“Because immunity is the rule, we must narrowly construe any exceptions MHW-10 thereto.”
How later courts described this case
- “Because immunity is the rule, we must narrowly construe any exceptions MHW-10 thereto.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph George Brimmeier, III, :
Petitioner :
:
v. :
:
Pennsylvania Turnpike Commission, : No. 257 M.D. 2016
Respondent : Submitted: June 3, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE COVEY FILED: September 19, 2016
The Pennsylvania Turnpike Commission (Commission) filed
preliminary objections in the nature of a demurrer and motion to strike to Joseph
George Brimmeier, III’s (Brimmeier) Complaint setting forth causes of action in
mandamus, declaratory judgment, breach of contract, promissory estoppel and
misrepresentation (Complaint) filed in this Court’s original jurisdiction. The sole
issue before the Court is whether the Complaint states a claim upon which relief may
be granted. After review, we sustain the Commission’s preliminary objections and
dismiss Brimmeier’s Complaint.
This Court’s review of preliminary objections is limited to the pleadings.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).
[This Court is] required to accept as true the well-pled
averments set forth in the . . . complaint, and all inferences
reasonably deducible therefrom. Moreover, the [C]ourt
need not accept as true conclusions of law, unwarranted
inferences from facts, argumentative allegations, or
expressions of opinion. In order to sustain preliminary
objections, it must appear with certainty that the law will
not permit recovery, and, where any doubt exists as to
whether the preliminary objections should be sustained, the
doubt must be resolved in favor of overruling the
preliminary objections.
Id. at 415-16 (citations omitted).
According to the Complaint, Brimmeier was the Commission’s Chief
Executive Officer (CEO) from February 2003 to March 2011. See Complaint ¶ 5.
The Attorney General’s Office (AG) filed criminal charges against Brimmeier for
allegedly wrongful conduct relating to vendor contract awards made within the scope
of his employment.1 See Complaint ¶ 6. Brimmeier avers in his Complaint that all of
1
Brimmeier was charged under the Crimes Code as follows:
Count 1 - Section 911(b)(3) - 18 Pa.C.S. § 911(b)(3) (corruption by an
employee) (F1)
Counts 2, 11 - Section 911(b)(4), 18 Pa.C.S. § 911(b)(4) (conspiracy
to commit corruption under Section 911 of the Crimes Code) (F1)
Count 3 - Section 4108(b) - 18 Pa.C.S. § 4108(b) (corruption by a
disinterested person) (M2)
Count 5 - Section 901(a), 18 Pa.C.S. § 901(a) (attempted corruption
by a disinterested person) (M2)
Counts 8, 10 - Section 903(c), 18 Pa.C.S. § 903(c) (conspiracy to
commit corruption by an employee) (F1)
See Complaint Ex. 1 (Brimmeier’s December 4, 2014 reimbursement request letter), Attachment A
(Criminal Docket) at 1-4, 21.
The AG also charged him with two counts (Counts 4 and 12) of violating Section 4503(a)(1)
of the Commonwealth Procurement Code (Procurement Code), 62 Pa.C.S. § 4503(a)(1)
(government contract bid-rigging) (F3). Id.
In addition, the AG charged Brimmeier under Section 1103 of the Public Official and
Employee Ethics Act (Ethics Act) as follows:
Counts 6, 9 - Section 1103(a), 65 Pa.C.S. § 1103(a) (conflict of
interest) (F)
Count 7 - Section 1103(c), 65 Pa. C.S. § 1103(c) (accepting improper
influence) (F)
Id.
2
the charges were either dismissed or nolle prossed, and that he pled guilty to a charge
unrelated to the allegations underlying the original charges. See Complaint ¶ 11.
Brimmeier’s representation notwithstanding, according to the documents attached to
the Complaint, all but one of Brimmeier’s charges were dismissed or nolle prossed on
November 20, 2014.2 See Attachment A (Criminal Docket) of Complaint Ex. 1
(Brimmeier’s December 4, 2014 reimbursement request letter), incorporated by
reference in Complaint ¶ 12. Brimmeier pled guilty to a remaining felony violation
of Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act)3
(conflict of interest),4 for accepting free hospitality and contributions to former
Governor Rendell’s campaign from Orth-Rodgers & Associates (Orth-Rodgers) while
advocating that the Commission award Orth-Rodgers a sole source contract for the
design and construction of a fog detection, traveler information and dynamic traffic
control system for the Sideling Hill area of the Pennsylvania Turnpike. See
Complaint Ex. 1, Attachments A-C.
