Brimmeier v. Pa. Tpk. Comm'n

• Decision Date: 19 September 2016
• Docket Number: No. 257 M.D. 2016,257 M.D. 2016
• Citation: 147 A.3d 954
• Parties: Joseph George Brimmeier, III, Petitioner v. Pennsylvania Turnpike Commission, Respondent
• Court: Pennsylvania Commonwealth Court

147 A.3d 954

Joseph George Brimmeier, III, Petitioner

v.Pennsylvania Turnpike Commission, Respondent

No. 257 M.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs: June 3, 2016

Filed: September 19, 2016

Bonnie Brimmeier, Pittsburgh, for petitioner.

Matthew H. Haverstick, Philadelphia, for respondent.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE COVEY

The Pennsylvania Turnpike Commission (Commission) filed preliminary objections in the nature of a demurrer and motion to strike to Joseph George Brimmeier, III's (Brimmeier) Complaint setting forth causes of action in mandamus, declaratory judgment, breach of contract, promissory estoppel and misrepresentation (Complaint) filed in this Court's original jurisdiction. The sole issue before the Court is whether the Complaint states a claim upon which relief may be granted. After review, we sustain the Commission's preliminary objections and dismiss Brimmeier's 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).

According to the Complaint, Brimmeier was the Commission's Chief Executive Officer (CEO) from February 2003 to March 2011. See Complaint ¶ 5. The Attorney General's Office (AG) filed criminal charges against Brimmeier for allegedly wrongful conduct relating to vendor contract awards made within the scope of his employment.¹ See Complaint ¶ 6. Brimmeier avers in his Complaint that all of the charges were either dismissed or nolle prossed , and that he pled guilty to a charge unrelated to the allegations underlying the original charges. See Complaint ¶ 11. Brimmeier's representation notwithstanding, according to the documents attached to the Complaint, all but one of Brimmeier's charges were dismissed or nolle prossed on November 20, 2014.² See Attachment A (Criminal Docket) of Complaint Ex. 1 (Brimmeier's December 4, 2014 reimbursement request letter), incorporated by reference in Complaint ¶ 12. Brimmeier pled guilty to a remaining felony violation of Section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act)³ (conflict of interest),⁴ for accepting free hospitality and contributions to former Governor Rendell's campaign from Orth-Rodgers & Associates (Orth-Rodgers) while advocating that the Commission award Orth-Rodgers a sole source contract for the design and construction of a fog detection, traveler information and dynamic traffic control system for the Sideling Hill area of the Pennsylvania Turnpike. See Complaint Ex. 1, Attachments A-C.

By December 4, 2014 letter to the Commission, Brimmeier requested reimbursement of $300,261.00 in legal fees and costs he incurred during the investigation and defense of the dismissed or nolle prossed charges, pursuant to Commission Policy and Procedure No. 10.4 (Policy 10.4). See Complaint ¶¶ 12, 14-19. According to the Complaint, under Policy 10.4,

the Commission may authorize the reimbursement of legal fees in a criminal case based upon either of the following two findings: (1) if the Chief Counsel determines that there is no basis for the prosecution as a matter of law or fact; and/or (2) if the employee's defense is successful.

Complaint ¶ 15. Brimmeier stated: “There has been no formal written response to [his reimbursement request], however, a verbal response was directed to [Brimmeier's counsel] indicating that the [Commission] is declining to reimburse the subject fees and costs.” Complaint ¶ 13.

On October 13, 2015, Brimmeier filed the Complaint with the Allegheny County Common Pleas Court (trial court) seeking relief in mandamus, declaratory judgment, breach of contract, promissory estoppel and misrepresentation.⁵ The Commission filed preliminary objections raising: subject matter jurisdiction (with a motion to transfer the matter to this Court) (First Preliminary Objection); immunity and a demurrer to the mandamus and declaratory judgment claims (Second Preliminary Objection); and, motions to strike the breach of contract and promissory estoppel claims (Third Preliminary Objection). The trial court granted the Commission's First Preliminary Objection, and transferred the Complaint to this Court on March 7, 2016. On April 26, 2016, this Court ordered the parties to brief the Commission's Second and Third Preliminary Objections, which are currently before the Court.

