The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Roe, :
Petitioner :
:
v. :
:
The Pennsylvania Game Commission, : No. 409 M.D. 2014
Respondent : Argued: December 9, 2015
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COVEY FILED: September 22, 2016
The Pennsylvania Game Commission (Commission) preliminarily
objects to Carl Roe’s (Roe) Amended Complaint averring three contract breach
claims and a promissory estoppel claim against the Commission. The Commission
asserts that Roe’s claims, inter alia, are barred by sovereign immunity or, in the
alternative, fall under the exclusive jurisdiction of the Board of Claims (Board).
Essentially, the issue before the Court is whether sovereign immunity is a bar to
Roe’s claims. After review, we sustain the Commission’s preliminary objections and
dismiss Roe’s Amended Complaint without prejudice.
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
According to the Amended Complaint, Roe served as the Commission’s
Executive Director from December 30, 2005 until January 17, 2014. On June 25,
2013, Roe entered into an Agreement and Release (Original Agreement) with the
Commission’s Board of Commissioners (Commissioners), under which Roe agreed to
retire before January 31, 2014,3 waive and release any and all claims he may have
against the Commission and the Commissioners, and keep confidential any and all
communications with the Commission during his tenure as Executive Director. In
addition to paying Roe $220,000.00 “no later than two weeks after the retirement
date,” the Commission agreed to keep its communications with Roe confidential.
Amended Complaint Ex. A, Original Agreement at 1. The Original Agreement stated
that the payment “shall not be compensation but shall be consideration for the
obligations to be fulfilled by Roe as set forth [t]herein.” Id. It further provided that
the arrangement was “to allow for the orderly transition of the Executive Director,
while not monetarily penalizing Roe for announcing his retirement early enough to
allow for a reasonable search and appointment of a new Executive Director.” Id. at 2.
The Original Agreement was signed by all eight Commissioners, and was approved
as to form and legality by the Commission’s Chief Counsel and the Attorney
General’s Office (OAG). Roe retired from the Commission effective January 17,
2014.
Thereafter, the Commission asked Roe to sign an Amended and Restated
Agreement and Release (Amended Agreement) “to modify some of the language of
the [Original] Agreement.” Amended Complaint ¶ 24. The Amended Agreement
reflected that Roe retired on January 17, 2014 and provided that he would be paid the
$220,000.00 “as soon as practically possible.” Amended Complaint Ex. B, Amended
Agreement at 1. The Amended Agreement specified that its intent was “to settle
3
Roe’s tenure was supposed to end in April 2015.
2
potential legal claims that the parties might have made against each other” and that
the Commission’s payment would be “consideration for settlement of potential legal
claims.” Id. Like the Original Agreement, the Amended Agreement provided that
the payment was not compensation. Roe and the eight Commissioners signed the
Amended Agreement on January 27, 2014, and it was approved as to form and
legality by the Commission’s Chief Counsel, but it was not executed by the OAG or
the Comptroller.4
Roe’s original complaint asserted a single breach of contract claim
against the Commission. Following the filing of preliminary objections, Roe filed the
Amended Complaint. In the Amended Complaint, Roe alleges that the Commission
breached the Original Agreement and the Amended Agreement (collectively,
Agreements) when it refused to pay him $220,000.00 despite that he had retired and
otherwise complied with the terms of the Agreements. The Amended Complaint
contains four claims against the Commission: Count I – breach of the Original
Agreement; Count II – breach of the Amended Agreement; Count III – breach of the
Original Agreement, as amended by the Amended Agreement; and, Count IV –
promissory estoppel arising from Roe’s detrimental reliance on the Commission’s
promises. The Commission filed preliminary objections to Roe’s Amended
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).
4
The Amended Agreement denoted that it would amend the Original Agreement effective
“[u]pon execution by all parties, approved as to form and legality by agency counsel and the
[OAG], as well as approved by the Comptroller[.]” Amended Agreement at 2. Roe asserts that,
under Section 204(f) the Commonwealth Attorney’s Act, Act of October 15, 1980, P.L. 950, as
amended, 71 P.S. § 732-204(f), the Amended Agreement was deemed approved after the OAG’s
failure to act within 30 days.
3
[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). Herein, this Court’s review is limited to the
averments in Roe’s Amended Complaint.5
The Commission first argues that it is immune from Roe’s claims
because the General Assembly has only waived sovereign immunity over contract
claims against Commonwealth agencies to the extent jurisdiction over those claims
lies with the Board and, in this case, the Board lacks jurisdiction. 6,7
5
Judge McCullough in her Dissenting Opinion references a letter (Letter) which is attached
as an exhibit to and is incorporated by reference in Roe’s original complaint. The Commission’s
preliminary objections now before this Court object only to Roe’s Amended Complaint. The Letter
is not attached to nor mentioned in Roe’s Amended Complaint. This Court’s analysis of the
Commission’s preliminary objections is, as required, limited to the allegations in Roe’s Amended
Complaint.
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;
emphasis added). Here, Roe did not object to the Commission’s improper procedure.
7
The Commission also contends that Roe’s claims are barred by sovereign immunity
because Roe failed to first present his claim to the Commission as required by the Procurement
Code, thereby depriving the Board of jurisdiction.
4
Article I, Section 11 of the Pennsylvania Constitution states, in pertinent
part, that “[s]uits may be brought against the Commonwealth in such manner, in such
courts and in such cases as the Legislature may by law direct.” Pa. Const. art. I, § 11.
