the Procurement Code does not grant the Board of Claims jurisdiction over claims arising from employment contracts entered into with a Commonwealth agency
How later courts described this case
- the Procurement Code does not grant the Board of Claims jurisdiction over claims arising from employment contracts entered into with a Commonwealth agency
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael and Abadella Gant, :
Husband and wife, :
Petitioners :
:
v. :
:
Department of Human Services, : No. 324 M.D. 2021
Respondent : Submitted: April 28, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 6, 2023
Before this Court are the Department of Human Services’ (Department)
Preliminary Objections to Michael and Abadella Gant, husband and wife’s
(collectively, the Gants), First Amended Petition for Review (Complaint)
(Preliminary Objections). After review, this Court sustains the Department’s first
Preliminary Objection and dismisses the Complaint.
Background1
The Gants’ adult daughter Mikeisha Gant (Daughter) suffered from
advanced sickle cell anemia, and was bedridden and in need of 24-hour care. See
Complaint ¶ 9. Daughter qualified for, and was enrolled in, the Department’s
1
The facts are as alleged in the Complaint.
Attendant Care Waiver Program’s (ACWP) Consumer-Directed Model in 2011.2
See id. ¶ 46. Thereunder, Daughter could hire workers to supply personal assistance
services for her at home. See id. ¶¶ 12-21, 47; see also id. Ex. A (Department’s
Office of Long-Term Living, Act 1503 Program Guidelines, issued May, 2016 (Act
150 Guidelines)). Daughter had chosen the Gants to provide her personal assistance
services in exchange for which the Department paid them wages.4 See id. ¶¶ 19, 22,
48. The Gants claim that, under the Act 150 Guidelines, Daughter was their common
law employer. See id. ¶ 17.
2
The federal Medicaid program authorizes states “to offer, under a
waiver of statutory requirements, an array of home and community-
based services that an individual needs to avoid institutionalization.”
42 C.F.R. § 441.300; see also 42 U.S.C. § 1396n(c). Essentially,
the federal government “waives” certain regulations for community-
based programs under which intermediate care facilities are required
to operate. The Commonwealth’s Medical Assistance program is
authorized by Article IV of the [Human Services] Code, Act of June
13, 1967, P.L. 31, as amended, 62 P.S. §§ 401-[]93, and must be
administered as required by Title XIX of the Social Security Act, 42
U.S.C. § 1396-1396(w-5), and any associated regulations. See 55
Pa. Code § 1101.11(b).
Dep’t of Pub. Welfare v. Gant, 142 A.3d 964, 969 n.5 (Pa. Cmwlth. 2016) (Gant I).
[The Department’s ACWP] . . . permits Medical Assistance
recipients to receive nursing home-type care and services in their
homes. . . . Under the Consumer-Directed Model, a [Department]
service coordinator [] assists the recipient in developing an
individual support plan under which the recipient employs care
workers which, oftentimes, are family members.
Id. at 968-69 (footnotes omitted).
3
Attendant Care Services Act, Act of December 10, 1986, P.L. 1477, No. 150 (Act 150),
62 P.S. §§ 3051-3058.
4
The Department paid Abadella Gant $11.31 per hour for 24 hours of Daughter’s round-
the-clock care. See Complaint ¶ 58. Michael Gant occasionally provided care for Daughter, and
was also Daughter’s Power-of-Attorney. See Complaint Ex. C, Gant I.
2
In 2013, the Department of Public Welfare5 filed an emergency action
in the Lancaster County Common Pleas Court (Common Pleas Court) seeking to
appoint a plenary guardian of Daughter’s person and estate.6 See id. ¶ 6. The
Common Pleas Court appointed Department agent Denise Getgen (Getgen) as
Daughter’s emergency guardian; however, after Daughter regained her capacity to
make her own medical and financial decisions, the Department withdrew the
emergency guardianship action. See id. ¶¶ 7-8.
Also in 2013, the Department filed an action in the Common Pleas
Court seeking to have Daughter declared a medically compromised adult in need of
protective services under the Adult Protective Services Act7 and to restrict her
eligibility for ACWP services (2013 Common Pleas Court Action). See id. ¶ 10. On
December 11, 2013, the Department also terminated Daughter’s ACWP benefits
(2013 Administrative Action), and stopped paying the Gants. See id. ¶¶ 11, 23, 49.
