R.J. Cindrich v. Michael Fisher, former Attorney General

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rita J. Cindrich, :
Petitioner :
:
v. : No. 440 M.D. 2010
:
Michael Fisher, former Attorney : Submitted: September 8, 2017
General, individually and in his :
official capacity; Gerald J. Pappert, :
former Acting Attorney General, :
individually and in his official capacity; :
Thomas W. Corbett, Jr., Attorney :
General, individually and in his official :
capacity; Donald P. Minahan, former :
Executive Deputy Attorney General, :
individually and in his official capacity; :
Alexis L. Barbieri, Executive Deputy :
Attorney General, individually and in :
her official capacity; Mark A. Pacella, :
Chief Deputy Attorney General, :
individually and in his official capacity; :
Thomas L. Palmer, former Attorney- In- :
Charge, individually and in his official :
capacity; Bruce R. Sarteschi, Director :
of Human Resources, individually and :
in his official capacity, :
Respondents :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 25, 2017
In this much-traveled original jurisdiction matter which began in
federal district court, we are asked to address cross-motions for summary relief in
the form of motions for summary judgment filed by Petitioner Rita J. Cindrich
(Cindrich), a former Senior Deputy Attorney General (SDAG) in Pennsylvania’s
Office of Attorney General (OAG), and Respondents, who include her former
superiors in the OAG’s Western Regional and main Harrisburg offices,1 and former
Attorneys General Michael Fisher and Thomas W. Corbett, Jr., and former Acting
Attorney General Gerald J. Pappert. In her third amended petition for review,
Cindrich reasserts several state and federal claims previously dismissed by the
federal courts prior to transfer. Notably, the federal courts dismissed most, but not
all, of Cindrich’s claims under the Pennsylvania Whistleblower Law.2 For the
reasons that follow, we grant Respondents’ motion for summary judgment, deny
Cindrich’s motion for summary judgment, and dismiss her third amended petition
for review with prejudice.
I. Background
A. Generally
In Cindrich v. Fisher (Cindrich 2011) (Pa. Cmwlth., No. 440 M.D.
2010, filed August 8, 2011), this Court filed an August 2011 single-judge opinion
authored by Judge (now President Judge) Mary Hannah Leavitt, addressing
Respondents’ preliminary objections to the original state petition for review.
Cindrich 2011 sets forth the history of the case as follows.
1
In addition to former Attorneys General Corbett, Fisher and Pappert, Respondents include
Donald P. Minahan, former Executive Deputy Attorney General in the Western Regional Office,
Alexis Barbieri, former Director of OAG’s Public Protection Division, Mark A. Pacella, Chief
Deputy Attorney General, Thomas L. Palmer, former Attorney in Charge of the Charitable Trusts
and Organizations Section of the Western Regional Office, and Bruce R. Sarteschi, OAG’s former
Director of Human Resources. Cindrich sued all Respondents in their individual and official
capacities.
2
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§1421-28.
2
Cindrich began working as an attorney in the OAG’s Charitable Trusts
and Organizations Section in 1993. Cindrich alleges that from 2000 through 2004,
she made numerous whistleblower reports to the proper authorities concerning her
supervisors’ improper or illegal behavior in the workplace. Cindrich further alleges
that on March 8, 2005, she made a report, in the form of supplemental objections
filed in the Somerset County Court of Common Pleas (Somerset County Court),
which contested an accounting done in the case of Estate of Ethel C. Boring
(Boring). Cindrich did not have her supervisors’ authorization to file the objections
with the Somerset County Court. On April 1, 2005, Respondent Corbett, the
Attorney General at the time, fired Cindrich.
B. Cindrich 2007 (Federal Court)
On September 28, 2005, Cindrich sued Respondents in the United
States District Court for the Western District of Pennsylvania (Western District),
asserting several federal and state law claims, including a violation of
Pennsylvania’s Whistleblower Law. On April 10, 2006, pursuant to the
Whistleblower Law’s 180-day statute of limitations, the Western District dismissed
Cindrich’s whistleblower claim in part. See Cindrich v. Fisher (Cindrich 2007), 512
F.Supp.2d 396, 397, 404 (W.D. Pa. 2007).
On May 31, 2007, the Western District granted summary judgment in
favor of Respondents on all of Cindrich’s federal claims. Id. at 399–400, 402, 404.
The Western District also granted summary judgment in favor of Respondents on
the issue of whether Cindrich’s March 8, 2005, filing with the Somerset County
3
Court was actionable under the Whistleblower Law. The Western District held that
Cindrich’s March 8, 2005 “report” had nothing to do with alleged wrongful conduct
by Respondents. Id. at 405. However, the Western District denied summary
judgment on the remainder of the whistleblower claim, i.e., Cindrich’s pre-2004
reports. Id. at 406. In July 2009, the Third Circuit affirmed the Western District.
Cindrich v. Fisher (Cindrich 2009), 341 F. Appx. 780, 789-90 (3d Cir. 2009).
C. Cindrich 2011 (First Preliminary Objections)
In June 2007, Cindrich transferred her state whistleblower claim to the
Allegheny County Court of Common Pleas (Allegheny County Court) in accordance
with 42 Pa. C.S. §5103(b).3 Thereafter, Respondents moved to transfer that claim to
this Court. By order of March 29, 2010, this Court granted the motion and took
jurisdiction.4 Respondents filed preliminary objections on April 20, 2011, claiming
Cindrich’s whistleblower claim was time-barred or, alternatively, that she failed to
state a cognizable claim under the Whistleblower Law with respect to her pre-2004
reports of wrongdoing or waste.
In her single-judge opinion in Cindrich 2011, Judge Leavitt observed
Section 4(a) of the Whistleblower Law requires that a claim be filed within 180 days
of the alleged violation. 43 P.S. §1424(a). Cindrich alleged she received
3
42 Pa. C.S. §5103(b)(1) allows for cases originally filed in federal court to be
transferred to state courts with proper jurisdiction.
4
Under 42 Pa. C.S. §761(a)(1), this Court has original jurisdiction over all civil
actions against the Commonwealth, including any officer thereof, acting in his or her individual
capacity.
