Palmiter, P. v. Commonwealth Health Systems, Inc. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAMELA PALMITER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COMMONWEALTH HEALTH SYSTEMS, : No. 1492 MDA 2020
INC. D/B/A COMMONWEALTH :
HEALTH PHYSICIANS ALLIANCE :
D/B/A COMMONWEALTH HEALTH :
AND MOSES TAYLOR HOSPITAL :
D/B/A COMMONWEALTH HEALTH :
Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2020-02544
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 8, 2022
Pamela Palmiter appeals from the Lackawanna County Court of Common
Pleas’ order sustaining the preliminary objections filed by Commonwealth
Health Systems, Inc. d/b/a Commonwealth Health, Physicians Health Alliance
d/b/a Commonwealth Health and Moses Taylor Hospital d/b/a Commonwealth
Health (collectively, “Employers”) and dismissing Palmiter’s complaint filed
against Employers. In her complaint, Palmiter alleged Employers violated the
Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-963, by denying
her employment after she tested positive for the medical marijuana she had
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* Former Justice specially assigned to the Superior Court.
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been prescribed under the Medical Marijuana Act (“MMA”), 35 P.S. §§
10231.101-10231.2110, for her chronic pain, migraines and fatigue. She
alleged in a single count that this constituted disability discrimination, failure
to provide reasonable accommodation and employment retaliation in
contravention of the PHRA.1
The trial court found Palmiter failed to make out any of these claims on
the basis of its determination that the use of medical marijuana is not a
disability as defined by the PHRA. Importantly, Palmiter does not challenge
that determination in her appellate brief. Instead, Palmiter claims for the first
time on appeal that she alleged in her complaint that her disability was her
underlying medical conditions and not, as the trial court found, the prescribed
use of medical marijuana for those conditions. Because there are no issues
which have been properly preserved for our review, we affirm the trial court’s
order sustaining Employers’ preliminary objections.
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1 Palmiter filed a separate action against Employers asserting claims for, inter
alia, wrongful discharge and violation of the MMA, which provides that an
employer may not discharge, or discriminate or retaliate against, an employee
on the basis of her status as a certified medical marijuana user. See 35 P.S.
§ 10231.2103(b)(1). Employers also filed preliminary objections in that
matter, and the trial court overruled Employers’ preliminary objections as to
the violation of the MMA claim and the wrongful discharge claim. Employers
appealed, and this Court affirmed the trial court’s order overruling those
preliminary objections. See Palmiter v. Commonwealth Health Systems,
Inc., 260 A.3d 967 (Pa. Super. 2021). In doing so, we held that Palmiter could
bring a claim under the MMA alleging Employers discriminated against her by
terminating her solely for her medical marijuana use, as the MMA contains an
implied right to bring such a private cause of action. See id. at 976.
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“This Court will reverse the trial court's decision regarding preliminary
objections only where there has been an error of law or abuse of discretion.”
Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208 (Pa. Super.
2012) (citation omitted). When faced with preliminary objections in the nature
of a demurrer, a trial court may only sustain such preliminary objections in
cases where it is clear and free from doubt that dismissal is appropriate. See
Burgoyne v. Pinecrest Community Association, 924 A.2d 675, 679 (Pa.
Super. 2007). “To be clear and free from doubt that dismissal is appropriate,
it must appear with certainty that the law would not permit recovery by the
plaintiff upon the facts averred.” Id. (citation omitted). As such, the only facts
at issue when ruling on preliminary objections are those averred in the
complaint, which must be accepted as true. See Weiley, 51 A.3d at 208.
Given this standard governing preliminary objections which requires
courts to look to the facts averred in the complaint, coupled with the fact that
there is a dispute as to what Palmiter actually averred in her complaint, it is
especially important to scrutinize the allegations set forth in Palmiter’s
complaint against Employers. Before recounting those allegations, we note at
the outset that there is no dispute that Palmiter was legally prescribed medical
marijuana pursuant to the MMA. Nor is there any dispute that the PHRA makes
it an unlawful discriminatory practice for an employer to refuse to hire or
employ a person on the basis of a non-job-related “handicap or disability.”
See 43 P.S. § 955(a). Under the PHRA, a “handicap or disability” is defined
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as: (1) a physical or mental impairment which substantially limits one or more
of a person’s major life activities; (2) a record of having such an impairment;
or (3) being regarded as having such an impairment, but such term does not
include current, illegal use of or addiction to a controlled substance, as defined
by the Controlled Substance Act (“CSA”), 21 U.S.C. § 802. See 43 P.S. §
954(p.1).
