S.D. Vance v. Cheyney University of PA, R. Bogle and F. Brogan

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sheilah D. Vance, :

Appellant :

:

v. :

:

Cheyney University of Pennsylvania, : No. 1751 C.D. 2017

Robert Bogle and Frank Brogan : Argued: November 15, 2018

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge (P.)

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: December 7, 2018

Sheilah D. Vance (Vance) appeals the October 17, 2017 order of the

Court of Common Pleas of Chester County (trial court) granting the motion for

judgment on the pleadings filed by Cheyney University of Pennsylvania, Robert

Bogle (Bogle) and Frank Brogan (Brogan) (collectively, Defendants) with respect to

Counts I, II, III, V and VI of her complaint.1 On appeal, Vance asks this Court to

vacate the order of the trial court, remand the case to the trial court with instructions

to transfer Counts I and II to the Board of Claims and deny Defendants’ motion for

1

On May 2, 2017, the trial court issued an order sustaining Defendants’ preliminary

objection to Count IV on the basis of lack of jurisdiction, and Vance does not challenge this order

on appeal. Reproduced Record (R.R.) at 142a. See infra page 4.

judgment on the pleadings as to Counts III, V and VI.2 Vance’s Brief at 21. Upon

review, we affirm the order of the trial court.

Vance served as the chief of staff and deputy to the president of

Cheyney University of Pennsylvania (Cheyney) from July 12, 2012 until her

termination on May 9, 2016. Reproduced Record (R.R.) at 1a. In July 2012, Vance

was appointed chief of staff and deputy to the president of Cheyney. Id. By letter

dated June 20, 2013, Vance was reappointed to this position for a two-year term

extending from July 1, 2013 through June 30, 2015. R.R. at 26a. The letter indicated

that Vance’s appointment was subject to the terms and conditions of the policies of

the Board of Governors of the Pennsylvania State System of Higher Education

(PASSHE). Id. The letter further advised that, pursuant to Board of Governors

Policy 1984-14-A (Terms and Conditions of Employment of Senior Policy

Executives), Vance would serve at the pleasure of Cheyney’s president and that any

payout for a non-cause separation prior to the end date of the appointment would be

subject to the terms of a release and settlement agreement. Id. By letter dated June

29, 2015, Cheyney’s interim president reappointed Vance to her position for a one-

year term extending from July 1, 2015 through June 30, 2016. R.R. at 28a. The

letter provided that Vance would serve at the pleasure of the president and that her

employment could terminate at any time, with or without cause. Id. By letter dated

July 31, 2015, Cheyney’s interim president rescinded the June 29, 2015 letter and

reappointed Vance to a two-year term extending from July 1, 2015 through June 30,

2

“Our review of a trial court’s decision granting a motion for judgment on the pleadings

considers whether the court committed an error of law or whether unresolved questions of material

fact remain outstanding. Our scope of review is plenary.” Pfister v. City of Philadelphia, 963

A.2d 593, 596 n.7 (Pa. Cmwlth. 2009). “Further, we will sustain the trial court’s grant of judgment

on the pleadings only where the movant’s right to succeed is certain and the case is so free from

doubt that trial would be a fruitless exercise.” N. Sewickley Twp. v. LaValle, 786 A.2d 325, 327

(Pa. Cmwlth. 2001).

2

2017. R.R. at 31a. This letter again informed Vance that she served at the pleasure

of the president and that any payout for a non-cause separation prior to the end date

of this appointment would be subject to the terms of a release and settlement

agreement. Id.

By letter dated May 9, 2016, Vance was informed that her position was

to be eliminated effective that same day and that May 13, 2016 would be her last day

of employment. R.R. at 40a.3 The letter stated that Vance’s termination was taken

in accordance with Section B of the Board of Governors Policy 1984-14-A, pursuant

to which Vance “serve[d] as an appointee and at the pleasure of the respective

president or the chancellor.” R.R. at 35a. On August 5, 2016, Vance filed a

complaint against Defendants, raising the following claims: Count I: Breach of

Contract; Count II: Violation of the Pennsylvania Wage Payment and Collection

Law;4 Count III: Wrongful discharge; Count IV: Violation of the Pennsylvania

Whistleblower Law,5 Count V: Tortious interference with contract by Bogle; and

Count VI: Tortious interference with contract by Brogan. R.R. at 1a-23a.