4
Respondents’ notice of termination on April 1, 2005, and she filed her original
federal court complaint on September 28, exactly 180 days later. Noting it must
accept as true Cindrich’s allegation that Respondents dismissed Cindrich on April 1,
2005, Judge Leavitt overruled Respondents’ preliminary objection that Cindrich’s
whistleblower claim was time-barred.5
However, Judge Leavitt sustained Respondents’ preliminary objection
in the nature of demurrer. To state a claim under Section 4(b) of the Whistleblower
Law, an employee alleging a violation of the Act must show by a preponderance of
the evidence that
prior to the alleged reprisal, the employee . . . had reported or was
about to report in good faith, verbally or in writing, an instance
of wrongdoing or waste to the employer or an appropriate
authority.
43 P.S. §1424(b) (emphasis added).
A terminated employee suing under the Whistleblower Law must
specify how her employer is guilty of waste or wrongdoing and establish “by
concrete facts or surrounding circumstances” a causal connection between her good
faith report of wrongdoing or waste and subsequent termination. Gray v. Hafer, 651
A.2d 221, 225 (Pa. Cmwlth. 1994), aff’d, 669 A.2d 335 (Pa. 1995).
5
When ruling on preliminary objections, this Court “must accept as true all well-pleaded
material allegations in the petition for review, as well as all inferences reasonably deduced
therefrom.” Envirotest Partners v. Dep’t of Transp., 664 A.2d 208, 211 (Pa. Cmwlth. 1995) (citing
Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994)).
5
Judge Leavitt noted that Cindrich’s complaint listed numerous
instances of Respondents’ alleged violations of law, office policy and the OAG’s
“code of conduct.” See Cindrich 2011, slip op. at 7-10. However, Judge Leavitt
noted that Cindrich failed to explain how Respondents’ action constitutes
wrongdoing or waste under the Whistleblower Law. In short, Judge Leavitt
determined Cindrich’s vague complaint, which did not aver how Respondents were
guilty of waste or wrongdoing, failed to state a claim for relief under the
Whistleblower Law. Therefore, Judge Leavitt sustained Respondents’ demurrer.
Nevertheless, Judge Leavitt noted a court may grant leave to amend a
pleading that lacks specificity, but which may be corrected by additional pleading.
See Gray, 651 A.2d at 225. Judge Leavitt noted Cindrich filed her original and
amended federal court complaints under federal rules which permit notice pleading.
The Commonwealth, however, requires fact pleading. In accord with Gray, Judge
Leavitt granted Cindrich leave to amend her complaint. Cindrich 2011, slip op. at
10.
D. Cindrich 2013 (Second Preliminary Objections)
On September 12, 2011, Cindrich filed an amended petition for review.
On September 17, 2011, Cindrich filed a petition for review in the nature of a
complaint in equity. On September 30, 2011, Respondents filed preliminary
objections. In response, Cindrich filed preliminary objections to Respondents’
preliminary objections. Ultimately, in August 2012, Cindrich filed her third
amended petition for review. Respondents then filed preliminary objections, which
6
the Court addressed in Cindrich v. Fisher (Cindrich 2013) (Pa. Cmwlth., No. 440
M.D. 2010, filed January 25, 2013) (unreported).
In a single-judge opinion, Senior Judge Rochelle S. Friedman first
overruled Respondents’ preliminary objection that Cindrich failed to timely file her
third amended petition for review. Senior Judge Friedman noted that amendments
are to be liberally permitted in order to develop a party’s theories and averments.
See Cindrich 2013, slip. op. at 4-5. Senior Judge Friedman noted Cindrich filed her
amended petition only a few days late due to inclement weather, which closed the
Court’s filing office, and other extenuating circumstances, including her husband’s
medical condition. Id.Senior Judge Friedman next addressed Respondents’ preliminary
objection in the nature of demurrer. Respondents argued that Cindrich merely
increased the length of her petition but still failed to state a claim upon which relief
could be granted. They further argued Cindrich failed to show a causal connection
between the activities about which Cindrich claimed she “blew the whistle” and any
specific retaliatory actions of Respondents.
In addressing Respondents’ demurrer, Senior Judge Friedman first
noted the language of Section 3(a) of the Whistleblower Law, which states:
No employer may discharge, threaten or otherwise
discriminate or retaliate against an employee regarding the
employee’s compensation, terms, conditions, location or
privileges of employment because the employee or a
person acting on behalf of the employee makes a good
faith report or is about to make a good faith report, verbally
7
or in writing, to the employer or appropriate authority an
instance of wrongdoing or waste.
43 P.S. §1423(a) (emphasis added). Citing the following paragraphs of Cindrich’s
third amended petition for review, Senior Judge Friedman determined Cindrich
stated at least one claim under the Whistleblower Law:
(28) In July 2001, [Cindrich] reported to Respondent
Pacella that Respondent Palmer abdicated his duty in favor
of his friend; Respondent Palmer tried to coerce [Cindrich]
to send a no objection letter to the request of his friend
Joseph Katarincic, Esquire to approve the unlawful and
premature termination and distribution of the $1,000,000
Noble Dick Trust without seeking Court approval. Id. ¶30.
****
(30) When [Cindrich] refused to issue a no objection letter,
she was informed the Trustee determined not to terminate
the trust. The file was reassigned to Respondent Palmer.
The Noble Dick Trust was terminated and the assets were
transferred to fund the Joseph A. Katarincic Chair, without
an account and without Court approval and for a purpose
different than the settlor directed. The law violated at the
time was the law of deviation and 20 Pa. C.S. §6102.
Respondent Palmer reported to Attorney General Fisher
that he did not know how the assets were transferred to a
local university as a chair in Joe Katarincic’s name. Id.
¶30. [Cindrich] identified this particular case and the
actions of her superiors in her Whistleblower report to the
Honorable Frank J. Lucchino on or about March 20, 2003
and related the facts in detail. [Cindrich] hereby
incorporates the Judge Lucchino Affidavit and ¶14 of
Plaintiff’s Responses to Defendants’ First Set of
Interrogatories as if set forth in full.
(31) In acting on behalf of his friend, Joe Katarincic,
Esquire, Respondent Palmer violated the law and the Code
of Conduct Section I.B. Restricted Activities, No
employee of the [OAG] shall: c. represent or act as agent
for any private interest, whether for compensation or not,
8
in any transaction in which the Commonwealth or the
[OAG] has a direct and substantial interest which could be
expected to result in a conflict between a private interest
of the employee and official public responsibility; e. For
the personal gain of the employee or for the gain of others,
use any information obtained as a result of service or
employment with the Commonwealth and not available to
the public-at-large or divulge such information in advance
of the time prescribed for its authorized release; D.
