.

Decided Dec. 22, 1987.

William G. Merchant, Papernick & Gefsky, Pittsburgh, for petitioner.

Andrew H. Cline, Timothy D. Searchinger, Deputy Gen. Counsels, Eric B. Schnurer, Harrisburg, for respondents.

Kenneth B. Skelly, Chief Counsel, Harrisburg, for Pennsylvania Liquor Control Bd.

Richard Spiegelman, Office of General Counsel, Harrisburg.

Before MacPHAIL and COLINS, JJ., and KALISH, Senior Judge.

MacPHAIL, Judge.

Shovel Transfer and Storage, Inc. (Shovel) has filed a petition for review ¹ in the nature of mandamus and seeking declaratory and injunctive relief. The Respondents ² have filed preliminary objections which are now before us for disposition.

Shovel's petition for review sets forth that on or about November 10, 1986, Shovel and the LCB executed a written contract which would transfer LCB's Southwestern Distribution Center for District No. 4 from Youngwood, Pennsylvania to Pittsburgh, Pennsylvania. The contract, attached to the petition for review as Exhibit A, has provision on the signature page for the signatures of the Comptroller of the Liquor Control Board and the Secretary for Budget and Administration for the Commonwealth. Neither of those signature lines have a signature thereon. The chairman of the LCB has signed the contract.

Shovel alleges that the LCB refuses to honor the terms of the contract and gives as reason therefor the lack of Respondents' signatures. Shovel has filed an action against the LCB for damages with the Board of Claims.

In its action in this Court, Shovel requests that we direct the Comptroller and the Secretary to affix their signatures to the contract or, in the alternative, that we enjoin them from interfering with the LCB's performance of the contract or, again in the alternative, that we declare that Respondents' signatures are unnecessary to make the contract enforceable.

Respondents preliminarily object to the petition for review contending that this Court lacks jurisdiction, that the suit is barred by the defense of sovereign immunity, that Shovel has an adequate remedy at law and that declaratory relief cannot be granted because any order we enter by way of such relief would not terminate the controversy. ³ We shall discuss the objections seriatim.

Respondents argue that the Board of Claims has exclusive jurisdiction in this matter because it is a claim against the Commonwealth arising from a contract. See Section 4 of the Act of May 20, 1937, P.L. 728, as amended, 72 P.S. § 4651-4. Shovel contends that this is not a claim for damages for breach of contract nor for the enforcement of the contract against LCB; rather, it is a personal action against the Respondents who are mentioned nowhere in the contract except on the signature page. In Vespaziani v. Department of Revenue, 40 Pa. Commonwealth Ct. 54, 396 A.2d 489 (1979), we stated that the crucial test of jurisdiction is whether the Court, or in this instance, the tribunal, has the power to enter upon the inquiry. Here, as we have said, the inquiry is whether the Respondents are proper signatories to the contract and if they are, can they be compelled to sign it? We do not believe such an inquiry is within the jurisdiction of the Board; rather, we agree with Shovel that jurisdiction lies with this Court. We, accordingly, will hold that we have jurisdiction.

In the exercise of our jurisdiction we next consider Respondents' defense ⁴ of sovereign immunity. The defense of sovereign immunity was reaffirmed in 1 Pa.C.S. § 2310. In the instant case, however, no relief is sought against the Respondents other than to compel them to perform a ministerial duty which, Shovel alleges, they are required to do once LCB has executed the contract. We believe such action falls within the holding of City of Philadelphia v. Shapp ⁵ where we said that a suit in mandamus to require the defendants to perform highway repair obligations imposed by law "is not a situation where waiver of sovereign immunity is an issue." 44 Pa. Commonwealth Ct. at 310, 403 A.2d at 1047.

In the alternative, Shovel pleads that Respondents by their unwarranted refusal to sign the contract are unlawfully interfering with the performance of the contract and that conduct should be enjoined. Again, we are of the opinion that where an action is brought to restrain state officials from using their official offices in such a manner as to prevent the performance of a contract executed by a Commonwealth agency, the bar of sovereign immunity cannot be raised. See Philadelphia Life Insurance Co. v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963). We hold that on the basis of the only pleadings now before us, i.e., Shovel's petition for review and Respondents' preliminary objections, the preliminary objection asserting the bar of sovereign immunity must be overruled.

Respondents argue that neither relief in equity nor in mandamus can be granted here because Shovel has an adequate remedy at law for damages before the Board of Claims. We are well satisfied that Shovel cannot...