Summary
holding that sovereign immunity does not bar a mandamus action against the Governor and the Department of Transportation to compel their performance in accordance with constitutional and legislative mandates
Summary of this case from Banfield v. CortesOpinion
Argued February 6, 1979
July 17, 1979.
Highways — Jurisdiction of the Board of Arbitration of Claims — Act of 1937, May 20, P.L. 728 — Mandamus — Discretionary acts — The Administrative Code of 1929, Act 1929, April 9, P.L. 177 — State Highway Law, Act 1945, June 1, P.L. 1242 — Duty to repair — Hazardous highways — Preliminary objections — Demurrer — Standing of municipality to sue in mandamus — Sovereign immunity.
1. The Act of 1937, May 20, P.L. 728, gives to the Board of Arbitration of Claims exclusive jurisdiction to hear and determine all claims against the Commonwealth arising out of contract. [306]
2. Mandamus is an extraordinary writ which does not lie to control the manner of performance of discretionary acts but does lie to review discretion where its exercise or non-exercise is arbitrary, fraudulent or based upon a mistaken view of the law. [306]
3. The Administrative Code of 1929, Act 1929, April 9, P.L. 177, grants to the Secretary of the Department of Transportation and the Governor discretionary power to decide where and when to build highways, but the State Highway Law, Act 1945, June 1, P.L. 1242, creates a duty to make certain highway repairs, so that an action in mandamus could lie to challenge the refusal by appropriate officials to repair highways in a hazardous condition when financial resources are available for such repairs. [307-8]
4. Where a doubt exists as to the propriety of a complaint in mandamus challenged by preliminary objections in the nature of a demurrer, the preliminary objections should be overruled. [308]
5. When a complaint in mandamus seeking to compel the repair of certain highways fails to specify the nature of the needed repairs, the length of time the condition has existed, the amount of funds available for repairs and the date of the repair requests, a more specific pleading is properly ordered to be filed to permit the defendant to prepare an answer and further defense. [308-9]
6. A city is not precluded as a political subdivision from instituting an action in mandamus against a state official or agency. [309-10]
7. The doctrine of sovereign immunity does not bar an action by a municipality to compel the Commonwealth to perform duties required by law or to pay over funds already appropriated for that purpose by statute. [310]
President Judge BOWMAN filed a dissenting opinion which was substantially as follows:
1. Neither The Administrative Code of 1929, Act 1929, April 9, P.L. 177 or the State Highway Law, Act 1945, June 1, P.L. 1242, mandate the repair of highways, and mandamus does not lie to compel the repair of a particular highway in the absence of allegations that the Department of Transportation discriminated against the particular municipality or committed some other manifest abuse of discretion. [311]
Judge WILKINSON, JR., concurring in part and dissenting in part, filed an opinion which was substantially as follows:
1. Mandamus does not lie to compel the Department of Transportation to repair particular highways. [311]
Argued February 6, 1979, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., ROGERS, BLATT, DiSALLE and CRAIG. Judges MENCER and MacPHAIL did not participate.
Original jurisdiction, No. 166 C.D. 1978, in case of City of Philadelphia, Frank L. Rizzo and David J. Damiano v. Milton J. Shapp and James B. Wilson. Complaint in mandamus in the Commonwealth Court of Pennsylvania to compel repair of highways and for reimbursement of repair costs. Defendants filed preliminary objections. Held: Preliminary objections sustained in part and overruled in part.
John M. McNally, Jr., First Deputy City Solicitor, with him Norman R. Segal, Assistant City Solicitor, and Sheldon L. Albert, City Solicitor, for plaintiffs.
Stuart J. Moskovitz, Assistant Attorney General, for respondents.
Presented for our consideration are the merits of preliminary objections filed by the Defendants, the Governor and the Secretary of the Department of Transportation (PennDOT), to a complaint sounding in mandamus and an action for specific performance by the City of Philadelphia, its Mayor, and its Commissioner of Streets.
At the time of filing, Milton J. Shapp was Governor of Pennsylvania, James B. Wilson was Secretary of PennDOT, and David J. Damiano was Commissioner of Streets of Philadelphia.
The City alleges four separate counts:
I. That the Secretary and Governor, in violation of constitutional and legislative mandates, have failed to expend all monies appropriated for the maintenance, repair and construction of state streets, highways and bridges;
II. That, as a consequence of their inaction, the City has been obliged to expend approximately 11/2 million dollars in effectuating repairs on street routes within the City's confines;
III. That Defendants have refused specific requests that they repair the following state routes: (a) Penrose Avenue; (b) Island Avenue, and (c) Interstate Highway 95; and
IV. That Defendants have failed to perform their duty recited in contracts dated February 27, 1975 and January 6, 1976, executed by and between the Commonwealth, acting through the Secretary of Transportation, and the City of Philadelphia, acting through the Street and Water Commissioners, whereby the Commonwealth covenanted, inter alia, to extend Woodhaven Road by new construction and to build a new Passyunk Avenue Bridge.