Additional Restricted Activities, e. Shall conduct
themselves in accordance with the [C]ode of Professional
Responsibilities, 204 Pa. Code Chapter 81 Rule 5.1(b)(c);
Rule 8.4a,c,d,e, and f. PL. EX. AO-AQ.
Pet’r’s Third Am. Pet. for Review at ¶¶28, 30-31.
To that end, Senior Judge Friedman determined Cindrich identified a
good faith report she made to Judge Lucchino of the Allegheny County Court
asserting Respondent Palmer engaged in wrongdoing under the Whistleblower Law
by terminating the Noble Dick Trust without court approval as required by 20 Pa.
C.S. §6102, and in violation of the law of deviation. Cindrich 2013, slip op. at 7-8.
Notably, however, Senior Judge Friedman did not explain how the alleged
occurrences in 2001 and 2003 established a causal connection to her April 2005
termination, especially in light of Cindrich’s intervening and proximate
unauthorized filing in March 2005. Nevertheless, having determined Cindrich stated
a prima facie claim upon which relief could be granted for purposes of defeating the
demurrer, Senior Judge Friedman overruled Respondents’ preliminary objections
and directed Respondents to file an answer within 20 days. Ultimately, Respondents
filed a timely answer.
E. Cross-Motions for Summary Relief/Summary Judgment
9
In December 2016, following the close of pleadings and discovery,
Respondents filed an application for summary relief in the form of a motion for
summary judgment. Respondents assert their right to relief is clear and that there
are no genuine issues of material fact.
In January 2017, Cindrich filed an application for summary relief
seeking disposition of her petition for review. Cindrich argues she alleged sufficient
facts to state a claim under the Whistleblower Law. To that end, Cindrich claims
she made a number of good faith reports of wrongdoing and waste to the appropriate
authorities prior to her termination. She asserts she established a prima facie case
showing Respondents discharged her based on her good faith whistleblower report
she either made or was about to make. Cindrich further contends Respondents’
defenses to her whistleblower claims are not supported by Respondents’ evidence,
which consist primarily of self-serving statements.
Summary judgment is appropriate where the pleadings, depositions,
answers to interrogatories, admissions and affidavits, if any, demonstrate there is no
genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. Kniaz v. Benton Borough, 642 A.2d 551 (Pa. Cmwlth. 1994).
“However, testimonial affidavits and oral depositions of the moving party, without
supporting documents, are insufficient to support a motion for summary judgment.”
Id. at 553. Further, when a motion for summary judgment is made and supported as
provided in the rule, “the adverse party may not rest only on the mere allegations or
denials in his pleadings, but must set forth in his response by affidavits, or as
otherwise provided, specific facts in dispute.” Id. (emphasis added).
10
II. Discussion
A. Respondents’ Motion for Summary Judgment
1. Third Amended Petition for Review (Generally)
Initially, we note Cindrich’s third amended petition for review included
the following counts: Count One: Whistleblower Law; Count Two: First
Amendment; Count Three: Retaliation for Exercise of Constitutional Rights; Count
Four: Defamation; Count Five: Civil Conspiracy; Count Six: Intentional Infliction
of Emotional Distress; Count Seven: Declaratory, Injunctive Relief and Mandamus;
and Count Eight: Any Other Relief to Which Petitioner is Entitled. Respondents
assert these claims were also raised by Cindrich in federal court. These six counts
are identical to those in Cindrich’s second amended complaint filed in federal court.
See Cindrich 2007, 512 F.Supp.2d at 397-98.
2. Res Judicata; Collateral Estoppel (Counts Two through Six)
First, Respondents contend that Cindrich’s claims in Counts Two
through Six of her third amended petition for review in this Court (non-
whistleblower claims) are barred by the doctrines of res judicata and collateral
estoppel. To that end, Respondents assert the Western District ultimately dismissed
all of these claims on summary judgment.
The doctrine of res judicata precludes the re-litigation of issues decided
in a prior valid judgment in any future suit between the same parties on the same
cause of action. Bell v. Twp. of Spring Brook, 30 A.3d 554 (Pa. Cmwlth. 2011);
Unified Sportsmen of Pa. v. Pa. Game Comm’n, 950 A.2d 1120 (Pa. Cmwlth. 2008).
In order for technical res judicata to apply, there must be a concurrence of four
11
conditions: (1) an identity of the thing sued for; (2) an identity of causes of action;
(3) an identity of persons and parties to the action; and, (4) an identity of the quality
or capacity of the parties suing or being sued. Unified Sportsmen.
The doctrine of collateral estoppel precludes the re-litigation of factual
or legal issues decided in a prior proceeding. Bell. Collateral estoppel only applies
if: (1) the issue decided in the prior case is identical to the one presented in the
present case; (2) there was a final judgment on the merits; (3) the party against whom
the doctrine is asserted was a party in privity with a party in the prior case; (4) the
party or person privy to the party against whom the doctrine is asserted had a full
and fair opportunity to actually litigate the issue in the prior proceeding; and, (5) the
determination in the prior proceeding was essential to the judgment. Bell; Unified
Sportsmen.
a. Counts Four through Six
Tracking the Western District’s decision in Cindrich 2007, we first
address Respondents’ contention that Counts Four (Defamation), Five (Civil
Conspiracy) and Six (Intention Infliction of Emotional Distress) of Cindrich’s third
amended petition for review in this Court, are barred by the doctrines of res judicata
and collateral estoppel. In Cindrich 2007, the Western District, speaking through
then Chief Judge (now Senior Judge) Donetta W. Ambrose, determined that
Respondents were entitled to sovereign immunity under 1 Pa. C.S. §23106 and 42
6
1 Pa. C.S. §2310 provides, in pertinent part: “Pursuant to section 11 of Article 1 of the
Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that
the Commonwealth, and its officials and employees, acting within the scope of their duties, shall
12
Pa. C.S. §8521-22 from Cindrich’s claims of defamation, civil conspiracy and
intentional infliction of emotional distress. See Cindrich 2007, 512 F.Supp. 2d at
398-400.