The General Assembly has declared that the Commonwealth “shall continue to enjoy
sovereign immunity . . . and remain immune from suit except as the General
Assembly shall specifically waive the immunity.” 1 Pa.C.S. § 2310.
With the enactment of what was commonly referred to as the Board of
Claims Act,8 the General Assembly gave the Board “exclusive jurisdiction to hear
and determine all claims against the Commonwealth arising from contracts
hereafter entered into with the Commonwealth, where the amount in controversy
amounts to $300.00 or more.” Section 4 of the former Board of Claims Act, 72 P.S. §
4651-4 (emphasis added). “The exclusive remedy of monetary damages in the Board
. . . constituted a limited waiver of sovereign immunity.” Ezy Parks v. Larson, 454
A.2d 928, 934 (Pa. 1982). Thus, “[a]lthough the Commonwealth traditionally had
sovereign immunity from suit, the establishment of the Board . . . waived that
immunity by providing a tribunal whose specific duty was to entertain contract
actions against the Commonwealth.” Shovel Transfer & Storage, Inc. v. Simpson,
565 A.2d 1153, 1155 (Pa. 1989).
In 2002, the General Assembly repealed the Board of Claims Act and re-
enacted the Board’s enabling jurisdiction under the Commonwealth Procurement
In the alternative, the Commission argues that if it is determined that the Commission does
not enjoy immunity from Roe’s action, the Amended Complaint should nevertheless be dismissed
because the Board has exclusive jurisdiction over contract claims against the Commonwealth and its
agencies. The Commission also maintains that if this Court retains jurisdiction over this matter, the
Amended Complaint should be dismissed because Roe’s verification does not conform to Pa.R.C.P.
No. 1024(a) (relating to the signer’s personal knowledge, information or belief), and/or that Count
II of the Amended Complaint should be dismissed because Roe failed to allege that its conditions
precedent (i.e., OAG and Comptroller approval) had been met.
8
Act of May 20, 1937, P.L. 728, as amended, 72 P.S. §§ 4651-1 – 4651-10, repealed by
Section 21(a) of the Act of December 3, 2002, P.L. 1147.
5
Code (Procurement Code).9 With the 2002 Procurement Code amendments, the
General Assembly preserved the Board’s general structure and function and, in
Section 1702(a) of the Procurement Code, declared:
(a) General rule.--The General Assembly under section 11
of Article I of the Constitution of Pennsylvania reaffirms
sovereign immunity, and, except as otherwise provided in
this chapter, no provision of this part shall constitute a
waiver of sovereign immunity for the purpose of 1 Pa.C.S.
§ 2310 (relating to sovereign immunity reaffirmed; specific
waiver) or otherwise.
(b) Exception.--The General Assembly under [S]ection 11
of Article I of the Constitution of Pennsylvania does hereby
waive sovereign immunity as a bar to claims against
Commonwealth agencies brought in accordance with
[S]ections 1711.1 [of the Procurement Code] (relating to
protests of solicitations or awards) and 1712.1 [of the
Procurement Code] (relating to contract controversies)
and Subchapter C (relating to [the Board]) but only to the
extent set forth in this chapter.
62 Pa.C.S. § 1702 (text emphasis added). Consequently, sovereign immunity is
waived for claims over which the Board has exclusive jurisdiction. Therefore, the
issue before us becomes whether the Board has exclusive jurisdiction over the
Agreements underlying this case.
Section 1724(a)(1) of the Procurement Code provides that the Board
shall have exclusive jurisdiction to arbitrate claims arising from “[a] contract
entered into by a Commonwealth agency . . . and filed with the [B]oard in
accordance with [S]ection 1712.1(a) [of the Procurement Code] (relating to contract
controversies).”10 62 Pa.C.S. § 1724(a)(1) (emphasis added). In Dubaskas v.
9
62 Pa.C.S. §§ 101-2311.
See Sections 2, 9, 10, 12 and 12.2 of the Act of December 3, 2002 P.L. 1147 (amending the
relevant provisions of the Procurement Code); Section 21(a) of the Act of December 3, 2002, P.L.
1147 (repealing the Board of Claims Act).
10
There are two other categories of claims over which the Board has exclusive jurisdiction -
contracts wherein the parties agreed to use the Board to resolve claims (see 62 Pa.C.S. § 1724(a)(2))
6
Department of Corrections, 81 A.3d 167 (Pa. Cmwlth. 2013), this Court stated:
“[T]he Board has jurisdiction over ‘claims arising from certain contracts entered into
by a Commonwealth agency,’[11] and there are still ‘jurisdictional prerequisites’ that
must be met in order for the Board to exercise its jurisdiction over a particular claim.”
Id. at 176 (quoting Scientific Games Int’l, Inc. v. Dep’t of Revenue, 66 A.3d 740, 756,
760 (Pa. 2013)). The Court 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 function as components of the ‘jurisdictional
prerequisites’ . . . .” Id. at 177 (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 the Commonwealth Attorneys Act.” 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 not involving the delivery of a specific end product . . .
.” Id. (emphasis added).
and controversies arising from real property contracts where the Commonwealth agency is the
respondent (see 62 Pa.C.S. § 1724(a)(3)). The Board also has concurrent jurisdiction over disputes
arising from certain contracts where the Commonwealth agency is the claimant. See 62 Pa.C.S. §
1724(b).