Plaintiffs seek mandamus to compel Defendants' performance in accordance with asserted constitutional and legislative mandates to expend appropriated monies to the repair and construction of state highways in general and specifically, to repair certain named routes; and that they reimburse the City for monies expended on these repairs as a result of Defendants' failure to repair. Plaintiffs also want Defendants to specifically perform in compliance with the terms of the two contracts.
Defendants have two basic preliminary objections: (1) to the complaint's legal sufficiency and factual specificity; and (2) to the City's standing as a political subdivision to sue its parent; and they assert sovereign immunity as a bar.
Sua sponte, we dismiss the fourth count of Plaintiffs' complaint. We hold that this Court lacks jurisdiction to determine contractual claims against the Commonwealth. The Board of Arbitration of Claims has exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts entered into with the Commonwealth under the Act of May 20, 1937, P.L. 728, as amended, 72 P. S. § 4651-4. Section 2(h)(2) of the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 20002(h)(2), expressly immunizes the "authority, power, or jurisdiction" of the Board of Arbitration of Claims from its effects. Notwithstanding Plaintiffs' prayer is for equitable relief, their right thereto arises in contract and not at law. It is therefore properly subject to the jurisdiction of the Board of Arbitration of Claims. See Koynok v. Department of Education, 11 Pa. Commw. 556, 314 A.2d 355 (1974).
It is academic that mandamus seeks extraordinary relief and lies only where there is a clear legal right and a corresponding duty in the defendant. Kaplan v. Smith, 40 Pa. Commw. 95, 396 A.2d 493 (1979); Styers v. Wade, 30 Pa. Commw. 38, 372 A.2d 1236 (1977), aff'd, 478 Pa. 631, 387 A.2d 666 (1978). Mandamus will not lie to control the manner of performance of discretionary acts; mandamus does lie to review discretion where its exercise or non-exercise is arbitrary, fraudulent or based upon a mistaken view of the law. Valley Forge Racing Association, Inc. v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972).
Section 2002 of The Administrative Code of 1929, 71 P. S. § 512 (a), empowers the Department, inter alia:
Section 2002 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P. S. § 512.
(8) To mark, build, rebuild, relocate, fix the width of, construct, repair and maintain State designated highways and transportation facilities and rights of way;
. . . .
(10) To have exclusive authority and jurisdiction over all State designated highways;
(11) To superintend, supervise and control the work of constructing, reconstructing, maintaining and repairing State designated highways, and other transportation facilities and rights of way; . . ..
We have held that Section 2002 of The Administrative Code affords the Secretary and the Governor discretionary power to decide where and when to build highways. Borough of White Oak v. Department of Transportation, 25 Pa. Commw. 432, 360 A.2d 825 (1976); South Whitehall Township v. Department of Transportation, 11 Pa. Commw. 558, 316 A.2d 104 (1974). See State Highway Law.
State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P. S. § 670-101 et seq.
However, implementing provisions of the State Highway Law speaking to the Department's obligation to repair state highways omit the same permissive language and instead provide clear legislative guidelines to the Secretary. Section 407 of the State Highway Law, 36 P. S. § 670-407, provides:
For the purpose of uniform, efficient and economic maintenance and repair of the State highways, the department shall purchase all necessary material and shall appoint and employ all necessary labor or repairmen, who shall at all times keep the State highways free from holes, ruts, sticks, or other impediments of any kind which tend to interfere with free and easy travel, or which if permitted to exist might tend to the deterioration, injury, or destruction of the highway.
The term "shall" is ordinarily construed to mandate, and not merely to allow certain conduct, Kaplan v. Smith, supra. Here, it creates a duty in the department to make certain enumerated repairs. Because the State Highway Law does not establish priorities among the competing needs of the various municipalities, we must acknowledge the Secretary's limited discretion to determine priorities for the maintenance and repair of state highways when its limited resources are sought. However, where state highways in general and certain named routes in particular within a city have fallen into a hazardous state of disrepair and the Defendants nonetheless refuse to use financial resources at their disposal to effectuate the needed repairs, the complaint suggests discretion either arbitrarily exercised or exercised under a mistaken perception of the duty imposed by Section 407 of the State Highway Law.