By December 4, 2014 letter to the Commission, Brimmeier requested
reimbursement of $300,261.00 in legal fees and costs he incurred during the
investigation and defense of the dismissed or nolle prossed charges, pursuant to
Commission Policy and Procedure No. 10.4 (Policy 10.4). See Complaint ¶¶ 12, 14-
19. According to the Complaint, under Policy 10.4,
the Commission may authorize the reimbursement of legal
fees in a criminal case based upon either of the following
two findings: (1) if the Chief Counsel determines that there
2
Count 10 was withdrawn pursuant to Pennsylvania Rule of Criminal Procedure 561(B)
(failure to list the charge on the information). Counts 11 and 12 were dismissed. Counts 1-8 were
nolle prossed. See Complaint Ex. 1, Attachment A at 1-4. Count 9 (conflict of interest) remained.
3
65 Pa.C.S. § 1103(a).
4
According to the Guilty Plea Agreement (Agreement), Brimmeier pled guilty to Count 6
(conflict of interest). See Complaint Ex. 1, Attachment B at 1. Handwritten notes on the
Agreement reference: “Add Ct. 9.” Id. According to the Criminal Docket, Brimmeier pled guilty
to the Count 9 conflict of interest charge. See Complaint Ex. 1, Attachment A at 21.
3
is no basis for the prosecution as a matter of law or fact;
and/or (2) if the employee’s defense is successful.
Complaint ¶ 15. Brimmeier stated: “There has been no formal written response to
[his reimbursement request], however, a verbal response was directed to
[Brimmeier’s counsel] indicating that the [Commission] is declining to reimburse the
subject fees and costs.” Complaint ¶ 13.
On October 13, 2015, Brimmeier filed the Complaint with the Allegheny
County Common Pleas Court (trial court) seeking relief in mandamus, declaratory
judgment, breach of contract, promissory estoppel and misrepresentation.5 The
Commission filed preliminary objections raising: subject matter jurisdiction (with a
motion to transfer the matter to this Court) (First Preliminary Objection); immunity
and a demurrer to the mandamus and declaratory judgment claims (Second
Preliminary Objection); and, motions to strike the breach of contract and promissory
estoppel claims (Third Preliminary Objection). The trial court granted the
Commission’s First Preliminary Objection, and transferred the Complaint to this
Court on March 7, 2016. On April 26, 2016, this Court ordered the parties to brief
the Commission’s Second and Third Preliminary Objections, which are currently
before the Court.
5
Brimmeier filed an identical complaint with this Court (No. 530 M.D. 2015) on November
5, 2015, in the Court’s original jurisdiction. The Commission filed an application to confirm
jurisdiction and perfect a transfer to the trial court. This Court denied, without prejudice, the
Commission’s application to file a motion to transfer the matter to the trial court, and the matter was
closed.
4
Commission’s Second Preliminary Objection – Demurrers
Demurrer – Sovereign Immunity
The Commission objects to the Complaint on the basis that “each of
[Brimmeier’s] five causes of action . . . is barred by sovereign immunity.”6
Commission Prelim. Obj. ¶ 21.
Initially,
[t]he Pennsylvania Constitution provides that the
Commonwealth and its officers and employees may only be
sued where the General Assembly has authorized the suit.
Pa. Const. art. 1 § 11. The General Assembly has specified
that ‘the Commonwealth, and its officials and employees
acting within the scope of their duties, shall continue to
enjoy sovereign immunity and official immunity and
remain immune from suit except as the General Assembly
shall specifically waive the immunity.’ 1 Pa.C.S. § 2310.
Russo v. Allegheny Cnty., 125 A.3d 113, 116 (Pa. Cmwlth. 2015). The “Commission
is a[n independent] Commonwealth agency entitled to sovereign immunity[,]” except
where the General Assembly has expressly stated otherwise. Bradley v. Pa. Tpk.
Comm’n, 550 A.2d 261, 263 (Pa. Cmwlth. 1988); see also Section 2.32 of the
Administrative Code, 4 Pa. Code § 2.32. Because immunity is the rule, we must
narrowly construe any exceptions thereto. See Gale v. City of Phila., 86 A.3d 318
6
[U]nder the Pennsylvania Rules of Civil Procedure, immunity from
suit is an affirmative defense that must be pled in a responsive
pleading under the heading new matter, not as a preliminary
objection. We recognize that courts have permitted limited exception
to this rule and have allowed parties to raise the affirmative defense of
immunity as a preliminary objection. The affirmative defense,
however, must be clearly applicable on the face of the complaint.
