Dubaskas v. Commonwealth

• Citation: 81 A.3d 167
• Parties: Joseph D. DUBASKAS, Petitioner v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF CORRECTIONS, Pennsylvania Correctional Industries, Bureau of Human Resources, Respondents.
• Decision Date: 09 December 2013
• Court: Commonwealth Court of Pennsylvania

81 A.3d 167

Joseph D. DUBASKAS, Petitioner

v.COMMONWEALTH of Pennsylvania, DEPARTMENT OF CORRECTIONS, Pennsylvania Correctional Industries, Bureau of Human Resources, Respondents.

Commonwealth Court of Pennsylvania.

Argued Sept. 11, 2013.

Decided Dec. 9, 2013.

Austin P. White, Williamsport, for petitioner.

Theron R. Perez, Chief Counsel, Mechanicsburg, for respondents.

BEFORE: PELLEGRINI, President Judge, and McGINLEY, Judge, and LEADBETTER, Judge, and SIMPSON, Judge, and BROBSON, Judge, and McCULLOUGH, Judge, and COVEY, Judge.

OPINION BY Judge BROBSON.

Petitioner Joseph D. Dubaskas (Dubaskas) petitions for review of an order of the Board of Claims (Board), dated March 15, 2013. The Board sustained the preliminary objection filed by the Department of Corrections (Department), Pennsylvania Correctional Industries (PCI), and the Department's Bureau of Human Resources (Bureau) (collectively Respondents) on the ground that the Board lacked jurisdiction over both counts of Dubaskas's Statement of Claim (Claim). In so doing, the Board dismissed the Claim, in which Dubaskas requested damages for lost or denied seniority, pay raises, and other employee benefits. For the reasons set forth below, we affirm the Board's order.

Dubaskas is employed by PCI, a bureau of the Department, as a Correctional Industries Manager 1 (CIM 1) at the State Correctional Institution–Rockview (SCI–Rockview). (Claim at ¶¶ 3–4.) On June 10, 2010, the Department offered Dubaskas employment as a CIM 1 at pay scale group CM06, Level 4, with an annual salary of $52,303. ( Id. at ¶ 8.) Dubaskas's placement at pay scale group CM06, Level 4, reflected his prior experience of 24 years at the Federal Bureau of Prisons and comparable compensation to what he was paid by Lowes, his former employer, in 2009.¹ ( Id. at ¶ 9.) Dubaskas specifically negotiated this placement on the pay scale, which was critical to his acceptance of employment with the Department. ( Id. at ¶¶ 9–10.) Dubaskas accepted employment with the Department based upon the negotiated terms, including salary, seniority, and credit for his experience, and he began his employment with PCI on June 28, 2010. ( Id. at ¶¶ 3–4, 13.)

Due to a statewide pay freeze of all CIM 1 employees beginning in 2010 and ending July 1, 2012, Dubaskas did not receive any pay raises or increased seniority, nor did he move up from CM06, Level 4, on the pay scale. ( Id. at ¶ 15.) On June 25, 2012, the Secretary of Corrections issued a memorandum to all staff explaining a revised pay scale, memorialized by Executive Board Resolution CN–12–010 (Resolution). ( Id. at ¶ 16 and Exhibit B.) The Resolution became effective July 1, 2012, and changed the former 20–step pay scale to a 28–step pay scale. ( Id. at 17.) After Respondents implemented the revised pay scale, Dubaskas was informed that he would be placed in pay scale group CM06, Step 2, which has a pay of $47,902 per year, but that he would continue to receive his compensation of $52,303 per year while being placed in the lower pay group. ( Id. at 18–19.) The revised pay scale provided other similarly situated Correctional Industries Managers with as much as a $9,000 annual pay increase, including credit for seniority and raises over the preceding two years or more, and the ability to continue accruing seniority and receive future pay increases. ( Id. at ¶ 20.) Dubaskas alleges that when Respondents applied the revised pay scale to him, “they stripped him of his seniority, a constitutionally protected property right, denied him the two years of seniority he accrued since beginning his employment in June 2010, and ... den [ied] him seniority to accrue over the next three years, in breach of his contract of employment.” ( Id. at 21.) Dubaskas attempted to seek redress through contacting various staff members of the Department, the Civil Service Commission, and the Department of General Services, to no avail. ² ( Id. at ¶¶ 22–25, 27 and Exhibits C, E.)