On or around October 14, 2016, Defendants filed preliminary

objections in the nature of a demurrer pursuant to Pennsylvania Rule of Civil

Procedure No. 1028(a)(4), arguing that sovereign immunity barred the claims

asserted in Counts I, II, III, V and VI. R.R. at 120a. Defendants argued that

3

Vance alleged in her complaint that Cheyney was struggling financially and that

defendant Brogan had received a letter directing Cheyney to cut $2 million or 20 positions in the

2015-16 academic year. R.R. at 15a-17a. Before this Court, Vance avers that Cheyney also

terminated eight other “high level and management employees.” Vance’s Brief at 8. Vance

asserts, however, that the elimination of her position was not a part of Cheyney’s plan for staffing

and budget cuts, but that it resulted instead from her disclosure to state and federal authorities of

allegedly discriminatory remarks made at a meeting by Bogle. Vance’s Brief at 10-11.

4

Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§ 260.1–260.45.

5

Act of Dec. 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.

3

Cheyney, as a Commonwealth entity, is immune from Vance’s employment-based

contract claim and Pennsylvania Wage Payment and Collection Law claim. R.R. at

119a. Defendants also contended that Brogan and Bogle, as Commonwealth

officials, are immune from Vance’s claims of tortious interference with contract.

R.R. at 119a. Defendants further contended that the trial court lacked jurisdiction

over Count IV pursuant to Rule 1028(a)(1), because the Commonwealth Court has

original and exclusive jurisdiction over Pennsylvania Whistleblower Law claims

against Commonwealth entities. R.R. at 120a (citing 42 Pa. C.S. § 761(a)(1)). On

November 6, 2016, Vance filed an answer. R.R. at 134a-41a. On May 2, 2017, the

trial court issued an order sustaining Defendants’ preliminary objection to Count IV

on the basis of lack of jurisdiction because Vance was required to bring this claim

directly to the Commonwealth Court.6 R.R. at 142a. However, the trial court

overruled Defendants’ preliminary objections to Counts I, II, III, V and VI because

Defendants failed to raise the defense of sovereign immunity as new matter. 7 R.R.

at 142a.

On May 31, 2017, Defendants filed an answer and separately averred

as new matter that sovereign immunity barred Vance’s complaint. R.R. at 144a-51a.

On June 5, 2017, Vance filed a reply to Defendants’ new matter. R.R. at 152a-54a.

On June 23, 2017, Defendants filed a motion for judgment on the pleadings pursuant

to Pennsylvania Rule of Civil Procedure No. 1034, arguing that Vance’s claims are

6

Vance refiled her whistleblower claim against Cheyney with this Court, where it remains

pending. See Vance v. Cheyney University of Pennsylvania, No. 210 M.D. 2017.

7

In its order, the court also noted that, although a party can raise sovereign immunity by

preliminary objection when it is clear from the face of the complaint that immunity applies and the

opposing party waives its objection to this procedural defect, sovereign immunity was not clear

from the face of Vance’s complaint and Vance did not waive her objection to this procedural

defect. R.R. at 142a-43a n.1.

4

legally insufficient as they are precluded by sovereign immunity. R.R. 155a-66a.

Vance did not respond to this motion. Defendants’ Brief at 7. On October 17, 2017,

the trial court granted Defendants’ motion for judgment on the pleadings, entering

judgment in their favor as to Counts I, II, III, V and VI. R.R. at 167a. On December

20, 2017, the trial court issued an opinion expounding upon its order. R.R. at 191a-

93a. In its opinion, the trial court explained that sovereign immunity has not been

waived for disputes over employment contracts, thereby barring Count I; sovereign

immunity has not been waived with respect to the Wage Payment and Collection

Law claim, thereby barring Count II; and sovereign immunity has not been waived

for Counts III, V and VI as they do not fall within any of the nine exceptions under

Section 8522(b) of the Sovereign Immunity Act, 42 Pa. C.S. § 8522(b). R.R. at

192a-93a. Vance filed a motion for reconsideration of the October 17, 2017 trial

court order, and Defendants filed a response in opposition. R.R. at 168a-89a. Before

the trial court could issue a decision regarding her motion, Vance appealed the order

to this Court.8

Before this Court, Vance argues that the trial court should have

transferred Count I, the breach of contract claim, to the Board of Claims.9 Vance’s

Brief at 17. Vance contends that three of the cases cited in the trial court’s order and

in Defendants’ motion for judgment on the pleadings do not require dismissal of her

8

The trial court did not rule upon Vance’s motion for reconsideration.