That the parameters of the duty imposed by Section 407 are not absolutely certain does not prohibit this action since mandamus will lie to compel the exercise of a duty, even where the very existence and scope of the duty are not clearly delineated but must be defined during the course of the mandamus action itself. Volunteer Firemen's Relief Association v. Minehart, 415 Pa. 305, 203 A.2d 476 (1964); Commonwealth ex rel. Lindsley v. Robinson, 30 Pa. Commw. 96, 372 A.2d 1258 (1977).
Where a doubt exists as to the propriety of the complaint, preliminary objections in the nature of a demurrer should be overruled. Maddux v. Department of Agriculture, 35 Pa. Commw. 386, 386 A.2d 620 (1978). The factual allegations in this complaint, vague as they may appear at first blush, indicate an unexplained refusal by the Secretary to perform his statutory duty and, accordingly, we will overrule Defendants' demurrer to Counts I, II and III.
Factual averments must be pleaded with sufficient specificity to enable Defendants to prepare their answer and defense, and because of Plaintiffs' failure to so plead, we will sustain Defendants' preliminary objection in the nature of a motion for a more specific pleading. However, we grant Plaintiffs leave to amend Counts I, II and III of their complaint so that they may allege with greater specificity the nature of the needed repairs, the length of time the highways have been in a state of disrepair, the amount of unused funds available to Defendants for the repair of state highways, and the times the remedial requests were made. Thus, Defendants will be able to prepare an answer and further defense.
On the issue of Defendants' objection to the City's standing as a political subdivision to sue officials of its parent state, Volunteer Firemen's Relief Association v. Minehart, supra, controls where it was held that the City of Reading and others were permitted to file a complaint in mandamus to try the correctness of the Auditor General's determination that the Association had used tax monies improperly. In Commonwealth of Pennsylvania, Auditor General of Pennsylvania v. Borough of East Washington, 474 Pa. 226, 378 A.2d 301 (1977), our Supreme Court held that jurisdiction is found in this Court to determine the merits of a borough's petition seeking review of the Auditor General's determination that certain Commonwealth allocations should be withheld. In light of these precedents, it is clear to us that the City's status as a political subdivision does not deprive it of standing as a party who can maintain an action in mandamus.
Finally, we hold that the action is not barred by sovereign immunity. A writ of mandamus here would simply compel Defendants to perform their repair duties as required by law. Reimbursement of the costs of the City-made repairs does not require the expenditure of Commonwealth monies which have not already been earmarked and appropriated for this purpose by Article 8, Section 11 of the Pennsylvania Constitution. Since the payment of the funds has been provided by statute, from the standpoint of the state, the "claim" has been established and therefore this is not a situation where waiver of sovereign immunity is an issue. Volunteer Firemen's Relief Association v. Minehart, supra.
Although immunity is an affirmative defense which ordinarily should be raised as new matter, we have considered and ruled upon issues of immunity raised in preliminary objections, when to delay ruling thereon would serve no purpose. McDevitt v. Golin, 35 Pa. Commw. 409, 386 A.2d 627 (1978).
Accordingly, we
ORDER
AND NOW, this 17th day of July, 1979, we dismiss Count IV of Plaintiffs' complaint for lack of jurisdiction; except as to the Defendants' preliminary objections in the nature of a motion for more specific pleadings which we sustain, we overrule Defendants' preliminary objections to Counts I, II and III of the complaint. Plaintiffs are directed to file an amended complaint within thirty (30) days of the date of this Order or suffer dismissal of the complaint as of course.
I dissent and would sustain respondents' preliminary objections in the nature of a demurrer. I can find no valid basis for distinguishing between the duties imposed upon the Department of Transportation with respect to the maintenance and repair of highways by Section 2002 of The Administrative Code of 1929 which the majority characterizes as permissive, and Section 407 of the State Highway Law which the majority characterizes as mandatory. Both statutes provide that the Department "shall" maintain and repair State highways. Thus, I would apply the rationale of our decisions in Borough of White Oak v. Department of Transportation, 25 Pa. Commw. 432, 360 A.2d 825 (1976) and South Whitehall Township v. Department of Transportation, 11 Pa. Commw. 558, 316 A.2d 104 (1974), and dismiss the complaint for want of factual allegations that the Department in performing its duties within its budgetary confines discriminated against the City of Philadelphia or which otherwise would afford a factual basis for a conclusion of a manifest abuse of discretion in the exercise of this duty.
I concur with that portion of the majority opinion which dismisses the fourth count of plaintiffs' complaint for lack of jurisdiction to determine contractual claims against the Commonwealth.
I dissent from the remainder of the opinion which dismisses the preliminary objections filed by the defendants. I cannot distinguish this case from South Whitehall Township v. Department of Transportation, 11 Pa. Commw. 558, 316 A.2d 104 (1974) where this Court unanimously sustained similar preliminary objections and dismissed the complaint in mandamus. I see no reason for changing the result here.