Opinion
Argued June 9, 1986
September 18, 1986.
Board of Claims — Scope of appellate review — Findings of fact — Substantial evidence — Error of law — Limitation of actions — Act of May 20, 1937, P.L. 728 — Accrual of cause of action — Cost reduction program — Choice of alternative remedy.
1. Review by the Commonwealth Court of Pennsylvania of a decision of the Board of Claims is to determine whether findings of fact were unsupported by substantial evidence or an error of law was committed. [570]
2. Under provisions of the Act of May 20, 1937, P.L. 728, the Board of Claims has no jurisdiction over claims against the Commonwealth filed more than six months after the claim accrued. [571]
3. A cause of action accrues and a statute of limitation begins to run when the injured party is first able to litigate his claim, and a claim by a Commonwealth employe to an award under the cost reduction program accrues when he became aware of the implementation of his cost reduction suggestion and his alleged entitlement to an award of a particular amount. [571]
4. A party cannot successfully assert that the limitation period for filing claims against the Commonwealth should be tolled because his delay in filing was due to his being fraudulently led through a bureaucratic maze, when the claimant voluntarily pursued alternative remedies which did not constitute the assertion of a formal claim. [572]
Argued June 9, 1986, before President Judge CRUMLISH, JR., Judge BARRY, and Senior Judge ROGERS, sitting as a panel of three.
Appeal, No. 2159 C.D. 1985, from the Order of the Board of Claims, in case of Albert S. Nilsen v. Commonwealth of Pennsylvania, Department of Public Welfare and Office of Administration, Docket No. FC-78-119.
Claim filed with Pennsylvania Board of Claims. Claim dismissed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Steven P. Barsamian, for appellant.
Frank P. Clark, Assistant Counsel, with him, John D. Raup, Chief Counsel, for respondents.
Albert S. Nilsen appeals a Board of Claims (Board) order dismissing his claim as untimely and dismissing the Department of Public Welfare (DPW) as a party. We affirm.
On June 1, 1976, Nilsen, a DPW employee, submitted a suggestion under the Commonwealth's cost reduction program to combine four state employee fund-raising drives into one combined appeal. DPW informed Nilsen on September 23, 1976, that his suggestion would not be adopted. However, on September 16, 1977, Nilsen learned that the Commonwealth was implementing a state employee combined appeal (SECA) and he requested reconsideration of his proposal.
On December 15, 1977, upon Nilsen's request for reconsideration, DPW informed him that his proposal was deemed by the Secretary of the Office of Administration to have been under prior management consideration. Therefore, Nilsen was not eligible to receive a $10,000 award under the cost reduction program. Nilsen wrote Representative Francis J. Lynch and Auditor General Benedict asserting a grievance over the denial of the $10,000 award. Nilsen filed his claim on May 24, 1978, with the Auditor General who later transferred it to the Board.
Our scope of review of a Board order is limited to determining whether necessary factual findings are supported by substantial evidence and whether an error of law was committed. Camp Joy, Inc. v. Department of Public Welfare, 70 Pa. Commw. 142, 452 A.2d 891 (1982).
Nilsen contends that the Board erred in dismissing his claim because the six-month statute of limitations provision for filing a claim with the Board does not apply. He claims that (1) the statute of limitations is remedial, (2) its purpose was not served here because the Commonwealth was constantly apprised of his claim, and (3) the Commonwealth fraudulently led Nilsen through a bureaucratic maze which caused his claim to be untimely. We disagree.
Section 6 of the Act of May 20, 1937 states, in pertinent part, "The board shall have no power and exercise no jurisdiction over a claim asserted against the Commonwealth unless the claim shall have been filed within six months after it accrued." Statute of limitations do not begin to run until the cause of action accrues. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa. Commw. 212, 375 A.2d 890 (1977), aff'd, 482 Pa. 615, 394 A.2d 491 (1978). Thus, we must determine when this cause of action accrued. We have recently held that the statute of limitations for filing a claim with the Board "begins to run from the time when the injured party is first able to litigate the claim." Commonwealth v. Town Court Nursing Centers, Inc., 97 Pa. Commw. 380, 386, 509 A.2d 950, 954 (1986). "A party is first able to litigate a claim when he or she knows the amount due under the claim." Department of Public Welfare v. Federated Security, Inc., 49 Pa. Commw. 411, 417, 411 A.2d 284, 288 (1980).
P.L. 728, as amended, 72 P. S. § 4651-6.
The Board held that Nilsen's claim accrued on September 16, 1977, since that date indicates his awareness of the Commonwealth's implementation of the SECA campaign. We agree. Nilsen knew at that time that had the Commonwealth credited him with the authoring of the SECA plan, he would have been entitled to a class G award equal to $10,000. which was the full amount due under his claim. September 16, 1977 marks the date that Nilsen was on notice and able to fully ascertain the extent of his claim. See Penn-Jersey Contractors, Inc. v. General State Authority, 12 Pa. Commw. 203, 315 A.2d 920 (1974).
Nilsen contends that the Board's reliance on Department of Public Welfare v. Ludlow Clinical Laboratories, Inc., 64 Pa. Commw. 178, 439 A.2d 242 (1982), is misplaced. We disagree. In Ludlow, this Court held that the statute of limitations on a contract claim filed by a provider would not begin to run until the contractor is notified that its invoices were not going to be honored. Nilsen's notification in September 1976, combined with his awareness in September 1977, placed him in a position similar to Ludlow in that he had notice that his suggestion was not honored.
Moreover, we are not persuaded by Nilsen's argument that the statute of limitations should have been tolled. Nilsen chose to pursue alternative governmental channels before filing his claim with the Board. If there were any bureaucratic maze through which Nilsen was guided, it was of his own creation. Nilsen's letter-writing campaign, although it apprised certain government representatives and officials of his grievance, did not constitute the assertion of a formal claim against the Commonwealth.
We also reject Nilsen's argument that, because the underlying action is based on a theory of a contract implied-in-fact, the statute of limitations is remedial. Any contract claim must meet the legislative conditions or the Board of Claims' exercise of jurisdiction. The statute of limitations is such a condition.
The Board of Claims' decision is affirmed.
Because we hold that Nilsen's claim was properly dismissed by the Board as untimely, we do not address the contention that the Board erred in dismissing DPW as a party.
ORDER
The Board of Claims' order, No. FC-78-119 dated July 5, 1985, is affirmed.