11
Despite the Supreme Court’s statement in Employers Insurance of Wausau v. Department
of Transportation, 865 A.2d 825 (Pa. 2005), that Section 4 of the Board of Claims Act and Section
1724(a) of the Procurement Code were “substantively identical,” id. at 830 n.7, in that the Board
has “expansive jurisdiction to decide disputes concerning contracts involving the Commonwealth,
regardless of a given case’s peculiar path to the Board[,]” id. at 833, the 2002 Amendment and
subsequent case law have clearly limited the Board’s jurisdiction. For example, before 2002,
the Board had jurisdiction to hear disputes arising from all Commonwealth contracts meeting the
$300.00 threshold. After 2002, the Board’s jurisdiction was limited to Commonwealth agency
contract disputes seeking monetary relief. Further, because the Procurement Code’s existing
definition of “services” excluded employment contracts and collective bargaining agreements, when
the Board’s enabling act was placed under the Procurement Code, those types of contracts were
removed from the Board’s jurisdiction by operation of law.
7
The subject Agreements are settlement agreements. The Original
Agreement was designated “Agreement and Release.” Amended Complaint Ex. A.
The Amended Agreement was entitled “Amended and Restated Agreement and
Release.” Amended Complaint Ex. B. A settlement agreement, like a “consent
decree,” is “in essence a contract binding the parties thereto.” Commonwealth v. U.S.
Steel Corp., 325 A.2d 324, 328 (Pa. Cmwlth. 1974) (quoting Commonwealth v.
Rozman, 309 A.2d 197, 199 (Pa. Cmwlth. 1973)). Accordingly, “settlement
agreements are governed by contract law principles.” Lesko v. Frankford Hosp.-
Bucks Cnty., 15 A.3d 337, 341-42 (Pa. 2011). However, jurisdiction does not
automatically rest solely with the Board simply because a contract is implicated in the
parties’ dispute. Keenheel v. Pa. Sec. Comm’n, 565 A.2d 1147 (Pa. 1989). Whether
a settlement agreement comes within the Board’s jurisdiction depends upon the
nature of the claim underlying the settled matter. See Armenti v. Pa. State Sys. of
Higher Educ., 100 A.3d 772 (Pa. Cmwlth. 2014); Porreco v. Maleno Developers,
Inc., 717 A.2d 1089 (Pa. Cmwlth. 1998); see also Cicchiello v. Dep’t of Corr. (Pa.
Cmwlth. No. 83 C.D. 2015, filed August 5, 2015);12 Tome v. Dep’t of Pub. Welfare
(Pa. Cmwlth. No. 557 C.D. 2008, filed July 20, 2009).13
Here, the Agreements provided that Roe and the Commission agreed, in
exchange for $220,000.00, that Roe would: (1) retire early, (2) waive all potential
legal claims, and (3) keep confidential communications that occurred while he was
12
While this Court’s unreported memorandum opinions may not be cited as binding
precedent, they may be cited “for [their] persuasive value[.]” Section 414 of the Commonwealth
Court’s Internal Operating Procedures.
This Court held in Cicchiello that because the definition of “services” in Section 103 of the
Procurement Code, 62 Pa.C.S. § 103, expressly excludes from the Board’s jurisdiction disputes
arising from employment contracts or collective bargaining agreements, the Board lacked
jurisdiction over a settlement agreement arising from a collective bargaining agreement dispute.
13
This Court held in Tome that because Section 1724(c) of the Procurement Code, 62
Pa.C.S. § 1724(c), expressly excludes Medical Assistance claims from the Board’s jurisdiction, the
Board lacked jurisdiction over a dispute involving a Medical Assistance claim settlement.
8
Executive Director. With respect to the Agreements’ early retirement term, this
Court has expressly stated that “nothing in the Procurement Code supports the
proposition that a contract which fixes the duration of employment is one for
‘services’. . . .” Armenti, 100 A.3d at 776.
The issue was raised but not addressed in Tome, an unreported opinion,
wherein, this Court reviewed whether the Board had jurisdiction over interest and
attorney’s fees arising from the Department of Public Welfare’s (DPW) purported
breach of a settlement agreement. Although the Board recognized that it lacked
jurisdiction in that case because the settlement agreement vested jurisdiction in
DPW’s Bureau of Hearings and Appeals (BHA), the Board claimed that “the
Procurement Code generally provides the Board with exclusive jurisdiction over
claims arising from contracts entered into by a Commonwealth agency, like the
Settlement Agreement at issue[.]”14 Tome, slip. op. at 2. “DPW disagreed . . . that
[the Board] generally retains jurisdiction over all settlement agreements . . . because
settlement agreements do not meet the Procurement Code’s definition of a ‘contract.’
However, because of [its] disposition, [this Court did] not address th[e] issue.” Id.,
slip op. at 5 n.11.
The General Assembly did not define labor, time or effort in the
Procurement Code. Section 1903(a) of the Statutory Construction Act of 1972
provides that when words in a statute are undefined, they must be accorded “their
common and approved usage[.]” 1 Pa.C.S. § 1903(a). “Where a court needs to
define an undefined term, it may consult definitions in statutes, regulations or the
dictionary for guidance, although such definitions are not controlling.” Adams
Outdoor Adver., LP v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469,
14
In Tome, the parties entered into the settlement agreement on December 28, 2006, well
after the General Assembly’s 2002 amendments which brought the Board under the Procurement
Code, and granted subject matter jurisdiction over Medical Assistance provider reimbursement
disputes to BHA. See 62 Pa.C.S. § 1724(c).
9
483 (Pa. Cmwlth. 2006). Merriam-Webster’s Collegiate Dictionary (11th ed. 2004)
defines “labor” in this context as “the services performed by workers for wages[.]”
