C.M. Bradley v. West Chester University ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen M. Bradley, :
Appellant :
:
v. :
:
West Chester University, Lawrence :
A. Dowdy, Greg R. Weisenstein, :
Pennsylvania State System of Higher :
Education, Lois M. Johnson, : No. 368 C.D. 2019
Ginger Coleman : Argued: November 12, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 10, 2020
Colleen M. Bradley (Bradley) appeals from the order of the Court of
Common Pleas of Philadelphia County dated December 5, 2018 denying Bradley’s
petition for relief (Petition) from the court’s December 21, 2016 judgment of non
pros. Upon review, we vacate and order the matter transferred to this Court.
Bradley alleged the following facts in her complaint. Bradley was hired
to serve as Director of Budget and Financial Planning at West Chester University
(University), which is part of the Pennsylvania State System of Higher Education
(PASSHE). Original Record (O.R.), Complaint at 6, ¶¶ 12 & 14. Bradley’s
immediate supervisor at the University was Mark Mixner (Mixner), the University’s
Chief Financial Officer. O.R., Complaint at 5, ¶ 9. Bradley’s responsibilities
included preparation, oversight and management of the University’s operating
budget and working collaboratively with a wide range of senior leaders at the
University. O.R., Complaint at 7-8, ¶ 26. Bradley also assisted in the preparation
of “BUD Reports”—budgets which the University submitted to PASSHE. O.R.,
Complaint at 16, ¶ 57. While working on one of the University’s annual BUD
Reports, Bradley alleges that PASSHE administrators instructed her to modify the
report in a way that would show a multi-million dollar deficit, even though the
University in fact had a multi-million dollar surplus, so as to secure appropriation
money from the Commonwealth. O.R., Complaint at 19, ¶ 66. In September 2012,
at one of the University’s weekly Administrative Budget Committee meetings,
which Bradley regularly attended, Bradley questioned the ethics and legality of the
BUD Report. Id. Shortly after the meeting, Mixner reprimanded Bradley. O.R.,
Complaint at 20, ¶ 69. Nevertheless, Bradley disseminated a memorandum
communicating her concerns at a subsequent Administrative Budget Committee
meeting. O.R., Complaint at 20, ¶¶ 72-73. More than two years later, Mixner and
Bradley again disagreed over the budget assessment, with Bradley asserting that the
proposed version contained misrepresentations. O.R., Complaint at 45-46, ¶¶ 162-
63. Contrary to Mixner’s instructions, Bradley relayed her concerns regarding the
budget at an Enrollment Management Committee meeting in October 2014. O.R.,
Complaint at 46, ¶ 164. On November 18, 2014, Mixner informed Bradley that her
employment with the University would terminate on June 30, 2015. O.R.,
Complaint at 49, ¶ 176. Bradley also received a letter from Mixner formalizing this
decision. Id. Bradley’s contract expired on June 30, 2015. Id.
2
On May 31, 2016, while a federal suit1 arising from the same subject
matter remained pending, Bradley filed a three-count complaint with the Court of
Common Pleas of Philadelphia County (trial court) against the University, PASSHE,
Lawrence A. Dowdy, Greg R. Weisenstein, Lois M. Johnson and Ginger Coleman
(collectively, Defendants). See Trial Court Docket at 1-5, Reproduced Record
(R.R.) at 1a-5a;2 O.R., Complaint at 1.3 Bradley’s complaint before the trial court
levied the following claims: violation of the Pennsylvania Whistleblower Law,4
intentional infliction of emotional distress and negligent infliction of emotional
distress. O.R., Complaint at 51-54, ¶¶ 189-204. On July 6, 2016, Bradley filed a
praecipe to reinstate her complaint, which was not yet served. See Trial Court
Docket at 5, R.R. at 5a. On August 26, 2016, Bradley failed to appear at a case
management conference. See Trial Court Docket at 6, R.R. at 6a. The complaint
still had not yet been served. See id. On or about September 8, 2016, the trial court
issued a rule returnable hearing for October 4, 2016, in connection with Bradley’s
failure to serve the complaint and to appear at the case management conference. Id.
