IN THE COMMONWEALTH COURT OF PENNSYLVANIA

DVR Philly, LLC, :

Petitioner :

:

v. : No. 74 C.D. 2023

:

Philadelphia Regional Port Authority :

a/k/a PhilaPort (Board of Claims), :

Respondent : Submitted: November 9, 2023

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: January 9, 2024

Petitioner DVR Philly, LLC, (DVR) petitions for review of the Pennsylvania 

Board of Claims’ (Board) December 29, 2022 opinion and order (Order), through 

which the Board sustained Respondent Philadelphia Regional Port Authority a/k/a 

PhilaPort’s (PhilaPort) preliminary objections and dismissed DVR’s Statement of 

Claim (Statement) with prejudice. Upon review, we vacate the Board’s Order and 

remand this matter to the Board for further proceedings.

I. Background

In 2016, DVR and PhilaPort entered into an agreement, whereby DVR leased 

125 acres of property from PhilaPort known collectively as “Southport Site I, Site 2, 

Pier 98 Annex, Whiskey and Savage Yard.” Statement ¶10.1 Thereafter, in 2020, the 

parties amended the agreement, in response to unspecified issues that had arisen 

under the original version. Id. ¶11. As amended, the lease agreement requires

1 DVR did not provide the precise location or locations of the leased property; rather, it 

only identified the parcels by the names used in the lease.
2

PhilaPort to provide DVR with several different types of rent credits and rebates. 

See id. ¶¶32-39.

On March 21, 2023, DVR filed its Statement with the Board. Therein, DVR 

alleged that, per the terms of the amended agreement, PhilaPort had been obligated 

to provide DVR with the promised credits and rebates beginning in May and June 

of 2020, but had failed to actually do so until September and October of that year. 

Id. ¶¶32-39, 42, 45, 49, 53, 57.2 Consequently, DVR asserted that it was entitled to 

compensation from PhilaPort, in the form of interest at the legal rate of 6%3 on the 

amount of delayed credits and rebates, that totaled $27,212.50. Id. ¶¶40-41, 43-44, 

47-48, 51-52, 55-56, 59-61. DVR also stated that it had already sought to directly 

recoup this interest from PhilaPort by filing a claim for payment with Jeffrey 

Theobald, PhilaPort’s Executive Director and Chief Executive Officer, on February 

2 DVR stated that the due date and actual payment date differed for each credit or rebate;

depending on the type of credit or rebate, some were owed beginning on May 1, 2020, while others 

were owed beginning on June 1, 2020, and payment was made on some starting on September 15, 

2020, while for others DVR did not receive payment until October 15, 2020. Statement ¶¶32-39, 

42, 45, 49, 53, 57; see id., Ex. 4 (Section 5 of the amended agreement, which articulates the 

parameters of the rent credits and rebates).

3 Per Section 202 of the Act of January 30, 1974, P.L. 13, “[r]eference in any law or 

document enacted or executed heretofore or hereafter to ‘legal rate of interest’ and reference in 

any document to an obligation to pay a sum of money ‘with interest’ without specification of the 

applicable rate shall be construed to refer to the rate of interest of six per cent per annum.” 41 P.S. 

§ 202. DVR avers that this statutory interest rate applies here, because “[t]here is neither a contract 

between PhilaPort and DVR nor an applicable statute providing a rate of interest other than the 

legal rate.” See Statement, ¶¶40-41.
3

10, 2021,4 but that PhilaPort had denied this claim on March 8, 2021, compelling

DVR to seek relief through the Board instead. Id. ¶¶8-9.5

PhilaPort responded to the Statement by filing preliminary objections in the 

nature of a demurrer on May 21, 2023. Specifically, PhilaPort argued that DVR was 

seeking what was, in essence, prejudgment interest. Prelim. Objs. ¶¶9-10. According 

to PhilaPort, it is an instrumentality of the Commonwealth and, thus, is not obligated 

to pay such interest unless required to do so by contract or statute. Id. ¶12. PhilaPort 

asserted that there was no such agreement or law authorizing DVR to seek or secure 

prejudgment interest in this instance, thereby rendering DVR’s demand legally 

4 DVR was required to do this in order to comply with Section 1712.1(b) of the 

Commonwealth Procurement Code (Procurement Code), which reads as follows: “A claim shall 

be filed with the contracting officer within six months of the date it accrues. If a contractor fails to 

file a claim or files an untimely claim, the contractor is deemed to have waived its right to assert a 

claim in any forum. Untimely filed claims shall be disregarded by the contracting officer.” 62 Pa. 