Pursuant to the Department’s Regulations that required Daughter or her lawful
representative to be notified of the Department’s action, the Department served the
initial termination notice on Daughter’s emergency guardian, Getgen. See id. ¶¶ 24-
25. In order to maintain eligibility for benefits while an appeal from the 2013
Administrative Action was pending, Daughter or her representative had to have filed
an appeal within 10 days from the Department’s administrative action. See id. ¶¶
5
Effective November 24, 2014, the Department of Public Welfare was officially renamed
the Department of Human Services. See Act of June 13, 1967, P.L. 31, as amended, added by
Section 2 of the Act of September 24, 2014, P.L. 2458, 62 P.S. § 103(a).
6
The Department averred that Daughter was in a “deplorable physical condition”
(presenting with dehydration, malnourishment, and pressure wounds), and was unable to speak for
herself. Lancaster Regional Medical Center staff had recommended that she be transferred to
Hershey Medical Center for treatment, which the Gants had refused. Complaint Ex. C, Gant I,
142 A.3d at 969.
7
Act of October 7, 2010, P.L. 484, 35 P.S. §§ 10210.101-.103, .301-.309, .501-.507, .701-
.704.
3
26-28; see also Ex. A (Act 150 Guidelines) at 22. Despite that Getgen was
Daughter’s emergency guardian during the 10-day appeal period, Getgen did not file
an appeal. See id. ¶¶ 27-28. The Gants eventually obtained counsel who filed an
appeal from the 2013 Administrative Action outside the 10-day window. See id. ¶
29.
The Common Pleas Court and the Department’s Bureau of Hearings
and Appeals (BHA) conducted several hearings relative to the 2013 Common Pleas
Court Action and the 2013 Administrative Action. See id. ¶ 30. By order issued
July 7, 2014 (entered July 8, 2014) (July 2014 Order), the Common Pleas Court
prohibited Daughter from engaging in the ACWP Consumer-Directed Model. See
id. ¶ 31; see also Complaint Ex. B. Daughter appealed from the Common Pleas
Court’s July 2014 Order to this Court, and the BHA stayed its decision on the 2013
Administrative Action, claiming that the Common Pleas Court’s July 2014 Order
effectively decided the 2013 Administrative Action (i.e., that Daughter was not
eligible for consumer-directed ACWP services). See id. ¶¶ 32-34. On October 22,
2015, Daughter passed away. See id. ¶ 45. On June 29, 2016, this Court vacated the
July 2014 Order, reversed the Common Pleas Court’s ruling that Daughter was an
adult in need of protective services, and affirmed the remaining portions of the July
2014 Order. See id. ¶ 35; see also id. Ex. C, Dep’t of Pub. Welfare v. Gant, 142
A.3d 964 (Pa. Cmwlth. 2016) (Gant I).
The Gants retained new counsel, pursued the 2013 Administrative
Action and, after nearly two years, on March 22, 2018, the BHA concluded that the
Department unlawfully terminated Daughter’s benefits in 2013. See id. ¶¶ 36-37;
see also id. Ex. D. The Department filed a request with the Department’s Secretary
(Secretary) for reconsideration (Reconsideration Request), and the Secretary stayed
reinstatement of Daughter’s benefits pending the Secretary’s decision on the
Reconsideration Request. See id. ¶¶ 38-39. Nearly three years later, on January 21,
4
2021, the Secretary denied the Reconsideration Request.8 See id. ¶ 40; see also id.
Ex. E.
From December 11, 2013 to October 22, 2015, the Gants continued to
provide care for Daughter, but the Department did not compensate them for their
services. See id. ¶¶ 49-51. However, the Department’s termination of Daughter’s
benefits was ultimately determined to be unlawful. See id. ¶ 52. “Had the
Department not illegally terminated [Daughter’s] benefits, [] [Daughter] would have
continued using [the Gants] as her paid caregivers, thereby entitling them to payment
for services from the Department.” Id. ¶ 53. Despite that the Gants have supplied
their timesheets for services they provided to Daughter during approximately 85
weeks from February 2014 (when Daughter was released from her December 2013
hospitalization) to October 22, 2015 (the date of her death),9 the Department has
refused to pay them. See id. ¶¶ 54-57. The Gants maintain that had the Department
not unlawfully terminated Daughter’s benefits, they would have been eligible for
approximately $161,506.80 in payment for their services provided to Daughter
($11.31 x 168 x 85 = $161,506.80). See id. ¶¶ 59-62.