1
On May 14, 2015, shortly before her contract with the University was set to expire,
Bradley filed a four-count complaint in the U.S. District Court for the Eastern District of
Pennsylvania against Mixner, the University, PASSHE, and several University and PASSHE
administrators. See District Court Complaint at 1-62, R.R. at 54a-115a. Bradley appealed the
District Court’s decision to the Third Circuit Court of Appeals. See Bradley v. W. Chester Univ.,
880 F.3d 643 (3d Cir.), cert. denied, 139 S. Ct. 167 (2018). On October 1, 2018, the federal
proceedings came to a final conclusion when the United States Supreme Court denied Bradley’s
petition for certiorari. Bradley v. W. Chester Univ. of the Pa. State Sys. of Higher Educ., 139 S.Ct.
167 (2018).
2
We note that we have added the letter “a” following citations to pages within the
Reproduced Record, as per Pennsylvania Rule of Appellate Procedure Number 2173.
3
Bradley’s state court complaint is not in the reproduced record but is in the original trial
court record.
4
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.
3
On September 20, 2016, the trial court rescheduled the rule returnable hearing for
October 11, 2016. Id. Bradley filed another praecipe to reinstate her complaint on
October 10, 2016. Trial Court Docket at 7, R.R. at 7a. On October 12, 2016, and
then again on December 6, 2016, the trial court continued the rule returnable hearing
to permit Bradley to effectuate service. Trial Court Docket at 7-8, R.R. at 7a-8a. On
December 19, 2016, Bradley again filed a praecipe to reinstate her complaint. Trial
Court Docket at 8, R.R. at 8a. That same day, Bradley filed an acceptance of service
with the trial court, documenting the University’s acceptance of service of the
(amended) complaint. Trial Court Docket at 9, R.R. at 9a. On December 20, 2016,
the trial court conducted the rule returnable hearing, which Bradley did not attend.
See id. By order dated December 20, 2016, the trial court entered a judgment of non
pros against Bradley due to her failure to effectuate service and appear at the hearing.
Id.; see also O.R., Trial Court Order, 12/21/16.
On October 30, 2018, Bradley filed the Petition, which was denied by
order dated December 5, 2018. See Trial Court Docket at 9, R.R. at 9a; Trial Court
Order, 12/5/18, R.R. at 524a. Bradley timely appealed to the Superior Court, which
then transferred the appeal to this Court. See Trial Court Docket at 11, R.R. at 11a.
In its opinion, the trial court noted that, pursuant to Pennsylvania Rule
of Civil Procedure No. 3051, in order to obtain relief from a judgment of non pros,
a petitioner must establish that “(1) the petition is timely filed, (2) there is a
reasonable explanation or legitimate excuse for the conduct that gave rise to the entry
of judgment of non pros, and (3) there is a meritorious cause of action.” Trial Court
Opinion, 2/8/19 at 2, R.R. at 526a. The trial court concluded that Bradley failed to
establish each of these elements.
4
Before this Court, Bradley first argues that the trial court’s judgment of
non pros is void, because this Court, rather than the trial court, had subject matter
jurisdiction over her claims. Bradley’s Brief at 48-49 (citing Commonwealth v.
Danysh, 833 A.2d 151, 152 (Pa. Super. 2003)). Bradley therefore asserts that the
trial court’s judgment of non pros should be vacated and that the case should be
transferred to this Court for adjudication on the merits. Id. at 47-49 (citing 42
Pa.C.S. § 5103(a)).
Defendants agree that the trial court lacks jurisdiction over Bradley’s
Pennsylvania Whistleblower Law claim (at least “presumably” with respect to the
University and PASSHE and some of the individual Defendants) because, with
limited exceptions, this Court has original and exclusive jurisdiction in all civil
actions against Commonwealth agencies and officers. Defendants’ Brief at 29-30
(citing University’s Memo. of Law in Opp. to Bradley’s Petition at 8, R.R. at 496a-
97a). However, Defendants assert that the trial court had subject matter jurisdiction
over Bradley’s tort claims. Id.