The sole count in Palmiter’s complaint against Employers alleged
Employers violated the PHRA because of “disability discrimination/failure to
provide a reasonable accommodation/retaliation.” Complaint, 6/30/20, 3.2 In
support of her claim, Palmiter stated she started to work for Medical Associates
of NEPA as a medical assistant in January 2017. See id. at ¶ 1. She asserted
she “has the medical conditions of chronic pain, chronic migraines and
persistent fatigue.” Id. at ¶ 12. She further averred these “medical conditions
affect her ability to work and sleep,” id. at ¶ 13, and that she was prescribed
medical marijuana for those medical conditions in December 2018, see id. at
¶ 16. According to Palmiter, “the use of medical marijuana off the job assists
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2 The trial court dissected this single claim into three distinct claims, even
though Palmiter did not. We note that to establish a prima facie claim for
either a discrimination claim or a failure to accommodate claim under the
PHRA, Palmiter must initially show that she had a disability within the meaning
of the PHRA. See Stultz v. Reese Brothers, 835 A.2d 754, 759-760 (Pa.
Super. 2003); Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002).
To establish a retaliation claim, Palmiter must initially show she was engaged
in activity protected by the PHRA. See Renna v. PPL Electric Utilities, Inc.
207 A.3d 355, 371 (Pa. Super. 2019).
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her in her ability to function normally.” Id. at ¶ 13. Palmiter further averred
she had informed Medical Associates of NEPA that her doctor had authorized
her to use medical marijuana to treat her medical conditions. See id. at ¶ 17.
Palmiter stated Employers took over Medical Associates of NEPA on
February 1, 2019. See id. at ¶ 20. She maintained that either in November
or December 2018, certain doctors [identified by name but not by affiliation]
told her “everything would be fine related to [her] approval for medical
marijuana and her continuing to work for [Employers].” Id. at ¶ 14. She
further maintained she applied for a position as a medical assistant with
Employers on or around January 11, 2019. See id. at ¶ 21. She averred she
was scheduled to undergo a drug test for her employment with Employers on
January 22, 2019, see id. at ¶ 23, and “at that time” she reported to the
drug-testing lab that she was on prescribed medical marijuana, id. at ¶ 24.
She further asserted “[o]n or about January 25, 2019, [she] faxed a copy of
her certification that [the doctor] approved her for medical marijuana to treat
her medical conditions.” Id. at ¶ 25. She alleged she received a call from
Employers on or around January 29, 2019, advising her she would not be
allowed to work for Employers. See id. at ¶ 27.
Palmiter’s final paragraphs of the complaint allege that “[b]y informing
[Employers] of her medical conditions that a physician prescribed medical
marijuana to use to treat her illnesses off the job, [she] requested a
reasonable accommodation,” id. at ¶ 28, that Employers failed to provide that
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reasonable accommodation, see id. at ¶ 29, and that by requesting a
reasonable accommodation of the use of medical marijuana off the job site,
Employers retaliated against her by firing her, see id. at ¶ 30.
Employers filed preliminary objections in the nature of a demurrer to
Palmiter's claims that they discriminated against her and denied her
employment based on her disability in violation of the PHRA. Specifically,
Employers argued Palmiter’s use of medical marijuana was not a disability as
that term is defined under the PHRA.
To that end, Employers pointed out that the PHRA’s definition of
“handicap or disability” specifically excludes the current, illegal use of a
controlled substance as defined in the CSA. See Defendants’ Preliminary
Objections to Plaintiff’s Complaint, 7/30/20, at ¶ 19. Employers then observed
that the CSA, in turn, specifically lists marijuana as an illegal controlled
substance. See id.3 Employers argued Palmiter’s admitted use of marijuana
therefore excluded her from the PHRA’s definition of an individual with a
“handicap or disability.” See id. at ¶ 23. Accordingly, Employers contended
the PHRA did not cover Palmiter’s medical marijuana use and she had no
“possible claim for disability discrimination … based on her illegal drug use”
under the CSA. Id.
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3To further explain, the CSA defines a “controlled substance” as a “drug or
other substance … included in schedule I, II, III, V. or V or part B” of the CSA.
