PRIOR PRINTER'S NO. 2784 PRINTER'S NO. 3129
No. 2142 Session of 1976
INTRODUCED BY MESSRS. WOJDAK, GOODMAN, O'BRIEN, PARKER AND
MANDERINO, FEBRUARY 11, 1976
AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF
REPRESENTATIVES, AS AMENDED, MAY 5, 1976
AN ACT
1 Amending the act of May 20, 1937 (P.L.728, No.193), entitled "An
2 act providing for the creation of a Board of Arbitration of
3 Claims arising from contracts with the Commonwealth;
4 providing for and regulating the procedure in prosecuting
5 claims before such board; defining the powers of the board;
6 and fixing the compensation of members and employes thereof;
7 providing that the awards of such board shall be final;
8 providing for the payment of awards; and authorizing an
9 appropriation," changing the title of the board and its
10 members; transferring it to the Department of Justice;
11 transferring certain additional jurisdiction to the court;
12 making certain repeals; increasing the terms of court
13 members; further providing for the compensation of court
14 members; providing for hearing panels and for additional <--
15 expenses; changing procedures for transcripts; providing for
16 the disposition of written complaints and providing for
17 appeals to go to the Commonwealth Court.
18 The General Assembly of the Commonwealth of Pennsylvania
19 hereby enacts as follows:
20 Section 1. The title of the act of May 20, 1937 (P.L.728,
21 No.193), entitled "An act providing for the creation of a Board
22 of Arbitration of Claims arising from contracts with the
23 Commonwealth; providing for and regulating the procedure in
24 prosecuting claims before such board; defining the powers of the
25 board; and fixing the compensation of members and employes
1 thereof; providing that the awards of such board shall be final;
2 providing for the payment of awards; and authorizing an
3 appropriation," is amended to read:
4 AN ACT
5 Providing for the creation of a [Board of Arbitration] Court of
6 Claims arising from contracts with the Commonwealth;
7 providing for and regulating the procedure in prosecuting
8 claims before such [board] court; defining the powers of the
9 [board] court; and fixing the compensation of members and
10 employes thereof; providing that the awards of such [board]
11 court shall be final; providing for the payment of awards;
12 and authorizing an appropriation.
13 Section 2. Sections 1 and 2.1 of the act, amended or added
14 September 29, 1961 (P.L.1738, No.705), are amended to read:
15 Section 1. Be it enacted, &c., That there is hereby created
16 a departmental administrative board in the Department of [the
17 Auditor General] Justice, known as the [Board of Arbitration]
18 Court of Claims, the duty of which shall be to arbitrate claims
19 against the Commonwealth arising from contracts entered into by
20 the Commonwealth, and to adjust and settle certain other claims
21 against the Commonwealth formerly handled by the Auditor General
22 and State Treasurer acting as the Board of Claims. Any reference
23 in this or any other act to this board shall be deemed a
24 reference to the Court of Claims. Such [board] court shall
25 consist of three members appointed by the Governor, one of whom
26 shall be learned in the law and shall be chairman of the [board]
27 court, another of whom shall be a registered civil engineer. The
28 third member of the [board] court shall be a citizen and
29 resident of the Commonwealth not learned in the law or an
30 engineer. The lawyer member shall hold the title of chief
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1 administrative judge, one member shall have the title of
2 engineer member and one member shall have the title of citizen
3 member. Two members of the [board] court shall constitute a
4 quorum. The members shall be appointed for terms of [two, four
5 and six] four, six and eight years and shall serve until their
6 respective successors shall be duly appointed and qualified.
7 Their successors shall each be appointed for a term of [six]
8 eight years. In the event any member shall die or resign during
9 his term of office the Governor shall appoint a successor who
10 shall hold office for such unexpired term. Each member of the
11 [board] court shall receive an annual compensation [of eleven
12 thousand dollars ($11,000), except that the chairman who shall
13 receive an annual compensation of thirteen thousand five hundred
14 dollars ($13,500), and] as may be fixed by the Executive Board
15 and each member of the court and the executive secretary of the
16 court shall also be entitled to all necessary traveling and
17 other expenses which expenses to include mileage for each mile
18 actually traveled from the residence of each member to the place
19 of hearing and return, incurred by him in the discharge of his
20 official duties. The Court of Claims shall meet weekly to
21 discharge its duties.
