Roman, B. v. McGuire Memorial , 2015 Pa. Super. 232 ( 2015 )

J-S55021-15
2015 PA Super 232BRANDY L. ROMAN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MCGUIRE MEMORIAL,
Appellant No. 239 WDA 2015
Appeal from the Judgment Entered February 9, 2015
In the Court of Common Pleas of Beaver County
Civil Division at No(s): 11624-2011
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*
OPINION BY BENDER, P.J.E.: FILED NOVEMBER 09, 2015
McGuire Memorial (McGuire), a health care facility, appeals from the
judgment entered on February 9, 2015, in favor of Brandy L. Roman (Ms.
Roman) in the amount of $121,869.93 and reinstating her to her former
position as a direct care worker in this wrongful termination action filed by
Ms. Roman against McGuire, wherein Ms. Roman sought back wages, lost
benefits and future lost wages or reinstatement. We affirm.
The trial court set forth the following summary of the facts in its
memorandum and order issued after a bench trial was held:
McGuire Memorial Home is an intermediate care facility for
the mentally retarded[, licensed by the Department of Public
Welfare]. It provides “round- the -clock nursing care with an on
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*
Retired Senior Judge assigned to the Superior Court.
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-staff RN and LPN as well as physician availability 24 hours a
day.” (Plaintiff’s Exhibit 16).
Ms. Roman was employed by McGuire Memorial as a direct
care worker from August 3, 2009 until June 24, 2011, when she
was terminated for refusing to work mandatory overtime. As a
“direct care worker,” Ms. Roman cared for the residents’ day-to-
day needs, including feeding, bathing, changing, and providing
care related to breathing treatments, vents and tracheotomies.
She attended training to administer medication to the residents.
During the time of Ms. Roman’s employment, McGuire had
a mandatory overtime policy (“mandation”) in place, which
required its direct care workers to work mandatory overtime.
After four refusals of mandation, an employee would be
terminated. McGuire claims that Ms. Roman refused mandatory
overtime on March 14, March 19, June 19 and June 20, 2011.
Ms. Roman disputes that she was actually mandated to work
overtime on those dates. Nonetheless, Ms. Roman was fired
after what McGuire considered to be her fourth refusal of
mandation on June 20, 2011. Ms. Roman had informed McGuire
on several occasions that she was not required to work overtime
as a direct care healthcare worker pursuant to Act 102.[1]
At the time of her employment with McGuire, Ms. Roman
was the mother of three young children. She resided with her
boyfriend. Together, they worked opposite shifts, so they did
not have to pay for daycare for their children. Her boyfriend
worked a 6:00 a.m. to 2:00 p.m. shift, and Ms. Roman worked a
3:30 p.m. to 11:30 p.m. shift. When Ms. Roman was mandated
to work overtime, McGuire required her to stay on from
approximately 11:30 p.m. to 8:00 a.m. Ms. Roman informed
McGuire that she was unable to work the mandatory overtime,
as she had no one to care for her young children.
Following her termination, Ms. Roman actively sought
employment and submitted over 100 job applications. Despite
her efforts, she was unable to find a new job, until shortly before
the non-jury trial in this matter.
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1
The Prohibition of Excessive Overtime in Health Care Act, 43 P.S. §§ 932.1
– 932.6, is known and cited as Act 102.
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Trial Court Memorandum Opinion and Non-Jury Decision, 1/9/15, at 2-3.
On September 9, 2011, Ms. Roman filed a complaint in the trial court,
alleging that McGuire fired her “in retaliation for her refusal to accept
overtime work” and that the discharge “offends the public policy of the
Commonwealth of Pennsylvania as embodied in Act 102 generally, and in 43
Pa. Stat. § 932.3(b) specifically.” Ms. Roman’s Complaint, ¶ 17, ¶ 18.2
McGuire filed preliminary objections, contending that the trial court lacked
subject matter jurisdiction and that it was not an entity covered by Act 102.
The trial court denied McGuire’s preliminary objections. See Order, 2/1/12.