Our scope and standard of review with regard to questions of subject
matter jurisdiction is as follows:
Jurisdiction over the subject matter is conferred solely by
the Constitution and laws of the Commonwealth. The test
for whether a court has subject matter jurisdiction inquires
into the competency of the court to determine
controversies of the general class to which the case
presented for consideration belongs. Thus, as a pure
question of law, the standard of review in determining
whether a court has subject matter jurisdiction is de novo
and the scope of review is plenary. Whether a court has
subject matter jurisdiction over an action is a fundamental
issue of law which may be raised at any time in the course
5
of the proceedings, including by a reviewing court sua
sponte.
Office of Att’y Gen. ex rel. Corbett v. Locust Township, 968 A.2d 1263, 1268–69
(Pa. 2009).
Courts of common pleas generally enjoy unlimited original jurisdiction
over all actions and proceedings except where exclusive, original jurisdiction is
vested in another Pennsylvania court by statute or general rule. 42 Pa.C.S. §
931(a); see also Pa. Const. art. 5, § 5(b) (providing that courts of common pleas
“hav[e] unlimited original jurisdiction in all cases except as may otherwise be
provided by law”). With a few exceptions, this Court possesses exclusive, original
jurisdiction over “all civil actions or proceedings . . . [a]gainst the Commonwealth
government,[5] including any officer thereof, acting in his official capacity[.]” 42
Pa.C.S. § 761(a)(1); see also 42 Pa.C.S. § 761(b) (providing that the original
jurisdiction of the Commonwealth Court under subsection (a) shall be exclusive,
except as provided by certain exclusions not applicable here, which delineate when
the Court shares concurrent jurisdiction).
5
Section 102 of the Judicial Code defines the term “Commonwealth government” as
follows:
The government of the Commonwealth, including the courts and
other officers or agencies of the unified judicial system, the General
Assembly and its officers and agencies, the Governor, and the
departments, boards, commissions, authorities and officers and
agencies of the Commonwealth, but the term does not include any
political subdivision, municipal or other local authority, or any
officer or agency of any such political subdivision or local authority.
42 Pa.C.S. § 102.
6
Here, Bradley levied her whistleblower claim6 against two
Commonwealth entities—PASSHE and the University—thereby bestowing on this
Court exclusive, original jurisdiction over her claim pursuant to Section 761(a)(1)
of the Judicial Code, 42 Pa.C.S. § 761(a)(1). See O.R., Complaint at 6-7, ¶¶ 14-15
& 20; see also Cooper v. Pa. State Athletic Conference, 841 A.2d 638, 640 (Pa.
Cmwlth. 2004) (citing E. Stroudsburg Univ. v. Hubbard, 591 A.2d 1181 (Pa.
Cmwlth. 1991)) (noting, “[i]t is undisputed that [PA]SSHE is an agency of the
Commonwealth government” for purposes of this Court’s original jurisdiction); E.
Stroudsburg Univ. v. Hubbard, 591 A.2d 1181, 1184 (Pa. Cmwlth. 1991) (citing
Beaver v. Ortenzi, 524 A.2d 1022 (Pa. Cmwlth. 1987)) (stating, with regard to this
Court’s original jurisdiction, that “[t]he identity of [a] University [within PASSHE]
as a Commonwealth agency is not in dispute”).
Bradley also named the following five individual Defendants:
 Dr. Gregory R. Weisenstein, System employee and the
University’s President and Chief Executive Officer.
Responsibilities included, among other things,
developing the University’s strategic plan, establishing
its policies, managing its day-to-day operations, and
presenting operating budgets to the University’s
Council of Trustees for approval.