9

Although Vance does not explain the following in her brief, we assume she argues that

the Board of Claims has jurisdiction over her breach of contract claim because the General

Assembly has waived sovereign immunity for claims against the Commonwealth that fall within

the narrow jurisdiction of the Board of Claims and are brought in accordance with the its

procedure. See Dubaskas v. Dep’t of Corr., 81 A.3d 167, 173–74 (Pa. Cmwlth. 2013) (“The Board

was established in furtherance of a public policy extending more than 200 years ago to allow

claimants who ordinarily would have been barred by sovereign immunity to have a method of

redress against the Commonwealth.”).

5

breach of contract claim because, “[a]t most, those cases stand for the proposition

that a claim for breach of an employment contract must be litigated before the Board

of Claims.”10 Vance’s Brief at 17. Vance instead asserts that the unpublished case

of Czop/Specter, Inc. v. Department of Transportation (Pa. Cmwlth., No. 374 M.D.

2015, filed December 15, 2015)11 supports her claim, because in that case, “the

plaintiff could only seek a remedy in the Board of Claims to recover any sums

purportedly due under the contracts . . . .” 12 Vance’s Brief at 19. Further, Vance

clarifies that “[i]n Count I, [she] contends that Cheyney breached the 2015

[r]eappointment [l]etter, not by terminating her employment, but rather by refusing

10

The three cases are: Armenti v. Pennsylvania System of Higher Education, 100 A.3d 772

(Pa. Cmwlth. 2014); Roe v. Pennsylvania Game Commission, 147 A.3d 1244 (Pa. Cmwlth. 2016);

and Dubaskas v. Pennsylvania Department of Corrections, 81 A.3d 167 (Pa. Cmwlth. 2013). The

trial court cited only Armenti, but Defendants discussed all three. In Armenti, this Court held that

the Board of Claims lacked jurisdiction over the claims of a former member of the PASSHE Board

of Governors stemming from his termination from employment. 100 A.3d at 774, 777. In Roe,

we found that the Board of Claims lacked jurisdiction over breach of contract claims arising from

a disputed settlement agreement, which were alleged against the Pennsylvania Game Commission

by the Commission’s former executive director. 147 A.3d at 1246, 1253-54. In Dubaskas, this

Court held that the Board of Claims did not error in determining that it lacked jurisdiction over the

employment-related claims of a Department of Corrections employee stemming from an ‘offer of

employment’ letter. 81 A.3d at 177. We note that Vance provides only a scant, incomplete

summary for these three cases that in no way advances her request for transfer to the Board of

Claims. See Vance’s Brief at 17-18. Vance’s case summaries fail to even mention the Board of

Claims. See id.

11

While this Court’s unreported memorandum opinions may not be cited as binding

precedent, they may be cited for persuasive value. Commonwealth Court Internal Operating

Procedure § 414(a), 210 Pa. Code § 69.414(a).

12

Czop/Specter involved a claim against the Department of Transportation for sums

purportedly due under its contract for inspection services with a consulting engineering and

surveying firm. Czop/Specter (Pa. Cmwlth., No. 374 M.D. 2015, filed Dec. 15, 2015), slip op. at

2. We held that “the General Assembly has not waived sovereign immunity with respect to such

an action in our original jurisdiction,” but that the Board of Claims had jurisdiction over the claim.

Id. at 14. This case pertains to a contract for services and not an employment-related contract

claim. Thus, it is not sufficiently analogous to aid Vance’s argument. See discussion infra, pp. 9-

10.

6

to pay her the severance payment she was due under the Letter Agreement as a result

of her termination.” Id. Vance contends that “[s]he simply seeks to hold Cheyney

to the terms of the 2015 [r]eappointment [l]etter that it provided to her, the terms of

which she did not negotiate.” Id.13

Defendants counter that the Board of Claims is not empowered to

adjudicate employment disputes against the Commonwealth. Defendants’ Brief at

16. Defendants assert that “Commonwealth employees’ claims against their

employing agencies do not fall within the limited waiver of sovereign immunity, in

Title 62, for specified contract claims against Commonwealth agencies.”

Defendants’ Brief at 19.