Where the plaintiff does not object to the improper procedure, courts
have ruled on the affirmative defense of immunity raised by
preliminary objections.
Smolsky v. Pa. Gen. Assembly, 34 A.3d 316, 321 n.7 (Pa. Cmwlth. 2011) (citations omitted). Here,
Brimmeier did not object to the Commission’s improper procedure.
5
(Pa. Cmwlth. 2014); see also Quinones v. Dep’t of Transp., 45 A.3d 467 (Pa.
Cmwlth. 2012).
Although the Commission objects because all five of Brimmeier’s claims
are barred by sovereign immunity, the Commission only discusses Brimmeier’s
breach of contract, promissory estoppel and misrepresentation claims.
Notwithstanding, the law is clear that sovereign immunity does not bar either
mandamus or declaratory judgment actions. See Banfield v. Cortes, 922 A.2d 36, 43
(Pa. Cmwlth. 2007) (quoting Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. 1995)
(“Actions in mandamus are not subject to the defense of sovereign immunity.”)); see
also Finn v. Rendell, 990 A.2d 100, 105 (Pa. Cmwlth. 2010) (“sovereign immunity
does not bar a declaratory judgment action”). Therefore, to the extent that the
Commission’s objection is that Brimmeier’s mandamus and/or declaratory judgment
actions are barred by sovereign immunity, it is overruled.
Relative to Brimmeier’s breach of contract and contract-related
promissory estoppel7 claims, in Section 1702(b) of the Commonwealth Procurement
Code (Procurement Code),8 62 Pa.C.S. § 1702(b), the General Assembly waived
immunity from claims that fall under the Board of Claims’ jurisdiction. The Board of
Claims has exclusive jurisdiction to arbitrate claims arising from “[a] contract
entered into by a Commonwealth agency . . . .” 62 Pa.C.S. § 1724(a)(1) (emphasis
added). The Procurement Code defines “[c]ontract,” in relevant part, as “[a] type of
written agreement . . . for the procurement . . . of . . . services . . . executed by all
parties in accordance with the act of October 15, 1980 (P.L. 950, No. 164), known as
7
Promissory estoppel is an equitable doctrine that “makes otherwise unenforceable
agreements binding[.]” Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000). Promissory
estoppel “sounds in contract law[.]” Id. “This Court has [] broadly construed the [Board of
Claim’s] jurisdiction to include claims for damages on the theories of promissory estoppel and
quasi-contract.” Telwell, Inc. v. Pub. Sch. Emps. Ret. Sys., 88 A.3d 1079, 1086 (Pa. Cmwlth. 2014)
(emphasis added); see also Dep’t of Health v. Data-Quest, Inc., 972 A.2d 74 (Pa. Cmwlth. 2009).
8
62 Pa.C.S. §§ 101-2311.
6
the Commonwealth Attorneys Act.”9 62 Pa.C.S. § 103 (emphasis added). “Services”
are defined in relevant part therein as “[t]he furnishing of labor, time or effort by a
contractor . . . [but the term] does not include employment agreements . . . .” Id.
(emphasis added). Accordingly, this Court has concluded “that with respect to
Section 1724(a)(1) of the [Procurement] Code, the . . . definitions of ‘contract’ and
‘services’ in Section 103 of the [Procurement] Code . . . bar from the exclusive
jurisdiction of the Board [of Claims] claims arising from employment contracts
entered into by the Commonwealth.” Dubaskas v. Dep’t of Corr., 81 A.3d 167, 177
(Pa. Cmwlth. 2013); see also Armenti v. Pa. State Sys. of Higher Educ., 100 A.3d 772
(Pa. Cmwlth. 2014). Because Brimmeier herein bases his contract breach and
promissory estoppel claims upon a purported employment agreement, they are barred
by sovereign immunity. Accordingly, we sustain the Commission’s sovereign
immunity objection to Counts III and IV of the Complaint.
The Commission also objects on the basis that Brimmeier’s
misrepresentation claim is barred by sovereign immunity. In Count V of the
Complaint, Brimmeier avers:
46. At all times relevant hereto, the [Commission] knew or
should have reasonably expected that the promises and
assurances made by the [Commission] to [Brimmeier]
would be relied upon by [Brimmeier], including but limited
to the representations in the [Commission]’s Policies and
Procedures.
47. [Brimmeier] was entitled to rely upon the
representations set forth in said Policies and Procedures and
reasonably and detrimentally did so rely.
48. The misrepresentations of the [Commission] to
[Brimmeier] were intentionally made.
49. The misrepresentations of the [Commission] to
[Brimmeier] were negligently made.
9
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101 – 732-506.