Judge Ambrose determined that Respondents were at all times acting
within the scope of their duties and that Cindrich’s claims for defamation, civil
conspiracy and intentional infliction of emotional distress do not fall within the nine
narrow areas for waiver of immunity set forth in 42 Pa. C.S. §8522(b). 7 Notably,
Judge Ambrose rejected Cindrich’s argument that Respondents acted outside the
scope of their official duties. To that end, Judge Ambrose noted all acts discussed
by Cindrich in her complaint occurred within the employment setting and were
within a supervisor’s responsibilities. See Cindrich 2007, 512 F.Supp. 2d at 399.
In addition, Judge Ambrose dismissed Cindrich’s argument that
Respondents lost their immunity because they engaged in willful misconduct. As
the Judge pointed out, the General Assembly did not waive sovereign immunity for
intentional torts committed by Commonwealth employees. See Yakowicz v.
McDermott, 548 A.2d 1330 (Pa. Cmwlth. 1988) (unlike local agency employees
who lose their immunity from liability under 42 Pa. C.S. §8550 where their acts
constitute willful misconduct, Commonwealth employees do not lose their immunity
continue to enjoy sovereign immunity and official immunity and remain immune from suit except
as the General Assembly shall specifically waive the immunity.”
7
Section 8522(b) of the Judicial Code waives sovereign immunity to claims for damages
caused by: (1) vehicle liability; (2) medical-professional liability; (3) care, custody and control of
personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other
dangerous conditions of highways; (6) care, custody and control of animals; (7) liquor store sales;
(8) National Guard activities; and, (9) toxoids and vaccines. 42 Pa. C.S. §8522(b).
13
even for intentional torts; act of performing a defamatory performance evaluation
does not fall within the nine exceptions to sovereign immunity in 42 Pa. C.S.
§8522(b)).
Consequently, because the parties are the same, the relevant facts and
time period are the same, and the claims Cindrich asserts in Counts Four, Five and
Six of her third amended petition for review in this Court are the same as those
addressed and rejected by Judge Ambrose in Cindrich 2007, we hold that Cindrich’s
claims for defamation, civil conspiracy and intentional infliction of emotional
distress are barred by the doctrine of res judicata. Bell. The Western District court
afforded Cindrich a full and fair opportunity to litigate these issues before granting
summary judgment on them in Respondents’ favor. Consequently, she is barred
from raising them again in an amended petition for review in this Court. Id.
b. Counts Two and Three
We next address Respondents’ argument that the doctrines of res
judicata and collateral estoppel also bar Cindrich’s First Amendment claim in Count
Two and her claim of retaliation for exercise of constitutional rights claim in Count
Three. In Cindrich 2007, Judge Ambrose observed that on December 15, 2013,
Cindrich filed an action in the U.S. Middle District Court (Middle District) against
Respondents Fisher, Palmer, Pacella, Barbieri and Minahan asserting these
Respondents violated her First Amendment rights by retaliating against her in 2003
for whistleblower claims. See Cindrich v. Fisher (Cindrich 2006), (M.D. Pa., No.
Civ.A. 103CV2282, filed February 10, 2006) 2006 WL 3102393 (unreported).
14
The Middle District, speaking through Judge (now Chief Judge)
Christopher C. Conner, determined that Cindrich’s interest in speaking on a matter
of public concern was outweighed by the injury to her employer caused by the
speech. In reaching this decision, Judge Conner reviewed a magistrate’s report,
which included proposed findings and a recommendation that summary judgment
be granted in Respondents’ favor. After conducting an independent review of the
record, Judge Conner entered judgment in favor of Respondents on Cindrich’s First
Amendment retaliation claims. As the Third Circuit eventually noted in its review
of Cindrich 2006, Judge Conner agreed with the magistrate’s analysis that Cindrich
“never provided concrete understandable statements of what Respondents did that
was improper or unethical” and that “her speech caused significant disruption within
the [Charitable Trusts] Section” and seriously undermined, if not destroyed, the
employment relationship between Cindrich and her immediate supervisors. See
Cindrich 2009, 341 F. Appx. at 785-86 (emphasis added).
In support of his decision, Judge Conner cited Swineford v. Snyder
County Pa., 15 F.3d 1258 (3d Cir. 1984), which upheld dismissal of a First
Amendment retaliation claim where an employee’s speech severely disrupted office
efficiency and included allegations of employer misconduct that were not supported
by substantial evidence. In Swineford, the Third Circuit employed a balancing test
set forth in Pickering v. Board of Education of Township School District 205, Will
County, Il., 391 U.S. 563 (1968). The Court reasoned (with emphasis added):
Speech involving government impropriety occupies
the highest rung of First Amendment protection.
Moreover, the public’s substantial interest in unearthing
governmental improprieties requires courts to foster
legitimate whistleblowing. However, the First
15
Amendment does not convert private grievances into
constitutional cases. Nor does it require public employers
to sit idly by while disgruntled employees destroy office
operations and efficiency. A balance must be struck
between the employee’s right to speak and the employer’s
need effectively [sic] to discharge its public
responsibilities. On this record, after the plaintiff brought
her grievances to the attention of the public and the proper
law enforcement authorities who rejected them, her
personal interest in continuing to seek a criminal
indictment against the defendants was outweighed by the
defendants’ interest in efficiently meeting their obligations
to the public.
Id. at 1274.
Thereafter, the Western District determined in Cindrich 2007 that
Cindrich had a full and fair opportunity to litigate her First Amendment retaliation
claims occurring prior to December 15, 2003. Therefore, based on collateral
estoppel, Judge Ambrose entered summary judgment in Respondents’ favor as to
Cindrich’s First Amendment retaliation claims related to conduct occurring before
December 15, 2003. See Cindrich 2007, 512 F.Supp.2d at 402.
Judge Ambrose next addressed Cindrich’s First Amendment claims
related to Respondents’ alleged conduct occurring after December 15, 2003. Citing
Garcetti v. Ceballos, 547 U.S. 410 (2006), which superseded the Pickering balancing
test, the Court recognized that a public employee’s statement is protected activity
when: (1) in making it, the employee spoke as a citizen; (2) the statement involved
a matter of public concern; and, (3) the government employer did not have adequate
justification for treating the employee different from any other member of the
general public based on the statements he made. In Garcetti, the U.S. Supreme Court
held “that when public employees make statements pursuant to their official duties,
16
the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” Id.
at 421 (emphasis added). In short, “the First Amendment ‘does not invest [public
employees] with a right to perform their jobs however they see fit.’” Cindrich 2007,
512 F.Supp.2d at 403 (quoting Garcetti, 547 U.S. at 422).
Applying Garcetti to the facts here, Judge Ambrose determined that
Cindrich’s post-December 15, 2003 statements were related to her official duties as
an SDAG and that she was speaking as a public employee rather than a public citizen
for First Amendment purposes. Therefore, Judge Ambrose found Garcetti to be
controlling and reasoned that Cindrich’s post-December 15, 2003 statements were
those of a public employee performing her duties. Consequently, the Western
District entered summary judgment in favor of Respondents as to Cindrich’s
remaining First Amendment claims. Cindrich 2007, 512 F.Supp.2d at 404.
