        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Joan Cicchiello,                           :
                                           :
                           Petitioner      :
                                           :
             v.                            :   No. 83 C.D. 2015
                                           :
Department of Corrections,                 :   Submitted: June 19, 2015
                                           :
                           Respondent      :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                     FILED: August 5, 2015

      Joan Cicchiello petitions for review from the December 29, 2014 Order of
the Board of Claims (Board) sustaining the preliminary objections (POs) filed by
the Department of Corrections (Department) on the ground that the Board lacked
jurisdiction over Cicchiello’s Complaint. On appeal, Claimant argues that the
Board erred in: (1) concluding that it lacked jurisdiction over Cicchiello’s
Complaint; (2) concluding that Cicchiello failed to file her Complaint within the
applicable statute of limitations period; and (3) revisiting the results of a negotiated
Settlement Agreement between Cicchiello and the Department, given that the
Department waited more than 30 days to challenge the Settlement Agreement.
Because we conclude that the Board lacked jurisdiction over Cicchiello’s
Complaint, we affirm.


      Cicchiello was previously employed by the Department as a nurse at both
the State Correctional Institution at Muncy and the State Correctional Institution at
Frackville (SCI-Frackville). (Board Findings of Fact (FOF) ¶ 1.) In November
2006, Cicchiello was terminated from her position at SCI-Frackville. (FOF ¶ 2.)
Cicchiello was a member of the Service Employees International Union District
1199P (Union). (FOF ¶ 3.) After Cicchiello was terminated the Union filed a
grievance against the Department on behalf of Cicchiello pursuant to the applicable
Collective Bargaining Agreement (CBA). (FOF ¶ 4.) The CBA provided for a
three-step grievance process culminating in arbitration. (FOF ¶ 7.) The grievance
proceeded through the three-step grievance process and was scheduled to proceed
to arbitration.   (FOF ¶ 8.)    However, in December 2012, before arbitration
occurred, the Department’s assistant counsel (Assistant Counsel), Cicchiello’s
Union representative (Union Representative), and Cicchiello signed a Settlement
Agreement resolving all of the issues involved in Cicchiello’s grievance. (FOF ¶¶
10-11.) “The Settlement Agreement included, inter alia, a provision that the
Department would re-hire . . . Cicchiello for one day to allow her to retire from the
Department.” (FOF ¶ 12.) Moreover, the Settlement Agreement “provided that
the Department [would] award Ms. Cicchiello whatever time was necessary for her
to attain twenty-five years of service with the Commonwealth.”           (FOF ¶ 12
(quotation omitted).)




                                         2
      After the Settlement Agreement was signed, the Assistant Counsel
forwarded the Settlement Agreement to the Department’s Human Resources (HR)
office. (FOF ¶ 13.) Thereafter, the HR office notified the Assistant Counsel that
both the Department and the State Employees Retirement System were prohibited
by law from crediting “Cicchiello with service for which she did not contribute that
time or money.” (FOF ¶ 14 (quotation omitted).) The Assistant Counsel then sent
the Union Representative an email on February 4, 2013, explaining that the
Department would be unable to comply with the provision in the Settlement
Agreement crediting Cicchiello with 25 years of service since “to do so would be
contrary” to law. (FOF ¶ 15.) In the same email, however, the Assistant Counsel
proposed that the Department could, instead, provide Cicchiello with one year’s
worth of salary, which would give her 15 years of service and make her eligible for
health insurance coverage during retirement. (FOF ¶ 16.) Attached to the email
was a new proposed Settlement Agreement, which included the new provision
proposed by the Assistant Counsel. (FOF ¶ 16.) Although the Assistant Counsel
claimed that the new proposed Settlement Agreement providing Cicchiello with
credit for 15 years of service would provide her with the exact same benefits as the
signed Settlement Agreement crediting her for 25 years of service, Cicchiello took
issue with the Department’s refusal to credit her for 25 years of service as agreed
to in the signed Settlement Agreement. (FOF ¶¶ 17, 22-23.)