On December 20, 2012, Dubaskas filed the Claim against Respondents. In Count I, Dubaskas alleges that Respondents hired Dubaskas under the contractual term that he would be credited for four years of seniority, CM06, Step 4, as evidenced by what Dubaskas characterizes as an offer of employment letter, which he accepted. ( Id. at ¶ 29 and Exhibit A.) Dubaskas further alleges that the terms of his employment included an additional year of seniority for each year he worked, including pay raises and other benefits commensurate thereto, and that he accepted employment based upon the seniority and advancement terms he was offered, giving up other employment opportunities based upon the terms as represented by Respondents. ( Id. at ¶¶ 30–31.) Dubaskas claims that he has accrued more than two additional years of seniority since he was hired and that he is entitled to a year of seniority for each year he continues employment with PCI, including a corresponding increase in pay and other benefits. ( Id. at ¶¶ 32–33.) Dubaskas avers that Respondents' taking of Dubaskas's seniority, denial of additional accrued seniority rights since June 28, 2010, and prospective denial of the next three years of seniority to accrue constitute a breach of the contractual terms of his employment for which he has suffered damages, including lost/denied seniority, pay raises, and other benefits commensurate thereto. ( Id. at ¶¶ 34–37.)

In Count II, Dubaskas avers that Respondents' conduct violates Section 99.52 of the Civil Service Commission's regulations, 4 Pa.Code § 99.52,³ which relates to instituting a pay schedule change and, according to Dubaskas, is intended to protect the welfare of citizen employees like himself from losing valuable property rights by way of administration policy changes. ( Id. at ¶¶ 39–40, 42.) Specifically, Dubaskas alleges that when Respondents instituted the revised pay schedule, they were prohibited from applying it to affect the status and seniority of Dubaskas, and that, despite this prohibition, Respondents deprived Dubaskas of his retrospective and prospective seniority, pay, and other benefits based on the revised pay schedule, in violation of Section 99.52 and in breach of his employment contract. ( Id. at ¶¶ 41, 43–44.) Dubaskas alleges that Respondents should be ordered to compensate Dubaskas for the seniority, pay, and other benefits commensurate with his seniority to which he is entitled under Section 99.52 and through continued employment. ( Id. at ¶¶ 45–46.)

On January 22, 2013, Respondents filed preliminary objections to the Claim and a supporting brief. Respondents' preliminary objections were as follows: (1) the Board did not have jurisdiction over the Claim, (2) the Claim failed to conform to law or rule of Court and rules of the Board, (3) the Claim was insufficiently specific, (4) the Claim failed to state a viable claim, and (5) the Claim failed to join necessary parties. On February 22, 2013, Dubaskas filed an answer to the preliminary objections and a brief in opposition to the preliminary objections.

On March 15, 2013, the Board issued its opinion and order sustaining Respondents' jurisdictional preliminary objection, thereby dismissing the Claim. As to Count I, the Board noted that although its jurisdiction did extend to actions beyond the strict parameters of the Commonwealth Procurement Code (Code), 62 Pa.C.S. §§ 101–2311,⁴ it concluded that it did not have jurisdiction over Count I because the Board has traditionally eschewed claims based on employment and/or collective bargaining agreements. (Board's Opinion at 5.) Moreover, the Board stated that Section 1724(a)(1) of the Code, 62 Pa.C.S. § 1724(a)(1), still requires that the contracts over which the Board asserts jurisdiction must be entered into in accordance with the Code, and although the Board believed it to be appropriate to read that section pursuant to its broadest plain language meaning so as to allow jurisdiction over contracts outside of the strict parameters of the Code, it did not believe that it could address contracts explicitly excluded from the Code's coverage. (Board's Opinion at 5.) The Board concluded that because Section 103 of the Code, 62 Pa.C.S. § 103, expressly excluded “employment agreements” and “collective bargaining agreements” from coverage under the Code, and no historical imperative suggested otherwise, the Board lacked jurisdiction over the alleged contract claim described in Count I of the Claim. (Board's Opinion at 5.)

The Board also concluded that it lacked jurisdiction over Count II of the Claim because Dubaskas failed to allege facts which state any cause of action for breach of contract. ( Id. at 6.) The Board concluded that Dubaskas was actually alleging a breach of a duty owed to him by Respondents under a statute or regulation and requesting damages flowing therefrom, and that the Pennsylvania Supreme Court has ruled that the Board does not have jurisdiction over statutory claims. ( Id.) The Board stated that it believed this principle applied equally to claims where the obligation derives from a rule or regulation. ( Id.) The Board further explained that because Dubaskas's second cause of action did not sound in contract, but rather was an assertion of his statutory and/or regulatory rights, the Board lacked jurisdiction. ( Id. at 6–7.)

The Board further concluded that because the Board lacked jurisdiction over both causes of action in the Claim, it was unnecessary to address Respondents' remaining preliminary objections. ( Id. at 7.) Dubaskas now petitions this Court for review.

On appeal,⁵ Dubaskas argues that the Board erred in concluding that it lacked jurisdiction over Count I of the Claim.⁶ Specifically, Dubaskas argues that the Board erred in adopting a constricted view of its jurisdiction as provided in Section 1724 of the Code based on the definitions provided in Section 103 of the Code. Dubaskas contends that the Board has exclusive jurisdiction over any contract...