Ultimately, in Cindrich 2009, the Third Circuit affirmed both the
Middle District’s decision in Cindrich 2006 and the Western District’s decision in
Cindrich 2007 dismissing Cindrich’s First Amendment claims. In particular, the
Third Circuit noted that Cindrich’s statements to her superiors regarding wrongdoing
in her cases were made in the performance of her duties and were based on special
knowledge and experience Cindrich acquired during the performance of her job. See
Cindrich 2009, 341 F. Appx. at 788. Moreover, the Third Circuit agreed with the
Western District’s determination that Cindrich failed to identify a genuine issue of
material fact as to whether her statements were made pursuant to her official duties.
Id. at 789.
17
Here, Counts Two and Three of Cindrich’s third amended petition for
review again raise the same First Amendment claims dismissed by the federal district
courts in Cindrich 2006 and Cindrich 2007 and affirmed by the Third Circuit in
Cindrich 2009. For purposes of collateral estoppel, we note the First Amendment
issues decided in the federal courts are identical to those presented in Counts Two
and Three; the federal courts issued a final judgment on the merits of those claims;
Cindrich was the plaintiff in those decisions and Respondents were, for the most
part, the same defendants as in the present case. Most importantly, we note that
Cindrich had a full and fair opportunity to actually litigate her First Amendment
issues in the prior proceedings. Therefore, we hold that Cindrich is collaterally
estopped from again asserting her First Amendment claims before this Court. Bell;
Unified Sportsmen.
3. Res Judicata (Count One)
Respondents further assert that the Western District’s decision in
Cindrich 2007 bars all of Cindrich’s Whistleblower Law claims regarding acts
occurring immediately prior to the Respondents’ April 1, 2005 notification of
termination of Cindrich’s employment. More particularly, Respondents contend
Cindrich 2007 limited Cindrich’s retaliation claim for her 2005 termination to her
pre-2004 alleged reports of wrongdoing and waste under the Whistleblower Law.
See Cindrich 2007, 512 F.Supp.2d at 406. We agree.
In Cindrich 2007, 512 F.Supp.2d at 405, Judge Ambrose noted that she
previously ruled that all of Cindrich’s whistleblower claims, based on actions taken
18
by Respondents against her prior to April 1, 2005, have been dismissed with
prejudice as time barred based on the statute of limitations in Section 4(a) of the
Whistleblower Law, which provides:
(a) Civil action.—A person who alleges a violation of this
act may bring a civil action in a court of competent
jurisdiction for appropriate injunctive relief and damages,
or both, within 180 days after the occurrence of the alleged
violation.
43 P.S. §1424(a). Here, Cindrich filed her complaint in the Western District on
September 28, 2005, exactly 180 days after Respondents notified her on April 1,
2005, that her employment would be terminated effective April 29, 2005. As we
noted in O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039 (Pa.
Cmwlth. 1999), the 180-day time limit is mandatory and cannot be extended by the
courts. Consequently, the Western District properly determined Cindrich’s
retaliation claims are limited solely to Respondents’ April 1, 2005 notification of
termination of her employment. Cindrich 2007.
In addition, the Western District also dismissed Cindrich’s
Whistleblower Law claim based on Cindrich’s March 8, 2005 filing in the Somerset
County Court in Boring, a trust case then assigned to Cindrich. Despite being
specifically instructed by her immediate supervisors not to file a motion for leave to
file amended objections in Boring, Cindrich disregarded her supervisors’ directions
and filed the amended objections in the Somerset County Court.8
8
Cindrich’s March 8, 2005 filing is included in the record as Attachment A to Defendants’
Ex. 99. See Mem. of Law in Support of Resp’ts’ Application for Summ. Relief in the form of
Mot. For Summ. J., filed 1/6/17 (Resp’ts’ Summ. J. Br.), Appendix.
19
In Cindrich 2007, Respondents argued that Cindrich’s March 8, 2005
filing was not a “good faith report” of “wrongdoing” or “waste” as defined in Section
2 of the Whistleblower Law, 43 P.S. §1422. A “good faith report” is a “report of
conduct defined in this act as wrongdoing or waste which is made without malice or
consideration of personal benefit and which the person making the report has
reasonable cause to believe is true.” 43 P.S. §1422 (emphasis added).
“Wrongdoing” is defined as a “violation which is not of a merely technical minimal
nature of a Federal or State statute or regulation, of a political subdivision ordinance
or regulation or of a code of conduct or ethics designed to protect the interest of the
public or of the employer.” Id. “Waste” is defined as an “employer’s conduct or
omissions which result in substantial abuse, misuse, destruction or loss of funds or
resources belonging to or derived from Commonwealth or political subdivision
sources.” Id.
After reviewing Cindrich’s March 8, 2005 filing (Defendants’ Ex. 99,
Attach. A), Judge Ambrose determined the filed documents were not a report of
“wrongdoing” or “waste” as defined by the Whistleblower Law. See Cindrich 2007,
512 F.Supp.2d at 405. Consequently, the Judge determined no genuine issue of
material fact existed as to whether Cindrich’s March 8, 2005 filing constituted a
cognizable Whistleblower Law claim. Id. Therefore, the Western District granted
summary judgment in favor of Respondents to Cindrich’s Whistleblower Law claim
based on her March 8, 2005 filing in the Somerset County Court.
Again, because the parties are the same, and the relevant facts and the
issues are the same, Cindrich’s whistleblower claims in Count One (with exception
20
of those related to her alleged pre-2004 alleged reports of wrongdoing and waste
resulting in her termination of employment) are barred under the doctrine of res
judicata. Bell. The Western District afforded Cindrich a full and fair opportunity
to litigate those issues before entering judgment on them in Respondents’ favor.
Consequently, she is barred from raising them again in her third amended petition
for review in this Court. Bell; Unified Sportsmen.