C.S. § 1712.1(b). “Contracting officer” is defined in the Procurement Code as “[a] person 

authorized to enter into and administer contracts and make written determinations with respect to 

contracts.” Id. § 103. In its Statement, DVR identified Theobald as PhilaPort’s contracting officer. 

Statement, ¶7.

5 Per Section 1712.1(d) and (e) of the Procurement Code:

(d) Determination.--The contracting officer shall review a claim and 

issue a final determination in writing regarding the claim within 120 

days of the receipt of the claim unless extended by consent of the 

contracting officer and the contractor. If the contracting officer fails 

to issue a final determination within the 120 days unless extended 

by consent of the parties, the claim shall be deemed denied. The 

determination of the contracting officer shall be the final order of 

the purchasing agency.

(e) Statement of claim.--Within 15 days of the mailing date of a final 

determination denying a claim or within 135 days of filing a claim 

if no extension is agreed to by the parties, whichever occurs first, 

the contractor may file a statement of claim with the [B]oard.

62 Pa. C.S. § 1712.1(d)-(e).
4

unviable. Id. ¶¶14-17. As such, PhilaPort requested that the Board dismiss the 

Statement with prejudice. Id., Wherefore Clause.

The Board assented to PhilaPort’s request by sustaining the preliminary 

objections on December 29, 2022. In doing so, the Board explained that its authority 

to award interest was governed by Section 1751 of the Procurement Code. Board’s 

Order at 6. This statute provides, in relevant part: 

Interest on amounts ultimately determined to be due shall 

be payable at the statutory rate applicable to judgments 

from the date the claim was filed with the contracting 

officer.

62 Pa. C.S. § 1751. The Board interpreted this language as allowing it to award 

interest to a claimant, while also prohibiting such an award for any time period prior 

to when the relevant claim had been filed with the designated contracting officer. 

Board’s Order at 7. The Board then concluded that it had no authority to award DVR 

the compensation it sought from PhilaPort, because DVR only sought interest that 

had theoretically accumulated well before February 10, 2021, the date upon which 

DVR had filed its claim with PhilaPort’s contracting officer. Id. at 7-8. Accordingly, 

the Board dismissed DVR’s Statement with prejudice. Id. at 8. This appeal to our 

Court followed shortly thereafter.

II. Discussion

DVR maintains that the Board improperly sustained PhilaPort’s preliminary 

objections for several reasons, which we summarize as follows.6 First, the Board 

6 We note . . . that the standard for review for preliminary objections 

is a limited one. . . . All material facts set forth in the complaint as 

well as all inferences reasonably deducible therefrom are admitted 

as true for the purpose of this review. The question presented by the 

demurrer is whether, on the facts averred, the law says with certainty 

that no recovery is possible. Where a doubt exists as to whether a 

(Footnote continued on next page...)
5

erred by sua sponte using Section 1751 of the Procurement Code as the basis for 

dismissing the Statement, because PhilaPort did not predicate its argument upon this 

law or even mention this statute in its preliminary objections. DVR’s Br. at 10-11. 

Second, the Board’s interpretation of Section 1751 is erroneous on its merits, as 

neither that statute nor any case law prevents the Board from awarding interest to a 

claimant calculated from the date upon which a contractual breach occurred. Id. at 

11-16. Finally, PhilaPort is not immune from liability for interest of the kind that 

DVR seeks, because the General Assembly waived any such immunity by 

establishing the Board, as well as because PhilaPort is a mere instrumentality of the 

Commonwealth of Pennsylvania and is not imbued with the full panoply of 

immunities held by its parent entity. Id. at 16-19.

With regard to DVR’s first argument, it is beyond cavil that an adjudicatory 

body must remain neutral when handling a legal dispute and “should not act as a 

party’s advocate.” Battiste v. Borough of E. McKeesport, 94 A.3d 418, 423 n.7 (Pa. 