The court also denied McGuire’s subsequently filed motion for summary
judgment, in which it likewise alleged “it is not a health care facility subject
to Act 102’s prohibitions” and that the trial court “does not have jurisdiction
over [Ms. Roman’s] claims.” Trial Court Memorandum Opinion and Order,
2/11/14, at 1. Thereafter, McGuire filed a motion to amend the February
11, 2014 order, requesting a stay and permission to appeal in that the order
“involves [a] controlling question of law with regard to the jurisdiction of
th[e] [c]ourt and whether or not [McGuire] is a covered entity under the
provisions of [Act 102].” See McGuire’s Motion to Amend Interlocutory
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2
Prior to filing her complaint, Ms. Roman filed a grievance with her union
and a complaint with the Pennsylvania Department of Labor and Industry
(Department). Ms. Roman notes that McGuire responded to a Department
inquiry, asserting it is not an entity covered by Act 102. It appears that
neither of Ms. Roman’s actions moved forward to completion. Thus, she
filed the complaint that is at issue here.
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Order, 3/13/14, ¶ 3. The trial court denied this request by order dated April
2, 2014. On September 15, 2014, a non-jury trial was held and resulted in
the award of damages to Ms. Roman and her reinstatement.3 Judgment was
entered on February 9, 2015.
On February 6, 2015, McGuire filed an appeal with this Court and a
timely Pa.R.A.P. 1925(b) statement in response to the trial court’s order
requesting same. In this appeal, McGuire raises the following two issues for
our review:
I. Whether the trial court erred as a matter of law by exercising
subject matter jurisdiction and adjudicating a claim under the
Prohibition of Excessive Overtime in Health Care Act, 43 Pa.C.S.
§§ 932.1 – 932.6?
II. Is it required that the issue of subject matter jurisdiction, a
non-waivable principle of substantive law, be presented as a
post[-]trial motion under Pa.R.C.P. 227.1 to prevent waiver on
appeal?
McGuire’s brief at 4.
Upon receipt of McGuire’s appeal, this Court directed a rule to show
cause order to McGuire, questioning why the appeal should not be quashed
in that no post-trial motions were filed. Thereafter, Ms. Roman filed a
petition to dismiss, requesting that this Court dismiss McGuire’s appeal
because McGuire had not filed a post-trial motion and, thus, had waived all
issues. Despite McGuire’s response to the rule to show cause, claiming that
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3
Both parties filed post-trial memoranda on October 30, 2014, prior to the
court’s rendering of its verdict.
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the only issue was whether the trial court had subject matter jurisdiction,
this Court quashed the appeal sua sponte on March 20, 2015. This Court
also dismissed Ms. Roman’s petition to dismiss McGuire’s appeal as moot.
McGuire then filed an application for reconsideration of the quashal, which
this Court granted by order dated April 8, 2015. The April 8, 2015 order
further vacated the March 20, 2015 order quashing the appeal. It also
discharged the rule to show cause and deferred Ms. Roman’s petition to
dismiss the appeal for disposition by the merits panel. Accordingly, we must
first consider Ms. Roman’s petition to dismiss.
We begin by setting forth Ms. Roman’s assertion that McGuire’s appeal
should be dismissed in that post-trial motions must be filed to preserve any
issues for appeal. Thus, Ms. Roman claims that because McGuire failed to
file any post-trial motion, no issue has been preserved in this appeal. As
support, Ms. Roman cites Pa.R.C.P. 227.1(c)(2), which states in pertinent
part that ”[p]ost-trial motions shall be filed within ten days after … the filing
of the decision in the case of a trial without jury.” Pa.R.C.P. 227.1(c)(2)
(emphasis added). Ms. Roman also relies on Liparota v. State
Workmen’s Insurance Fund, 722 A.2d 253 (Pa. Cmwlth. 1999), a case in
which the Commonwealth Court affirmed a trial court’s non-jury verdict in
favor of the State Workmen’s Insurance Fund (Fund). The Fund was the
plaintiff in the matter and was seeking recovery of the overpayment of
benefits that occurred because Liparota deliberately concealed his receipt of
wages while he was collecting workers’ compensation benefits. Following
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the entry of the verdict, Liparota failed to file for post-trial relief.4 Rather,
he “filed a petition for review … in conformity with Pa.R.A.P. 1511, which
governs appeals from governmental determinations, not courts of common
pleas.” Liparota, 722 A.2d at 255. Essentially, Liparota was contending
that the court of common pleas lacked subject matter jurisdiction because
the workers’ compensation system has exclusive jurisdiction over a claim of
overpayment. Thereafter, the Fund filed a motion to dismiss the appeal,
asserting that Liparota failed to file post-trial motions as required by
Pa.R.C.P. 227.1, and, therefore, he waived all issues on appeal. In response
to the Fund’s motion to dismiss, the Commonwealth Court stated:
Where a party fails to file timely post-trial motions after a bench
trial, no issues are preserved for this Court to review. Siegfried
v. Borough of Wilson, 695 A.2d 892 (Pa. Cmwlth. 1997).