Nonetheless, Judge Ambrose observed that Respondents did not
address other various whistleblower reports of alleged wrongdoing and waste
Cindrich filed before 2004. Although Respondents argued that Cindrich’s
employment was terminated for insubordination, Judge Ambrose stated that
Cindrich’s evidence, viewed in a light most favorable to her, could create a genuine
issue as to the reason for the termination of her employment. Therefore, the Western
District declined to grant summary judgment on Cindrich’s alleged pre-2004
whistleblower reports. Thus, the only remaining whistleblower issue to be decided
by this Court is whether Respondents terminated Cindrich in violation of Section
1423(a) of the Whistleblower Law, 43 P.S. §1423(a) in retaliation for pre-2004 good
faith reports of wrongdoing or waste.
4. Remaining Whistleblower Law Claim (Count One)
In accord with the foregoing discussion, the only remaining issue to be
decided by this Court is whether Respondents violated Section 1423(a) of the
Whistleblower Law by discharging her from employment in retaliation for her pre-
2004 good faith reports of wrongdoing or waste.
21
Here, Respondents assert they are entitled to summary judgment
because Cindrich filed her report in 2003, nearly two years prior to her discharge.
Further, Respondents maintain that in order to succeed on a Whistleblower Law
claim, a plaintiff “must make more than a general statement that a report was filed
and, within a given amount of time, [she] was fired as a result.” Gray, 651 A.2d at
225 (emphasis added). Rather, an employee who has been terminated based on a
filed report and wants to base her complaint on a violation of the Whistleblower Law
must specify how her employer is guilty of waste and wrongdoing. Id. The plaintiff
“must also show by concrete facts or surrounding circumstances that the report led
to [her] dismissal, such that there was specific direction or information [she]
received not to file the report or there would be adverse consequences because the
report was filed.” Id. (emphasis added, footnote omitted). Further, “[t]he
Whistleblower Law ‘is not designed to provide insurance against discharge or
discipline for an employee who informs on every peccadillo of [her] fellow
employees.’” Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1070 (Pa. Cmwlth.
2013) (citation omitted).
If the plaintiff makes a prima facie showing of a causal connection, the
burden shifts to the defendant to show a separate and legitimate reason for its actions.
Id. However, “‘[v]ague and inconclusive circumstantial evidence’ is insufficient to
satisfy that threshold burden to show a causal connection and shift the burden to the
defendant to justify its actions.” Id. at 1070 (quoting Golaschevsky v. Dep’t of
Envtl. Prot., 720 A.2d 757, 759 (Pa. 1998)) (emphasis added).
22
Here, Respondents assert, Cindrich submitted no evidence of a causal
connection between her pre-2004 whistleblower reports and Respondents’ April 1,
2005 notification of her termination. To that end, Respondents cite to Paragraph 16,
Subparagraphs 15, 25, 32 and 103 of Cindrich’s third amended petition for review,
wherein Cindrich averred that in 2000-2002 Respondent Palmer retaliated against
her alleged reports of wrongdoing and waste by fabricating complaints about her job
performance. Cindrich further alleged in Paragraph 16, Subparagraphs 108 and 114
of her petition that Respondent Palmer altered her work and conspired with other
Respondents to subject her to a surprise hearing at which she was physically
assaulted and falsely accused. However, as Judge Ambrose determined in Cindrich
2007, these acts occurred years before Respondents’ April 2005 notification of
termination and were thus time barred under the Whistleblower Law’s 180-day
statute of limitations. More importantly, Respondents maintain, these acts do not
establish any concrete facts showing these reports resulted in Cindrich’s termination.
We agree.
Further, Respondents contend that Cindrich’s third amended petition in
this Court fails to sufficiently allege that her 2003 reports, including those made to
Judge Lucchino during the course of employment in March 2003, resulted in her
April 2005 termination. Indeed, the evidence submitted by the parties does not
provide any concrete facts showing these reports resulted in Cindrich’s termination.
See Pet’r’s Third Am. Pet. for Review, ¶16, sub¶¶116-199.
In Paragraph 16, Subparagraph 151, Cindrich avers (with emphasis
added):
23
(151) The Western Regional Office of the Attorney
General had a notorious disregard of the office hours and
leave policy. Employees favored by Respondent
Minahan, reported for work late, left early and abused the
leave policy. … One Friday afternoon, most of the Office
was at the local bar for an office event without submitting
leave slips. [Cindrich] put in a leave slip for an early
dismissal, but did not attend the bar. Upon information
and belief, Respondent Palmer used this leave to
substantiate Petitioner’s termination in retaliation for her
Whistleblower Report to Judge Lucchino.
Pet’r’s Third Am. Pet. for Review, ¶16, sub¶151. Nonetheless, although Cindrich
avers that “upon information and belief” she believes Respondent Palmer “used this
leave” to substantiate her termination in retaliation for her whistleblower report to
Judge Lucchino, this vague allegation clearly does not set forth any concrete facts
or circumstances sufficient to establish a credible causal connection between her
filing of the report in 2003 and her termination two years later in April 2005.
Golaschevsky; Evans; Gray. Further, Cindrich, who was not present at the alleged
Friday gathering “at the local bar,” cites to no concrete evidence in either her
pleadings or briefs to support her “belief” that Respondent Palmer planned her
ultimate discharge in retaliation for her 2003 whistleblower report to Judge
Lucchino.
In stark contrast to Cinrich’s bald assertion of “information and belief,”
Respondents’ detailed offer of proof clearly explains that Respondent Corbett, the
Attorney General at the time of Cindrich’s discharge, terminated Cindrich’s
employment based on her insubordinate, disrespectful and disruptive actions and
behavior. In particular, Respondent Corbett cited Cindrich’s conduct in 2004-2005
while handling Boring. In an unsworn declaration, admitted into evidence by Judge
24
Ambrose as Defendants’ Exhibit 93, Respondent Corbett explained the facts and
circumstances leading to his decision to terminate Cindrich’s employment with the
OAG. This declaration, made subject to the penalties of perjury under federal law,
provides, with emphasis added:
1. On January 18, 2005, I was sworn into office as the
Attorney General of Pennsylvania.
2. After approximately two months in office, I was alerted
to a problem involving one of the attorneys in the
Charitable Trusts and Organizations Section of the Office
of Attorney General. That attorney was Senior Deputy
Attorney General Rita Cindrich.