21 U.S.C. § 802(6). The CSA then specifically lists marijuana as a schedule I
controlled substance. See 21 U.S.C. § 812 (Schedule I)(c)(10).
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Employers further maintained that use of a controlled substance, which
is classified as illegal under the CSA, is not a reasonable accommodation under
the PHRA. See id. at ¶¶ 24-25. They also demurred to Palmiter’s retaliation
claim on the basis that her “report of her medical marijuana usage is not
PHRA-protected activity, since her usage falls outside the PHRA’s definition of
‘handicap or disability.’” Id. at ¶ 35.
Palmiter filed a brief in opposition to the Employers’ preliminary
objections. In that response, Palmiter claimed Employers mistakenly relied on
the CSA, or any federal law for that matter, to support their argument that
medical marijuana use is illegal and not a disability under the PHRA. See
Plaintiff's Brief in Opposition to Defendants’ Preliminary Objections, 8/3/20, at
6. Instead, Palmiter observed the MMA makes the prescribed use of medical
marijuana “perfectly legal in Pennsylvania.” Id. According to Palmiter, the
“CSA does not apply to this case since [she] has an actual disability and can
legally use medical marijuana” in Pennsylvania. Id. at 7. She maintained
legally-prescribed marijuana use off the work site is a valid form of reasonable
accommodation under the PHRA. See id. at 8.
Employers were granted leave to file a reply brief to Palmiter’s
opposition brief. In that reply brief, Employers argued “to the extent that
[Palmiter] argues that the [MMA] ‘legalizes’ the use of marijuana such that
her use of marijuana constitutes a disability under the PHRA, such an
argument ignores that the PHRA specifically” applies the CSA’s - and not state
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law’s - definition of “illegal use … of a controlled substance,” which includes
marijuana. Defendants’ Brief in Reply to Plaintiff's Opposition to Defendants’
Preliminary Objections to Plaintiff’s Complaint, 10/26/20, at 2 (unpaginated).
Employers asserted the Pennsylvania Legislature could have excluded medical
marijuana use from the PHRA’s definition of “illegal drug use” in the MMA if
that had been its intent, but it had not done so. See id. at 6 (unpaginated).
In fact, the MMA makes no mention of the PHRA at all.
The court heard oral argument on the preliminary objections on October
30, 2020, in which the parties basically underscored the positions they had
taken in their briefs on the preliminary objections. The focus of Employers’
argument remained on their contention that the use of medical marijuana was
not a disability under the PHRA because the statute’s definition of disability
excludes the illegal use of a controlled substance, as that term is defined by
the CSA. See N.T. Transcript of Proceedings Via Telephonically, 10/30/20, at
4-6, 8. In contrast, Palmiter continued to argue, in essence, that because
medical marijuana can legally be prescribed under the MMA, the use of
medical marijuana in Pennsylvania is not the illegal use of a controlled
substance and therefore not excluded from the PHRA’s definition of disability.
See N.T., 10/30/20, at 21-22, 24; see also id. at 26 (arguing “even if [the
court] would find that [Palmiter] wasn’t disabled under the statute … even if
[the court] rule[s] that medical marijuana cannot be, [that Palmiter does not
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meet] the definition of disability under the PHRA,” a retaliation claim could still
go forward).
Following argument, the court issued an order on November 10, 2021,
sustaining Employers’ preliminary objections and dismissing Palmiter’s
complaint due to legal insufficiency. In an accompanying and very well-
reasoned memorandum, the trial court explained its decision. The court first
examined the allegations presented by Palmiter in her complaint, and the
arguments made by Employers in their preliminary objections, in detail. It
then stated:
The viability of Palmiter’s claims for disability discrimination,
failure to provide a reasonable accommodation, and retaliation is
contingent upon her ability to demonstrate a ‘disability’ under the
PHRA. Palmiter does not contend that her ‘medical conditions of
chronic pain, chronic migraines and persistent fatigue’ constitute
disabilities. Instead, she asserts that her prescribed use of medical
marijuana qualifies as a protected ‘disability’ under the PHRA.
Trial Court Memorandum and Order, 11/10/20, at 8-9.