In the present case, the Fund filed a complaint in equity against
[c]laimant, and, after conducting a bench trial, Common Pleas
found in favor of the Fund. Claimant admits that he declined to
file post-trial motions. Considering the plain language of
Pa.R.C.P. [] 227.1(c), post-trial motions were necessary to
preserve issues for appeal. And, because this action originated
in Common Pleas and was not an appeal from an order of a local
or Commonwealth agency, it cannot be deemed a statutory
appeal, regardless of the fact that the Fund filed suit to recover
workers’ compensation monies that [c]laimant wrongfully
received. Hence, we must conclude that [c]laimant failed to
preserve any issues for our review, and we will grant the Fund's
motion to dismiss this matter.
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4
As in the case presently before us, the claimant in Liparota raised lack of
subject matter jurisdiction in preliminary objections and in a motion for
summary judgment before the trial court.
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Id. at 256 (footnotes omitted). Based upon Liparota, Ms. Roman makes
the point that even if a party can raise subject matter jurisdiction at any
time, “the appeal still must be properly before the Court in the first
instance.” Ms. Roman’s brief at 12. She then claims that neither Rule 277.1
nor any other rule or statute “provides an exception to the requirement of
post-trial motions when subject matter jurisdiction is at issue.” Id.
McGuire counters Ms. Roman’s position by asserting that “[t]here is no
logic or rational analysis to conclude that a procedural rule (Pa.R.C.P. 227.1)
completely voids a non-waivable issue of substantive law (subject matter
jurisdiction) that is, in reality, the sole basis for any court to entertain any
case in our legal system.” McGuire’s brief at 14. McGuire then cites Silver
v. Pinsky, 981 A.2d 284 (Pa. Super. 2009), and numerous other cases in
which the non-waivable nature of subject matter jurisdiction is discussed. In
Silver, this Court stated:
Preliminarily, we observe: “Subject matter jurisdiction
relates to the competency of a court to hear and decide the type
of controversy presented. Jurisdiction is a matter of substantive
law. 42 Pa.C.S. § 931(a) (defining the unlimited original
jurisdiction of the courts of common pleas).” Commonwealth
v. Bethea, 574 Pa. 100, 113, 828 A.2d 1066, 1074 (2003), cert.
denied, 540 U.S. 1118, 124 S. Ct. 1065, 157 L. Ed. 2d 911(2004). “The trial court has jurisdiction if it is competent to hear
or determine controversies of the general nature of the matter
involved sub judice. Jurisdiction lies if the court had power to
enter upon the inquiry, not whether it might ultimately decide
that it could not give relief in the particular case.” Drafto Corp.
v. National Fuel Gas Distribution Corp., 806 A.2d 9, 11 (Pa.
Super. 2002) (quoting Aronson v. Sprint Spectrum, L.P., 767
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A.2d 564, 568 (Pa. Super. 2001), appeal denied, 566 Pa. 632,
781 A.2d 137 (2001)).
Issues pertaining to jurisdiction are pure questions of
law, and an appellate court’s scope of review is
plenary. Questions of law are subject to a de novo
standard of review. Any issue going to the
subject matter jurisdiction of a court or
administrative tribunal to act in a particular
matter is an issue the parties cannot waive by
agreement or stipulation, estoppel, or waiver.
In other words, the parties or the court sua
sponte can raise a challenge to subject matter
jurisdiction at any time.
Robert Half Intern., Inc. v. Marlton Technologies, Inc., 902
A.2d 519, 524-25 (Pa. Super. 2006) (en banc).