3. Sometime during March of 2005, but prior to March 24,
2005, I received a file containing documents which
illustrated the circumstances surrounding the difficulties
Ms. Cindrich’s supervisors were having with her. Copies
of the documents contained in the file are attached to this
declaration as Attachment A.
4. I reviewed these documents carefully. The handwritten
notations found on many of the pages are mine. …
5. The clear sense I had from my review of this file was
that Ms. Cindrich was acting against the direction of her
supervisors, was acting disrespectfully, and was
consuming a disproportionate amount of management
time.
6. On March 24, 2005, I met with First Deputy Attorney
General William Ryan, Chief of Staff Brian Nutt, Director
of the Public Protection Division Alexis Barbieri (by
speakerphone), Chief of the Charitable Trusts and
Organizations Section Mark Parcella, Director of Human
Resources Bruce Sarteschi, and Senior Deputy Attorney
General Dan Doyle to discuss Ms. Cindrich.
25
7. By the end of that meeting, I had decided to terminate
Ms. Cindrich’s employment with the Office of Attorney
General.
8. This was not an easy decision for me to make. Ms.
Cindrich is the sister of Robert Cindrich, an individual I
consider to be a friend and role model. … Consequently,
the decision to terminate his sister’s employment was a
difficult one.
9. My decision was made for the following reasons. First,
Ms. Cindrich had filed a document in Somerset County,
Pennsylvania that Mr. Pacella had repeatedly told her not
to file. She also had refused to identify a trust officer
whose identity Mr. Pacella had sought so that he could
verify information Ms. Cindrich had conveyed to him. I
cannot have attorneys working for this office who do not
follow the direction of their supervisors and who make
court filings when they are unequivocally directed not to
do so.
Second, the language used by Ms. Cindrich over a period
of years and which was directed at her immediate
supervisor, Larry Palmer and, to some extent, at Mr.
Pacella, was disrespectful, dismissive, rude, and entirely
inappropriate in my view. I would not have tolerated such
language from a direct subordinate of mine and I could not
expect Mr. Palmer or Mr. Pacella to tolerate it from Ms.
Cindrich.
Third, it was clear that Ms. Cindrich was disrupting the
operation of the Charitable Trusts and Organizations
Section. The volume of e-mails on one case alone made it
clear that she was demanding an inordinate amount of
management time and I believed the time could be more
effectively spent if Ms. Cindrich was not in the office.
10. I am aware that, in this lawsuit, Ms. Cindrich is
claiming that she was terminated because she spoke out on
matters of public concern and because she was a
whistleblower. I know nothing about the details of the
matter pending in Somerset County and my review of the
file provided to me did not help me understand what her
26
concerns were. I did not terminate her because of what
she said in her court filing in Somerset County – I
terminated her employment because of her insubordinate,
disrespectful and disruptive behavior.
11. Had Ms. Cindrich felt the direction she was given by
Mr. Pacella in the case pending in Somerset County was
improper, her recourse was to go to Ms. Barbieri with her
concerns. If Ms. Barbieri concurred with Mr. Pacella, Ms.
Cindrich could take her concerns to Mr. Ryan and, if Ms.
Cindrich was still dissatisfied, she could bring them to me.
Under no circumstances was she entitled to act on her own
authority in opposition to what she was directed to do.
12. Although my decision to terminate Ms. Cindrich was
made on March 24, 2005, she was not told until April 1,
2005, because I wanted to tell Robert Cindrich of my
action at the same time and I could not schedule my
meeting with Mr. Cindrich until April 1st.
Defendants’ Ex. 93 (Resp’ts’ Summ. J. Br., App.)
Respondents assert the information utilized by Respondent Corbett to
terminate Cindrich came from Cindrich’s last year of employment during 2004-
2005. Therefore, they contend Cindrich’s whistleblower reports made during 2000-
2003 played no role in Respondent Corbett’s decision to terminate her employment.
The many exhibits in the record corroborate this assertion. For
example, the emails submitted by Respondents in Defendants’ Exhibits 131, 132 and
133 regarding Cindrich’s inappropriate actions in Boring, including her refusal to
comply with her supervisors’ instructions not to make any further filings in the case,
and her refusal to provide the name of the trust officer as requested by her supervisor,
27
clearly support Respondent Corbett’s determinations as to Cindrich’s
insubordination.
Further, a March 9, 2005 memorandum from Respondent Pacella to
Respondent Barbieri, submitted into evidence as Defendants’ Exhibit 134,
summarizes Cindrich’s insubordinate actions and requests that immediate
disciplinary action be taken against her. Respondent Pacella set forth the following
four grounds for disciplinary action:
1. SDAG Palmer reported that on February 15, 2005, at
approximately 1:20 p.m., [Cindrich] physically pushed her
way past him into his office to retrieve our case file,
despite [Palmer’s] instruction to stop, that he was not
finished with his review, and that he would return the file
once he was done with it. DAG Herne was present at the
time and witnessed the incident with several legal interns
who had gathered for lunch. … It is my impression that
this incident is well known throughout the western
regional office. ….
2. [Cindrich’s] reactions to my instructions as a supervisor
have become particularly sharp, argumentative and
disrespectful. …
3. [Cindrich] failed to follow through on my express
directive to disclose the identity and contact information
of a trust officer she said she spoke with regarding this
case.
4. [Cindrich] deliberately contradicted my direct,
unambiguous and repeated directives not to take any
further action in this case, and most importantly, not to file
any amended objections unless expressly authorized by
SDAG Palmer or myself. ….
28
Defendants’ Ex. 134 at 1-2 (emphasis added). Summarizing, Respondent Pacella
stated:
In short, [Cindrich] has become impossible to
supervise in this case. She has refused to accept the
opinions and views of her supervisors and refused to
accept any suggestion of shortcomings in her own
performance. Consistent with our experience in Laubauch
and Nossen, she is convinced that she was purposely
provided with materially altered documents,
misinformation and/or been the victim of an intentional
effort to embarrass or harass her. As before, I see no merit
in any of her allegations.
Moreover, I am concerned that [Cindrich’s] actions
may expose the office to liability claims. … Please note
that absent contrary instructions, I intend to remove
[Cindrich] from this case and withdraw her amended
objections. I hope these actions will serve as mitigating
factors against the potential of any such claims.
For all of the reasons set forth above, I recommend
that disciplinary action be taken as soon as possible.