 Lawrence A. Dowdy, PASSHE employee and
Executive Deputy to the University President, as well
as a Member of the University’s Administrative
Budget Committee.
6
Section 4(a) of the Pennsylvania Whistleblower Law does not delineate which courts have
original jurisdiction over whistleblower claims, but rather provides that “[a] person who alleges a
violation of this act may bring a civil action in a court of competent jurisdiction for appropriate
injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.”
43 P.S. § 1424(a) (emphasis added).
7
 Lois M. Johnson, PASSHE employee and Associate
Vice Chancellor for Administration and Finance in the
Office of the Chancellor of the PASSHE.
Responsibilities included budget planning and
reporting to the PASSHE Chancellor.
 Ginger Coleman, PASSHE employee and Budget
Planning/Analysis Manager for Administration and
Finance in the PASSHE Office of the Chancellor.
Responsibilities included budget planning and
reporting to Johnson.
 Mark G. Pavlovich,7 PASSHE employee, Vice
President of Advancement and Sponsored Research
and voting member of the Administrative Budget
Committee.
See O.R., Complaint at 6-7, ¶¶ 16-18 & 21-22. Section 761(c) of the Judicial Code
provides that this “Court shall have ancillary jurisdiction over any claim or other
matter which is related to a claim or other matter otherwise within its exclusive
original jurisdiction.” 42 Pa.C.S. § 761(c). Therefore, we decline to address whether
each individually named defendant is an officer of the Commonwealth for purposes
of this Court’s original jurisdiction, because, irrespective of their status, we may
exercise ancillary jurisdiction over Bradley’s whistleblower claim with respect to
these Defendants.8 See Bowers v. T-Netix, 837 A.2d 608, 614 (Pa. Cmwlth. 2003)
7
We note that Mark G. Pavlovich was omitted from the caption of the Complaint but is
named in the body of the Complaint and the Civil Cover Sheet as a defendant in this matter. See
O.R., Complaint at 1 & 7, ¶ 18; O.R., Civil Cover Sheet at 2.
8
Officers of the Commonwealth for purposes of this Court’s original jurisdiction under
Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1), may include “those persons who
perform state-wide policymaking functions and who are charged with responsibility for
independent initiation of administrative policy regarding some sovereign function of state
8
(noting petitioner’s claims against a Commonwealth agency as a potential basis for
exercising ancillary jurisdiction over petitioner’s related statutory claims against a
private company pursuant to Section 761(c) of the Judicial Code, 42 Pa.C.S. §
761(c)); Reider v. Bureau of Corr., 502 A.2d 272, 274 (Pa. Cmwlth. 1985)
(exercising jurisdiction over petitioner’s claims against Bureau of Corrections
employees as “ancillary to the claims against Commonwealth parties” pursuant to
Section 761(c) of the Judicial Code, 42 Pa.C.S. § 761(c), where petitioner filed a
petition for review addressed to this Court’s jurisdiction challenging the denial of
prerelease status by the Bureau); Long v. Kistler, 457 A.2d 591, 592 & 594 (Pa.
Cmwlth. 1983) (holding, in a case where this Court had original jurisdiction over an
action challenging a Commonwealth entity’s determination of an assessed value to
fair market value ratio, that claims against the school district for assessing unequal
taxes as a result of using this ratio were “clearly ancillary” to the action against the
Commonwealth entity and thus could “properly [] be presented to this Court”).
Similarly, although Bradley’s torts claims, against all Defendants,
would typically fall within the original jurisdiction of the trial court as “actions or
proceedings in the nature of trespass as to which the Commonwealth government
formerly enjoyed sovereign or other immunity” for purposes of Section 761(a)(1)(v)
of the Judicial Code, 42 Pa.C.S. § 761(a)(1)(v), Section 761(c) also extends our
jurisdiction to those claims. As this Court has exclusive, original jurisdiction over
Bradley’s whistleblower claim against the University and PASSHE pursuant to
Section 761(a), it has ancillary jurisdiction over the related tort claims raised in the
same complaint under Section 761(c). See Bowers v. T-Netix, 837 A.2d 608, 614
government.” Balshy v. Rank, 490 A.2d 415, 417–18 (Pa. 1985) (quoting Opie v. Glasgow, Inc.,
