147 A.3d 1244
Pa. Commw. Ct.2016Background
- Roe was Executive Director of the Pennsylvania Game Commission and entered into an "Agreement and Release" (June 25, 2013) and an "Amended and Restated Agreement and Release" (Jan. 27, 2014) under which the Commission agreed to pay Roe $220,000 in exchange for early retirement, a waiver of claims, and confidentiality.
- The Original Agreement was signed by Commissioners and approved as to form and legality by Commission Chief Counsel and the Office of Attorney General (OAG); the Amended Agreement was approved by Commission counsel but not executed by the OAG or Comptroller (Roe alleges deemed OAG approval).
- Roe retired Jan. 17, 2014 and alleges the Commission refused to pay the $220,000; he filed claims for breach of the Original Agreement, breach of the Amended Agreement, combined breach, and promissory estoppel.
- The Commission filed preliminary objections asserting sovereign immunity and that the Board of Claims (the Board) has exclusive jurisdiction under the Commonwealth Procurement Code (Procurement Code). The court reviewed only the Amended Complaint on preliminary objections.
- The court held the settlement agreements are not "contracts" for "services" under the Procurement Code because Roe’s obligations (retirement, waiver, confidentiality) are not the furnishing of labor, time, or effort, and thus claims arising from them do not fall within the Board’s statutory jurisdiction; absent a Board waiver, sovereign immunity bars Roe’s claims. The Amended Complaint was dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commission is immune from suit (sovereign immunity) | Roe: Agreements valid; sovereign immunity does not bar enforcement | Commission: Sovereign immunity applies unless claim falls within Board's limited waiver | Held: Sovereign immunity bars these claims because they do not fall within Board jurisdiction |
| Whether the Agreements are "contracts" under the Procurement Code (i.e., for "services") | Roe: Settlement agreements enforceable; his obligations are consideration (effort) | Commission: Agreements are settlement/severance-like and not contracts for procurement "services" | Held: Agreements are settlement agreements whose terms (retire, waive, keep confidences) are not "furnishing of labor, time or effort" → not "services" under 62 Pa.C.S. §103 |
| Whether the Board of Claims has exclusive jurisdiction over these claims | Roe: If a contract, Board jurisdiction would apply; alternatively seeks court relief | Commission: Board has exclusive jurisdiction over contract claims brought in accordance with Procurement Code | Held: Because Agreements are not procurement "contracts," Board does not have statutory jurisdiction; sovereign immunity remains unless legislature provides waiver |
| Procedural propriety of resolving sovereign immunity via preliminary objections | Roe: factual issues (approvals, deemed OAG approval) preclude resolution now | Commission: immunity is apparent on face of Amended Complaint and may be raised by preliminary objection | Held: Court sustained preliminary objections and dismissed complaint; dissenters argued immunity is affirmative defense that should be raised as new matter and/or that the case should be transferred to the Board of Claims |
Key Cases Cited
- Ezy Parks v. Larson, 454 A.2d 928 (Pa. 1982) (establishing Board monetary remedy constituted waiver of sovereign immunity under former statute)
- Shovel Transfer & Storage, Inc. v. Simpson, 565 A.2d 1153 (Pa. 1989) (Board creation waived sovereign immunity to allow contract claims against Commonwealth)
- Scientific Games Int’l, Inc. v. Department of Revenue, 66 A.3d 740 (Pa. 2013) (Procurement Code’s reaffirmation of sovereign immunity makes Board jurisdiction a jurisdictional prerequisite; claims cognizable only where statute waives immunity)
- Dubaskas v. Department of Corrections, 81 A.3d 167 (Pa. Cmwlth. 2013) (Procurement Code definitions operate as jurisdictional prerequisites for Board jurisdiction)
- Hanover Ins. Co. v. State Workers’ Ins. Fund, 35 A.3d 849 (Pa. Cmwlth. 2012) (recognizing Board jurisdiction over some non-procurement agreements where lack of forum would bar relief; courts interpret Board jurisdiction in light of sovereign immunity concerns)
- Armenti v. Pa. State Sys. of Higher Educ., 100 A.3d 772 (Pa. Cmwlth. 2014) (court may not create waivers of sovereign immunity; limited statutory exceptions must be strictly construed)