In determining whether the use of medical marijuana was in fact a
disability under the PHRA, the trial court looked to the PHRA’s definition of a
“handicap or disability,” which, as noted above, explicitly excludes the current,
illegal use of a controlled substance, as defined by the CSA. See 43 P.S. §
954(p.1). The court then went on to examine the CSA’s definition of a
controlled substance, which includes marijuana, and the relevant provisions
of the MMA, and how they informed the decision of whether medical marijuana
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use was a disability within the meaning of the PHRA. The court condensed its
in-depth analysis into the following summary:
In defining a ‘disability’ for purposes of employment protection,
the PHRA specifically excludes illegal use of a controlled substance
and has long applied the federal [CSA]’s definition of marijuana
as an illegal, Schedule I controlled substance. Although the MMA
makes prescribed medical marijuana use lawful within the
Commonwealth, and in the process expressly amends several
statutes, including the Pennsylvania Controlled Substance, Drug,
Device and Cosmetic Act, [the MMA] does not reference, let alone
alter, the PHRA or its definition of ‘disability’ based upon federal
law. As presently worded, the PHRA excludes any use of marijuana
from its definition of a ‘disability,’ and absent legislative revision
of that statutory definition, courts are obligated to apply the
PHRA’s exclusion of marijuana use as a protected ‘disability.’
Trial Court Memorandum and Order, 11/10/20, at 2.
The trial court then went on to note that just one day before it held the
hearing on Employers’ preliminary objections, the Commonwealth Court filed
an opinion in Harrisburg Area Community College v. Pennsylvania
Human Relations Committee, 245 A.3d 283 (Pa. Cmwlth. Ct. October 29,
2020), which addressed the issue of whether the anti-discrimination
provisions of the PHRA required Harrisburg Area Community college (“HACC”)
to accommodate a nursing student’s (“Student”) lawful use of medical
marijuana under the MMA for her post-traumatic stress disorder and irritable
bowel syndrome. The trial court discussed the case at length, opining that it
lent further support to its conclusion that use of medical marijuana is not a
disability under the PHRA.
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There, HACC, much like Employers here, argued that because marijuana
use is considered illegal under the CSA, individuals who use marijuana are
excluded from the PHRA’s disability definition, regardless of whether such use
is lawful in Pennsylvania. Meanwhile, the Pennsylvania Human Relations
Committee (“PHRC”) argued, much like Palmiter did before the trial court, that
the PHRA’s disability definition only excludes current, illegal users of controlled
substances, and that does not apply to medical marijuana users because the
MMA makes medical marijuana lawful in Pennsylvania.
While acknowledging these arguments, the Commonwealth Court
emphasized the issue before it was not whether Student’s medical marijuana
use was a disability under the PHRA. See id. at 286-287, 291 n.8. The Court
noted Student had specifically asserted in her complaint that her disabilities
were her post-traumatic stress disorder and irritable bowel syndrome. See
id. at 285, 291 n.8. The Court also indicated the PHRA’s definition of disability
would necessarily preclude a finding that use of or addiction to any controlled
substance under the CSA constituted a disability pursuant to the PHRA. See
id. at 291 n.8. Instead, the Court made clear that the specific issue on which
it had granted permissive review was whether the PHRA required HACC to
accommodate Student’s use of medical marijuana under the MMA. See id. at
286, 291 n.8.
In holding no such accommodation was required, the Commonwealth
Court explained that in the PHRA, the Pennsylvania Legislature explicitly
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excluded the use of a controlled substance as a disability, and specifically
incorporated the CSA’s definition of controlled substance, which includes
marijuana, into the PHRA’s definition of disability. The Court noted that while
the MMA legalized marijuana, the MMA did not reference the PHRA or “amend
or otherwise alter [the PHRA’s] provisions that exclude users of medical
marijuana from [the PHRA’s] definition of disability.” Id. at 293. Accordingly,
the Court concluded “the General Assembly chose not to require employers to
accommodate an employee’s … usage of medical marijuana under the MMA
[or] PHRA.” Id. at 298.
Based on all of the above, the trial court found Palmiter’s use of medical
marijuana pursuant to the MMA was not a protected disability under the PHRA.
It therefore determined that, because Palmiter had not averred a disability
pursuant to the PHRA, it was free and clear from doubt that she could not
make out a disability discrimination claim under the PHRA and sustained the
demurrer as to that count. The court also sustained Employers’ demurrer to
Palmiter’s failure-to-accommodate claim, again relying on its conclusion that
Palmiter had not shown she was a qualified individual with a disability under
the PHRA. As for the retaliation claim, the court found Palmiter had not
engaged in protected activity, as protected activity must “relate to
employment discrimination forbidden by the statute,” and because Palmiter
had failed to allege a disability under the PHRA, she was unable to state a
claim for “employment discrimination forbidden by the [PHRA].” Memorandum
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and Order, 11/10/20, at 20 (citation omitted). As a result, the court’s rulings
on the preliminary objections were premised on its conclusion that, although
Palmiter alleged in her complaint that her medical marijuana use was a
disability under the PHRA, the PHRA explicitly excluded such medical
marijuana use from its definition of a disability.