7
50. The misrepresentations of the [Commission] to
[Brimmeier] were innocently made.
51. The [Commission]’s breach of said representations has
damaged [Brimmeier].
Complaint ¶¶ 46-51.
The Pennsylvania Supreme Court has recognized that “a
misrepresentation may be actionable pursuant to three theories: Intentional
Misrepresentation, Negligent Misrepresentation, and Innocent Misrepresentation.”
Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999).
The elements of intentional misrepresentation are as
follows:
(1) A representation;
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) justifiable reliance on the misrepresentation; and,
(6) the resulting injury was proximately caused by the
reliance.
Id. at 560.
Negligent misrepresentation requires proof of: (1) a
misrepresentation of a material fact; (2) made under
circumstances in which the misrepresenter ought to have
known its falsity; (3) with an intent to induce another to act
on it; and; (4) which results in injury to a party acting in
justifiable reliance on the misrepresentation.
Id. at 561. Both intentional misrepresentation and negligent misrepresentation are
torts. See Bortz; see also Gibbs v. Ernst, 647 A.2d 882 (Pa. 1994). “[N]egligent
misrepresentation differs from intentional misrepresentation in that to commit the
former, the speaker need not know his or her words are untrue, but must have failed
8
to make reasonable investigation of the truth of those words. See Restatement
(Second) of Torts § 552.” Gibbs, 647 A.2d at 890.
Section 8522(a) of what is commonly referred to as the Sovereign
Immunity Act (Act)10 provides, in relevant part:
Liability imposed.--The General Assembly, pursuant to
section 11 of Article I of the Constitution of Pennsylvania,
does hereby waive, in the instances set forth in subsection
(b) only and only to the extent set forth in this subchapter
and within the limits set forth in [S]ection 8528 [of the
Judicial Code] (relating to limitations on damages),
sovereign immunity as a bar to an action against
Commonwealth parties, for damages arising out of a
negligent act where the damages would be recoverable
under the common law or a statute creating a cause of
action if the injury were caused by a person not having
available the defense of sovereign immunity.
42 Pa.C.S. § 8522(a). In Section 8522(b) of the Act, the General Assembly waived
sovereign immunity for damages caused in nine specific instances not applicable in
the instant case.11 42 Pa.C.S. § 8522(b). Moreover, this Court has declared that
“state employees do not lose their immunity for intentional torts, provided they are
acting within the scope of their employment.” Kull v. Guisse, 81 A.3d 148, 157 (Pa.
Cmwlth. 2013). Thus, under the circumstances represented in Brimmeier’s
Complaint, the Commission is immune from Brimmeier’s intentional
misrepresentation and negligent misrepresentation claims. Accordingly, the
Commission’s sovereign immunity objection to Brimmeier’s intentional
misrepresentation and negligent misrepresentation claim are sustained.
10
42 Pa.C.S. §§ 8521-8528.
11
A Commonwealth party may be liable under Section 8522(b) of the Act for damages due
to: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal
property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous
conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard
activities; and (9) toxoids and vaccines. See 42 Pa.C.S. § 8522(b).
9
“A claim for a misrepresentation, innocently made, to the extent
recognized in this Commonwealth, is an equitable doctrine based upon contract
principles supporting equitable recision to make a contract voidable by the innocent
party, where appropriate[.]” Bortz, 729 A.2d at 564. Innocent misrepresentation
claims are brought to rescind real estate transactions. “[W]e have found no cases in
which this Court adopted [an innocent misrepresentation] theory as a basis to award
monetary damages for tort recovery.” Id. Thus, there is no legal basis on which this
Court may apply the innocent misrepresentation doctrine or award money damages
for it in the instant context. Even if there was such grounds, to the extent that
Brimmeier’s innocent misrepresentation claim is based upon a purported employment
contract, it is barred by sovereign immunity. Accordingly, we sustain the
Commission’s sovereign immunity objections to Count V of the Complaint.
Demurrer to Count I - Mandamus Relief Claim
In Count I of the Complaint, Brimmeier alleges:
22. [The Commission] has a mandatory and legal duty to
fairly and reasonably apply Policy 10.4 to Brimmeier’s
request for the reimbursement of the subject legal fees and
costs incurred in the successful defense to the subject
criminal charges which were filed against him, including
‘indemnification to the fullest extent permitted by law.’
23. [Brimmeier] has a specific and personal interest in the
result of this mandamus action and has a clear and
undisputable legal right to the relief demanded herein.
24. The [Commission’s] actions were arbitrary, vexatious
and conducted in bad faith thereby entitling [Brimmeier] to
an award of attorney’s fees.
