Roe v. Pa. Game Comm'n

147 A.3d 1244

Carl Roe, Petitioner

v.The Pennsylvania Game Commission, Respondent

No. 409 M.D. 2014

Commonwealth Court of Pennsylvania.

Argued December 9, 2015

Filed September 22, 2016

David A. Fitzsimons, Carlisle, for petitioner.

Donald B. Kaufman, Harrisburg, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge¹ , HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE

MARY HANNAH LEAVITT, Judge² , HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA McCULLOUGH, Judge, and HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

The Pennsylvania Game Commission (Commission) preliminarily objects to Carl Roe's (Roe) Amended Complaint averring three contract breach claims and a promissory estoppel claim against the Commission. The Commission asserts that Roe's claims, inter alia , are barred by sovereign immunity or, in the alternative, fall under the exclusive jurisdiction of the Board of Claims (Board). Essentially, the issue before the Court is whether sovereign immunity is a bar to Roe's claims. After review, we sustain the Commission's preliminary objections and dismiss Roe's Amended Complaint without prejudice.

According to the Amended Complaint, Roe served as the Commission's Executive Director from December 30, 2005 until January 17, 2014. On June 25, 2013, Roe entered into an Agreement and Release (Original Agreement) with the Commission's Board of Commissioners (Commissioners), under which Roe agreed to retire before January 31, 2014,³ waive and release any and all claims he may have against the Commission and the Commissioners, and keep confidential any and all communications with the Commission during his tenure as Executive Director. In addition to paying Roe $220,000.00 “no later than two weeks after the retirement date,” the Commission agreed to keep its communications with Roe confidential. Amended Complaint Ex. A, Original Agreement at 1. The Original Agreement stated that the payment “shall not be compensation but shall be consideration for the obligations to be fulfilled by Roe as set forth [t]herein.” Id. It further provided that the arrangement was “to allow for the orderly transition of the Executive Director, while not monetarily penalizing Roe for announcing his retirement early enough to allow for a reasonable search and appointment of a new Executive Director.” Id. at 2. The Original Agreement was signed by all eight Commissioners, and was approved as to form and legality by the Commission's Chief Counsel and the Attorney General's Office (OAG). Roe retired from the Commission effective January 17, 2014.

Thereafter, the Commission asked Roe to sign an Amended and Restated Agreement and Release (Amended Agreement) “to modify some of the language of the [Original] Agreement.” Amended Complaint ¶ 24. The Amended Agreement reflected that Roe retired on January 17, 2014 and provided that he would be paid the $220,000.00 “as soon as practically possible.” Amended Complaint Ex. B, Amended Agreement at 1. The Amended Agreement specified that its intent was “to settle potential legal claims that the parties might have made against each other” and that the Commission's payment would be “consideration for settlement of potential legal claims.” Id. Like the Original Agreement, the Amended Agreement provided that the payment was not compensation. Roe and the eight Commissioners signed the Amended Agreement on January 27, 2014, and it was approved as to form and legality by the Commission's Chief Counsel, but it was not executed by the OAG or the Comptroller.⁴

Roe's original complaint asserted a single breach of contract claim against the Commission. Following the filing of preliminary objections, Roe filed the Amended Complaint. In the Amended Complaint, Roe alleges that the Commission breached the Original Agreement and the Amended Agreement (collectively, Agreements) when it refused to pay him $220,000.00 despite that he had retired and otherwise complied with the terms of the Agreements. The Amended Complaint contains four claims against the Commission: Count I—breach of the Original Agreement; Count II—breach of the Amended Agreement; Count III—breach of the Original Agreement, as amended by the Amended Agreement; and, Count IV—promissory estoppel arising from Roe's detrimental reliance on the Commission's promises. The Commission filed preliminary objections to Roe's Amended Complaint.

This Court's review of preliminary objections is limited to the pleadings. Pa. State Lodge, Fraternal Order of Police v. Dep't of Conservation & Natural Res. , 909 A.2d 413 (Pa.Cmwlth.2006), aff'd , 592 Pa. 304, 924 A.2d 1203 (2007).

[This Court is] required to accept as true the well-pled averments set forth in the ... complaint, and all inferences reasonably deducible therefrom. Moreover, the [C]ourt need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the preliminary objections should be sustained, the doubt must be resolved in favor of overruling the preliminary objections.