Cmwlth. 2014). It follows from this that an administrative tribunal “may not, sua 

sponte, augment the subject matter of a proceeding” by addressing issues that were 

not raised by the parties thereto. Sunoco Pipeline, L.P v. Pub. Util. Comm’n, 295

A.3d 37, 52 (Pa. Cmwlth. 2023); see Follett v. Workers’ Comp. Appeal Bd.

(Massachusetts Mut. Life Ins. Co.), 551 A.2d 616, 621 (Pa. Cmwlth. 1988) (“Sua 

demurrer should be sustained, this doubt should be resolved in favor 

of overruling it.

Emps. Ins. of Wausau v. Dep't of Transp., 865 A.2d 825, 830 n.5 (Pa. 2005) (internal citations and 

some punctuation omitted).

“In reviewing a Board decision[,] this Court determines whether the Board committed an 

error of law, whether the necessary findings were supported by substantial evidence, or whether 

constitutional rights were violated. Our standard of review of [a Board] order sustaining 

preliminary objections based on an issue of law is de novo, and our scope of review is plenary.” 

Lobar Assocs., Inc v. Pa. Tpk. Comm’n, 216 A.3d 526, 533 n.7 (Pa. Cmwlth. 2019) (internal 

citations omitted).
6

sponte consideration of an issue deprives counsel of the opportunity to brief and 

argue the issues and the [administrative tribunal] of the benefit of counsel’s 

advocacy. Moreover, raising issues sua sponte after the record is closed and without 

notice to the parties constitutes a due process violation.”). That said, “it [is] within 

the power and authority of any tribunal performing quasi-judicial functions to 

determine the nature and extent of its own jurisdiction.” Kim v. Est. of 

Heinzenroether, 390 A.2d 874, 876 (Pa. Cmwlth. 1978).7 Furthermore,

any issue going to the subject matter jurisdiction of a court 

or administrative tribunal to act in a matter . . . cannot be 

waived by the parties[,] nor can the parties confer subject 

matter on a court or tribunal by agreement or stipulation. 

Since an issue of subject matter jurisdiction is not 

waivable, it may be raised at any stage of a proceeding by 

a party, or sua sponte by the court or agency.

Blackwell v. State Ethics Comm’n, 567 A.2d 630, 636 (Pa. 1989) (internal citations 

omitted).

In this instance, PhilaPort did not cite to or discuss Section 1751 of the 

Procurement Code in its preliminary objections, or assert therein that the Board had 

no authority whatsoever to award prejudgment interest to a claimant. Rather, it

predicated its entire argument upon its position that DVR could not recoup 

prejudgment interest because, first, PhilaPort is a component of the Commonwealth

and, second, because there were no relevant contractual or statutory provisions 

allowing such relief. Prelim. Objs. ¶¶12-16. Despite this, the Board did not address 

PhilaPort’s assertion of immunity, but instead relied exclusively upon Section 1751 

when concluding that “pursuant to statute, [the Board] may only award interest upon 

7

“Jurisdiction relates solely to the competency of the particular court or administrative 

body to determine controversies of the general class to which the case then presented for its 

consideration belongs.” Del. River Port Auth. v. Pa. Pub. Util. Comm’n, 182 A.2d 682, 686 (Pa. 

1962).
7

claims brought before it that accrue[] after the filing of the [an] administrative claim 

with the agency[’]s contracting officer.” Decision at 7. The argument put forth by 

PhilaPort in its preliminary objections and the one addressed by the Board in its 

Decision are markedly different and, therefore, cannot be construed as addressing 

the same issue.

It appears that the Board treated Section 1751 of the Procurement Code as if 

that statute deprived it of jurisdiction to award the relief sought by DVR. To reiterate, 

Section 1751 reads, in relevant part:

Interest on amounts ultimately determined to be due shall 

be payable at the statutory rate applicable to judgments 

from the date the claim was filed with the contracting 

officer.

62 Pa. C.S. § 1751. Determining the meaning of this language presents a question of 

pure statutory interpretation.