25. [Brimmeier] does not have another adequate or
appropriate remedy.
10
Complaint ¶¶ 22-25. Brimmeier asks this Court to “enter a [w]rit of [m]andamus
directed to the [Commission] compelling payment of [$300,261.00].” Complaint
Count I ad damnum clause.
In support of his claim, Brimmeier represents that
Policy 10.4 expressly states that it is meant to be construed
broadly. In pertinent part, it provides: ‘It is the policy of the
[Commission] to provide legal representation and
indemnification to the fullest extent permitted by law to all
employees who are named as defendant[s] in any civil or
criminal matters which arise out of actions taken in good
faith by the employer in the performance of their duties.’
Complaint ¶ 17. Brimmeier claimed that dismissal/nolle prosequi proved that “there
was absolutely no basis in law or fact for the [O]riginal [C]harges filed against [him]
and his defense of those counts was successful.” Complaint ¶ 16. Accordingly,
Brimmeier contends that, pursuant to Policy 10.4, he “is eligible for reimbursement
of the fees and costs paid to successfully defend the [Original C]harges.” Complaint
¶ 16.
This Court has held:
The common law writ of mandamus lies to compel an
official’s performance of a ministerial act or a mandatory
duty. McGill v. P[a.] Dep[’]t of Health, Office of Drug [&]
Alcohol Programs, 758 A.2d 268, 270 (Pa. Cmwlth. 2000).
‘The burden of proof falls upon the party seeking this
extraordinary remedy to establish his legal right to such
relief.’ Werner v. Zazyczny, . . . 681 A.2d 1331, 1335 ([Pa.]
1996). Mandamus requires ‘[1] a clear legal right in the
plaintiff, [2] a corresponding duty in the defendant, and [3]
a lack of any other adequate and appropriate remedy at
law.’ Crozer Chester Med[.] C[tr.] v. . . . Bureau of
Workers’ Comp[.], Health Care Serv[s.] Review Div[.], . . .
22 A.3d 189, 193 ([Pa.] 2011) (citations omitted).
Mandamus is not available to establish legal rights but only
to enforce rights that have been established.
11
Sinkiewicz v. Susquehanna Cnty. Bd. of Comm’rs, 131 A.3d 541, 546 (Pa. Cmwlth.
2015). “Mandamus is not used to direct the exercise of judgment or discretion of an
official in a particular way.”12 Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth.
2007). Accordingly, “[a]s a high prerogative writ, mandamus is rarely issued[,] and
never to interfere with a public official’s exercise of discretion.” Sinkiewicz, 131
A.3d at 546 (emphasis added).
Here, Brimmeier represented in the Complaint that “the Commission
may authorize the reimbursement of legal fees” when certain conditions are met.
Complaint ¶ 15 (emphasis added). The United States Supreme Court declared that
“the ‘word ‘may’ clearly connotes discretion.’” Halo Elecs., Inc. v. Pulse Elecs.,
Inc., ___ U.S. ___, ___, 136 S.Ct. 1923, 1931 (2016) (quoting Martin v. Franklin
Capital Corp., 546 U.S. 132, 136 (2005)). Based upon our strict reading of the
Complaint, the Commission had the discretion to reimburse Brimmeier for legal fees
and costs he incurred in defending the Original Charges. Because this Court is not
authorized to order the Commission to exercise its judgment in a particular way,
Clark, Count I of Brimmeier’s Complaint fails to state a claim upon which relief may
be granted. Therefore, the Commission’s Second Preliminary Objection relative to
the Complaint Count I is sustained.
Demurrer to Count II - Declaratory Relief Claim
In Count II of the Complaint, Brimmeier seeks declaratory relief
requesting this “Court to award a peremptory judgment directing the [Commission] to
pay the requested attorney’s fees and costs.” Complaint ¶ 32. He further “requests
12
“[I]n the context of a discretionary act, a court can issue such a writ to mandate the
exercise of [its] discretion in some fashion, but not to require that it be exercised in a particular
manner.” Sever v. Dep’t of Envtl. Res., 514 A.2d 656, 660 (Pa. Cmwlth. 1986) (quoting U.S. Steel
Corp. v. Papadakos, 437 A.2d 1044, 1046 (Pa. Cmwlth. 1981)).
12
this Honorable Court [to] enter judgment in his behalf and against the [Commission]
in an amount in excess of $35,000[.00] plus interest, costs and reasonable attorney’s
fees.” Complaint Count II ad damnum clause.