Id. at 415–16 (citations omitted). Herein, this Court's review is limited to the averments in Roe's Amended Complaint.⁵

The Commission first argues that it is immune from Roe's claims because the General Assembly has only waived sovereign immunity over contract claims against Commonwealth agencies to the extent jurisdiction over those claims lies with the Board and, in this case, the Board lacks jurisdiction.^{6 ,7} Article I, Section 11 of the Pennsylvania Constitution states, in pertinent part, that “[s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.” Pa. Const. art. I, § 11. The General Assembly has declared that the Commonwealth “shall continue to enjoy sovereign immunity ... and remain immune from suit except as the General Assembly shall specifically waive the immunity.” 1 Pa.C.S. § 2310.

With the enactment of what was commonly referred to as the Board of Claims Act,⁸ the General Assembly gave the Board “exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more.” Section 4 of the former Board of Claims Act, 72 P.S. § 4651–4 (emphasis added). “The exclusive remedy of monetary damages in the Board ... constituted a limited waiver of sovereign immunity.” Ezy Parks v. Larson , 499 Pa. 615, 454 A.2d 928, 934 (1982). Thus, “[a]lthough the Commonwealth traditionally had sovereign immunity from suit, the establishment of the Board ... waived that immunity by providing a tribunal whose specific duty was to entertain contract actions against the Commonwealth.” Shovel Transfer & Storage, Inc. v. Simpson , 523 Pa. 235, 565 A.2d 1153, 1155 (1989).

In 2002, the General Assembly repealed the Board of Claims Act and reenacted the Board's enabling jurisdiction under the Commonwealth Procurement Code (Procurement Code).⁹ With the 2002 Procurement Code amendments, the General Assembly preserved the Board's general structure and function and, in Section 1702(a) of the Procurement Code, declared:

(a) General rule. —The General Assembly under section 11 of Article I of the Constitution of Pennsylvaniareaffirms sovereign immunity , and, except as otherwise provided in this chapter, no provision of this part shall constitute a waiver of sovereign immunity for the purpose of 1 Pa.C.S. § 2310 (relating to sovereign immunity reaffirmed; specific waiver) or otherwise.

(b) Exception. —The General Assembly under [S]ection 11 of Article I of the Constitution of Pennsylvania does hereby waive sovereign immunity as a bar to claims against Commonwealth agencies brought in accordance with [S ]ections s 1711.1 [of the Procurement Code] (relating to protests of solicitations or awards) and 1712.1 [of the Procurement Code] (relating to contract controversies) and Subchapter C (relating to [the Board] ) but only to the extent set forth in this chapter.

62 Pa.C.S. § 1702 (text emphasis added). Consequently, sovereign immunity is waived for claims over which the Board has exclusive jurisdiction. Therefore, the issue before us becomes whether the Board has exclusive jurisdiction over the Agreements underlying this case.

Section 1724(a)(1) of the Procurement Code provides that the Board shall have exclusive jurisdiction to arbitrate claims arising from “ [a ] contract entered into by a Commonwealth agency ... and filed with the [B]oard in accordance with [S]ection 1712.1(a) [of the Procurement Code] (relating to contract controversies).”¹⁰ 62 Pa.C.S. § 1724(a)(1) (emphasis added). In Dubaskas v. Department of Corrections , 81 A.3d 167 (Pa.Cmwlth.2013), this Court stated: “[T]he Board has jurisdiction over ‘claims arising from certain contracts entered into by a Commonwealth agency,’^{[11 ]}and there are still ‘jurisdictional prerequisites' that must be met in order for the Board to exercise its jurisdiction over a particular claim.” Id. at 176 (quoting Scientific Games Int'l, Inc. v. Dep't of Revenue , 620 Pa. 175, 66 A.3d 740, 756, 760 (2013) ). The Court concluded that “with respect to Section 1724(a)(1) of the [Procurement] Code, the ... definitions of ‘contract’ and ‘services' in Section 103 of the [Procurement ] Code function as components of the ‘jurisdictional prerequisites ' ....” Id. at 177 (emphasis added).

The Procurement Code defines “[c ]ontract ,” in relevant part, as “[a] type of written agreement ... for the procurement ... of ... services ... executed by all parties in accordance with the act of October 15, 1980 (P.L. 950, No. 164), known as the Commonwealth Attorneys Act.” 62 Pa.C.S. § 103 (emphasis added). “Services ” are defined in relevant part therein as “[t]he furnishing...