Id. at 694. “Time” is defined as “the hours or days required to be occupied by one’s
work[.]” Id. at 1309. “Effort” is defined as “something produced by exertion or
trying[.]” Id. at 397. Because agreeing to waive all potential legal claims and keep
communications confidential does not even remotely constitute the “furnishing of
labor, time or effort,” the Agreements were not for “services” and, thus, are not
“contracts” within the meaning of the Procurement Code. 62 Pa.C.S. § 103.
Pennsylvania courts have not decided whether, in 2002, the General
Assembly removed from the Board’s jurisdiction disputes arising from contracts
other than agency contracts for purchases of goods and services, like the subject
Agreements. In 2012, in Hanover Insurance Co. v. State Workers’ Insurance Fund,
35 A.3d 849 (Pa. Cmwlth. 2012) (en banc), this Court stated:
[W]e note that interpreting the Procurement Code as
severely restricting the Board’s jurisdiction to matters
involving the Commonwealth’s purchase of goods or
services arguably deprives all parties who enter into other
types of agreements with the Commonwealth . . . . Our
courts have long recognized the significance of sovereign
immunity in determining that the legislature intended the
Board to have broad jurisdiction in claims against the
Commonwealth.
Our Supreme Court emphasized the importance of an
available forum in Shovel Transfer:
Our finding that jurisdiction of this matter lies with
the [Board] is supported by the fact that otherwise
there would be no forum available to establish the
fact of a valid contract against the Commonwealth.
Since at common law sovereign immunity barred a
claimant from asserting a claim against the
Commonwealth based upon a contract, 1 Pa.C.S. §
2310, no other forum would be available to test the
validity of an alleged contract if it did not fit within
the exception of the statute provided to exempt the
10
immunity. Thus, any time the Commonwealth
challenged the existence of the underlying contract,
the claimant would have no forum to establish its
legitimacy. The statute creating the [Board] would
thus be construed as allowing a claimant to sue only
if the Commonwealth conceded the existence of a
valid contract in the first instance. We find no basis
for such a limited construction.
[Shovel Transfer,] . . . 565 A.2d at 1155–56.
Hanover, 35 A.3d at 855-56 (citations and footnote omitted).15 Thus, rather than
specifically deciding whether the Board’s jurisdiction extends beyond goods and
services procurement contract disputes, this Court held that the Board has jurisdiction
over “other types of agreements” because claims arising from them would otherwise
be barred by sovereign immunity. Id. at 855.
In 2013, in Scientific Games, the Pennsylvania Supreme Court observed:
“[T]he [Board] centers a substantial portion of its presentation on the question of
whether the amendments to the Procurement Code reconstituting the tribunal
narrowed its jurisdiction only to claims for breaches of procurement contracts.” Id. at
752. However, because the dispute in that case was based upon a procurement
contract, the Supreme Court declined the Board’s invitation “to broadly settle the
jurisdictional landscape[]” at that time. Id. at 753 n.16. The Scientific Games Court
nevertheless recognized:
While more general clarification of the relationship between
sovereign immunity and jurisdiction may be appropriate in
the arena at large, for present purposes, we regard sovereign
immunity as a jurisdictional concern vis-à-vis the
Procurement Code. Our understanding, in this regard, is
premised on the enactment’s self-contained reaffirmation of
sovereign immunity, see 62 Pa.C.S. § 1702(a), and its
15
In Hanover, this Court held that “in light of well-settled precedent and the lack of clear
legislative intent,” the Board had jurisdiction over a dispute arising from an endorsement in the
workers’ compensation and employer’s liability policy issued by the State Workers’ Insurance
Fund. Id. at 856 (emphasis added).
11
explicit, limited waiver of such immunity (among other
specified and limited waivers) in connection with a
coordinate allocation of ‘exclusive jurisdiction’ to the
[Board] over claims arising from certain contracts entered
into by a Commonwealth agency, see id. §§ 1702(b),
1724(a)(1). In this respect, we agree . . . that—as a matter
of jurisdiction—if the General Assembly has not
specifically provided by statute for such [] relief in a claim
arising from a contract entered into by a Commonwealth
agency under the Procurement Code, then either the claim is
within the exclusive jurisdiction of the [Board] or it is
barred by sovereign immunity. . . .
Based on the above, we conclude that . . . claims against the
Commonwealth are cognizable only to the extent they fall
within some ‘specific[]’ waiver or exception to immunity.
1 Pa.C.S. § 2310.
Id. at 756-57.
Notwithstanding that Pennsylvania courts have declined to decide
whether the General Assembly removed from the Board’s jurisdiction disputes
arising from contracts other than agency contracts for purchases of goods and
services, the law is clear that the Commonwealth is immune from suit except as
specifically waived by the General Assembly, and the General Assembly has waived
sovereign immunity for claims over which the Board has exclusive control. By
extension, claims over which the Board does not have exclusive control are barred by
sovereign immunity. In this case, because the subject Agreements are not written
agreements for services, they are not contracts under the Procurement Code and, thus,
claims arising therefrom do not fall under the Board’s exclusive jurisdiction.
Accordingly, we hold that the Commission is immune from Roe’s breach of contract
and promissory estoppel claims.
Without the General Assembly’s express abrogation of sovereign
immunity, Roe is without recourse. Although we are sympathetic to Roe’s situation,
this Court is not authorized to create or expand the Board’s jurisdiction, and is bound
12
to adhere to the General Assembly’s mandates. In Armenti, this Court most recently
stated:
[T]his Court is not at liberty to grant [the petitioner] the
relief he requests because the Commonwealth has not
waived sovereign immunity for suits based on [his specific
type of claim].