Palmiter filed a notice of appeal from the court’s order, followed by a
court-directed Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
In her brief, Palmiter raises two issues:
I. Whether the trial court erred when it dismissed [Palmiter’s]
complaint since she alleged she was disabled due to the
medical conditions of chronic pain, chronic migraines and
persistent fatigue and not the medical condition of medical
marijuana?
II. Whether seeking a reasonable accommodation of using
medical marijuana off the job and being denied the same
and ultimately fired seven days later was sufficient to state
a claim for retaliation under the PCRA?
Appellant’s Brief at 4.
As these issues make clear, Palmiter does not in any way challenge the
trial court’s finding that her medical marijuana use is not a disability under
the PHRA’s definition of that term. Instead, she avers in her first issue that
she has contended all along that her disability is her underlying medical
conditions, that is, her chronic pain, migraines and fatigue. She contends her
complaint specifically noted her medical conditions were her disabilities in
paragraphs 12 and 13, where she listed her medical conditions and averred
the medical conditions affected her ability to work and sleep but off-the-job
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medical marijuana use helped her to function normally. She alleges, in
essence, the trial court misconstrued her complaint as alleging that her
medical marijuana use was her disability.
The trial court flatly rejected this claim in its Pa.R.A.P. 1925(a) opinion.
The court stated in no uncertain terms that Palmiter “never alleged in her
complaint that her medical conditions [of chronic pain, chronic migraines or
persistent fatigue] constituted a ‘disability’ under the PHRA.” Order Pursuant
to Pa.R.A.P. 1925(a), 3/24/21, at 2. Rather, after once again outlining the
allegations in Palmiter’s complaint, the court reiterated that Palmiter had
alleged that her disability was her medical marijuana use.
The trial court also pointed out Palmiter had not made any argument
that her medical marijuana use was not her alleged disability in either her
brief or her arguments opposing Employers’ preliminary objections, in which
Employers specifically challenged the legal sufficiency of Palmiter’s complaint
on the basis that medical marijuana use does not qualify as a disability under
the PHRA. See id. Given the fact that Palmiter had not raised this issue before
the trial court at any point, the trial court urged this Court to find the issue
waived.4
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4 While remaining adamant Palmiter had not alleged and argued that she
suffered a disability under the PHRA due to her chronic pain, migraines and
fatigue, the trial court noted that, even if she had, its ruling on the preliminary
objections would have remained the same based on the clear holding of
Harrisburg Area Community College, 245 A.3d at 298.
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Employers urge the same thing. They contend that, as the trial court
found, Palmiter did not argue to the trial court the argument she now presents
for the first time on appeal: that her complaint, by listing her medical
conditions and averring they affected her work and sleep, actually alleged
those medical conditions were her disability.5 Employers emphasize Palmiter
never disputed Employers’ reading of the complaint as alleging a disability of
medical use of marijuana, even though Employers’ preliminary objections and
briefs made that evident. As such, Employers argue Palmiter has waived this
issue by never presenting it to the trial court despite the opportunity to do so.
They cite to Pa.R.A.P. 302(a) and a long list of cases to support this
contention. See Pa.R.A.P. 302(a)(providing that issues that are not raised in
the trial court are waived); Appellees’ Brief at 5, 7 (citing cases finding that
claims that were raised on appeal but not presented to the trial court were
waived).
We agree with the trial court and Employers that Palmiter has waived
this issue. Palmiter’s complaint is sparse and less than clear. However, the
trial court, after reviewing the complaint and hearing arguments which
necessarily touched upon what was alleged in that complaint, specifically
concluded that Palmiter’s complaint alleged her medical marijuana use was a
disability under the PHRA. At the same time, the court specifically concluded
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5Employers also contend that these two assertions, by themselves, are not
sufficient to state a viable claim of disability discrimination under the PHRA.