Section 7532 of the Declaratory Judgments Act, provides: “Courts of
record, within their respective jurisdictions, shall have power to declare rights, status,
and other legal relations whether or not further relief is or could be claimed.” 42
Pa.C.S. § 7532.
The purpose of the Declaratory Judgments Act is to ‘settle
and to afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations, and is to
be liberally construed and administered.’ 42 Pa.C.S. §
7541(a). An action brought under the Declaratory
Judgments Act ‘must allege an interest by the party seeking
relief which is direct, substantial and present[13] . . . and
must demonstrate the existence of an actual controversy
related to the invasion or threatened invasion of one’s
legal rights.’ Bowen v. Mount Joy T[wp.], . . . 644 A.2d
818, 821 . . . [(Pa. Cmwlth. 1994)]. Granting or denying an
action for a declaratory judgment is committed to the sound
discretion of a court of original jurisdiction.
GGNSC Clarion LP v. Kane, 131 A.3d 1062, 1064 n.3 (Pa. Cmwlth. 2016) (emphasis
added). In essence, “[d]eclaratory judgments are . . . judicial searchlights, switched
on at the behest of a litigant to illuminate an existing legal right, status or other
relation.” Burke v. Indep. Blue Cross, 128 A.3d 223, 228 (Pa. Super. 2015) (quoting
Wagner v. Apollo Gas Co., 582 A.2d 364, 365 (Pa. Super. 1990)). “Under the
Declaratory Judgments Act, a litigant may obtain a declaration of his rights as to a
13
A party’s interest is substantial when it surpasses the interest of all
citizens in procuring obedience to the law; it is direct when the
asserted violation shares a causal connection with the alleged harm;
finally, a party’s interest is immediate when the causal connection
with the alleged harm is neither remote nor speculative.
Office of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014).
13
particular controversy without any consequential relief being awarded. 42 Pa.C.S. §
7532.” Fawber v. Cohen, 532 A.2d 429, 434 (Pa. 1987).
However, Brimmeier has failed to plead an existing legal right over
which there exists an actual case or controversy. First, it is unclear on the face of the
Complaint: (1) whether Policy 10.4 creates a legal right in Brimmeier, when doubt
exists regarding whether Brimmeier’s plea constituted a successful defense, and when
Policy 10.4’s application is at the Commission’s discretion; or (2) whether a deemed
denial can be based upon the Commission’s purported verbal denial.
Second, jurisdictional determinations must be made based upon the
substance rather than the styling of the complaint. Miles v. Beard, 847 A.2d 161 (Pa.
Cmwlth. 2004); see also Stackhouse v. Pa. State Police, 832 A.2d 1004 (Pa. 2003).
Here, Brimmeier seeks a declaration from this Court “directing the [Commission]
to pay the requested attorney’s fees and costs,” and also seeks an additional
$35,000.00 in damages. Complaint ¶ 32 (emphasis added). This Court does not have
jurisdiction over tort claims against Commonwealth agencies for money damages.
Stackhouse; Balshy v. Rank, 490 A.2d 4151 (Pa. 1985).
[A]lthough one might argue that what [Brimmeier] really
wants is a [declaration] rather than money damages, he is
the one who included a request for money damages in his
[C]omplaint. It is not our function to ignore a portion of his
request for relief so that original jurisdiction can be vested
in this Court.
Miles, 847 A.2d at 165. Therefore, although Brimmeier may intend to be seeking
equitable relief with his declaratory judgment claim, because on the face of the
Complaint, the relief is directly associated with money damages arising from his
purported tort claims, the declaratory judgment claim is not properly before this
Court. See Stackhouse; see also Miles.
14
Under the circumstances, because Count II of Brimmeier’s Complaint
fails to state a viable claim for declaratory relief, we sustain the Commission’s
Second Preliminary Objection relative to the Complaint Count II.14
Commission’s Third Preliminary Objection – Motion to Strike
The Commission is also seeking to have Counts III and IV of the
Complaint stricken pursuant to Pennsylvania Rule of Civil Procedure No. (Rule)
1028(a)(2) on the basis that they fail to conform to law or rule of court, specifically
because they are not sufficiently specific.15
Initially, “Pennsylvania is a fact-pleading state.” Bricklayers of W. Pa.
Combined Funds, Inc. v. Scott’s Dev. Co., 90 A.3d 682, 694 n.14 (Pa. 2014). Rule
1019(a) specifies that “[t]he material facts on which a cause of action . . . is based
shall be stated in a concise and summary form.” Pa.R.C.P. No. 1019(a). The
Pennsylvania Supreme Court has explained that “[a]lthough the rules of civil
procedure are to be liberally construed, see Pa.R.C.P. [No.] 126, the complaint must
nonetheless apprise the defendant of the claim being asserted and summarize the
essential supporting facts.” Bricklayers, 90 A.3d at 694. “Use of boilerplate
allegations defeats the primary purpose of pleading under our rules of procedure.”