Facts
On March 9, 2021, the Gants initiated the instant action in this Court’s
original jurisdiction by writ of summons.10 The Gants received permission from this
Court to amend the caption and serve a complaint. On November 2, 2021, the Gants
filed a complaint. The Department filed preliminary objections thereto on December
8
In the interim, the Gants’ counsel communicated that he may file a mandamus action
against the Department for the Secretary to decide their reconsideration request. See Complaint
¶¶ 41-43.
9
The Gants adjusted the amount due for the times Daughter was hospitalized between
December 2013 and October 2015 while Daughter was not under their care. See id. ¶ 60.
10
Service was delayed based on the Gants naming then-Secretary Theresa D. Miller as
respondent.
5
2, 2021. On January 3, 2022, the Gants filed the Complaint. On January 4, 2022,
this Court ordered the preliminary objections stricken.
On February 1, 2022, the Department filed the Preliminary Objections.
Therein, the Department averred that the Complaint: (1) fails to state a valid cause
of action due to sovereign immunity (First Preliminary Objection); (2) does not
include a necessary writing (Second Preliminary Objection); (3) fails to state a valid
cause of action because the adjudication of Daughter’s rights and claims did not
entitle the Gants to the requested relief (Third Preliminary Objection); (4) is
insufficiently specific (Fourth Preliminary Objection); (5) fails to establish that the
Gants have standing (Fifth Preliminary Objection); and (6) establishes that the Gants
have an adequate non-statutory remedy at law (Sixth Preliminary Objection). On
March 2, 2022, the Gants opposed the Preliminary Objections. On April 5, 2022,
the Department filed its brief in support of its Preliminary Objections. On May 4,
2022, the Gants filed their brief in opposition to the Preliminary Objections. On
May 18, 2022, the Department filed a Reply Brief. The case is now in the proper
posture for disposition.
Discussion
Pennsylvania Rule of Appellate Procedure 1516(b) authorizes parties
to file preliminary objections to pleadings filed in this Court’s original jurisdiction.
See Pa.R.A.P. 1516(b).
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the [complaint], as
well as all inferences reasonably deduced therefrom. The
Court 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 any doubt should be
resolved by a refusal to sustain them.
6
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the complaint and all inferences
reasonably deducible therefrom. It tests the legal
sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted. When
ruling on a demurrer, a court must confine its analysis to
the complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added;
citations omitted). “‘[C]ourts reviewing preliminary objections may not only
consider the facts pled in the complaint, but also any documents or exhibits attached
to it.’ Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).” Foxe v. Pa.
Dep’t of Corr., 214 A.3d 308, 311 n.1 (Pa. Cmwlth. 2019).
Sovereign Immunity
Regarding the Department’s First Preliminary Objection, Pennsylvania
Rule of Civil Procedure 1028(a)(4) provides that preliminary objections may be filed
by any party to any pleading based on the “legal insufficiency of a pleading
(demurrer)[.]” Pa.R.Civ.P. 1028(a)(4). The Department contends that the Gants
have not identified any contract, rule, regulation, or statute entitling them to their
requested relief under which the Department has waived sovereign immunity. The
Department further claims that the Act 150 Guidelines are not relevant here because
the Act 150 program and the ACWP are different programs. See Prelim. Objs. at 4
n.1.
The Gants acknowledge that the Act 150 program differs from the
ACWP, but claim that the Act 150 program is sufficiently similar, if not identical,
to the ACWP which has no published guidelines. See Answer to Prelim. Objs. ¶¶
10-11. The Gants further assert that the Act 150 Guidelines make “clear that the
Department is the common[-]law employer of paid caregivers, such as [the Gants.]”
Answer to Prelim. Objs. ¶ 10. Thus, the Gants claim that “sovereign immunity does
7
not apply” to “the Gants[’] status as employees - common law, contractual, at[ ]will,
or some combination thereof [-] of the Department.” Gant Br. at 27.
