Pennsylvania Turnpike Commission v. Atlantic Richfield Co. , 482 Pa. 615 ( 1978 )

OPINION OF THE COURT

O’BRIEN, Justice.

On December 14, 1953, the Pennsylvania Turnpike Commission (Commission) executed a written lease with Atlantic Richfield Company (ARCO) for three parcels of property along the Delaware River Extension of the Pennsylvania Turnpike. On February 13, 1956, the parties executed a similar lease for two additional parcels along the Turnpike’s Northeast Extension. The monthly rental payments for the parcels were based upon a percentage of gross sales for different types of products sold at ARCO’s service stations located on the leased parcels. Payments were made monthly, with the Commission periodically auditing ARCO’s books.

On January 29, 1974, the Commission filed a complaint in assumpsit in Commonwealth Court alleging that ARCO had failed to make rental payments as called for in the leases. The Commission sought an accounting from ARCO from the beginning of the leases (1953 and 1956, respectively), and judgment against ARCO for the amount of the alleged rental underpayments.

In its answer to the complaint, ARGO denied any error in its monthly rental payments and, by way of new matter, asserted the defenses of laches and the statute of limitations to the Commission’s claim. On March 8, 1977, ARCO filed a motion for summary judgment based upon these two defenses.

On July 21, 1977, Commonwealth Court issued an order which granted ARCO’s motion for summary judgment as to all alleged underpayments made more than six years prior to the date the Commission filed suit. ARCO’s motion was denied in all other respects. Pa. Turnpike Commission v. ARCO, 31 Pa.Cmwlth. 212, 375 A.2d 890 (1977). On August 18, 1977, the Commission filed a notice of appeal to this court at No. 618 January Term, 1977, and ARCO subsequently filed a timely cross-appeal at No. 626 January Term, 1977. ARCO then filed a motion to quash the Commission’s appeal, and the Commission filed a motion to quash ARCO’s cross-appeal. On October 12, 1977, we reserved decision on both motions to quash until after oral argument before the court on the merits of both appeals.

No. 618 January Term, 1977 PENNSYLVANIA TURNPIKE COMMISSION APPEAL

In this appeal, the Commission argues that Commonwealth Court erred in holding that the statute of limitations barred all claims over six years old from the date of filing the assumpsit action. The Commission argues that since it is an instrumentality of the Commonwealth of Pennsylvania, it is not subject to the statute of limitations where it suffered a loss of public funds in pursuit of its governmental function. In its motion to quash this appeal, ARCO argues that the order appealed from is an interlocutory, nonfinal order.

A. Appealability.

The Judicial Code provides:

“. . . The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the Commonwealth Court entered in any matter which was originally commenced in said court and which does not constitute an appeal to the Commonwealth Court from another court, a district justice or another government unit.” Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 723(a). (Emphasis added.)

In deciding whether the Commission’s appeal must be quashed, we must first determine if the order of Commonwealth Court granting ARCO’s motion for summary judgment as to all claims over six years old is a final order. We find that it is final and we must, therefore, deny ARCO’s motion to quash and consider the merits of the Commission’s appeal.

In Bell v. Beneficial Consumer Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), we stated:

“Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. We follow the reasoning of the United States Supreme Court that a finding of finality must be the result of a practical rather than a technical construction. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).”

In Commonwealth v. Wheeling-Pitt. Corp., 473 Pa. 432, 375 A.2d 320 (1977), this court stated:

“In Posternack v. Am. Cas. Co., of Reading, 421 Pa. 21, 23-24, 218 A.2d 350, 351 (1966), this court determined that a pretrial order denying a party leave to amend an answer so as to assert a new affirmative defense constituted a ‘final’ order for purposes of appeal. In Posternack, this Court, per Mr. Justice (now Chief Justice) Eagen, stated: ‘. . . The order is not interlocutory, and the motion to quash will be overruled. The new defense proposed is affirmative in nature and must be pleaded, otherwise it is waived. See, Pa.R.C.P. 1030, 1032, and Lang v. Recht, 171 Pa.Super. 605, 91 A.2d 313 (1952). The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant “out of court.” It is, therefore, an appealable order.’ See Cohen v. Beneficial Industrial Loan Corp. [supra] and Bell v. Benefic. Consumer Co. [supra].”