22 The Court of Claims may, in its discretion appoint three <--
23 hearing panels consisting of two individuals each, one of whom
24 shall be a registered engineer and the other of whom shall be
25 learned in the law and shall be the chairman. These individuals
26 shall receive compensation in the amount of two hundred dollars
27 ($200) per day and all necessary traveling and other expenses
28 incurred in the discharge of their official duties. The hearing
29 panels shall be denominated the Eastern, Middle and Western
30 District Hearing Panel, respectively, and shall have
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1 jurisdiction in areas of the Commonwealth coterminus with the
2 three judicial districts of the United States District Courts in
3 the Commonwealth established by section 118 of the Judicial Code
4 and Judiciary, act of June 25, 1948, as amended June 2, 1970
5 (P.L.91-272), 28 U.S.C. section 118.
6 Section 2.1. The [board] Court of Claims shall appoint an
7 executive secretary and shall have the power to and may, at its
8 pleasure, appoint such employes including lawyers, engineers and
9 stenographers as are needed in the proper exercise of its
10 functions. The executive secretary and each employe of the
11 [board] court for the purposes of the [State Employes'
12 Retirement System] State Employees' Retirement Code shall be
13 considered a State employe. [The executive secretary and any]
14 Any employe of the [board] court shall receive all necessary
15 traveling and other expenses incurred in the discharge of his
16 official duties elsewhere than in Harrisburg. The [board] court
17 shall maintain its office in Harrisburg. No charge shall be made
18 against the Commonwealth for copies of notes of testimony or
19 other papers furnished to the Commonwealth. The claimant or any
20 other party [shall pay the board at such rates as the board may,
21 by rule, determine for copies of notes of testimony furnished at
22 the request of the claimant or any other party] may purchase a
23 copy of testimony directly from the official stenographer.
24 Section 3. Section 3 of the act is amended to read:
25 Section 3. The [board] Court of Claims shall adopt an
26 official seal which shall authenticate its proceedings.
27 Section 4. Section 4 of the act, amended September 29, 1961
28 (P.L.1738, No.705), is amended to read:
29 Section 4. The [Board of Arbitration] Court of Claims shall
30 have jurisdiction to hear and determine all claims against the
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1 Commonwealth arising from contracts hereafter entered into with
2 the Commonwealth, where the amount in controversy amounts to
3 $300.00 or more. The court shall also have jurisdiction to hear
4 and determine those claims authorized by the act of March 30,
5 1811 (P.L.145, Ch.XCIX), entitled "An act to amend and
6 consolidate the several acts relating to the settlement of the
7 public accounts and the payment of the public monies, and for
8 other purposes," and continued by Article X, act of April 9,
9 1929 (P.L.343, No.176), known as "The Fiscal Code," wherein the
10 Auditor General and State Treasurer were granted the power to
11 adjust and settle certain claims against the Commonwealth.
12 Section 5. Section 5 of the act, amended July 19, 1951
13 (P.L.1079, No.234), is amended to read:
14 Section 5. The [board] court shall hold hearings at such
15 place and time as the [board] court shall determine within the
16 Commonwealth of Pennsylvania. When cases are at issue, as is
17 hereinafter provided, the secretary of the [board] court shall
18 list such cases for hearing at the earliest available date, and
19 shall cause to be served upon the claimants in such cases thirty
20 days written notice, setting forth the time and place of such
21 hearing.
22 Section 6. Section 6, of the act, amended September 29, 1961
23 (P.L.1738, No.705), is amended to read:
24 Section 6. The [board] court shall have no power and
25 exercise no jurisdiction over a claim asserted against the
26 Commonwealth unless the claim shall have been filed within six
27 months after it accrued. The claimants shall advise the
28 department involved, in writing, of such claim, specifying the
29 details thereof, and shall, within the same period, file with
30 the secretary of the [board] court a concise and specific
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1 written statement of this claim, signed and verified by the
2 claimant before an officer authorized to administer oaths.
3 The claimant at the time of filing such statement shall file
4 therewith six copies of said statement, and the secretary of the
5 [board] court shall forthwith deliver one copy to the secretary
6 of the department involved and [the others] one copy to the
7 Attorney General.
8 At the time of filing his statement of claim, the claimant
9 shall pay to the State Treasury, through the secretary of the
10 [board] court, the sum of $50.00 as a filing fee. All fees so
11 received shall be credited to the General Fund.