Section 52.3 of the Department’s Regulations defines the “Act 150”
program as “[a s]tate-funded program under the Attendant Care Services Act (62
P.S. §§ 3051-3058).” 55 Pa. Code § 52.3. “Attendant Care [W]aiver is defined
therein as “[a f]ederally-approved [] waiver under [S]ection 1915(c) of the Social
Security Act[, 42 U.S.C. § 1396n(c),] that authorizes services to participants 18 years
of age or older but under 60 years of age with physical disabilities.”11 Id. “The Act
150 [] Guidelines provide the necessary requirements for the management of the Act
150 [p]rogram. They include policy and program areas that are specific to the Act
150 [p]rogram.” See Complaint Ex. A, Act 150 Guidelines, at 1. In addition, the
Act 150 Guidelines reflect that persons are only eligible for the Act 150 program if
11
Such “[w]aiver[s]” include “[t]he . . . Attendant Care . . . and Community-Based Service
waivers approved by the Federal Centers for Medicare and Medicaid Services.” 55 Pa. Code §
52.3.
8
they are not eligible for a Medicaid waiver program, such as the ACWP. See id. at
3,12 17,13 25-26.14 Therefore, the Act 150 Guidelines do not govern here.
Even if the Act 150 Guidelines applied in the instant case, the
provisions related to service level changes the Gants cite state:
The [service coordinator (]SC[)] shall document the facts
supporting his or her determination and shall provide the
participant with 30 days advance written notice of the
change. The notice shall include an explanation of the
proposed change in the scope or level of service(s), the
facts supporting the change, the participant’s right to
appeal the change, and the participant’s right to continue
to receive service pending the outcome of his/her
administrative appeal if his/her appeal is filed within 10
days of the postmark date of the SC’s notice.
Act 150 Guidelines at 22 (emphasis added). The Gants admit in the Complaint that
neither they nor Daughter’s then-emergency guardian appealed from the
Department’s termination notice within 10 days. See Complaint ¶ 29. Further, the
12
If an applicant for Act 150 services is both [Nursing Facility
Clinically Eligible (NFCE)] and financially eligible for the
[ACWP], the applicant shall enroll in the [ACWP] to receive
services. Should a participant who is NFCE, under age 60 and being
served through the Act 150 [p]rogram become financially eligible
for the ACW[P], the participant shall be enrolled in the waiver in
order to continue to receive attendant care services.
Act 150 Guidelines at 3.
13
1. . . . . Prospective participants shall exhaust other sources of
service, including those provided under third[-]party benefits, prior
to receiving Act 150 [program] services.
2. If a participant in a Medicaid waiver loses eligibility for the
waiver due to an increase in income or resources, the participant
may apply for enrollment in the Act 150 [p]rogram . . . .
Act 150 Guidelines at 17.
14
“Act 150 [program] services are provided only if an applicant/participant is not eligible
for Medicaid waiver services.” Act 150 Guidelines at 25-26. “Act 150 is the payor of last
resort . . . .” Id. at 26.
9
Gants did not file the Complaint or any other sort of claim preserving their purported
rights with the Department within 10 days of the Department’s termination notice.
Accordingly, even if applicable, the Act 150 Guidelines offer no legal basis for the
Gants’ damage claim.
Moreover, article I, section 11 of the Pennsylvania Constitution
declares:
All courts shall be open; and every man for an injury done
him in his lands, goods, person or reputation shall have
remedy by due course of law, and right and justice
administered without sale, denial or delay. Suits may be
brought against the Commonwealth in such manner, in
such courts and in such cases as the [l]egislature may by
law direct.
PA. CONST. art. I, § 11. Section 2310 of the Pennsylvania Consolidated Statutes’
General Provisions states:
Pursuant to section 11 of [a]rticle I 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.
1 Pa.C.S. § 2310.
10
In Section 8522 of what is commonly referred to as the Sovereign
Immunity Act,15 the General Assembly expressly waived sovereign immunity for
Commonwealth parties in limited cases. See 42 Pa.C.S. § 8522.
Section 8522 of the Sovereign Immunity Act provides:
(a) Liability imposed.--The General Assembly, pursuant
to section 11 of [a]rticle 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, 42 Pa.C.S. § 8528] (relating to
limitations on damages), sovereign immunity as a bar to
an action against Commonwealth parties,[16] 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 w[as] caused by a person not
having available the defense of sovereign immunity.
(b) Acts which may impose liability.--The following acts
by a Commonwealth party may result in the imposition of
liability on the Commonwealth and the defense of
sovereign immunity shall not be raised to claims for
damages caused by: (1) Vehicle liability.--The operation
of any motor vehicle in the possession or control of a
Commonwealth party. . . . [;] (2) Medical-professional
liability. . . . [;] (3) Care, custody or control of personal
property.--The care, custody or control of personal
property in the possession or control of Commonwealth
parties, including Commonwealth-owned personal
property and property of persons held by a
Commonwealth agency. . . . [;] (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. . . . [;] (9) Toxoids and
vaccines. . . . [;] [and] (10) Sexual abuse. . . .
15
42 Pa.C.S. §§ 8521-8527.
16
Section 8501 of the Judicial Code defines “Commonwealth party” as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act within the scope
of his office or employment.” 42 Pa.C.S. § 8501.
11
42 Pa.C.S. § 8522 (text emphasis omitted). Accordingly,
“[t]o impose liability on a Commonwealth party, (1) the
alleged negligent act must involve a cause of action that
is recognized at common law or by a statute, and (2) the
case must fall within one of [the] exceptions to sovereign
immunity listed in Section 8522(b)” of . . . the Sovereign
Immunity Act.
Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (emphasis added); see also
LaChance v. Michael Baker Corp., 869 A.2d 1054 (Pa. Cmwlth. 2005); Bufford v.
Pa. Dep’t of Transp., 670 A.2d 751 (Pa. Cmwlth. 1996).
In this case, the Gants’ claim “is neither one for damages arising out of
a negligent act[,] nor within the purview of the exceptions to sovereign immunity
which may impose liability.” Valley Gypsum Co., Inc. v. Pa. State Police, 581 A.2d
707, 710 (Pa. Cmwlth. 1990). The Gants do not specify in the Complaint any other
valid basis under which the General Assembly waived the Department’s sovereign
immunity.17 Because the General Assembly has not expressly waived sovereign
17
Rather, the Gants assert:
[The Gants] rely on the similar, if not identical, provisions of the
[ACWP] and other bodies of law for the proposition that [they] were
either the common law employees of the Department, or that they
were entitled to payments as intended third-party beneficiaries of
[Daughter], [sic] participation in the [ACWP] which was illegally
terminated by the Department. By way of further answer, [the
Gants] are not required to plead every single statute, regulation, or
otherwise which supports their position. Rather, the body of law as
it exists in Pennsylvania is automatically incorporated into every
legal pleading.
Answer to Prelim. Objs. ¶ 11. However, “[t]he Court need not accept as true conclusions of law,
unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Torres,
997 A.2d at 1245. The Gants’ conclusion that they were the Department’s employees is an
unwarranted inference without factual or legal support, see Complaint ¶¶ 15, 19, particularly when
they declare elsewhere in the Complaint that they were Daughter’s employees, see id. ¶ 17, and
they offer no legal basis under which the Department’s actions against Daughter entitle them to
recovery.
12
immunity for the claim the Gants present in the Complaint, the Department is
immune therefrom.
At best, this Court gleans from the Complaint that the Gants are
asserting a contract claim. This Court acknowledges that, in Section 1702(b) of the
Commonwealth Procurement Code (Procurement Code),
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 [Chapter 17,] Subchapter C (relating to
[the Board of Claims) [of the Procurement Code] and even
then ‘only to the extent set forth in [Chapter 17,
Subchapter C of the Procurement Code, 62 P.S. §§ 1711.1,
1712.1, 1721-1726].’ 62 Pa.C.S. § 1702.
Roe v. Pa. Game Comm’n, 147 A.3d 1244, 1253 (Pa. Cmwlth. 2016).
Relative to contract controversies, Section 1712.1 of the Procurement
Code explains, in pertinent part:
(a) Right to claim.--A contractor[18] may file a claim with
the contracting officer in writing for controversies arising
from a contract[19] entered into by the Commonwealth.
18
The term contractor is defined in Section 103 of the Procurement Code as “[a] person
that has entered into a contract with a Commonwealth agency.” 62 Pa.C.S. § 103.
19
Section 103 of the Procurement Code defines contract as “[a] type of written agreement,
regardless of what it may be called, for the procurement or disposal of supplies, services or
construction and executed by all parties in accordance with the [A]ct 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 therein 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. . . . The term does not include employment
agreements or collective bargaining agreements. The term includes
13
(b) Filing of claim.--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. Untimely filed claims shall
be disregarded by the contracting officer.
62 Pa.C.S. § 1712.1. Section 1724(a)(1), (c) of the Procurement Code further
specifies that the Board of Claims shall have exclusive jurisdiction over
controversies involving contracts entered into by Commonwealth agencies filed
pursuant to Section 1712.1 of the Procurement Code. See 62 Pa.C.S. § 1724(a)(1),
(c).
The Gants filed this action on March 9, 2021. The Gants did not aver
in the Complaint that they filed any action with the Department’s contracting officer
or with the Board of Claims based on a written contract within six months of the
Department’s December 2013 termination of Daughter’s ACWP participation.
Further, the Gants did not allege that they filed any similar action within six months
of this Court’s June 29, 2016 Order, or within six months of the BHA’s March 22,
2018 conclusion that the Department unlawfully terminated Daughter’s benefits.20
Therefore, they did not satisfy the prerequisites that would have stripped the
Department’s sovereign immunity pursuant to Section 1702(b) of the Procurement
Code.
Notwithstanding, Section 1724(c) of the Procurement Code proclaims
that “[t]he [B]oard [of Claims] shall have no power and exercise no jurisdiction over
claims for payment or damages to providers of medical assistance services arising
out of the operation of the medical assistance program established by the . . . [Human
utility services and those services formerly provided by public
utilities such as electrical, telephone, water and sewage service.
Id.
The Gants filed the instant action within six months of the Secretary’s January 21, 2021
20
Reconsideration Request denial, but not with the Board of Claims.
14
Services] Code.” 62 Pa.C.S. § 1724(c). And, regardless of whether the Gants would
be considered “providers of medical assistance services,”21 id., the Board of Claims
does not have jurisdiction over claims arising from employment contracts entered
into with Commonwealth agencies. See Section 103 of the Procurement Code, 62
Pa.C.S. § 103 (The term services excludes “employment agreements[.]”); see also
Dubaskas v. Dep’t of Corr., 81 A.3d 167 (Pa. Cmwlth. 2016) (the Procurement Code
does not grant the Board of Claims jurisdiction over claims arising from employment
contracts entered into with a Commonwealth agency).
This Court has explained:
[T]he 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 [of
Claims] has exclusive control. By extension, claims over
which the Board [of Claims] does not have exclusive
control are barred by sovereign immunity.
Roe, 147 A.3d at 1252 (emphasis added). Because contract controversies stemming
from employment-related contracts do not fall under the Board of Claims’ exclusive
jurisdiction, the immunity exception in Section 1702(b) of the Procurement Code
does not apply here.
Without the General Assembly’s express abrogation of
sovereign immunity, [the Gants are] without recourse.
Although we are sympathetic to [their] situation, this
Court is not authorized to create or expand the [Board of
Claims’] jurisdiction, and is bound to adhere to the
General Assembly’s mandates. In Armenti [v.
Pennsylvania State System of Higher Education, 100 A.3d
772 (Pa. Cmwlth. 2014)], this Court . . . stated:
[T]his Court is not at liberty to grant [the
petitioner] the relief he requests because the
Commonwealth has not waived sovereign
21
Neither the Procurement Code nor the Human Services Code define the term.
15
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. . . .
As our Supreme Court explained in Scientific
Games [International, Inc. v. Department of
Revenue, 66 A.3d 740 (Pa. 2013)], 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 of
Claims’] jurisdiction defines the extent of the
Commonwealth’s statutory exception from
sovereign immunity for claims arising from [a]
contract.’ Id. at 755 (emphasis added).
. . . . In the absence of legislative action, this Court
is not at liberty to craft [the petitioner] a waiver of
sovereign immunity.
....
Armenti, 100 A.3d at 777.
Roe, 147 A.3d at 1252-53.
Because the Department is immune from the Gants’ purported
employment/contract claim, the Department’s First Preliminary Objection is
sustained.
16
Conclusion
Based on the foregoing, the Department’s First Preliminary Objection
is sustained, and the Complaint is dismissed.22
_________________________________
ANNE E. COVEY, Judge
22
Given that the Gants’ Complaint is barred by sovereign immunity, this Court need not
address the Department’s remaining Preliminary Objections.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael and Abadella Gant, :
Husband and wife, :
Petitioners :
:
v. :
:
Department of Human Services, : No. 324 M.D. 2021
Respondent :
ORDER
AND NOW, this 6th day of December, 2023, the Department of Human
Services’ first Preliminary Objection to Michael and Abadella Gant, husband and
wife’s, First Amended Petition for Review (Complaint) is SUSTAINED, and the
Complaint is DISMISSED.
_________________________________
ANNE E. COVEY, Judge