We begin with an overview of sovereign immunity in Pennsylvania:

Pursuant to section 11 of Article 1 of the Constitution of

Pennsylvania, it is hereby declared to be the intent of the

General Assembly 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. When the General Assembly specifically

waives sovereign immunity, a claim against the

Commonwealth and its officials and employees shall be

brought only in such manner and in such courts and in such

cases as directed by the provisions of Title 42 (relating to

judiciary and judicial procedure) or 62 (relating to

procurement) unless otherwise specifically authorized by

statute.

13

Vance does not clarify in her brief the amount she considers as due under the July 31,

2015 reappointment letter. In her complaint, Vance claimed that Cheyney was obligated to pay

her salary for the entire term of the contract, i.e., through June 30, 2017. R.R. at 7a-8a. However,

Vance does not raise this argument in her brief before this Court; thus, it is waived.

7

1 Pa. C.S. § 2310 (emphasis added). The General Assembly has provided for a

limited waiver of sovereign immunity in the Commonwealth Procurement Code

(Code):

(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 section

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 . . . Subchapter C (relating to Board of Claims) but

only to the extent set forth in this chapter.

62 Pa. C.S. § 1702. “The board shall have exclusive jurisdiction to arbitrate claims

arising from . . . [a] contract entered into by a Commonwealth agency in accordance

with this part and filed with the board in accordance with section 1712.1 (relating to

contract controversies).” 62 Pa. C.S. § 1724(a)(1). “A contractor may file a claim

with the contracting officer in writing for controversies arising from a contract

entered into by the Commonwealth.” 62 Pa. C.S. § 1712.1(a). “The board shall

have no power and exercise no jurisdiction over a claim asserted under subsection

(a)(1) unless it is filed with the board in accordance with section 1712.1.” 62 Pa.

C.S. § 1724(c). Section 1712.1 of the Code mandates that

[a] claim shall be filed with the contracting officer within

six months of the date it accrues. If a contractor fails to file

a claim or files an untimely claim, the contractor is deemed

to have waived its right to assert a claim in any forum.

8

Untimely filed claims shall be disregarded by the

contracting officer.

62 Pa. C.S. § 1712.1(b).

In Dubaskas v. Department of Corrections, 81 A.3d 167, 177 (Pa.

Cmwlth. 2013), this Court held the Board of Claims did not err when it concluded

that it lacked jurisdiction over the employment-related claims of a Department of

Corrections employee, which stemmed from an ‘offer of employment’ letter. We

found that

Section 1724(a)(1) of the Code provides, in part, that the

Board has jurisdiction over claims arising from “[a]

contract entered into by a Commonwealth agency.” The

Code defines “contract,” in part, as an agreement for the

procurement of “services,” a term which “does not include

employment agreements or collective bargaining

agreements.” 62 Pa. C.S. § 103 (emphasis added). Using

a similar line of reasoning to the Supreme Court in

Pennsylvania Associated Builders [and Contractors, Inc.

v. Department of General Services, 932 A.2d 1271 (Pa.

2007)], we observe here that when read in context, there is

nothing to indicate that the General Assembly intended for

the word “services” as used in the definition of “contract”

to mean something other than its Code definition, nor is

there anything contextual to indicate that the General

Assembly intended for the word “contract” as used in

Section 1724(a)(1) to mean something other than its Code

definition . . . .

Id. (emphasis in original).14 We further explained that “[b]ecause the Code explicitly

and unambiguously excludes ‘employment agreements’ from what constitute

14

See also 62 Pa. C.S. § 103 (“[T]he following words and phrases when used in this part

shall have the meanings given to them in this section unless the context clearly indicates

otherwise.”).

9

‘services’ under the Code, it follows that ‘employment agreements’ are not

‘services’ that can be the subject of a ‘contract’ that falls within [] the scope of the

Board’s jurisdiction as outlined in Section 1724(a)(1).” Id. at 177. Thus, we found

that “with respect to Section 1724(a)(1) of the Code, the Code’s definitions of

‘contract’ and ‘services’ in Section 103 of the Code function as components of the

‘jurisdictional prerequisites’ that bar from the exclusive jurisdiction of the Board

claims arising from employment contracts entered into by the Commonwealth.” Id.

(emphasis in original). We determined that, “[b]ecause the words of the statutory

provisions at issue in this case are clear and unambiguous ‘with respect to the

question before us,’ our inquiry ends here.” Id. at 177 (quoting Pa. Associated

Builders, 932 A.2d at 1279-80).

In light of these strict jurisdictional requirements, it is clear that the

Board of Claims lacks jurisdiction over Vance’s employment-related claim for

breach of contract against Cheyney.