Clay v. Advanced Computer Applications, Inc., 536 A.2d 1375, 1382 (Pa. Super.
14
Our Supreme Court disapproves of this Court transferring this case back to the trial court.
In Balshy, this [Supreme] Court noted that it disapproved of one court
being transferred a case and then attempting to retransfer the matter
back to the court where the matter was originally filed because of a
lack of jurisdiction. Instead, the proper practice in such cases would
be to dismiss the action and for the parties to take an appeal.
Hill v. Pa. Dep’t of Envtl. Prot., 679 A.2d 773, 774 n.1 (Pa. 1996).
15
Although we have sustained the Commission’s sovereign immunity objections to Counts
III and IV of the Complaint, in the interest of a thorough analysis, we also address the
Commission’s motions to strike those claims.
15
1988), rev’d in part, 559 A.2d 917 (Pa. 1989). Accordingly, this Court has held that
a failure to adequately plead a claim “can, and typically does, result in the dismissal
of the claim and/or cause of action.” Allen v. State Civil Serv. Comm’n, 992 A.2d
924, 927 (Pa. Cmwlth. 2010).
Motion to Strike Count III - Breach of Contract
The Commission specifically contends that Brimmeier’s Count III
breach of contract claim should be stricken due to Brimmeier’s failure to attach a
copy of the contract upon which he relies.
Indeed, “[i]n a claim for breach of contract, the plaintiff must allege that
‘there was a contract, the defendant breached it, and plaintiff[] suffered damages
from the breach.’” Discover Bank v. Stucka, 33 A.3d 82, 87 (Pa. Super. 2011)
(emphasis added) (quoting McShea v. City of Phila., 995 A.2d 334, 340 (Pa. 2010)).
Rule 1019 further requires, in relevant part:
(h) When any claim or defense is based upon an agreement,
the pleading shall state specifically if the agreement is
oral or written.
Note: If the agreement is in writing, it must be
attached to the pleading. See subdivision (i) of this
rule.
(i) When any claim or defense is based upon a writing, the
pleader shall attach a copy of the writing, or the material
part thereof . . . .[16]
Pa.R.C.P. No. 1019 (emphasis added).
Where a plaintiff seeks to recover on an oral agreement, it is
particularly important that the pleading at least identify in
as specific detail as possible the date of the agreement
16
Rule 1019(i) specifies that “if the writing or copy is not accessible to the pleader, it is
sufficient so to state, together with the reason, and to set forth the substance in writing.” Pa.R.C.P.
No. 1019(i).
16
and the individuals involved.[17] . . . This is a pleading
requirement that cannot be avoided by merely asserting
that the defendant already knows the material facts that
have been omitted from the pleading.
Pratter v. Penn Treaty Am. Corp., 11 A.3d 550, 563–64 (Pa. Cmwlth. 2010)
(emphasis added). If, however, a claim is based upon a written agreement, “a
complaint should be stricken for failure to attach [the] essential document.”
Adamo v. Cini, 656 A.2d 576, 579 (Pa. Cmwlth. 1995) (emphasis added).
Brimmeier pled his breach of contract claim as follows:
34. [Brimmeier] entered into a contract with the
[Commission] by and through his employment with the
[Commission].
35. The parties had a mutual understanding that
[Brimmeier] would perform the duties of his office for the
[Commission] and in exchange therefore would receive
consideration in the form of salary and benefits.
36. The terms of the contract included but were not limited
to the provisions of the Policies and Procedures of the
[Commission] as previously set forth herein.
37. [Brimmeier] was entitled to rely upon the
representations set forth in said Policies and Procedures and
reasonably did so rely.
38. [Brimmeier] at all times relative hereto performed his
duties pursuant to the contract between the parties.
17
In Pratter v. Penn Treaty American Corp., 11 A.3d 550 (Pa. Cmwlth. 2010), this Court
explained that details relating to the agreement’s date and the individuals involved
will enable a[n agency] defendant faced with a claim based on an
alleged oral agreement to investigate the claim and, in particular,
speak with those who have allegedly entered into the oral agreement
at issue. Based on this investigation, the [agency] defendant will be
better positioned to respond to the allegations and assert defenses to
the claim.
Id. at 563-64.