Silver, 981 A.2d at 929 (emphasis added).
McGuire also quotes this Court’s discussion in Rieser v. Glutkowsky,
646 A.2d 1221 (Pa. Super. 1994), to support its argument that subject
matter jurisdiction is non-waivable, can be raised at any stage of a
proceeding, and can be raised for the first time on appeal. The Rieser court
stated:
Before a court may issue an order, it must have authority
to act. Jurisdiction over the subject-matter is fundamental to a
court's authority to act.
Jurisdiction is the capacity to pronounce a judgment
of the law on an issue brought before the court
through due process of law. It is the right to
adjudicate concerning the subject-matter in a given
case. … Without such jurisdiction, there is no
authority to give judgment and one so entered is
without force or effect.
It is well-settled that this court may raise the question of
subject matter jurisdiction sua sponte. Appellate courts have
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the authority to address the issue of the subject matter
jurisdiction of the trial court even if the parties do not challenge
the trial court's jurisdiction while the case is before the trial
court.
The test of jurisdiction is whether the trial court is
competent to hear and determine controversies of the general
nature of the matter involved. Jurisdiction lies if the court had
power to enter upon the inquiry, not whether it might ultimately
decide that it could not give relief in the particular case. When
there is no jurisdiction, there is no authority to pronounce
judgment. Where a court lacks jurisdiction in a case, any
judgment regarding the case is void.
Id. at 1223-24 (citations omitted). Thus, based upon these statements of
the law, McGuire claims that despite its failure to file post-trial motions, it
cannot be held to have waived its claim that the trial court did not have
subject matter jurisdiction over the suit Ms. Roman filed against it.
We agree and conclude that McGuire’s failure to file a post-trial motion
does not limit its right to raise a subject matter jurisdiction claim at any time
during the ensuing proceedings.5 Although we do not condone McGuire’s
actions in failing to file a post-trial motion, it remains evident that subject
matter jurisdiction is non-waivable and can be raised at any time, by any
party, and by a court sua sponte.6 Accordingly, we deny Ms. Roman’s
petition to dismiss McGuire’s appeal.
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5
We recognize that our decision here runs counter to the Commonwealth
Court’s opinion in Liparota. However, we are not bound by decisions issued
by the Commonwealth Court. See Commonwealth v. Giordano, 2015 Pa.
Super. LEXIS 448 (Pa. Super. 2015).
6
We are also aware that McGuire raised its subject matter jurisdiction claim
by preliminary objection, in its motion for summary judgment, in its motion
(Footnote Continued Next Page)
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We now turn to the subject matter jurisdiction issue concerning
whether the trial court had jurisdiction to entertain Ms. Roman’s suit against
McGuire under the auspices of Act 102. We begin our discussion by noting
the trial court’s recognition that Act 102 provides that “a health care facility
may not require an employee to work in excess of an agreed to
predetermined and regularly scheduled daily work shift.” Memorandum
Opinion and Order, 2/11/14, at 6 (unpaginated) (quoting 43 P.S. §
932.3(a)(1)).7 Moreover, the court also indicated that Act 102 provided
penalties against health care facilities that violate the Act. Id. (citing 43
P.S. § 932.6). The court further explained its understanding of what the Act
provides and the case law on which it relied to conclude that it had
jurisdiction to hear Ms. Roman’s case.
In addition, the Act provides that retaliation is prohibited:
“The refusal of an employee to accept work in excess of the
limitations set forth in [the Act] shall not be grounds for
discrimination, dismissal, discharge or any other employment
decision adverse to the employee.[”] 43 P.S. § 932.3(b). The
Act does not provide a remedy for an employee who is subject to
retaliation. The Act does, however, direct the Department of
Labor to promulgate regulations to implement the Act within 18
_______________________
(Footnote Continued)
to amend the February 11, 2014 order, and in its post-trial memorandum.
Accordingly, the trial court was well aware of McGuire’s position and had
more than sufficient opportunity to correct this alleged error if it chose to do
so. Raising subject matter jurisdiction for a fifth time in a post-trial motion
would have been redundant.
