
    F. W. Mark Construction Co., Inc., v. Hadley, Controller.
    No. 2.
    
      Appeals — Supersedeas — Municipalities—Controller—Certification of contract.
    
    1. Where an appeal has been taken from an order of the Common Pleas directing the controller of a city of the first class to certify a municipal contract, the court will not direct, under the Act of May 11, 1927 (Act No. 464), that the appeal shall act as a supersedeas, where it appears that the delay will operate to the great injury of both the contractor and the city.
    2. Such an application should not be made by the deputy controller, but, if proper, by the city solicitor.
    Application for supersedeas. C. P. No. 4, Phila. Co., June T., 1927, No. 14288.
    
      Morris Wolf, for complainant.
    
      S. Davis Wilson, Deputy Controller, for respondent.
    Sept. 6, 1927.
   Gordon, Jr., J.,

The respondent in this ease has taken an appeal to the Supreme Court from our decision and order of Aug. 30, 1927, directing a peremptory writ of mandamus to issue, commanding him to certify a contract, dated July 13, 1927, between the City of Philadelphia and the complainant company, and now makes application to us, under the Act of May 11, 1927 (Act No. 464), for an order directing that the appeal shall operate as a supersedeas and to fix the amount of the bond to be entered thereunder.

It is apparent, from the nature of the subject-matter of this litigation, that delay incident to the granting of a supersedeas might result in large and uncompensable damages to the complainant because of the delay in beginning his work under the contract, and might also cause great loss to the City of Philadelphia through damage to that part of the City Hall Annex which is already erected, and which is only temporarily protected, by leaving it uncompleted during a part or all of the winter months.

The law of the case is so well established that we deem it inadvisable to grant the supersedeas for the reasons stated. The defendant has no substantial interest to protect by a supersedeas, for if the contractor-plaintiff desires to proceed with the work, pending the appeal, the City cannot be injured thereby. The interest which the defendant pretends to represent is not jeopardized, therefore, by a refusal of the supersedeas. In addition, the application is made by the deputy controller and not by the City Solicitor, who alone under the law may represent the Controller.

The request for an order making the appeal a supersedeas is, therefore, refused.  