375 A.2d 396, 398 (Pa. Cmwlth. 1977)).
9
(Pa. Cmwlth. 2003); Reider, 502 A.2d at 274; Long, 457 A.2d at 592. As such, all
three claims should have been transferred by the trial court to this Court pursuant to
Section 5103(a) of the Judicial Code, which provides:
A matter which is within the exclusive jurisdiction of a
court or magisterial district judge of this Commonwealth
but which is commenced in any other tribunal of this
Commonwealth shall be transferred by the other tribunal
to the proper court or magisterial district of this
Commonwealth where it shall be treated as if originally
filed in the transferee court or magisterial district of this
Commonwealth on the date when first filed in the other
tribunal.
42 Pa.C.S. § 5103(a) (emphasis added). Thus, based on the foregoing, the trial court
lacked subject matter jurisdiction over the matter.
An action is null and void for purposes of appellate review if the trial
court lacked subject matter jurisdiction. Grimm v. Grimm, 149 A.3d 77, 85 (Pa.
Super. 2016). Thus, “if the court below lacked subject matter jurisdiction, its order
is void.” Danysh, 833 A.2d at 152 (vacating order of court of common pleas with
respect to claim over which the court lacked subject matter jurisdiction, as original
jurisdiction in fact lay with this Court); see also Davis v. City of Philadelphia, 702
A.2d 624, 625-27 (Pa. Cmwlth. 1997) (deeming void and vacating judgment of non
pros where court of common pleas lacked subject matter jurisdiction to enter
judgment based on plaintiff’s failure to appear at arbitration hearing); Pisano v. Se.
Pa. Transp. Auth., 673 A.2d 442, 443 (Pa. Cmwlth. 1996) (deeming void and
vacating judgment of non pros entered by court of common pleas for same reasons
stated in Davis); Grimm, 149 A.3d at 77 (vacating trial court’s judgment of non pros
where trial court lacked subject matter jurisdiction over plaintiff’s claims at the time
10
it entered judgment, because defendant had died and no personal representative had
been substituted in his place). As the trial court lacked subject matter jurisdiction
over Bradley’s claims at the time it entered judgment of non pros, we, therefore, find
that the non pros judgment is void and the trial court was without jurisdiction to enter
an order upon the Petition.9
Accordingly, we vacate the trial court’s December 5, 2018 order
denying Bradley’s Petition, vacate the judgment of non pros, and will docket the
matter as a petition for review in this Court’s original jurisdiction.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
Defendants point out that in our unreported decision of Vance v. Cheyney (Pa. Cmwlth.,
No. 1751 C.D. 2017, filed Dec. 7, 2018), the trial court did not transfer Vance’s statutory and tort
claims accompanying her whistleblower claim as ancillary to the whistleblower claim pursuant to
Section 761(c) of the Judicial Code, 42 Pa.C.S. § 761(c). See Vance, slip op. at 3-4 & 15.
However, our decision did not address ancillary jurisdiction. Therefore, it is inapposite.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen M. Bradley, :
Appellant :
:
v. :
:
West Chester University, Lawrence :
A. Dowdy, Greg R. Weisenstein, :
Pennsylvania State System of Higher :
Education, Lois M. Johnson, : No. 368 C.D. 2019
Ginger Coleman :
ORDER
AND NOW, this 10th day of January, 2020, the December 5, 2018
order of the Court of Common Pleas of Philadelphia County (trial court) is vacated,
and the trial court’s order dated December 20, 2016 entering judgment of non pros
is also vacated. The Prothonotary of the Commonwealth Court is directed to docket
this matter as a petition for review in this Court’s original jurisdiction.
__________________________________
CHRISTINE FIZZANO CANNON, Judge