Background
Former narcotics agent Nicholas Davitt resolved an employment grievance with the Pennsylvania Office of Attorney General through a separation agreement and general release. Davitt agreed to resign. The OAG agreed to give a neutral employment reference, limit access to personnel records without an executed waiver, omit specified disciplinary letters from his personnel file, and comply with a mutual non-disparagement clause.
Years later, Davitt received a conditional offer to work as a correctional officer at SCI-Waymart. The offer was withdrawn after a background review reportedly showed that OAG records coded him as dismissed or removed for conduct. Davitt alleged that the same information prevented him from obtaining other Commonwealth employment. He sued the OAG in the Commonwealth Court’s original jurisdiction for breach of contract and defamation.
The OAG raised sovereign immunity by preliminary objection. Davitt argued that the agency had voluntarily entered the agreement and should be accountable for its promised performance. The jurisdictional question turned on whether the General Assembly had expressly waived immunity for this kind of agreement, not on whether Davitt plausibly alleged a private-law breach.
The Court’s Holding
The Commonwealth Court sustained the objection and dismissed the complaint. Pennsylvania’s Procurement Code waives sovereign immunity for contract claims within the exclusive jurisdiction of the Board of Claims. But the Board’s jurisdiction does not extend to every writing signed by a Commonwealth agency. The statutory contract must concern procurement of goods or services and satisfy the Code’s requirements.
A separation and release agreement is not a procurement contract for services. Resigning, waiving claims, and keeping communications confidential do not constitute furnishing labor, time, or effort within the statutory definition. Because Davitt’s agreement fell outside the Board of Claims’ jurisdiction, the associated contract claim also fell outside the General Assembly’s limited immunity waiver. The defamation claim was independently barred because no applicable statutory exception waived immunity for that tort.
The OAG could not waive sovereign immunity merely by signing the agreement. Only the General Assembly may create an exception. Judge Wallace described the alleged result as troubling: the Commonwealth agency received the benefit of the bargain yet, if Davitt’s allegations were true, failed to perform while immunity left him without a remedy. The court nevertheless concluded it could not create a waiver based on fairness.
Key Takeaways
- A Commonwealth agency’s separation agreement is not automatically a Procurement Code contract within the Board of Claims’ jurisdiction.
- Resignation, claim releases, confidentiality, and reference promises are not procurement of “services” as that term is statutorily defined.
- An agency cannot waive Pennsylvania sovereign immunity by contract; an express legislative waiver is required.
- Defamation and contract theories may both fail at the threshold even when the complaint alleges a facially compelling breach of a negotiated employment resolution.
Why It Matters
Davitt exposes a serious enforcement risk in settlements with Pennsylvania agencies. A written promise that would be enforceable against a private employer may lack a judicial remedy when it falls outside the Procurement Code and no other statute waives immunity. Counsel negotiating an agency separation should investigate the source of payment, available statutory forums, approval requirements, and whether any remedy can be structured within an existing waiver.
The opinion also matters for background-check and employment-record disputes. Parties should identify precisely how separation status will be coded across centralized systems, not only what a human resources office will say in response to a reference call. Yet contractual specificity alone cannot solve the immunity problem. As the court stressed, any broader accountability for this category of Commonwealth agreements must come from the General Assembly.
Agency lawyers and employee counsel should not assume that a forum clause or a statement that the agreement is binding will create jurisdiction. Immunity and subject-matter jurisdiction arise from statute, not consent. Before execution, both sides should identify who will implement record changes, require written confirmation that each relevant database has been updated, and consider performance before the employee gives an irrevocable release. Those precautions may reduce breach risk, although the opinion makes clear that they do not themselves create a damages action.