Commonwealth v. Clark

509 A.2d 928, 97 Pa. Commw. 320, 1986 Pa. Commw. LEXIS 2180
CourtCommonwealth Court of Pennsylvania
DecidedMay 19, 1986
DocketAppeal, No. 1471 C. D. 1985
StatusPublished
Cited by3 cases

This text of 509 A.2d 928 (Commonwealth v. Clark) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Clark, 509 A.2d 928, 97 Pa. Commw. 320, 1986 Pa. Commw. LEXIS 2180 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge MacPhail,

The Pennsylvania Liquor Control Board (PLCB) appeals here from an order of the Board of Claims (Board) which entered judgment in the amount of $100.00 plus interest in favor of Jack Clark (Claimant), [322]*322an Assistant Manager I at PLCB Store No. 5157, Moyamissing Plaza, Philadelphia, Pennsylvania.

While on duty December 6, 1982, Claimant received a cash sum for deposit in the amount of $1400.00 from a clerk. That clerk had counted the deposit twice in Claimants presence. In accordance with the PLCBs “Manual of Instructions for Store Operation,. Armored Car Collection and Change Service” (Manual), Claimant personally counted the bills twice, placing all bills face up. He then noted the amount, $1400.00, on the strap, initialed the strap, placed the deposit in a currency packet, and dropped the strapped currency packet in the stores safe. Claimant also recorded the amount of deposit on the deposit envelope, which is left outside of the safe.

The opening of the store safe requires two keys, one in the hands of the PLCB and the other in the hands of the courier service. Claimant was not on duty when this deposit was retrieved from the safe. The deposit was taken to a bank, when recounting revealed the actual amount of deposit to be $1300.00. Following an investigation, the PLCBs Audit Division determined that Claimant was responsible for the $100.00 shortage. The PLCB then deducted $100.00 from Claimants pay.

On August 4, 1983, Claimant filed a Petition for Claim before the Board, arguing that he did not cause the $100.00 shortage and that it could not be charged to him. Despite PLCB objections to the Boards jurisdiction, the Board entered judgment in Claimants favor based on its determination that the . PLCB did not have a basis to withhold the monies from Claimants pay.

The first issue presented for our consideration is whether the Board properly assumed jurisdiction over Claimants claim. Section 4 of the Act of May 20, 1937 (Act of 1937), P.L. 728, as amended, 72 P.S. §4651-4 provides, inter alia, that “[t]he Board of Claims shall [323]*323have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more.” We have previously required that both a contract claim against the Commonwealth and an amount in controversy of at least $300.00 be present in order for the Board to have jurisdiction. Pennsylvania Liquor Control Board v. Shulin, 80 Pa. Commonwealth Ct. 311, 471 A.2d 599 (1984). See also Kusnir v. Leach, 64 Pa. Commonwealth Ct. 65, 439 A.2d 223 (1982). Since the amount in controversy here is less than the required $300.00, the PLCB argues that the Board lacked jurisdiction over this claim.

However, under Section 4 of the Act of 1937, the Board also enjoys exclusive jurisdiction to hear and determine those claims which were previously acted on by the Auditor General and State Treasurer pursuant to Article X of The Fiscal Code (Fiscal Code), Act of April 9, 1929, P.L. 343, as amended, 72 PS. §§1001-1004. Regulation 851.2, 61 Pa. Code §851.2 sets forth the jurisdiction of the Auditor General and State General acting as the original Board of Claims:1

The Board of Claims shall examine and adjust claims against the Commonwealth arising from:
(1) the furnishing of goods, or services, or both, to the Commonwealth, where the furnishing of such goods, or services, or both, is not within the terms of a valid, existing contract between the Commonwealth and the claimant, or, if pursuant to a contract between the Commonwealth and the claimant, where the amount of the claim is less than $300; and
[324]*324(2) action or inaction by Commonwealth employes giving rise to an implied contract to compensate the claimant. (Emphasis added.)

At all times relevant herein, a “Memorandum of Understanding betwéen Commonwealth of Pennsylvania and Independent State Stores Union, Liquor Stores Manager Unit” (Memorandum) was in effect. That Memorandum recommended adjustments to the wages, hours, terms and conditions for first-level supervisors, of which Claimant was one. See Article VII, Section 704 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, 43 PS. §1101.704, repealed in part by 71 Pa: C. S. §5955. The Memorandum also included the following statement:

It is understood that this Memorandum and the ‘ recommendations contained herein, whether or hot implemented in whole or in part, do not and shall not constitute a collective bargaining agreement or contract binding on the parties, but shall represent a meet and discuss understanding and Memorandum of Recommendations effective July 1, 1981 except as herein provided, through June 30, 1983.

It is Claimants position that because the Memorandum is not a contract, the Board has jurisdiction over his claim. The PLCB maintains, however, that the Memorandum is contractual in nature and similar to a collective bargaining agreement. Since collective bargaining agreements would not fell under the Boards expanded jurisdiction; argues the PLCB, neither should the Memorandum; See Shulin (collective bargaining agreement not within jurisdiction of Auditor General and State Treasurer under Fiscal Code).

The PLCBs argument misses the point: a Memorandum of. Understanding is not a collective bargaining agreement and cannot be considered to have the same [325]*325effect as a collective bargaining agreement; neither is it a contract. See Shaffer v. Pennsylvania Liquor Control Board, 92 Pa. Commonwealth Ct. 374, 500 A.2d 917 (1985) (Memorandum has a different nature than a collective bargaining agreement). Because the Memorandum is neither a binding contract, under its own terms, nor a collective bargaining agreement, we believe that it would fall within the Board s exclusive jurisdiction emanating from the Fiscal Code. This view is buttressed by Brey v. Pennsylvania Liquor Control Board, 33 Pa. Commonwealth Ct. 213, 381 A.2d 228 (1978). Under facts similar to the instant case, Brey, a liquor store manager, filed a complaint in assumpsit to our original jurisdiction alleging that thé PLCB had unlawfully withheld money from his pay to cover a cash shortage at his store. We dismissed the complaint but noted the following:

[T]he Legislature has provided by the Fiscal Code for the adjustment and settlement of claims such as these by the Auditor General and State Treasurer, followed, if desired, by petition . for resettlement, petition for review and appeal : to this Court. Act of April 9, 1929, PL. 343, §§1003, 1004, 72 PS. §§1003, 1004. The leading . case in the field concerns a claim made to thé Liquor Control Board, refused by it, and filed with the Auditor General and State Treasurer pursuant to the cited provisions of The Fiscal Code. Merchants Warehouse Company v. Gelder et al., 349 Pa.

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Related

Independent State Store Union v. Commonwealth
547 A.2d 465 (Commonwealth Court of Pennsylvania, 1988)
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524 A.2d 1005 (Commonwealth Court of Pennsylvania, 1987)

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Bluebook (online)
509 A.2d 928, 97 Pa. Commw. 320, 1986 Pa. Commw. LEXIS 2180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clark-pacommwct-1986.