Please advise should you need any additional information
regarding this matter.
Id. at 2-3 (footnote omitted, emphasis added). Respondent Pacella’s memorandum
to Respondent Barbieri is supported by further emails submitted into evidence. See
Defendants’ Exs. 135-142.
Notably, nowhere in Respondent Pacella’s memorandum is there any
direct reference to Cindrich’s 2003 reports to Judge Lucchino or any other
authorities.9
9
Although Pacella’s memorandum mentions the Laubauch and Nossen cases, Pacella
merely notes that Cindrich’s allegations of harassment and being provided misinformation and
materially-altered documents appear meritless; there is no mention of any whistleblower reports.
29
Thus, our intense and independent review of the record indicates there
is insufficient evidence to establish a causal connection between Cindrich’s pre-2004
whistleblower reports and the April 1, 2005 notification of termination. Therefore,
we discern no genuine issue of material fact upon which a fact-finder could properly
find that Respondents terminated Cindrich’s employment in April 2005 in retaliation
for her pre-2004 whistleblower claims. Consequently, we dismiss Cindrich’s
remaining Whistleblower Law claim as meritless. Evans; Gray.
5. Declaratory, Injunctive Relief, Mandamus (Count Seven)
In Count Seven, Cindrich seeks a declaratory judgment, injunctive
relief, or an order in mandamus compelling the OAG to reinstate her employment
with back pay, leave, health insurance, all benefits, medical costs, and attorney fees.
See Pet’r’s Third Am. Pet. for Review at ¶150. Cindrich also seeks an order
compelling the State Employees’ Retirement Board to honor unspecified contractual
rights established upon her retirement from public service. Id. at ¶151.
First, we recognize that a party seeking either mandamus or injunctive
relief must establish that her right to relief is clear. Unified Sportsmen. As discussed
above, Cindrich failed to establish a clear legal right to any of the relief she
requested. As such, Cindrich cannot meet her threshold burden for either mandamus
or injunctive relief.
30
Similarly, a party seeking relief under the Declaratory Judgments Act,
42 Pa. C.S. §§7531-7541, must establish that her rights or other legal relations are
affected by a statute or a contract; she may then be entitled to a declaration of her
rights or legal relations thereunder. Unified Sportsmen. Here, Cindrich did not offer
proof that her rights were affected by a statute or by a binding contract. Indeed, no
contract was attached to Cindrich’s third amended petition for review. Therefore,
she has not offered proof which would raise a disputed issue of material fact in
support of declaratory relief.
In addition, we also note that Cindrich requests that her name be cleared
and that this Court set aside one or more contempt orders issued against her by the
Allegheny County Court in 2003, apparently for reasons related to her actions or
conduct in cases assigned to her at that time. However, such relief is simply
unavailable at this time. Cindrich’s proper remedy would have been to timely appeal
the contempt orders. A contempt order cannot be collaterally attacked in a later
proceeding. Weiner v. Lee, 669 A.2d 424 (Pa. Cmwlth. 1995). Therefore, this Court
lacks the authority to reverse or set aside any contempt orders issued against
Cindrich by the Allegheny County Court in 2003. Id.
6. Summary Judgment Granted
As discussed above, Cindrich’s claims for defamation, civil conspiracy
and intentional infliction of emotional distress in Counts Four, Five and Six of her
third amended petition for review in this Court were addressed and rejected on the
merits by the Western District in Cindrich 2007. Therefore, these claims are barred
under the doctrine of res judicata. Bell; Unified Sportsmen. Cindrich’s First
31
Amendment claims in Counts Two and Three of her third amended petition for
review in this Court were addressed and rejected on the merits by the Middle District
in Cindrich 2006 and by the Western District in Cindrich 2007. These claims are
barred by collateral estoppel rather than technical res judicata because not all of the
Respondents in Cindrich 2007 were named defendants in Cindrich 2006. Bell;
Unified Sportsmen.
In addition, in Cindrich 2007 the Western District addressed and
rejected all of Cindrich’s Whistleblower Law claims, with the exception of
Cindrich’s retaliation claim for her discharge allegedly based on her pre-2004
whistleblower claims. As such, those claims raised in Count One of Cindrich’s third
amended petition for review are barred by res judicata. Bell; Unified Sportsmen.
Finally, as to Cindrich’s remaining Whistleblower Law claim, we hold
Cindrich failed to offer proof beyond “information and belief” that Respondents
terminated her employment in April 2005 in retaliation for her pre-2004
whistleblower claims. Thus, she failed to present any genuine issues of material fact
with regard to that claim.
III. Conclusion
We acknowledge Cindrich’s strong feelings about the last years and
termination of her OAG employment. Nevertheless, we must conclude that she was
afforded much time in this litigation under the discerning watch of thoughtful jurists.
Beyond her verbose and unfocused pleadings, she has been unable to identify useful
offers of concrete evidence on her own behalf. Accordingly, we are constrained to
32
grant Respondents’ motion for summary judgment, to deny Cindrich’s cross-motion
for summary judgment, and to dismiss her third amended petition for review with
prejudice.
ROBERT SIMPSON, Judge
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rita J. Cindrich, :
Petitioner :
:
v. : No. 440 M.D. 2010
:
Michael Fisher, former Attorney :
General, individually and in his :
official capacity; Gerald J. Pappert, :
former Acting Attorney General, :
individually and in his official capacity; :
Thomas W.Corbett, Jr., Attorney :
General, individually and in his official :
capacity; Donald P. Minahan, former :
Executive Deputy Attorney General, :
individually and in his official capacity; :
Alexis L. Barbieri, Executive Deputy :
Attorney General, individually and in :
her official capacity; Mark A. Pacella, :
Chief Deputy Attorney General, :
individually and in his official capacity; :
Thomas L. Palmer, former Attorney- In- :
Charge, individually and in his official :
capacity; Bruce R. Sarteschi, Director :
of Human Resources, individually and :
in his official capacity, :
Respondents :
ORDER
AND NOW, this 25th day of October, 2017, for the reasons stated in
the foregoing opinion, Respondents’ Application for Summary Relief in the form of
a Motion for Summary Judgment is GRANTED; Petitioner’s Application for
Summary Relief in the form of a Motion for Summary Judgment is DENIED; and
Petitioner’s Third Amended Petition for Review is DISMISSED with
PREJUDICE.
ROBERT SIMPSON, Judge