Commission's Second Preliminary Objection—Demurrers

Demurrer—Sovereign Immunity

The Commission objects to the Complaint on the basis that “each of [Brimmeier's] five causes of action ... is barred by sovereign immunity.”⁶ Commission Prelim. Obj. ¶ 21.

Initially,

[t]he Pennsylvania Constitution provides that the Commonwealth and its officers and employees may only be sued where the General Assembly has authorized the suit. Pa. Const. art. 1 § 11

. The General Assembly has specified 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.’ 1 Pa.C.S. § 2310.

Russo v. Allegheny Cnty. , 125 A.3d 113, 116 (Pa.Cmwlth.2015)

. The “Commission is a[n independent] Commonwealth agency entitled to sovereign immunity[,]” except where the General Assembly has expressly stated otherwise. Bradley v. Pa. Tpk. Comm'n , 121 Pa.Cmwlth. 51, 550 A.2d 261, 263 (1988) ; see also Section 2.32 of the Administrative Code, 4 Pa. Code § 2.32. Because immunity is the rule, we must narrowly construe any exceptions thereto. See

Gale v. City of Phila. , 86 A.3d 318 (Pa.Cmwlth.2014) ; see also

Quinones v. Dep't of Transp. , 45 A.3d 467 (Pa.Cmwlth.2012).

Although the Commission objects because all five of Brimmeier's claims are barred by sovereign immunity, the Commission only discusses Brimmeier's breach of contract, promissory estoppel and misrepresentation claims. Notwithstanding, the law is clear that sovereign immunity does not bar either mandamus or declaratory judgment actions. See Banfield v. Cortes , 922 A.2d 36, 43 (Pa.Cmwlth.2007)

(quoting Maute v. Frank, 441 Pa.Super. 401, 657 A.2d 985, 986 (1995) (“Actions in mandamus are not subject to the defense of sovereign immunity.”)); see also

Finn v. Rendell , 990 A.2d 100, 105 (Pa.Cmwlth.2010) (“sovereign immunity does not bar a declaratory judgment action”). Therefore, to the extent that the Commission's objection is that Brimmeier's mandamus and/or declaratory judgment actions are barred by sovereign immunity, it is overruled.

Relative to Brimmeier's breach of contract and contract-related promissory estoppel⁷ claims, in Section 1702(b) of the Commonwealth Procurement Code (Procurement Code),⁸ 62 Pa.C.S. § 1702(b)

, the General Assembly waived immunity from claims that fall under the Board of Claims' jurisdiction. The Board of Claims has exclusive jurisdiction to arbitrate claims arising from “[a ] contract entered into by a Commonwealth agency ....” 62 Pa.C.S. § 1724(a)(1) (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.”⁹ 62 Pa.C.S. § 103

(emphasis added). “Services ” are defined in relevant part therein as “[t]he furnishing of labor, time or effort by a contractor ... [but the term ] does not include employment agreements ....” Id. (emphasis added). Accordingly, this Court has 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 ... bar from the exclusive jurisdiction of the Board [of Claims] claims arising from employment contracts entered into by the Commonwealth.” Dubaskas v. Dep't of Corr. , 81 A.3d 167, 177 (Pa.Cmwlth.2013) ; see also

Armenti v. Pa. State Sys. of Higher Educ. , 100 A.3d 772 (Pa.Cmwlth.2014). Because Brimmeier herein bases his contract breach and promissory estoppel claims upon a purported employment agreement, they are barred by sovereign immunity. Accordingly, we sustain the Commission's sovereign immunity objection to Counts III and IV of the Complaint.

The Commission also objects on the basis that Brimmeier's misrepresentation claim is barred by sovereign immunity. In Count V of the Complaint, Brimmeier avers:

46. At all times relevant hereto, the [Commission] knew or should have reasonably expected that the promises and assurances made by the [Commission] to [Brimmeier] would be relied upon by [Brimmeier], including but limited to the representations in the [Commission]'s Policies and Procedures.

47. [Brimmeier] was entitled to rely upon the representations set forth in said Policies and Procedures and reasonably and detrimentally did so rely.

48. The misrepresentations of the [Commission] to [Brimmeier] were intentionally made.

49. The misrepresentations of the [Commission] to [Brimmeier] were negligently made.

50. The misrepresentations of the [Commission] to [Brimmeier] were innocently made.

51. The [Commission]'s breach of said representations

...