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decided: October 22, 1985.


Appeal from the Order of the Board of Claims in case of James J. Shaffer v. Commonwealth of Pennsylvania, Liquor Control Board, No. 888.


John Adam Matlawski, Killian & Gephart, for petitioner.

Eileen S. Mamus, with her, Bruce H. Bikin, Assistant Counsel, and Gary F. Di Vito, Chief Counsel, for respondent.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 92 Pa. Commw. Page 375]

This case is an appeal from a decision of the Board of Claims (Board) dismissing the claim of James J. Shaffer (Appellant).

Appellant is an employee of the Pennsylvania Liquor Control Board (PLCB). Appellant was the manager of Store No. 2402 in St. Mary's when that store was closed in March 1981. Appellant was reassigned to Store No. 2404 in St. Mary's and reclassified as a Liquor Store Manager IA. In that position, which Appellant held from March 1981 until August 1983, he performed the duties of a clerk in Store No. 2404. In addition, he would fill in as a substitute manager at other stores in three neighboring counties. Currently, Appellant serves in a Clerk I position, following a voluntary demotion.

Appellant claims that he is entitled to be reimbursed for expenses incurred between October 1982 and August 1983 in travelling to the stores in neighboring counties. There was evidence presented before the Board that Appellant received reimbursement for

[ 92 Pa. Commw. Page 376]

    such expenses prior to October 1982 but that after that time the PLCB has refused reimbursement.

Appellant followed the grievance procedure set forth in a Memorandum of Understanding between the PLCB and Appellant's bargaining unit. The grievance was denied at the first and second levels. Appellant then filed a Petition for Claim before the Board of Claims on May 17, 1983.*fn1 The Board denied Appellant's claim, finding that because the Memorandum of Understanding included provisions dealing with travel expenses, and because these provisions did not allow reimbursement for the types of travel expenses Appellant was seeking,*fn2 Appellant was

[ 92 Pa. Commw. Page 377]

    not entitled to reimbursement. In so finding the Board held that the Memorandum was binding on the parties.

Appellant presents two issues for our determination: 1) whether the Board erred in finding that the Memorandum of Understanding was a collective bargaining agreement which established a binding contractual relationship between the parties; and 2) whether the Appellant is entitled to reimbursement for mileage expenses under a theory either of a contract implied-in-law or a contract implied-in-fact. The PLCB presents the additional issue of whether the Board has the jurisdiction to decide a case brought under a Memorandum of Understanding issued by a Commonwealth agency to the bargaining unit of its employees.

Our scope of review is limited to determining whether the decision of the Board is in accordance with the law and whether the findings of fact are supported by the evidence. Department of Transportation v. Mosites Construction Company, 90 Pa. Commonwealth Ct. 33, 494 A.2d 41 (1985). Matters of contract interpretation and construction are questions of law subject to our appellate review. Department of Transportation v. Bracken Construction Co., 72 Pa. Commonwealth Ct. 620, 457 A.2d 995 (1983).

Section 4 of the Act of May 20, 1937 (Act of 1937), P.L. 728, as amended, 72 P.S. § 4651-4 provides, inter alia, that, "The Board of Claims shall have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth, where the amount in controversy amounts to $300.00 or more." Under Section 4 of the Act of 1937, the Board also has jurisdiction over claims which were previously acted on by the Auditor General and State Treasurer

[ 92 Pa. Commw. Page 378]

    pursuant to Article X of the Fiscal Code.*fn3 The regulations which set forth the jurisdiction of the Auditor General and State Treasurer, acting as the original Board of Claims, include claims against the Commonwealth arising from:

(2) action or inaction by Commonwealth employees giving rise to an implied contract to compensate the claimant.

61 Pa. Code § 851.2 (emphasis added).

It is true that both the Pennsylvania Supreme Court and this Court have held that disputes under collective bargaining agreements are not within the jurisdiction of the Board. Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 470 A.2d 482 (1983); Pennsylvania Liquor Control Board v. Shulin, 80 Pa. Commonwealth Ct. 311, 471 A.2d 599 (1984). We find these cases to be inapposite because we deal here with a Memorandum of Understanding.

Appellant, at all times relevant to his claim, was a first level supervisor. As such, the PLCB was required to "meet and discuss" with Appellant's bargaining unit, not "bargain" with it. 43 P.S. § 1101.704.*fn4 A Memorandum of Understanding arrived at through the "meet and discuss" process is neither a

[ 92 Pa. Commw. Page 379]

    collective bargaining agreement nor a contract.*fn5 "[A]ny decisions or determinations on matters so discussed shall remain with the public employer and be deemed final on any issue or issues raised." 43 P.S. § 1101.301(17).*fn6

The PLCB makes the argument that because the Memorandum of Understanding contains an agreement to arbitrate, it is subject to the provisions of the Uniform Arbitration Act (UAA).*fn7 This would, in turn, take the matter out of the jurisdiction of the Board.

Subsection 7302(c) of the UAA provides:

(c) Government contracts. -- This subchapter shall apply to any written contract to which a government unit of this Commonwealth is a party to the same extent as if the government unit were a private person, except that where a contract to which the Commonwealth government is a party provides for arbitration of controversies

[ 92 Pa. Commw. Page 380]

    but does not provide for arbitration pursuant to any specified statutory provision, the arbitration shall be governed by this subchapter.

We cannot be certain if, in fact, an arbitration clause exists in the relevant Memorandum of Understanding because the entire Memorandum covering the time period of Appellant's claims was never offered into evidence.*fn8 If, as the Board asserts, the arbitration clause makes no reference to a specified statutory provision, then it is true that disputes arising under the Memorandum may indeed be governed by the provisions of the UAA. Because the relevant Memorandum of Understanding was not before the Board and is not before us, we are unable to determine the jurisdiction issue raised by the PLCB.

In the instant case, however, the Appellant is not basing his claim solely on the provisions of the Memorandum of Understanding. He is claiming, in the alternative, that the acceptance by the Commonwealth of his services in travelling to distant stores and the prior reimbursements of him by the Commonwealth give rise to either a contract implied-in-law or a contract implied-in-fact.*fn9

[ 92 Pa. Commw. Page 381]

If the Board were to accept one of Appellant's implied contract theories, it could properly take jurisdiction. An implied contract, being separate and apart from the Memorandum of Understanding, would obviously include no arbitration clause; hence, the UAA would not apply. We have held that implied contract claims are within the Board's jurisdiction. Smock v. Commonwealth, 57 Pa. Commonwealth Ct. 67, 425 A.2d 883 (1981).

The Board, in its opinion, never considered the merits of Appellant's implied contract theories. The Board relied on Shulin to say that the parties were bound to the agreement, as they would be to a collective bargaining agreement. The Board failed to consider the different nature of a Memorandum of Understanding. Under such an agreement, Appellant's implied contract theories are quite plausible and quite cognizable by the Board. We must remand the case so that the Board can make further findings of fact and conclusions of law consistent with this opinion.


The record is remanded to the Board of Claims for further proceedings consistent with this opinion.

Jurisdiction relinquished.



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