12 Within thirty days after such statement shall be filed with
13 the secretary of the [board] court, and served upon the
14 secretary of the department involved, and the Attorney General,
15 the Commonwealth shall file with the secretary of the [board]
16 court an answer in writing to the averments of the claimant's
17 statement or other pleading, which shall be signed and verified
18 by the secretary of the department involved, and shall, at the
19 same time, file two copies of the same, one of which shall be
20 served by the secretary on the Attorney General, and the other
21 forwarded to the claimant.
22 When [the answer of the Commonwealth is filed,] the pleadings
23 shall be complete and the case shall be deemed to be at issue,
24 and the secretary of the [board] Court of Claims shall list such
25 case for hearing before the [board] court at the earliest
26 available date, but not earlier than thirty (30) days after the
27 filing of such answer. When, in the opinion of the secretary of <--
28 the court, a decision by the court is unlikely to be made within
29 sixty (60) days from the date of hearing, as provided in section
30 8, the secretary of the court may refer the case, together with
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1 all pleadings, to one of the three hearing panels established
2 pursuant to section 1, within its jurisdiction. The hearing
3 panel shall list the case for hearing at the earliest available
4 date after receipt of the case from the secretary of the court.
5 The hearing panel shall be subject to all the requirements of
6 this act as to procedure, hearings and opinions, as the court.
7 The hearing panel shall forward its recommendation or
8 recommendations to the court, within the time established
9 pursuant to section 8.
10 All cases shall, as far as practicable, be listed for hearing
11 in the order of the date of the filing of the respective claims,
12 and the secretary shall cause to be served upon all claimants by
13 registered mail thirty (30) days' written notice, which notice
14 shall set forth the time and place of such hearing.
15 The [board] court shall have power to order the interpleader
16 or impleader of other parties whenever necessary for a complete
17 determination of any claim or counterclaim.
18 Section 7. Section 7 of the act is amended to read:
19 Section 7. The secretary of the [board] court shall have the
20 power to issue subpoenas at the request of either the
21 Commonwealth or the claimant, and to require the attendance of
22 witnesses and the production of books, documents, and papers
23 pertinent to any cause before the [board] court.
24 All subpoenas so issued shall be in such form as shall be
25 prescribed by the [board] court, and shall be signed by the
26 secretary, or such person as may be designated by the secretary,
27 and may be served by any adult in any part of the Commonwealth.
28 Any person who refuses to obey such subpoena, or who refuses
29 to be sworn to testify, or who fails to produce any papers,
30 books or documents touching upon the case in which he is
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1 subpoenaed, or who is guilty of any contempt after summoned to
2 appear, may be punished for contempt of court, and for this
3 purpose an application may be made to the [court of common pleas
4 of Dauphin County, for which purpose such court is hereby given
5 jurisdiction] Commonwealth Court. Each witness so required to
6 attend shall receive for each day's attendance the sum [of two
7 dollars ($2.00),] provided by law for such witnesses, and in
8 addition thereto, [three cents (3¢) for each mile circular
9 travelled by the usual route from his home to the place where
10 his presence is required,] a sum for mileage as provided by law
11 for witnesses which witness fees and expenses shall be divided
12 between the Commonwealth and the claimant in such proportion as
13 the [board] court may direct.
14 Section 8. Section 8, of the act, amended September 29, 1961
15 (P.L.1738, No.705), is amended to read:
16 Section 8. (a) All hearings before the [board] Court of
17 Claims or hearing panel shall be public and shall be governed by <--
18 all of the rules of Pennsylvania Civil Procedure not
19 inconsistent with this act. After consideration of the pleadings
20 filed with it and the testimony given at the hearing before it,
21 the [board] Court of Claims or hearing panel, the court shall <--
22 either dismiss the claim of the claimant or make an award in
23 favor of the claimant of such sum as it shall determine the
24 claimant is legally and rightfully entitled to receive, which
25 decision shall be made by the court within a reasonable time
26 from the date of the hearing. If the hearing is before a panel, <--
27 such panel shall make its recommendation or recommendations to
28 the court within thirty (30) days after the hearing, and the
29 court shall enter its said action in a book to be kept by it for
30 that purpose. [It] An award in favor of the claimant shall
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1 include interest at the prime rate as designated by the
2 Secretary of Banking, such prime rate to be that prevailing on
3 the date on which the claim is filed and running until the date
4 when payment of the award is tendered to the claimant. The court
5 shall file a written opinion, setting forth the reasons for its
6 action. The [board] court in dismissing any claim or in making
7 any award shall dispose of all costs of the proceedings by
8 providing for the payment thereof by the Commonwealth or by the
9 claimant, or by providing that such costs shall be shared by the
10 said parties in such proportions as the [board] court in its
11 discretion shall direct.
