Commonwealth, Department of Transportation v. Limestone Products & Supply Co.

Dissenting Opinion by

Judge Blatt:

I must respectfully dissent.

I believe that the crucial issue here is whether or not the DOT’S trial attorney had authority to enter into the settlement agreement and, thus, whether or *366 not a valid settlement agreement ever existed. Furthermore, I believe that this very issue was identified as being dispositive in the case of L & A Creative Art Studio, Inc. v. Redevelopment Authority, 35 Pa. Commonwealth Ct. 271 , 385 A.2d 1045 (1978), a case which is not critically distinguishable from the case at hand. I am not convinced that, merely because the purported settlement agreement was reached in court, as opposed to the out-of-court settlement reached in the LdA case, a different end should result.

I am not condoning or in any way approving, of course, the unprofessional and resource-wasting behavior of the DOT’s trial attorney. 1 However, inasmuch as he had no authority to enter into the settlement agreement here, I do not believe that a valid settlement agreement exists. 2

I would also note that the procedure for settling claims against the DOT is readily ascertainable and is clearly set forth in 37 Pa. Code §141.33 . And, inasmuch as persons contracting with a governmental agency must, at their peril, know the extent of the *367 power of its officers making the contract, Central Storage & Transfer Co. v. Kaplan, 487 Pa. 485 , 410 A.2d 292 (1979), I believe that Limestone had a duty to ascertain the authority of the DOT’S attorney to enter into the agreement.

I would reverse the order of the court of common pleas and remand for the resolution of the appeal by the DOT from the award of the Board of Viewers.

It should be noted that the D.O.T.’s appellate attorney in this case was not the trial attorney.

Although this holding may seem to work a harsh result on those entering into a settlement agreement with a governmental agency, we must keep in mind that, public interest favors preservation and insulation of public funds. Moreover, in the interest of the public good, there are times when the benefit to the public in a case such as the instant one, far outweighs the burden put on the person dealing with the governmental agency. See Department of Transportation v. J. W. Bishop & Co., Inc., 497 Pa. 58 , 439 A.2d 101 (1981) (holding that statutes of limitations do not apply to the Commonwealth unless the statute specifically so provides) ; Section 8541 of the Judicial Code, 42 Pa. C. S. §8541 (providing for governmental immunity).

In short, I do not believe that the Commonwealth should pay for the misdeeds of counsel acting in direct contravention of the established legal authority.