....
Our appellate courts have consistently recognized that the
Commonwealth is protected from civil suit by sovereign
immunity except where the General Assembly has
specifically waived that immunity. The limited exceptions
to sovereign immunity must be narrowly and strictly
construed because the General Assembly intended to
exempt the Commonwealth from immunity only in specific
situations.
1 Pa.C.S. § 2310 clarifies that the General Assembly has
waived sovereign immunity ‘only in such manner and in
such courts and in such cases’ as set forth in Titles 42 and
62 of the Pennsylvania Consolidated Statutes. The limited
waivers of sovereign immunity in Title 42 relate solely to
liability for negligence. Under Title 62, the General
Assembly has waived sovereign immunity for certain
contract claims against the Commonwealth and its
agencies, but that waiver applies only to claims ‘brought in
accordance with’ Sections 1711.1 (relating to protests of
solicitations or awards) and 1712.1 (relating to contract
controversies) and Subchapter C (relating to [the Board])
and even then ‘only to the extent set forth in this chapter.’
62 Pa.C.S. § 1702.
As our Supreme Court explained in Scientific Games . . . ,
the Procurement Code is ‘designedly structured to accord
immunity, subject only to specific and limited exceptions.’
Id. at 753. ‘[T]he exception to sovereign immunity
pertaining to [Board] jurisdiction defines the extent of the
Commonwealth’s statutory exception from sovereign
immunity for claims arising from contract.’ Id. at 755
(emphasis added).
13
. . . . In the absence of legislative action, this Court is not at
liberty to craft [the petitioner] a waiver of sovereign
immunity.
The [Board] did not err when it dismissed [the petitioner’s]
Claim. . . . This Court is not authorized to create an
exception for jurisdiction because only the General
Assembly can create exceptions to the Commonwealth’s
sovereign immunity.
Armenti, 100 A.3d at 777.
The Pennsylvania Supreme Court has also made clear:
As we noted in Commonwealth . . . v. Cartwright, . . . 40
A.2d 30 ([Pa.] 1944),
[t]he intention and meaning of the Legislature must
primarily be determined from the language of the
statute itself, and not from conjectures aliunde.
When the language of a statute is plain and
unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to the
rules of statutory interpretation and construction; the
statute must be given its plain and obvious meaning.
This principle is to be adhered to notwithstanding
the fact that the court may be convinced by
extraneous circumstances that the legislature
intended to enact something very different from that
which it did enact.
Id. at 33 (citation omitted). We need not inquire into the
General Assembly’s purpose in limiting jurisdiction . . . .
The language of the Judicial Code requires no rationalizing.
Rather, where the language of a statute is clear and
unambiguous, a court may not add matters the legislature
saw fit not to include under the guise of construction. . . .
Any legislative oversight is for the General Assembly to
fill, not the courts. . . .
. . . . [T]his is not the type of omission that can be remedied
by judicial insertion of omitted words or phrases in a
statute. Since the omission at issue directly implicates
the grant of jurisdiction, it is one of constitutional
import. See Pa. Const. [a]rt. V, § 9 (providing for a
constitutional right of appeal from all administrative or
14
judicial determinations, and directing that ‘the selection of
such court to be as provided by law’). If indeed there has
been an oversight, the correction must come from the
General Assembly in the form of an amendment to [the
relevant statute].
Mohamed v. Dep’t of Transp., Bureau of Motor Vehicles, 40 A.3d 1186, 1194-95 (Pa.
2012) (emphasis added).
Until such time as the General Assembly clarifies that the Board’s
jurisdiction applies to disputes arising from contracts other than those for the
procurement of goods and services, or specifically to settlement agreements, the
Board does not have exclusive jurisdiction over Roe’s claim simply because his claim
may otherwise be barred by sovereign immunity. Accordingly, we sustain the
Commission’s preliminary objections and dismiss Roe’s Amended Complaint
without prejudice.
___________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Roe, :
Petitioner :
:
v. :
:
The Pennsylvania Game Commission, : No. 409 M.D. 2014
Respondent :
ORDER
AND NOW, this 22nd day of September, 2016, The Pennsylvania Game
Commission’s preliminary objections are sustained, and Carl Roe’s Amended
Complaint is dismissed without prejudice.
___________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Roe, :
Petitioner :
:
v. : No. 409 M.D. 2014
: Argued: December 9, 2015
The Pennsylvania Game Commission, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
DISSENTING OPINION
BY JUDGE BROBSON FILED: September 22, 2016
The legal issue, plainly stated, is whether, after it has received the
benefit of the bargain, the Commonwealth may breach a settlement agreement with
impunity. The answer is, and must be, no.
“This case must be resolved in light of our longstanding public policy
which encourages settlements.” Muhammad v. Strassburger, McKenna, Messer,
Shilobod & Gutnick, 587 A.2d 1346, 1348 (Pa. 1991). In a 1989 decision, the
Pennsylvania Supreme Court acknowledged that under the since-repealed Board of
Claims Act,1 the Board of Claims had jurisdiction over contract actions seeking to
1
Act of May 20, 1937, P.L. 728, as amended, formerly 72 P.S. §§ 4651-1 to 4651-10.
enforce (but not abrogate or void) settlement agreements with the Commonwealth.