The object of statutory construction is to ascertain and 

effectuate legislative intent. 1 Pa. C.S. § 1921(a). In 

pursuing that end, we are mindful a statute’s plain 

language generally provides the best indication of 

legislative intent. See Com[.] v. McClintic, . . . 909 A.2d 

1241 ([Pa.] 2006). Thus, statutory construction begins 

with examination of the text itself. [Se.] Pa. Transp. Auth. 

v. Holmes, 835 A.2d 851 (Pa. Cmwlth. 2003).

In reading the plain language of a statute, “[w]ords and 

phrases shall be construed according to rules of grammar 

and according to their common and approved usage.” 1 Pa. 

C.S. § 1903(a). Further, every statute shall be construed, if 

possible, to give effect to all its provisions so that no 

provision is “mere surplusage.” 1 Pa. C.S. § 1921(a).

Moreover, although we must “listen attentively to what a 

statute says[;] [o]ne must also listen attentively to what it 

does not say.” Kmonk-Sullivan v. State Farm Mut. Auto. 

Ins. Co., . . . 788 A.2d 955, 962 ([Pa.] 2001). We may not 

insert a word the legislature failed to supply into a statute. 
8

Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa. 

Cmwlth. 2004).

Malt Beverage Distribs. Ass’n v. Pa. Liquor Control Bd., 918 A.2d 171, 175-76 (Pa. 

Cmwlth. 2007). “When the words of a statute are clear and free from all ambiguity, 

the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. 

C.S. § 1921(b). “However, if we deem the statutory language ambiguous, we must 

then ascertain the General Assembly’s intent by statutory analysis, wherein we may 

consider numerous relevant factors.” Bowman v. Sunoco, Inc., 65 A.3d 901, 906 (Pa.

2013) (citing 1 Pa. C.S. § 1921(c)).

A statute is ambiguous when there are at least two 

reasonable interpretations of the text. . . . In construing and 

giving effect to the text, “‘we should not interpret statutory 

words in isolation, but must read them with reference to 

the context in which they appear.’” Roethlein v. Portnoff 

Law Assoc., . . . 81 A.3d 816, 822 ([Pa.] 2013), citing 

Mishoe v. Erie Ins. Co., . . . 824 A.2d 1153, 1155 ([Pa.] 

2003)[; a]ccord [Pa. Gaming Control Board v. Off. of 

Open Recs.], . . . 103 A.3d 1276, 1285 ([Pa.] 2014) (party’s 

argument that statutory language is ambiguous “depends 

upon improperly viewing it in isolation;” when language 

is properly read together and in conjunction with rest of 

statute, legislative intent is plain).

A.S. v. Pa. State Police, 143 A.3d 896, 905-06 (Pa. 2016) (some citations omitted).

Applying these precepts to Section 1751 of the Procurement Code, we observe 

that this statute explicitly authorizes an award of interest calculated from when a

claim was filed with the appropriate contracting officer. By contrast, it is entirely 

silent regarding whether interest may be awarded prior to the filing of such a claim. 

We also note that there are no other applicable provisions, in the Procurement Code 

or elsewhere, that expressly permit an award of pre-claim interest regarding this type 

of contractual dispute. Therefore, we read Section 1751 as plainly vesting the Board 
9

with the ability to award interest to a claimant, but only that which accrued postclaim.

8

However, this does not mean that Section 1751 is jurisdictional in nature. 

Rather, it is an object example of a statute that limits a tribunal’s power, rather than 

its jurisdictional authority.

‘Jurisdiction’ and ‘power’ are not interchangeable 

although judges and lawyers often confuse them. 

Jurisdiction relates solely to the competency of the 

particular court or administrative body to determine 

controversies of the general class to which the case then 

presented for its consideration belongs. Power, on the 

other hand, means the ability of a decision-making body 

to order or effect a certain result.

Del. River Port Auth., 182 A.2d at 686 (internal citation omitted). “The pertinent 

consideration [regarding jurisdictional issues] is whether the court could ‘enter upon 

the inquiry, not whether it might ultimately decide that it was unable to grant the 

relief sought in the particular case.’” Domus, Inc. v. Signature Bldg. Sys. of Pa., LLC, 

252 A.3d 628, 636 (Pa. 2021) (quoting Cnty. of Allegheny v. Workers’ Comp. Appeal 

Bd. (Parker), 177 A.3d 864, 872 n.10 (Pa. 2018)).