Regarding Count II, Vance argues:

[a]lthough [Defendants] and the trial court were correct

that the Commonwealth has not expressly waived

immunity with respect to the Wage Payment & Collection

Law [WPCL] . . . ., for the same reasons as discussed

above with respect to Count I, [her] claim under the WPCL

essentially is a claim for payments due under the 2015

[r]eappointment [l]etter. It is not a claim challenging the

legitimacy of her termination. Accordingly, the trial court

should have transferred Count II to the Board of Claims.

Vance’s Brief at 20.

Defendants counter that “[i]n a single paragraph, unsupported by any

legal authority whatsoever, . . . Vance argues that this claim, too, should have been

10

transferred to the Board of Claims. This argument is so undeveloped that it should

be deemed waived.” Defendants’ Brief at 20 (citing Wirth v. Commonwealth, 95

A.3d 822, 837 (Pa. 2014) (“[W]here an appellate brief fails to provide any discussion

of a claim with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived. It is not the obligation

of [an appellate court] to formulate [a]ppellant’s arguments for him.”) (citation and

internal quotation marks omitted)).

In addition to her failure to cite any supporting legal authority, we note

that Vance fails to articulate even a single argument with respect to this claim. Thus,

we agree with Defendants that Vance has waived Count II, the WPCL claim.

Regardless of this waiver, however, we note that Vance’s contention that the trial

court should have transferred Count II to the Board of Claims would fail for the same

reasons noted above.

Finally, Vance argues that the trial court erred in granting Defendants’

motion for judgment on the pleadings with respect to Counts III, V and VI, because

sovereign immunity did not bar her claim of wrongful discharge against Cheyney

and claims of tortious interference with contract against Bogle and Brogan.

Vance’s Brief at 20. Vance “concedes that claims of wrongful discharge and tortious

interference with contract are not encompassed by any of the exceptions [to

sovereign immunity] set forth in 42 Pa. C.S. § 8522(b).” Vance’s Brief at 20.

Rather, Vance contends that sovereign immunity does not bar these claims because

she “did not allege that defendants Bogle and Brogan, as well as the other relevant

Commonwealth employees, were acting within the scope of their official duties and

authorities in connection to her termination.” Id. Vance contends “that Bogle and

Brogan acted outside the scope of their official capacities and employments by,

11

among other things, purporting to usurp the authority of Cheyney’s president, [Dr.]

Frank G. Pogue, to hire and fire employees, compelling president Pogue’s signature

on Ms. Vance’s termination letter, and orchestrating Ms. Vance’s termination

because of personal animosity and her disclosure of financial improprieties at

Cheyney.” Vance’s Brief at 15. Vance further argues that sovereign immunity does

not bar her claims because, “[i]mportantly, . . . [she] did not allege in the [c]omplaint

that she was suing Bogle or Brogan in their official capacities . . . or that they acted

pursuant to their official capacities and within the scope of their employments in

connection with the events that give [sic] rise to . . . [her] claims . . . .” Vance’s

Brief at 16.

Defendants counter that this argument lacks merit because whether

Vance chose to include or omit certain allegations is not relevant—“what matters is

‘whether the facts, as alleged by [Vance] establish that [Defendants’] statements and

actions were outside the scope of their authority.’” Defendants’ Brief at 26 (quoting

Thomas v. Kane (Pa. Cmwlth., No. 2236 C.D. 2015, filed Oct. 17, 2016), slip op. at

14). Further, Defendants assert that, for purposes of sovereign immunity, a

Commonwealth official acts within the scope of his or her authority by carrying out

an act in furtherance of the employer’s interests. Defendants’ Brief at 27.

As noted above, Commonwealth officials and employees acting within

the scope of their duties enjoy sovereign immunity unless specifically abrogated by

the General Assembly. 1 Pa. C.S. § 2310. “An officer or employee of a state-owned

educational institution is a Commonwealth employee.” Kull v. Guisse, 81 A.3d 148,

154 (Pa. Cmwlth. 2013). “[C]onduct constituting a crime, actual fraud, actual malice

or willful misconduct is considered to be outside the employee’s scope of

employment for immunity purposes.” Id. at 154. “However, state employees do not

12

lose their immunity for intentional torts, provided they are acting within the scope

of their employment.” Id. at 157. “Conduct is within the scope of employment if it

is actuated, at least in part, to serve the employer.” Id. at 158. For instance,

“allegations of . . . personal animosity would not alter the result if” the

Commonwealth officials or employees took the disputed action “at least in part, to

advance [the employer’s] interests.” Id. at 158.