Keenheel v. Cmwlth., Pa. Sec. Comm’n, 565 A.2d 1147 (Pa. 1989) (citation
omitted) (footnote omitted). Therein, the Supreme Court recognized the
importance of providing a remedy and forum to those that enter into agreements
with the Commonwealth:
The significance of the Board of Claims is that it
provides a forum in which companies which do business
with the Commonwealth and its various agencies can
present contractual disputes and seek remedies for
the Commonwealth's alleged breaches. Such actions
would be impossible were it not for the Board of Claims
whose enabling statute expressly abrogates the sovereign
immunity that otherwise shields the Commonwealth from
suits of such nature. The result, absent this exception to
sovereign immunity, would be that parties with
contractual complaints against the Commonwealth would
be without recourse. Such a circumstance would
dissuade others from providing contractual services to
the Commonwealth.
Keenheel, 565 A.2d at 1149 (citation omitted) (footnote omitted).
As the majority notes, the General Assembly repealed the Board of
Claims Act in 2002 and re-enacted the Board of Claims’ enabling legislation under
the Procurement Code.2 In my assessment, the Board of Claims’ jurisdiction to
hear disputes over the enforcement of settlement agreements, recognized by the
Supreme Court in Keenheel, remains extant under the Procurement Code. Like the
Board of Claims Act, the Procurement Code includes a waiver of sovereign
immunity for claims over which the Board of Claims has exclusive jurisdiction.
2
62 Pa. C.S. §§ 101-2311; see Sections 2, 9, 10, 12, and 12.2 of the Act of
December 3, 2002, P.L. 1147 (amending relevant provisions of the Procurement Code); Section
21(a) of the Act of December 3, 2002, P.L. 1147 (repealing Board of Claims Act).
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62 Pa. C.S. § 1702. Relevant to this matter is the Board of Claims’ exclusive
jurisdiction over claims arising from “[a] contract entered into by a
Commonwealth agency . . . and filed with the [B]oard in accordance with section
1712.1 (relating to contract controversies).” 62 Pa. C.S. § 1724(a)(1) (emphasis
added). The Procurement Code defines “contract” as a written agreement for the
procurement or disposal of “supplies, services, or construction.” Id. § 103
(emphasis added). “Services” is defined as “[t]he furnishing of labor, time or
effort by a contractor not involving the delivery of a specific end product other
than drawings, specifications or reports which are merely incidental to the required
performance.” Id.
Unlike the majority, I would conclude that the settlement agreement
(both the original and amended and restated) entered into between the
Pennsylvania Game Commission (Commission) and Carl Roe (Roe) was a contract
for services. Under the agreement, the Commission agreed to pay Roe
$200,000.00 if Roe would tender his resignation 16 months earlier than he
intended, waive all potential legal claims against the Commission, and maintain
certain communications confidential. The majority concludes that Roe’s part of
the bargain “does not even remotely constitute the ‘furnishing of . . . effort.’”
(Maj. Op. at 9.) I respectfully disagree. Honoring his end of the bargain, Roe
retired in January 2014. Retirement from Commonwealth service does not just
happen. There is a process, which Roe agreed to initiate and conclude as part of
the settlement agreement. It is not an effortless exercise. Roe, too, agreed to
waive and release any and all claims he might have against the Commission. “A
waiver in law is the act of intentionally relinquishing or abandoning some known
right, claim or privilege.” Brown v. City of Pittsburgh, 186 A.2d 399, 401
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(Pa. 1962) (emphasis in original). An intentional act, by definition, requires effort.
Finally, Roe agreed to maintain confidentiality, which, I submit, requires ongoing
effort.
In short, the settlement agreement between the Commission and Roe
is a contract for “services,” as defined under the Procurement Code. Roe’s breach
of contract claim, in which he seeks to enforce the terms of the contract, falls
within the exclusive jurisdiction of the Board of Claims, and sovereign immunity
is, therefore, waived with respect to that claim. Keenheel. I would overrule the
Commission’s preliminary objection raising sovereign immunity, sustain the
Commission’s alternative preliminary objection asserting the exclusive jurisdiction
of the Board of Claims over Roe’s complaint, and transfer the matter to the Board
of Claims for further proceedings.
P. KEVIN BROBSON, Judge
Judge Leavitt joins in this dissent.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carl Roe, :
Petitioner :
: No. 409 M.D. 2014
v. :
: Argued: December 9, 2015
The Pennsylvania Game Commission, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
DISSENTING OPINION BY
JUDGE McCULLOUGH FILED: September 22, 2016
I must respectfully dissent from the Majority’s decision to sustain the
Pennsylvania Game Commission’s (Commission) sovereign immunity based
preliminary objections, and thereby dismissing Carl Roe’s (Petitioner’s) complaint
alleging breach of contract and/or promissory estoppel relative to the “Agreement
and Release” and “Amended Agreement and Release” that promised, inter alia, a
$220,000.00 payment for his “earlier-than-intended” retirement, as well as a
purported release of claims and other consideration. I believe the issue of whether
the Commission can agree to pay an “at-will” employee consideration to retire
“earlier than he intended,” even after his resignation, should not be disposed of by
preliminary objections.
The record demonstrates that the waters in which this case has
traversed are murky and that, at the very least, this matter should not be disposed
of on preliminary objections as to sovereign immunity. As noted in the Amended
Complaint, both the Commission’s General Counsel and the Office of Attorney
General (OAG) approved the original Agreement and Release as to both form and
legality. General Counsel to the Commission also approved the Amended
Agreement and Release and, as averred in the Amended Complaint, OAG is
deemed to have approved that document as well by its purported inaction.1
Conversely, however, I do agree with the Commission that this case should be
heard by the Board of Claims and therefore would sustain the Commission’s
preliminary objections as to this Court’s jurisdiction.