7
The trial court’s February 11, 2014 Memorandum Opinion and Order was
issued in conjunction with its denial of McGuire’s motion for summary
judgment.
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months of the Act's effective date, which was July 1, 2009. Our
research indicates that rules under this Act were proposed and
published for comment in the Pennsylvania Bulletin on July 12,
2012. On January 4, 2014, the Pennsylvania Bulletin published
notice of a public meeting on the proposed rules to be held by
the Independent Regulatory Review Commission in Harrisburg,
Pennsylvania on February 13, 2014.
Although the proposed rules provide a complaint and
hearing process, to an aggrieved employee, they have not been
formally adopted. Also, the rules do not provide that this
complaint process is the exclusive remedy for an aggrieved
worker.
Our review of the relevant case law indicates that an
action in the Court of Common Pleas is appropriate for a
wrongful termination claim that is based on a violation of public
policy. The Pennsylvania Supreme Court held that an employee
has a common law action for wrongful discharge where there is a
clear violation of public policy in the Commonwealth. McLaughlin
v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000). In
McLaughlin, the court discussed the types of cases where an
employee could file a claim for wrongful discharge. The court
noted “that the exception to the employment at-will rule should
be applied in only the narrowest of circumstances. However, we
determined in [Shirk v. Shirey, 716 A.2d 1231 (Pa. 1998),] that
an employer who fires an employee in retaliation for bringing a
workers' compensation claim violates the public policy of this
Commonwealth and can be liable at common law for wrongful
discharge.” Id. at 287.
The [McLaughlin C]ourt also observed that, “as a general
proposition, the presumption of all non-contractual employment
relations is that it is at-will and that this presumption is an
extremely strong one. An employee will be entitled to bring a
cause of action for a termination of that relationship only in the
most limited of circumstances where the termination implicates a
clear mandate of public policy in this Commonwealth.” Id.The Court continued, “Our previous cases in this arena
have not directly addressed the issue of what constitutes
[‘]public policy,[’] but we have stated in cases outside of the
wrongful termination context that [‘]public policy is to be
ascertained by reference to the laws and legal precedents and
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not from supposed public interest[’] (citations omitted). Implicit
in the previous determinations of this Court is that we declare
the public policy of this Commonwealth by examining the
precedent within Pennsylvania, looking to our own Constitution,
court decisions and statutes promulgated by our legislature.” Id.
at 288.
In McLaughlin, the [C]ourt ultimately concluded that the
[p]laintiff did not have a common law action for wrongful
discharge, when she claimed she was fired in retaliation for
complaining to her employer about a violation of OSHA’s federal
administrative regulations. Id. The court concluded that the
[p]laintiff did not point to any Pennsylvania statutory scheme
that her discharge would undermine. Also, she could not
articulate how the public policy of the Commonwealth was
implicated in order to support her claim. Id.By contrast, in the instant action, Plaintiff, Brandy Roman,
claims she was retaliated against for refusing to work overtime
at McGuire Memorial. The Pennsylvania Statute on the
Prohibition of Excessive Overtime in Health Care directly
provides that an employee at a health care facility cannot be
ordered to work in excess of an agreed to, predetermined,
regularly scheduled daily work shift. 43 P.S. § 932.3(a). The
Act also clearly provides that retaliation against an employee is
not permitted. [43 P.S.] § 932.3(b). This is the public policy of
the Commonwealth as set forth by the Legislature. Plaintiff
claims the Act was violated, when McGuire Memorial asked her
to work an overtime shift, she refused, and then was terminated
from her employment. Under these facts, we believe that
Plaintiff can bring a wrongful termination case in the Court of
Common Pleas; she has alleged that her employer has violated
the public policy of the Commonwealth when it discharged her
from her employment in direct contravention of Pennsylvania
law.
In sum, there are no rules adopted by the Department of
Labor providing Plaintiff with another forum to bring her action.
The proposed rules from the Department of Labor do not provide
that the remedy is exclusive or that the Department has
exclusive jurisdiction over such claims. Additionally, there is
precedent to support a claim for wrongful termination for the
violation of a Pennsylvania statute in the Court of Common
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Pleas. Accordingly, we believe that this Court is the appropriate
forum for Plaintiff to file her wrongful termination suit.