Even if a plaintiff ha[s] no standing to bring his action, 

even if his statement of claim or bill in equity be 

demurrable, even if he fail[s] to establish the allegations in 

his complaint, even if the court ultimately conclude[s] that 

the relief he seeks should not be granted in whole or in 

part, not any or all of these circumstances would enter into, 

much less determine, the question whether the court has

jurisdiction of the litigation.

8 This represents a significant change from the Procurement Code’s predecessor, the former 

Board of Claims Act (Claims Act). Act of May 20, 1937, P.L. 728, as amended, formerly 72 P.S. 

§§ 4651-1-4651-10, repealed by the Act of December 3, 2002, P.L. 1147, No. 142. Under the

Claims Act, which did not impose similar limitations on the Board regarding awarding interest, 

accrual of such interest began “run[ning] from the date on which the Commonwealth’s 

[contractual] obligation . . . to the [claimant] arose.” Dep’t of Prop. & Supplies v. Berger, 312 A.2d 

100, 107-08 (Pa. Cmwlth. 1973).
10

Sch. Dist. of Zerbe Twp. v. Thomas, 44 A.2d 566, 568 (Pa. 1945).

No such jurisdictional concerns exist here. By law, our General Assembly 

expressly established PhilaPort “as a public authority and instrumentality of the 

Commonwealth[,]” and vested it with the ability to “exercise the powers of the 

Commonwealth as an agency of the Commonwealth.” 55 P.S. § 697.4.9 Additionally,

Section 1724(a) of the Procurement Code states, in relevant part:

The [B]oard shall have exclusive jurisdiction to arbitrate 

claims arising from all of the following:

(1) A contract entered into by a Commonwealth 

agency in accordance with this part and filed with 

the [B]oard in accordance with [S]ection 1712.1 [of 

the Procurement Code] (relating to contract 

controversies).

. . . .

(3) Unless otherwise provided by law, a contract 

entered into by a Commonwealth agency involving 

real property interests in which the Commonwealth 

agency is the respondent.

62 Pa. C.S. § 1724(a)(1), (3). Given that the current dispute arose from PhilaPort’s 

agreement to lease certain parcels of land to DVR, these two statutes collectively, 

and indisputably, gave the Board jurisdiction over the current dispute. Furthermore, 

while the Board’s ability to award interest is certainly circumscribed by Section 1751

of the Procurement Act, it remains that this limitation only affects the relief the 

Board is able to provide to successful claimants, not its authority to adjudicate 

disputes. It was therefore erroneous for the Board to raise Section 1751 in a sua 

sponte fashion and rely upon that statutory language as the basis for sustaining 

PhilaPort’s preliminary objections.

9 Section 4 of the Philadelphia Regional Port Authority Act, Act of July 10, 1989, P.L. 291, 

No. 50.
11

III. Conclusion

In accordance with the foregoing analysis, we vacate the Board’s Order and 

remand this matter to the Board, with instructions that it issue an amended opinion 

and order within 30 days that adjudicates the specific argument made by PhilaPort 

in its preliminary objections.

10

_____________________________

ELLEN CEISLER, Judge

10 Due to our disposition of this appeal, we decline to reach DVR’s remaining argument 

regarding whether PhilaPort is immune from liability for prejudgment interest.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

DVR Philly, LLC, :

Petitioner :

:

v. : No. 74 C.D. 2023

:

Philadelphia Regional Port Authority :

a/k/a PhilaPort (Board of Claims), :

Respondent :

O R D E R

AND NOW, this 9

th day of January, 2024, it is hereby ORDERED that 

Pennsylvania Board of Claims’ (Board) December 29, 2022 opinion and order is 

VACATED. It is FURTHER ORDERED that this matter is REMANDED to the 

Board, with instructions that it issue an amended opinion and order within 30 days 

that adjudicates the specific argument made by Respondent Philadelphia Regional 

Port Authority a/k/a PhilaPort in its preliminary objections.

Jurisdiction relinquished.

__________________________________

ELLEN CEISLER, Judge