While the order in the instant case does not dispose of the entire case, it terminates all litigation as to those claims of the Commission against ARCO which are more than six years old from the date the assumpsit action was filed. Therefore, we must deny ARCO’s motion to quash the Commission’s appeal.

B. Merits.

We now turn to the Commission’s claim that it is not subject to the statute of limitations.

In Frey’s Estate, 342 Pa. 351, 353, 21 A.2d 23, 24 (1941), we stated:

“Statutes of limitation do not apply to [the Commonwealth], because the maxim ‘nullum tempus occurrit regi,¹’ though probably in its origin a part of royal prerogative has been adopted in our jurisprudence as a matter of important public policy.”

However, in Specter v. Commonwealth, 462 Pa. 474, 493, 341 A.2d 481, 491 (1975), we stated:

“. . . It is clear that the [Pennsylvania Turnpike] Commission is not an integral part of the Commonwealth, and cannot share the attributes of sovereignty which inhere in the state. . . . ”

Specter clearly precludes the Commission from asserting any aspects of sovereignty or rights of the sovereignty as articulated in Frey’s Estate.²

The Commission seeks to avoid the mandate of Specter by relying upon Phila. v. Holmes E. P. Co., 335 Pa. 273, 6 A.2d 884 (1939), where we held that the statute of limitations may not be pleaded against political subdivisions seeking to enforce strictly public rights:

“. . . [T]hat is, when the cause of action accrues to them in their governmental capacity and the suit is brought to enforce an obligation imposed by law as distinguished from one arising out of an agreement voluntarily entered into by the defendant. . . . ” Id., 335 Pa. at 278, 6 A.2d at 887. (Emphasis added.)

As the instant case involves an action on an agreement voluntarily entered into by the Commission, the “public right” exception of Holmes is not applicable. The Commission is unable to cite any authority which supports its contention that the statute of limitations cannot be pleaded in the instant case. Therefore, that portion of the Commonwealth Court’s order which granted ARCO’s motion for summary judgment as to all claims over six years old from the date of filing suit is affirmed.

No. 626 January Term, 1977 ARCO CROSS-APPEAL

In its cross-appeal, ARCO claims that the Commonwealth Court erred when it partially denied ARCO’s motion for summary judgment. We do not agree. We believe, as does the Commission, that ARCO’s cross-appeal must be quashed, as that portion of the Commonwealth Court’s order is neither final nor one of the interlocutory orders which may be appealed. See Pa.R.App.P. 311.

Applying the practical consideration mandated by Bell v. Beneficial, supra, and analogizing the instant case to Wheeling-Pitt, supra, and Posternack, supra, it is clear that while an order granting summary judgment is final and appealable, one denying such judgment does not terminate the litigation, and hence is not an appealable order. The Commonwealth Court’s order denying ARCO’s motion for summary judgment is not a final order.

ARCO’s cross-appeal is quashed.

Order of the Commonwealth Court, appealed at No. 618 January Term, 1977, is affirmed. The motion to quash that appeal is denied.

The appeal at No. 626 January Term, 1977, is quashed.

POMEROY, J., files a concurring and dissenting opinion. NIX, J., files a concurring and dissenting opinion.

1 . “Times does not run against the king.” Black’s Law Dictionary 1217 (Rev. 4th Ed. 1968).

2 . We need not and do not decide whether the holding of Frey’s Estate is of continued vitality after Mayle v. Pa. Dept, of Highways, 479 Pa. 384, 388 A.2d 709 (1978).