Memorandum Opinion and Order, 2/11/14, at 6-9 (unpaginated).
To support its argument and counter the trial court’s decision, McGuire
begins by quoting Jacques v. Akzo Int’l. Salt, Inc., 619 A.2d 748, 753
(Pa. Super. 1993), for the proposition that “courts will not entertain a
separate common law action for wrongful discharge where specific statutory
remedies are available.” McGuire’s brief at 9. It then notes that no
appellate cases have been decided that establish subject matter jurisdiction
for claims under Act 102. Rather, McGuire asserts “that administration and
implementation of Act 102 was vested in the Pennsylvania Department of
Labor and Industry.” Id. McGuire further identifies the regulations
implemented by the Department that cover complaint and investigation
procedures, remedies and penalties, and the right to appeal an adverse
decision by the Department to the Commonwealth Court. Thus, McGuire
asserts that there is no basis for a common pleas court to have jurisdiction
while there is a statutory/administrative remedy.
McGuire also relies on Weaver v. Harpster, 975 A.2d 555 (Pa. 2009),
and Clay v. Advance Computer Applications, 559 A.2d 917 (Pa. 1989),
two cases in which McGuire claims the public policy argument has been
rejected by the Supreme Court. However, we conclude that these cases are
inapposite. In Weaver, the Court noted that “the legislature has made the
[Pennsylvania Human Relations Act (PHRA)] the exclusive state law remedy
for unlawful discrimination, preempting the advancement of common law
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claims for wrongful discharge based on claims of discrimination.” Weaver,
975 A.2d at 567 n.10. Likewise, in Clay, another PHRA case, the court
discussed the legislature’s limiting aggrieved parties from seeking remedies
in the courts. See Clay, 599 A.2d at 919. Here, the legislature has not
explicitly provided that the avenue for a remedy under Act 102 is the
Department.
With regard to the cases cited by the trial court, namely Shick and
McLaughlin, McGuire contends that the court’s reliance was misplaced. As
for the Shick case, McGuire recognizes that our Supreme Court created a
public policy “to protect employees against retaliatory discharge for filing a
claim under the [workers’ compensation act]” because there was no
statutory remedy. McGuire’s brief at 11. However, McGuire argues that
here Act 102 has a statutory/administrative remedy and also prohibits
retaliation, citing section 932.3(b). Concerning McLaughlin, McGuire
asserts that the Supreme Court “upheld the at-will doctrine and declined to
permit a common law claim based on public policy.” Id. at 12. Thus,
McGuire contends that the decision in McLaughlin supports a lack of
jurisdiction by the trial court in an Act 102 claim. We disagree.
McLaughlin stands for the proposition that “a bald reference to a violation
of a federal regulation, without any more articulation of how the public policy
of this Commonwealth is implicated, is insufficient to overcome the strong
presumption in favor of the at-will employment relation.” McLaughlin, 750
A.2d at 290. It does not foreclose a common law civil action if the plaintiff
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can formulate and identify a clear public policy, which in the instant case is
expressed in Act 102.
Also, as noted above, Act 102 establishes the public policy that “[a]
health care facility may not require an employee to work in excess of an
agreed to, predetermined and regularly scheduled daily work shift.” 43 P.S.
§ 932.3(a)(1). However, Act 102 does not provide any administrative or
statutory remedies to employees who are fired in retaliation for refusing to
work forced overtime. Rather, it provides for fines to be levied against the
facility and allows for orders directing facilities to take certain actions to
correct violations. Act 102 contains nothing that allows for an employee in
Ms. Roman’s position to seek any remedy or even what administrative
procedure she should follow to recover from McGuire for its actions.
Moreover, the trial court discussed the timeframe in which regulations
were put in place following the legislature’s enactment of Act 102. Act 102
became effective on July 1, 2009, but the regulations were not implemented
until July 19, 2014. Thus, Ms. Roman’s complaint, which was filed in
September of 2011, occurred before any regulations existed. Accordingly,
we conclude that the action Ms. Roman took by filing her complaint with the
trial court was proper in that she had no other way to vindicate her rights.
The court had subject matter jurisdiction to entertain her complaint and
grant her relief.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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