For the following reasons, I believe that the correct course to be
charted as to sovereign immunity is to overrule the preliminary objections, without
prejudice to the Commission to raise them as New Matter, and transfer this case to
the Board of Claims.
First, Pennsylvania Rule of Civil Procedure (Pa.R.C.P.) No. 1030(a)
provides that all affirmative defenses, including immunity from suit, are to be
raised as New Matter. While cast as preliminary objections, the Commission is
clearly raising the affirmative defense of sovereign immunity. Pa.R.C.P. No.
1030(a) requires this to be raised as New Matter so that a factual determination of
the issues may be made. That is especially important in this case, given the
approval of the initial agreement by, not only counsel to the Commission but also
1
The Majority Opinion repeatedly refers to the Agreement and Release and the Amended
Agreement and Release as “settlement agreements.” The Amended Complaint contains no
reference to such a categorization of these documents.
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the OAG, and the approval of the Amended Agreement, again by the
Commission’s General Counsel and the alleged “deemed approval” thereof by the
OAG. There appears to be factual issues that need to be resolved and the
preliminary objections cannot be disposed of based upon the face of the complaint.
Further, assuming arguendo that sovereign immunity would apply to
this case, the aforesaid approvals by the Commission’s Counsel and the approval
and “deemed approval” by the OAG’s office, as well as the unanimous
endorsement of both agreements by the Commission’s board members, if proven,
may well support a contention that such immunity has been waived. Accordingly,
even if it is permissible for the Commission to raise sovereign immunity via
preliminary objections, there is an important factual issue, i.e., waiver of immunity,
that must be resolved. Hence, the Commission’s preliminary objections raising
sovereign immunity must be dismissed for this reason as well.2
2
While this matter is before us as to preliminary objections to Petitioner’s Amended
Complaint, the Majority also references the Original Complaint, stating that “Roe’s original
complaint asserted a single breach of contract claim against the Commission.” (Slip op. at 3.)
While not specifically incorporated into the Amended Complaint, we note that two exhibits,
identified as Exhibits C and E, were incorporated into the Original Complaint filed with this
Court.
Exhibit C is a January 30, 2014 letter from the Office of General Counsel (OGC),
through its First Executive Deputy General Counsel, noting concern that the agreement was a
severance agreement in violation of section 215 of the Administrative Code of 1929, Act of April
9, 1929, P.L. 177, as amended, 71 P.S. §75. The pertinent sections of the OGC’s letter are as
follows:
The office of General Counsel (“OGC”) has concerns that,
notwithstanding the form of the Agreement, it is in reality a
severance agreement that violates section 215 of The
Administrative Code of 1929, 71 P.S. §75 (“No employe in any
administrative department, independent administrative board or
commission, or departmental administrative board or commission,
employed at a fixed compensation, shall be paid for any extra
(Footnote continued on next page…)
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(continued…)
services, unless expressly authorized by the Executive Board prior
to the rendering of such services.”).
Because the Agreement appeared to OGC on its face to constitute a
severance agreement in violation of section 215 of the
Administrative Code, [Office of Comptroller Operations (OCO)]
(through its OGC-designated counsel) asked [the Commission’s]
chief counsel for clarification.
In response, [the Commission] informed OCO that the Agreement
was intended in part to settle potential claims that Roe might make
against [the Commission]. OCO responded that the written
Agreement did not appear on its face to reflect a purpose to settle
threatened or potential claims and, therefore, could not be
processed for transmittal to Treasury in the form presented. . . .
* * *
Notwithstanding the revisions to the Agreement made by [the
Commission] and Roe, OGC remains concerned that the
Agreement is in reality an improper severance agreement that
violates section 215 of the Administrative Code. We are skeptical
that Roe, a strictly at-will employee of [the Commission], has any
claims that he could credibly or legitimately make against [the
Commission]. Rather, OGC is convinced that [the Commission]
has agreed to pay Roe $220,000 as compensation to induce him to
retire months earlier than he had intended, and to agree to terms of
confidentiality respecting his tenure with [the Commission] and the
circumstances of his severance. Neither reason would distinguish
the Agreement from that which is barred by section 215.
* * *
As a final point, we would note that the source of the funds for [the
Commission] to make payment under the Agreement would be the
Game Fund. Thus, the payment of a $220,000 severance to Roe
would come at the expense of other important [the Commission]
activities that are conducted under the Game and Wildlife Code
[34 Pa.C.S. §§101-2965] for the benefit of all Pennsylvanians.
Sportsman, conservationists and countless Pennsylvanians depend
(Footnote continued on next page…)
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Second, this matter should be transferred to the Board of Claims for
disposition, including the issue of sovereign immunity and waiver thereof (if raised
via New Matter), and all other issues attendant to this case. The General
Assembly, through its 2002 amendment to the Commonwealth Procurement Code,3
has reiterated the general investiture of monetary claims against the
Commonwealth and its agencies, such as the Commission, with the Board of
Claims.
(continued…)
on responsible public officials to assure that all-Game Fund dollars
are spent only for legally proper purposes.
(Original Complaint, Exhibit C at 1-3.)
Exhibit E is a March 18, 2014 letter signed by Governor Corbett and a school of
high ranking legislators to the President of the Commission, three months after Petitioner
resigned from his post as Executive Director (a position he held for over eight years), noting that
the agreement could be viewed as a severance agreement, that it was in conflict with state law,
requesting that the agreement be immediately revoked, and demanding the immediate resignation
of any member of the Board of Commissioners who refuses to do so. The pertinent part of that
letter reads as follows:
We were each shocked and extremely disappointed to learn that the
Board of Commissioners had approved what amounts to a
$220,000 severance payment for your former Executive Director.
