IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Sheward Partnership, LLC, : : No. 1090 C.D. 2015
Petitioner : Submitte d: December 7, 2015

:

v. :

: Department of General Services, :

: Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: January 5, 2016

The Sheward Partnership, LLC (Shewar d) petitions for review of the

June 11, 2015, order of the Board of Claims (Board) sustaining the preliminary

objections filed by the Commonwealth of Pennsylvania, Department of General

Services (DGS) and dismissing Sheward’s statement of claim. We affirm

.

Sheward provides architectural and other professional design services to

governmental, institutional, and commercial clients. On September 27, 2007,

Sheward and DGS executed a professional services contract (Contract) for the design

and construction of a new county maintenance garage in Middlesex Township,

Cumberland County.2

On May 5, 2014, Sheward sent an administrative claim letter to DGS,

seeking to r ecover outstanding costs and fees in the amount of $510,814.36. DGS

received the letter the following day, on May 6, 2014. DGS did not issue a

determination on Sheward’s administrative claim.

Thereafter, on September 19, 2014, Sheward filed a statement of claim

against DGS to recover damages in the amount of $522,277.74 allegedly incurred

during its performance of the Contract. On October 17, 2014, DGS filed preliminary

objections, asserting, inter alia , that the Board lacks jurisdiction because Shewar d

filed its statement of claim beyond the 135

- day deadline set forth in section 1712.1(e)

of the Commonwealth Procurement Code (Code), 62 Pa. C.S. §1712.1(e). 1 After

briefing by the parties and an evidentiary hearing, the Board entered an order

sustaining DGS’s preliminary objection based on lack of jurisdiction and dismissing

Sheward’s statement of claim. Sheward now appeals from that decision. 2

On appeal, Sheward a sserts that the Board erred in calculating the 135

- day period under section 1712.1(e) of the Code . Sheward claims that the Board

improperly began counting the 135

- day period on May 6, 2014, when DGS received

its administrative claim letter, when it should have begun counting on May 7, 2014,

1 Section 1712.1(e) of the Code states, “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(e) (emphasis added)

.

2 Our review of the Board’s order is limited to determining whether the Board’s factual findings are supported by substantial evidence, whether constitutional rights were violated, or

whether the Board committed an error of law. Firetree, L td. v. Department of General Services

, 920 A.2d 906, 91 0 n.8 (Pa. Cmwlth. 2007).3

the day after DGS received the letter. Pennsylvani a law provides that when

computing any period of time, the first day is excluded and the last day is included.

See Section 1908 of the Statutory Construction Act of 1972

, 1 Pa. C.S. §1908. Using

this method, Sheward asserts that 135 days from May 6, 2014 , is September 19, 2014.

We cannot agree.

It is undisputed that DGS received Sheward’s administrative claim letter

on May 6, 2014, and did not issue a final determination. It is also undisputed that

Sheward filed its statement of claim on September 19, 2014. Beginning with May 7,

2014, the day after DGS received the administrative claim letter, 135 days from May

6, 2014, is September 18, 2014, not September 19, 2014. Therefore, b ecause

Sheward filed its st atement of claim one day late, the Board lacked jurisdiction to

consider it. See Section 1724(c) of the Code, 62 Pa. C.S. §1724(c) (“The [B]oard

shall have no power and exercise no jurisdiction over a claim asserted under [section

1724(a)(1) of the Code ( relating to contract controversies)] unless it is filed with the

[B]oard in accordance with section 1712.1 [of the Code] .” )

. 3

Next, Sheward a sserts that even if its statement of claim were untimely

filed, the Board should have excused its late filing bec ause DGS was not prejudiced. 4

3 Notably, Sheward concedes that “[d]eciding the issue of whether the Board of Claims has jurisdiction over [Sheward’s] Statement of Claim involves nothing more tha n correctly calculating the date the claim was due to be filed.” (Sheward’s Br. at 21.)

4 In support of this argument, Sheward relies on federal cases applying the doctrine of excusable neglect as well as section 1928(c) of the Statutory Construction Act of 1972 , 1 Pa. C.S. §1928(c). (Sheward’s Br. at 17

- 20.) However, Sheward did not raise these claims before the Board, so they are waived. At the Board hearing, Sheward instead argued that procedural rules are to be liberally construed pursuant to Pa. R .C

. P. No. 126. As noted above, the Board rejected this claim. (Bd.’s Op. at 12

- 13.)4

Th e Board properly rejected this argument, concluding that the liberal construction

rule of Pa. R.C.P. No. 126 may not be applied to waive statutory jurisdictional

requirements. See Rostosky v. Department of Environmental Re sources , 364 A.2d

761, 763 (Pa. Cmwlth. 1976) (“Where a statute has fixed the time within which an

appeal may be taken, we cannot extend such time as a matter of indulgence. . . . The

untimeliness of the filing deprives the [Environmental Hearing] Board o f

jurisdiction.”); see also South ern Chester County Concerned Citizens Organization v.

Zoning Board of Lower Oxford Township , 937 A.2d 1141, 1146 (Pa. Cmwlth. 2007)

(affirming the dismissal of an appeal from a zoning decision filed two days beyond

the stat utory appeal period, noting that “statutory requirements for perfecting an

appeal are mandatory and jurisdictional”).

Because Sheward filed its statement of claim late, the Board lacked

jurisdiction and, thus, properly dismissed it. Accordingly, we affi rm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Sheward Partnership, LLC, : : No. 1090 C.D. 2015
Petitioner :

:

v. :

: Department of General Services, :

: Respondent :

O R D E R

AND NOW, this 5 th day of January , 201 6

, we hereby affirm the June 11,

2015, order of the Board of Claims

.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge