Opinion

M. & A. Gant, H & w v. DHS

Court
Commonwealth Court of Pennsylvania
Filed
Dec 6, 2023
Status
Unpublished
On the bench
Covey, J.
Cited by
0 cases
Authority
More cited than 14.5%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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