      Because “Cicchiello refused to accept the Department’s denial of credit for
25 years of service” she filed her Complaint with the Board on October 15, 2013.
(FOF ¶ 27.) The Complaint alleged breach of contract based on the Department’s
breach of the Settlement Agreement and quantum meruit. (FOF ¶ 28.) Cicchiello


                                         3
requested that the Board order the Department to perform as promised under the
Settlement Agreement and credit her with 25 years of service. (Board Op. at 15.)
Thereafter, the Department filed its POs alleging that: (1) “[t]he Complaint was not
filed within six months of the date of the claim’s accrual” as required by Section
1712.1(b) of the Commonwealth Procurement Code1 (Procurement Code); (2) the
Board lacked subject matter jurisdiction over the Complaint; (3) Cicchiello “failed
to attach a copy of the written agreement to the [C]omplaint as required by” Rule
1019(i) of the Pennsylvania Rules of Civil Procedure 1019(i)2; and (4) “[t]he
Complaint was insufficiently specific as required by” Rule 1019(f) of the
Pennsylvania Rules of Civil Procedure.3 (Board Op. at 15.)


       The Board concluded that it lacked subject matter jurisdiction over
Cicchiello’s Complaint because the December 2012 Settlement Agreement did not
fit the definition of a contract under the Procurement Code. Specifically, because
the Procurement Code excludes employment contracts and collective bargaining
agreements from the Board’s purview and the December 2012 Settlement
       1
           62 Pa. C.S. § 1712.1(b). Pursuant to Section 1712.1(b)

       [a] claim shall be filed with the contracting officer within six months of the date it
       accrues. If a contractor fails to file a claim or files an untimely claim, the
       contractor is deemed to have waived its right to assert a claim in any forum.
       Untimely filed claims shall be disregarded by the contracting officer.

Id.

       2
         Pa. R.C.P. No. 1019(i). Rule 1019(i) states, in relevant part, that “[w]hen any claim or
defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part
thereof.” Id.

       3
         Pa. R.C.P. No. 1019(f). Rule 1019(f) states that “[a]verments of time, place and items
of special damage shall be specifically stated.” Id.

                                                 4
Agreement arose from a dispute involving the underlying CBA applicable to
Cicchiello, the Board concluded it lacked jurisdiction. (Board Op. at 18-20.) The
Board also determined that it lacked jurisdiction because Cicchiello had not filed
an administrative claim with the Department’s procurement officer within six
months of when the claim accrued on February 4, 2013, as required by Section
1712.1(b) of the Procurement Code, which is a prerequisite to filing a Complaint
with the Board. (Board Op. at 24-25.) Thus, the Board sustained the Department’s
POs and dismissed Cicchiello’s Complaint.


       On appeal,4 Cicchiello argues that, although the Board concluded it does not
have jurisdiction over collective bargaining claims, this is a pure and simple breach
of contract claim involving the Department’s breach of the Settlement Agreement.
Because the Complaint involves the breach of the Settlement Agreement, rather
than a collective bargaining agreement, Cicchiello argues that the Board has
jurisdiction to hear her Complaint.


       Section 1724 of the Procurement Code provides, in relevant part, that “[t]he
[B]oard shall have exclusive jurisdiction to arbitrate claims arising from . . . [a]
contract entered into by a Commonwealth agency in accordance with this part and


       4
          Our “review of an order of the Board sustaining preliminary objections and dismissing a
complaint is limited to determining whether the Board abused its discretion or committed an
error of law.” Dubaskas v. Department of Corrections, 81 A.3d 167, 170 n.5 (Pa. Cmwlth.
2013). Moreover, “[i]n reviewing preliminary objections, all well pleaded relevant and material
facts are to be considered as true, and preliminary objections shall only be sustained when they
are free and clear from doubt.” Id. Our review of preliminary objections “raises a question of
law [for] which our standard of review is de novo and our scope of review is plenary.” Id.



                                               5
filed with the board in accordance with section 1712.1[5] (relating to contract
controversies).” 62 Pa. C.S. § 1724(a) (emphasis added). Section 103 of the
Procurement Code defines the term “contract” as “[a] type of written agreement,
regardless of what it may be called, for the procurement or disposal of supplies,
services or construction and executed by all parties.” 62 Pa. C.S. § 103 (emphasis
added). Under Section 103 of the Procurement Code, “services” are defined as:

       The furnishing of labor, time or effort by a contractor not involving
       the delivery of a specific end product other than drawings,
       specifications or reports which are merely incidental to the required
       performance. The term shall include the routine operation or
       maintenance of existing structures, buildings or real property. The
       term does not include employment agreements or collective
       bargaining agreements. The term includes utility services and those
       services formerly provided by public utilities such as electrical,
       telephone, water and sewage service.
62 Pa. C.S. § 103 (emphasis added).