This payment was never voted on or announced publicly; appears
to have no basis of justification; and also appears to be in conflict
with state law. In our view, such a payment is a gross abuse of the
Commission’s fiduciary responsibility.
(Original Complaint, Exhibit E at 1.)
3
62 Pa.C.S. §§101-2311.
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It is therefore the province of the Board of Claims, in the first
instance, to resolve any issues related to sovereign immunity or other issues that
may bear on its capacity to entertain and/or dispose of this case. This position is in
keeping with long line of settled precedent whereby the appellate courts of this
Commonwealth treat adjudicative agencies with deference.
This matter is undoubtedly premised upon two agreements between
Petitioner and the Commission, and our Supreme Court has made clear that “the
exception to sovereign immunity pertaining to Board-of-Claims jurisdiction
defines the extent of the Commonwealth’s statutory exception from sovereign
immunity for claims arising from contract.” Scientific Games International, Inc. v.
Commonwealth, 66 A.3d 740, 755 (Pa. 2005); see also Employers Insurance of
Wausau v. Department of Transportation, 865 A.2d 825, 831-34 (Pa. 2005);
Armenti v. Pennsylvania State System of Higher Education, 100 A.3d 772, 777 (Pa.
Cmwlth. 2014); Telwell, Inc. v. Public School Employees’ Retirement System, 88
A.3d 1070, 1089 n.17 (Pa. Cmwlth. 2014); Dubaskas v. Department of
Corrections, 81 A.3d 167, 175 (Pa. Cmwlth. 2013).
Thus, even where sovereign immunity has been waived for claims
related to contracts with Commonwealth agencies, that waiver is confined to
claims made directly to the Board of Claims. Scientific Games, 66 A.3d at 756.
Furthermore, while under section 761 of the Judicial Code4 this Court has original
jurisdiction over civil matters against the Commonwealth, and the relevant
statutory exception applies only to claims brought pursuant to the now-repealed
4
42 Pa.C.S. §761.
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Board of Claims Act,5 section 761 of the Judicial Code does not repeal, modify, or
supplant the Board of Claims’ exclusive jurisdiction over contract claims, nor does
it constitute an independent waiver of sovereign immunity that would allow us to
hear Petitioner’s claims in the first instance. Scientific Games, 66 A.3d at 756 &
n.10; Telwell, 88 A.3d at 1089 n.17.
The Commission also requested that we dismiss the Amended
Complaint because it was improperly filed in this Court. However, Pa.R.C.P. No.
213(f) provides:
When an action is commenced in a court which has no
jurisdiction over the subject matter of the action it shall
not be dismissed if there is another court of appropriate
jurisdiction within the Commonwealth in which the
action could originally have been brought but the court
shall transfer the action at the cost of the plaintiff to the
court of appropriate jurisdiction. It shall be the duty of
the prothonotary or clerk of the court in which the action
is commenced to transfer the record together with a
certified copy of the docket entries to the prothonotary or
clerk of the court to which the action is transferred.
Pa.R.C.P. No. 213(f). The Board of Claims is considered a judicial tribunal under
Pa.R.C.P. No. 213 and, therefore, transfer to the Board is warranted as the “court
of appropriate jurisdiction.” Employers Insurance of Wausau, 865 A.2d at 830 n.6;
Telwell, 88 A.3d at 1089-90; see also Hanover Insurance Company v. State
Workers’ Insurance Fund of the Commonwealth, 35 A.3d 849, 856 n.8 (Pa.
Cmwlth. 2012).
Accordingly, I would overrule the Commission’s preliminary
objections regarding sovereign immunity, sustain the Commission’s preliminary
5
Act of May 20, 1937, P.L. 728, as amended, 72 P.S. §§4651-1 – 4651-10, repealed by
the Act of December 3, 2002, P.L. 1147, effective July 1, 2003.
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objections regarding jurisdiction, and transfer this matter to the Board of Claims to
dispose of the matter in accordance with this opinion.6
_______________________________
PATRICIA A. MCCULLOUGH, Judge
Judge Leavitt joins in this dissent.
5
In addition to the Commission’s third and fourth preliminary objection, which I have
not addressed in this opinion, the Board of Claims is also the proper venue for the resolution of
the Commission’s argument that the Board is without jurisdiction over Petitioner’s contract
claims because he did not comply with the pre-litigation administrative remedies procedure
outlined in section 1712.1 of the Commonwealth Procurement Code, including the requirements
that he file a claim with the contracting officer within six months of the breach, wait for a written
response from the contracting officer, and then file a claim with the Board within 15 days. See
62 Pa.C.S. §1712.1. The question of whether Petitioner has complied with section 1712.1 is not
apparent from the face of the Amended Complaint; Petitioner alleges only that the Commission
breached the Amended Agreement on March 18, 2014 by refusing to pay the agreed upon
consideration of $220,000. (Amended Complaint ¶34.) Resolution of this objection therefore
requires the development of an evidentiary record before the Board of Claims following transfer.
See Pa.R.C.P. No. 1028(c)(2) (“If an issue of fact is raised [in a preliminary objection], the court
shall consider evidence by depositions or otherwise.”); Ferguson Electric Co., Inc. v.
Department of General Services, 3 A.3d 681, 688 (Pa. Cmwlth. 2010) (concluding that the Board
of Claims may resolve a preliminary objection raising the issue of whether the contracting party
complied with the section 1712.1 procedure following evidentiary hearings).
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