12 (b) Within thirty (30) days after dismissing the claim or
13 making an award, any party aggrieved thereby, including the
14 Commonwealth, shall have a right of appeal therefrom. Such
15 appeal shall be taken to the [Court of Common Pleas of Dauphin
16 County] Commonwealth Court. Parties interested in such an order
17 including the Commonwealth, jointly, severally or otherwise, may
18 join in an appeal therefrom even though all of the interested
19 parties do not join therein.
20 (c) The [court] Commonwealth Court shall hear the appeal
21 without a jury on the record certified by the [board] Court of
22 Claims. After hearing, the [court] Commonwealth Court shall
23 affirm the order unless it shall find that the same is not in
24 accordance with law. The findings of the [board] Court of Claims
25 as to the facts, if supported by substantial evidence, shall be
26 conclusive. If the order is not affirmed, the [court]
27 Commonwealth Court may set aside or modify, in whole or in part,
28 or may remand the proceeding to the [board] Court of Claims for
29 further disposition in accordance with the order of the [court]
30 Commonwealth Court.
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1 Section 9. Section 9 of the act, amended June 26, 1939
2 (P.L.1081, No.379), is amended to read:
3 Section 9. Within thirty (30) days after any final action is
4 taken by the [board] Court of Claims, the secretary of the
5 [board] court shall certify to the secretary of the department
6 involved, under the seal of the [board] court, a statement of
7 such action including the amount of costs assessed against the
8 Commonwealth or the claimant, or both, and the persons entitled
9 thereto. The amount of any award shall be paid by said
10 department out of any funds appropriated against the contract
11 out of which the claim upon which the award is based was
12 originally charged, to the claimant, and any costs assessed
13 against the Commonwealth shall be paid by said department out of
14 said fund or appropriation to such persons as may be entitled
15 thereto as evidenced by said certificate of the secretary of the
16 [board] court, in the manner now provided by law. In the event
17 that costs are assessed against the claimant, the amount of such
18 costs shall be deducted from whatever balance may be due the
19 claimant upon the contract out of which the claim arose and
20 shall be paid by the department to the persons entitled thereto
21 as evidenced by the said certificate.
22 Section 10. Section 10 of the act is amended to read:
23 Section 10. The [board] court shall establish such rules for
24 its government, and regulations governing practice before it as
25 it shall deem proper and necessary. All papers herein filed
26 shall be matters of public record, and the public, subject to
27 the reasonable requirements of the [board] court, shall at all
28 times have access thereto and shall be permitted to examine the
29 same.
30 Section 11. (a) All personnel, appropriations, agreements,
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1 leases, claims, causes of action, equipment, files, records, and
2 all other materials which are used, employed or expended in
3 connection with the duties, powers or functions of the Board of
4 Arbitration of Claims of the Department of the Auditor General
5 are hereby transferred to the Court of Claims of the Department
6 of Justice with the same force and effect as if the
7 appropriations had been made to and said items had been the
8 property of the Court of Claims of the Department of Justice in
9 the first instance and if said contracts, agreements, leases and
10 obligations had been incurred or entered into by the Court of
11 Claims of the Department of Justice.
12 (b) All personnel transferred to the Department of Justice
13 from the Department of the Auditor General shall retain any
14 employment status assigned to them in the Department of the
15 Auditor General prior to the effective date of this act.
16 Section 12. The Board of Arbitration of Claims of the
17 Department of the Auditor General is abolished and the terms of
18 the members of the board are terminated: Provided, however, That
19 the members of the board shall serve as members of the Court of
20 Claims until the members of the court are appointed and
21 qualified.
22 Section 13. (a) Articles X and XI, act of April 9, 1929
23 (P.L.343, No.176), known as "The Fiscal Code," are repealed in
24 so far as inconsistent with the provisions of this act.
25 (b) All other acts or parts of acts inconsistent herewith
26 are hereby repealed.
27 Section 14. This act shall take effect immediately.
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