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that, despite what Palmiter now argues on appeal, her complaint did not allege
her underlying medical conditions were her disability. Moreover, as the trial
court noted, when Palmiter opposed Employers’ preliminary objections
seeking dismissal of Palmiter’s complaint on the basis that medical marijuana
use is not a disability under the PHRA, she did not argue that she had not
identified medical marijuana use as her disability. Rather, she argued medical
marijuana use was, in fact, a disability. Given all of these circumstances, we
agree with the trial court that the issue Palmiter now wishes to argue to this
Court is waived. See Pa.R.A.P. 302(a).
In turn, as Employers observe, Palmiter has also waived any issue that
the trial court improperly granted Employers’ preliminary objections based on
its determination that medical marijuana use is not a disability as that term is
defined by the PHRA. Palmiter abandons her claim on appeal that medical
marijuana use is a disability under the PHRA, and makes no argument that
the trial court erred by concluding otherwise. See Commonwealth v. McGill,
832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding that when an appellant abandons
a claim on appeal, it is waived).
Palmiter does claim in the second issue in her appellate brief, however,
that the trial court erred by dismissing her retaliation claim. She seems to
assert she does not need to establish she has a disability under the PHRA in
order to make out a prima facie retaliation claim, contrary to what the trial
court found. Rather, she appears to contend that, in order to make out such
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a claim, she must only show she was engaged in a PHRA-protected activity.6
This claim is also waived.
In the first instance, in her 1925(b) statement, Palmiter only alleged
general error on the trial court’s part in dismissing her retaliation claim. She
did not forward the specific claim in her 1925(b) statement that she need not
establish a disability for purposes of a retaliation claim, and the trial court
therefore did not address such a claim in its 1925(a) opinion. The claim is
arguably waived for that reason alone. See Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998) (holding issues not raised in a 1925(b) statement
are waived).
However, we also note Palmiter’s argument in her brief is sorely
undeveloped and we find it waived for that reason as well. Palmiter seems to
allege the protected activity she engaged in was seeking the “reasonable
accommodation of medical marijuana use off the job,” Appellant’s Brief at 14,
but yet, she does not make any argument supporting her assertion that
medical marijuana is a reasonable accommodation under the PHRA. She does
cite to, and for that matter rely entirely on, the Eastern District Court’s
decision in Hudnell v. Thomas Jefferson Hospital University, 2020 WL
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6 As noted in one of only three paragraphs Palmiter devotes to this argument,
to establish a retaliation claim under the PHRA, she must allege: (1) she was
engaged in protected activity; (2) Employers were aware of the protected
activity; (3) she was subjected to an adverse employment action; and (4)
there is a causal connection between participation in the protected activity
and the adverse employment action. See Renna, 207 A.3d at 371.
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5749924 (E.D. Pa. 2020), in support of her claim. However, besides not being
binding authority, Hudnell actually undermines the purported claim made by
Palmiter given the following discussion:
Hudnell does not claim that her report of medical marijuana
usage was protected activity. Instead, she claims her request for
reasonable accommodations for her disability [which included
spinal injuries], such as her request to split time between working
in Jefferson’s office and her home, qualify as protected activity.
That claim satisfies her burden at this [motion to dismiss] stage
of the litigation because ‘requesting an accommodation is a
protected employee activity under the [PHRA].’
Id. at *3.
Palmiter’s only analysis of Hudnell as it relates to her claim - really, her
only analysis at all - is one sentence. She claims that “just as Hudnell, [she]
established a claim for retaliation under the PHRA since she sought a
reasonable accommodation of medical marijuana use off the job and was
denied the same and ultimately fired.” Appellant’s Brief at 14. Given her failure
to develop her claim in any meaningful way, it is waived. See
Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating
that arguments that are not sufficiently developed are waived).
In sum, the trial court sustained Employers’ preliminary objections on
the basis that the use of medical marijuana pursuant to the MMA is not a
disability under the PHRA. Palmiter does not challenge that determination. Her
argument that the trial court erred by sustaining the preliminary objections
because her complaint actually averred her disability was her underlying
medical conditions is waived, as she did not argue that to the trial court. Her
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claim that the trial court erred by sustaining Employers’ demurrer to her
retaliation claim is also waived, as she did not raise the basis for that claim in
her 1925(b) statement and failed to properly develop the claim. As such, we
must affirm the order of the trial court sustaining Employers’ preliminary
objections and dismissing Palmiter’s complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/8/2022
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