       In Dubaskas v. Department of Corrections, 81 A.3d 167 (Pa. Cmwlth. 2013),
we interpreted Section 103 of the Procurement Code to determine whether claims
arising out of employment agreements and collective bargaining agreements are
excluded from the Board’s jurisdiction. Id. at 172. In that case, Dubaskas was
employed by the Department as a Correctional Industries Manager. Id. at 167.
After a dispute arose under Dubaskas’s employment contract, Dubaskas filed a
claim against the Department with the Board. Id. at 168. The Department filed
POs alleging lack of jurisdiction, and the Board sustained the POs, concluding that

       5
        Section 1712.1(a) of the Procurement Code states, in part, that “[a] contractor may file a
claim with the contracting officer in writing for controversies arising from a contract entered into
by the Commonwealth.” 62 Pa. C.S. § 1712.1(a).

                                                 6
it did not have jurisdiction over claims based on employment and collective
bargaining agreements. Id. at 169.


      On appeal to this Court we held that, “[i]n light of the statutory language” of
the Procurement Code, “the Board does not have jurisdiction over claims arising
from employment contracts entered into with the Commonwealth.” Id. at 176
(emphasis added).     Our holding was based on our determination that there are
certain “‘jurisdictional prerequisites’ that must be met in order for the Board to
exercise its jurisdiction over a particular claim.” Id. Accordingly, “[b]ecause the
[Procurement] Code explicitly and unambiguously excludes ‘employment
agreements’ from what constitute ‘services’ under the [Procurement] Code,” we
determined that “‘employment agreements’ are not ‘services’ that can be the
subject of a ‘contract’ that falls within . . . the scope of the Board’s jurisdiction as
outlined in Section 1724(a)(1).” Id. at 177 (emphasis in original). We held “that
with respect to Section 1724(a)(1) of the [Procurement] Code, the Code’s
definitions of ‘contract’ and ‘services’ in Section 103 of the Code function as
components of the ‘jurisdictional prerequisites’ that bar from the exclusive
jurisdiction of the Board claims arising from employment contracts entered into by
the Commonwealth.” Id. (emphasis added).


      As interpreted by Dubaskas, Section 103 of the Procurement Code excludes
from the Board’s jurisdiction “claims arising from employment contracts entered
into with the Commonwealth.” Dubaskas, 81 A.3d at 176 (emphasis added).
Since Section 103 of the Procurement Code also excludes collective bargaining
agreements from what constitute services under the Procurement Code, it follows


                                           7
that collective bargaining agreements are not a service “that can be the subject of a
‘contract’” under the Procurement Code, and that the Board also does not have
jurisdiction over claims arising from collective bargaining agreements. Dubaskas,
81 A.3d at 176-77.


       Here, the Settlement Agreement resulted from Cicchiello filing a grievance
under the applicable CBA.           The grievance proceeded through the grievance
process, in accordance with the CBA; however, prior to arbitration the parties
resolved the issues by executing the Settlement Agreement.                      Because the
Settlement Agreement arose from a dispute involving the CBA, we conclude that
under the Procurement Code the Board lacked subject matter jurisdiction over
Cicchiello’s Complaint.6        Therefore, the Board did not err in sustaining the
Department’s POs.


       Accordingly, for the foregoing reasons, the Order of the Board is affirmed.




                                              ________________________________
                                              RENÉE COHN JUBELIRER, Judge




       6
          Because we conclude that the Board lacked subject matter over Cicchiello’s Complaint,
it is unnecessary to address her other arguments.

                                              8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Joan Cicchiello,                       :
                                       :
                        Petitioner     :
                                       :
            v.                         :   No. 83 C.D. 2015
                                       :
Department of Corrections,             :
                                       :
                        Respondent     :



                                     ORDER

      NOW, August 5, 2015, the Order of the Board of Claims, entered in the
above-captioned matter, is hereby AFFIRMED.




                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
