Dubaskas v. Commonwealth

CONCURRING OPINION BY

Judge McCullough.

I concur in the Majority’s conclusion that, because section 103 of the Procurement Code explicitly and unambiguously excludes “employment agreements ” from *178the definition of “services,” employment agreements are not services that can be the subject of a contract that falls within the scope of the Board of Claims’ jurisdiction. However, I write separately because I believe that, in responding to the appellant’s two-and-a-half pages of argument,1 the Majority unnecessarily undertakes an extensive analysis of prior decisions, including dicta with which, in relevant part, I do not agree.

In his brief, appellant Joseph D. Dubas-kas summarily argues that our decisions in Hanover Insurance Company v. State Workers’ Insurance Fund, 35 A.3d 849 (Pa.Cmwlth.2012), Department of Health v. Data-Quest, Inc., 972 A.2d 74 (Pa.Cmwlth.2009), and Brown v. Taylor, 90 Pa.Cmwlth. 23, 494 A.2d 29 (1985), hold that the Board of Claims has jurisdiction over all breach of contract claims against the Commonwealth, including his breach of employment contract claims. As the Majority recognizes, albeit in footnotes, these cases are distinguishable, and I submit that the distinctions provide a sufficient basis to reject Dubaskas’s contention.

Brown involved a complaint brought by a discharged employee against a court of common pleas judge setting forth three causes of action: a violation of her constitutional rights, an action in assumpsit, and an action in trespass. On appeal was the trial court’s order sustaining preliminary objections to the employee’s complaint. With respect to the cause of action in assumpsit, we held that section 761(a)(l)(iii) of the Judicial Code, 42 Pa. C.S. § 761(a)(l)(iii), which excepts from our jurisdiction actions that should be commenced before the Board of Claims under the Act of May 20, 1937, P.L. 728, as amended, 72 P.S. §§ 4651-1-4651-10, would vest jurisdiction over that claim in the Board of Claims rather than in this Court. As the Majority correctly notes, this case was decided prior to the 2002 amendments; thus, it cannot be controlling authority in the present case.

In Data Quest, we addressed whether the Board of Claims has jurisdiction over a quasi-contract claim against the Commonwealth that was not based on a written agreement under section 1724 of the Procurement Code. Data-Quest spent four years developing and tailoring a software program which the Department of Health (Department) repeatedly assured Data-Quest it was going to purchase. However, no written contract was executed. After it became evident that the Department was not going to purchase the system, Data-Quest sent a series of letters to the Department demanding payment for its services. The Department declined to make payment, and Data-Quest filed a claim with the Board of Claims, asserting theories of promissory estoppel and quasi-contract. The Department filed preliminary objections asserting that the 2002 Act limited the Board’s jurisdiction to claims arising out of a written agreement with the Commonwealth. The Board overruled the Department’s preliminary objections, and this Court granted the Department permission to file an interlocutory appeal.

We rejected the Department’s argument that the Board’s jurisdiction over quasi-contract claims was extinguished by the 2002 Act. We began our analysis in Data Quest by emphasizing that the Board and its predecessors have exercised exclusive jurisdiction over quasi-contract claims since 1811. We also noted that statutory provisions which decrease the jurisdiction *179of a court of record must be strictly construed. 1 Pa.C.S. § 1928(b)(7). Next, we cited the well-settled principle that where the Pennsylvania legislature seeks to depart from salutary public policy principles it must express its intention to do so explicitly, and we observed that such intention had not been explicitly expressed in the 2002 amendments. Finally, we noted the Supreme Court’s emphasis, in Shovel Transfer & Storage, Inc. v. Simpson, 523 Pa. 235, 565 A.2d 1153 (1989), on the importance of an available forum.2

In Hanover Insurance Co. v. State Workers’ Insurance Fund, 35 A.3d 849 (Pa.Cmwlth.2012), this court held that the provisions of the Procurement Code did not narrow the scope of the Board of Claims’ jurisdiction so as to exclude jurisdiction over a breach of contract claim against SWIF. Relying on Data Quest, we emphasized that statutory provisions that decrease the jurisdiction of a court of record must be strictly construed, and that the where the Pennsylvania legislature seeks to depart from salutary public policy principles it must express its intention to do so explicitly. We also cited the Supreme Court’s emphasis on the importance of an available forum in Shovel Transfer.

Neither Data Quest nor Hanover involved an employment contract, a type of contract that is, in fact, expressly excluded by the 2002 language applicable here. (See Majority op. at 20 n. 10) Thus, Dubas-kas’s reliance on these decisions — the only authority he cites — is plainly misplaced.

The issue in Scientific Games International, Inc. v. Department of Revenue, — Pa. -, 66 A.3d 740 (2013), was whether the Board’s exclusive jurisdiction over procurement litigation against Commonwealth parties foreclosed an original jurisdiction proceeding in Commonwealth Court challenging a Commonwealth agency’s cancellation of a request for proposals and seeking declaratory and injunctive relief. Reversing this court’s decision, the Supreme Court held that it was error to interpret section 1724 of the Code so broadly as to sanction original jurisdiction actions in a judicial tribunal over nonmon-etary claims against the Commonwealth. “To the contrary, nonmonetary claims are cognizable only to the extent they fall within some specified waiver or exception to immunity.” Id. at -, 66 A.3d at 757.

In Scientific Games, our Supreme Court declined to address the Board’s request to “broadly settle the jurisdictional landscape,” Id. at -, 66 A.3d at 753, n. 16, emphasizing that the matter before it did not involve a procurement dispute. I believe that our decision in the present matter should likewise be appropriately limited to the discrete issue raised on appeal.

The narrow question raised in this appeal is whether our decisions in Hanover, Data Quest and Brown compel the conclusion that employment contracts fall within the exclusive jurisdiction of the Board of Claims. As the Majority observes, in footnotes 9 and 10, each of these cases is significantly distinguishable: Brown was decided prior to the 2002 amendments, and neither Hanover nor Data Quest involved the type of contract at issue here, i.e., one that was specifically excluded by statutory language in the Code. I believe that these distinctions are a sufficient basis upon which to reject the appellant’s contentions, and I would affirm the Board’s holding without attempting to “broadly settle the *180jurisdictional landscape” until such time as the matter is properly before the Court. The holdings in Data Quest and Hanover were not broadly stated; because they did not implicate the Board’s authority over issues beyond those presented to the

Court, I would refrain from addressing their application to future matters.

. As the Board observed, "the [appellant] attempts, in a very inexact and sketchy manner, to present his pay grade/seniority dispute with the Department as a contract action.” (Board's op. at 5.)

. "This Court finds it compelling that defining a contract as a written executed agreement would extinguish claims regarding the formation or existence of a contract, which result was rejected in Shovel Transfer ...." Data-Quest, 972 A.2d at 80.