17
39. The [Commission] committed a breach of contract by
refusing and/or failing to reimburse [Brimmeier] for the
subject legal fees and costs.
Complaint ¶¶ 34-39.
Nowhere in the Complaint in general, or in Count III in particular, does
Brimmeier specify whether his purported agreement with the Commission was oral or
written. Thus, whether or not the purported agreement was oral or in writing, he
failed to state a viable contract claim. Moreover, if the alleged contract was in
writing, Brimmeier also failed to attach a copy of it to the Complaint. Because
Brimmeier failed to plead facts sufficient to support a breach of contract claim with
the requisite level of specificity required by Rule 1019, and the Commission’s
sovereign immunity precludes Brimmeier’s amendment to cure the defect, we hold
that Count III of the Complaint must be stricken. Thus, the Commission’s objection
to Count III of the Complaint is sustained.
Motion to Strike Count IV – Promissory Estoppel
The Commission also contends that Brimmeier’s Count IV promissory
estoppel claim should be stricken due to Brimmeier’s impermissibly vague pleading.
Initially, “[t]o seek relief under the doctrine of promissory estoppel,
plaintiffs must plead all facts necessary to support such a claim in their complaint.”
Widener Univ. v. Fred S. James & Co., Inc., 537 A.2d 829, 832 (Pa. Super. 1988).
To maintain a claim for promissory estoppel (Count [IV]),
[Brimmeier] will be required to prove the following: ‘(1)
the promisor made a promise that would reasonably be
expected to induce action or forbearance on the part of the
promisee; (2) the promisee actually took action or
refrained from taking action in reliance on the promise;
and (3) injustice can be avoided only by enforcing the
promise.’
18
Pratter, 11 A.3d at 562 (emphasis added) (quoting Peluso v. Kistner, 970 A.2d 530,
534 (Pa. Cmwlth. 2009)).
In Count IV of the Complaint, Brimmeier avers:
41. At all times relevant hereto, the [Commission] knew or
should have reasonably expected that the promises and
assurances made by the [Commission] to [Brimmeier]
would be relied upon by [Brimmeier], including but [sic]
limited to the representations in the [Commission]’s
Policies and Procedures.
42. [Brimmeier] was entitled to rely upon the
representations set forth in said Policies and Procedures and
reasonably and detrimentally did so rely.
43. The [Commission]’s representations to [Brimmeier]
were false, fraudulent and misleading.
44. The [Commission]’s breach of said representations has
damaged [Brimmeier].
Complaint ¶¶ 41-44. Although Brimmeier generally states in Count IV that he relied
to his detriment upon the Commission’s representations in its Policies and
Procedures, the Complaint “does not aver what detriment [he] suffered on the faith of
[the Commission’s purported] promise.[18] As such, the [C]omplaint is not legally
sufficient to sustain a claim of promissory estoppel.” Di Sante v. Russ Fin. Co., 380
A.2d 439, 441 (Pa. Super. 1977). Because Brimmeier failed to plead facts sufficient
to support a promissory estoppel claim with the requisite level of specificity required
by Rule 1019, and the Commission’s sovereign immunity precludes Brimmeier’s
amendment to cure the defect, we hold that Count IV of the Complaint must be
stricken. Thus, the Commission’s objection to Count IV of the Complaint is
sustained.
18
Without more specific pleading, this Court would be hard-pressed to hold that Brimmeier
could reasonably rely upon the Commission’s discretionary reimbursement policy in the first
instance, or that any perceived promise of reimbursement was the only reason Brimmeier sought
legal counsel against the criminal charges.
19
Conclusion
Based on the foregoing, the portion of the Commission’s Second
Preliminary Objection that the Commission is immune from Brimmeier’s claims are
overruled as to Counts I and II of the Complaint, but are sustained as to Counts III,
IV and V. The Second Preliminary Objection demurrer to Counts I and II are
sustained. The Commission’s Third Preliminary Objection motions to strike Counts
III and IV are sustained. Because the Commission’s objections to all five counts of
Brimmeier’s Complaint are sustained, his Complaint is dismissed.
___________________________
ANNE E. COVEY, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph George Brimmeier, III, :
Petitioner :
:
v. :
:
Pennsylvania Turnpike Commission, : No. 257 M.D. 2016
Respondent :
ORDER
AND NOW, this 19th day of September, 2016, the Pennsylvania
Turnpike Commission’s (Commission) Preliminary Objections to Joseph George
Brimmeier, III’s (Brimmeier) Complaint are sustained. Brimmeier’s Complaint is
dismissed.
___________________________
ANNE E. COVEY, Judge