In Kull, an assistant professor at a PASSHE university sued various

other university faculty members for intentional interference with contractual

relations after he was denied tenure and promotion. Id. at 151. The professor

contended that the faculty members acted outside the scope of their authority and

were thus unable to claim sovereign immunity, because they “repeatedly failed to

comply with the . . . tenure evaluation policies and procedures” set forth in a

collective bargaining agreement. Id. at 159. This Court found that the faculty

members “acted entirely within the scope of their employment with [the university],

regardless of whether they meticulously complied with all of the . . . policies and

procedures for tenure and promotion evaluation.” Id. at 159. Further, we held that

the decision of faculty members to deny tenure and promotion was “actuated, at least

in part to serve the interests of their employer, [the university] and the PASSHE,” as

they were acting pursuant to their role “in evaluating faculty in order to provide a

high quality education.” Id. at 158.

In addition to alleging personal animosity, Vance asserts that Bogle and

Brogan failed to follow proper procedures by “usurping” the authority of Cheyney’s

president in “orchestrating [her] termination.” Vance’s Brief at 15. Guided by Kull,

we find that Vance’s contentions regarding the role that Bogle and Brogan allegedly

played in her termination fail to establish that they exceeded the scope of their

13

official duties. Vance admits that Brogan was directed either to make hefty budget

cuts or to eliminate 20 positions in order to stabilize Cheyney’s financial

predicament. R.R. at 15a-17a. Thus, despite Vance’s allegations in her complaint

and before this Court, the facts as pled indicate that Brogan furthered the interests of

the PASSHE and Cheyney by eliminating Vance’s position, along with those of

eight other high level and management employees. Regardless of Cheyney’s

financial situation, it is evident that both Bogle and Brogan acted within their scope

of their official duties because any alleged influence upon the decision of the interim

president, Dr. Pogue, to eliminate Vance’s position was “actuated, at least in part,”

to serve their employer’s interests. Kull, 81 A.3d at 158.15 Thus, Vance fails to

establish that sovereign immunity does not preclude her claims of tortious

interference with contract against Bogle and Brogan.

With respect to her claim of wrongful discharge, Vance attempts to

argue that “other relevant Commonwealth employees,” whom she does not identify,

acted outside the scope of their employment, thereby forfeiting any possible

sovereign immunity defense. See Vance’s Brief at 20. However, Vance directs her

wrongful discharge claim against Cheyney. See R.R. at 10a; Vance’s Brief at 20.

The “scope of authority” inquiry pertains to Commonwealth officials and

15

Cheyney’s Council of Trustees is empowered with a broad range of powers and duties

in order to further the interests of the university. See Section 20-2009-A of the Public School

Code, Act of March 10, 1949, P.L. 30, as amended, added by the Act of November 12, 1982, P.L.

660, 24 P.S. § 20-2009-A (enumerating the powers and duties of PASSHE councils of trustees,

which generally involve assisting and advising the university president, as well as authorizing them

“[t]o take such other action as may be necessary to effectuate the powers and duties herein

delegated”). The PASSHE chancellor serves as an ex-officio member of the council of trustees of

each university and also generally retains discretion regarding the employment and termination of

high level university employees. See Section 20-2005-A of the Public School Code, added by the

Act of November 12, 1982, P.L. 660, 24 P.S. § 20-2005-A; PASSHE Board of Governors Policy

1984-14-A(B).

14

employees, not entities. See 1 Pa. C.S. § 2310 (providing that “Commonwealth . . .

officials and employees acting within the scope of their duties” shall enjoy sovereign

immunity) (emphasis added). Thus, Vance fails to establish that sovereign immunity

does not also bar her wrongful discharge claim.

For the foregoing reasons, we discern no error of law in the trial court’s

determination that sovereign immunity precluded Vance’s claims. Accordingly, we

affirm the order of the trial court granting Defendants’ motion for judgment on the

pleadings with respect to Counts I, II, III, V and VI of Vance’s complaint.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sheilah D. Vance, :

Appellant :

:

v. :

:

Cheyney University of Pennsylvania, : No. 1751 C.D. 2017

Robert Bogle and Frank Brogan :

ORDER

AND NOW, this 7th day of December, 2018, the October 17, 2017

order of the Chester County Court of Common Pleas is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge