Citation Numbers： 118 A.3d 486, 2015 Pa. Commw. LEXIS 256
Judges： Coílins, Leavitt, Simpson
Filed Date： 6/10/2015
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
Wayne Rohner appeals an order of the Monroe County Court of Common Pleas (trial court) dismissing his whistleblower complaint against Annette Atkinson, Michael Dwyer, Mitchell Marcus, and Middle Smithfield Township. (Township). Roh-ner’s complaint asserts, that he was discharged from his job as the Township’s Zoning Enforcement Officer because, he issued negative reports on a construction project in the Township and refused to issue a certificate of compliance on the project upon its completion. The trial court held that Rohner’s reports about the construction project were done in the regular course of his employment and, thus, were not the type of report of wrongdoing that is protected by the Pennsylvania
At issue in this appeal is whether Roh-ner’s amended complaint states a claim for wrongful discharge from his job as Zoning Enforcement Officer. The amended complaint alleges the following relevant facts.
On May 13, 2013, the Township suspend-éd Rohner and, that same day, appointed James'S. Kopchak as'the Township’s “Alternative Zoning Officer.” Amended Corn-plaint ¶¶ 47-48. Kopchak,• an employee of Building Inspection Underwriters of Pennsylvania, Inc., then issued a report opining that the School District’s building project complied with its approved land development plan and that the certificate of compliance should be issued. Id. ¶ 51. On May 23, 2013, the Township fired Rohner and cancelled the hearing scheduled for May 28, 2013. Id. ¶ ¶ 52-53. On June 7, 2013, Kopchak issued the School District a certificate of compliance. Id. ¶ 54.
Rohner challenged his discharge by filing the above-captioned action. Count I of the amended complaint asserts that Roh-ner reported, in good faith, “wrongdoing” because the School District’s project was deficient and did not comply with its approved land development plan. The Whis-tleblower Law prohibits the discharge of an employee for making a report of “wrongdoing or waste.” Count II of the amended complaint-asserts that Rohner’s discharge violated the public policy exception to at-will employment. That public policy was expressed in the Pennsylvania Municipalities Planning Code
The Township filed lengthy preliminary objections that offered a series of arguments in support of its demurrer to Roh-ner’s action. The Township contended
On August 14, 2014, the trial court dismissed the complaint. In its opinion, the trial court stated that Rohner’s refusal to grant the certificate of compliance
was not á report of wrongdoing or waste as contemplated by the Whistleblower Law. If it were, every denial of a certificate of completion by a zoning officer carrying out his or her duties under the law would be a report of wrongdoing.
Trial ct. op. at 5. The trial court also held that Rohner was not entitled to whistle-blower protection because the report was not made against his employer but was, simply, a job duty. Moreover, the trial court noted
[i]f this court were to pronounce that public policy prevents supervisors from terminating a zoning officer whose decisions they disagree with, it would be building a moat around the zoning officer that the Legislature has not established by law.
Id. at 7. The trial court did not address the Township’s preliminary objections that required evidence to resolve. Specifically, it concluded that (1) whether the wrongdoing reported by Rohner was minor or technical in nature and (2) whether there was a causal connection between Rohner’s reports of zoning violations and his discharge required evidence. Accordingly, those issues could not be decided at the preliminary objection phase of the litigation.
In his appeal.
In his first argument, Rohner asserts that the amended complaint states a claim under the Whistleblower Law. Roh-ner contends that the statute is broad in scope and protects employees who report any wrongdoing, whether or not it is a job duty. The Township responds that only reports that expose the wrongdoing of the employer are protected under the Whistle-blower Law.
We begin with a review of the relevant statute. Section 3(a) of the Whistle-blower Law states as follows:
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 report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a /public body or an instance of waste by any other employer as defined in this act.
A violation which is not of a merely technical or 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 the employer.
43 P.S. § 1422 (emphasis added). In order to make out a case for retaliatory termination, a plaintiff must plead: (1) that he reported wrongdoing and (2) that the report of wrongdoing resulted in an adverse employment action. Golaschevsky v. Department of Environmental Protection, 554 Pa. 157, 720 A.2d 757, 759 (1998).
Precedent on the question of what constitutes a report of wrongdoing is also relevant. Gray v. Hafer, 168 Pa.Cmwlth. 613, 651 A.2d 221 (1994), involved a dismissal of a special investigator who worked for the Office of Auditor General. Gray was responsible for investigating acts of fraud, misuse of public funds, or illegal acts involving, but not limited to, Commonwealth agencies or institutions. His employer assigned him to audit the Center for Research and Human Development in Education at Temple University, which was partially funded by Commonwealth funds. Gray did so and submitted a report identifying instances of wrongdoing and waste. Some months later a Temple University employee asked Gray for a copy of the report and to serve as a witness in an administrative proceeding. Gray instructed the employee to direct his requests to Gray’s employer. Approximately two weeks later, the Director of Special Investigations and the Director of Personnel called Gray to a meeting and gave him a letter of resignation to sign, effective November 12, 1993. His alternative was to be discharged immediately, i.e., September 22,1993.
Gray filed a complaint seeking reinstatement, back wages and damages. He asserted that he was forced to quit because of the report he filed about wrongdoing at Temple University. The Auditor General filed a demurrer, asserting, inter alia, that Gray did not report waste or wrongdoing as those terms are used in the Whistle-blower Law. Specifically, she argued that “wrongdoing” refers to conduct attributed to the employer, not to a third party. Because Gray did not allege wrongdoing by the Auditor General, his complaint failed to state a claim.
This Court examined the meaning of “wrongdoing” and held that an employee could not claim whistleblower protection for reporting any wrongdoing by a third party, such as parking tickets issued to Temple University employees. Gray, 651 A.2d at 224. This is because the Auditor General is not charged with the responsibility to enforce parking laws. On the other hand, the result is different with respect to those laws that are the responsibility of the Auditor General to enforce. We stated:
In this case, if Gray contends that Temple University or its employees were engaged in activities unrelated to the Auditor General’s statutory or regulatory duties, he would not have a cause of action under the Whistleblower Law. Conversely, if he contends that the Auditor General discharged him for making a report of a violation of the statute that she is charged to enforce for the benefit of the public, then a cause of action would be established.
Id. (emphasis added). Concluding that Gray’s complaint lacked sufficient specificity on whether his discharge was related to his report of wrongdoing by Temple, we
In Golaschevsky, 720 A.2d 757, an employee of the Department of Environmental Protection (DEP) reported that some of his co-workers in the District Mining Office were violating federal copyright law. His supervisor encouraged him to make a detailed report about these violations, which Golaschevsky did. Three weeks latex’, Golaschevsky received a negative interim performance evaluation. The next week his supervisors gave him a list of pi’ojects to complete in the next 90 days. Four months later, Golaschevsky received an unsatisfactory performance evaluation for not completing the assignments on time. DEP then terminated his employment.
Golaschevsky filed a whistleblower complaint, alleging that he was discharged in retaliation for reporting the copyright violations of his co-workers. After discovery, DEP filed for summary judgment, which was granted by this Court. The Supreme Court granted allocatur.
The Supreme Court first considered whether the conduct reported by Golas-chevsky fell within the definition of “wrongdoing” in the Whistleblower Law. The Coui’t noted that “Gray’s limitation of the definition of ‘wrongdoing5 plainly does not apply where, as here, the employee alleges that there has been illegal activity within his own agency.” Golaschevsky, 720 A.2d at 759. As established in Gray, 651 A.2d at 224, where the reported wrongdoing is not that of the employing agency, but of a third party, the wrongdoing must involve a statute enforced by the employing agency. In Golaschevsk/s case, there was no question that DEP did not enforce copyright laws. However, because the report concerned the employer’s wrongdoing, then a violation of any statute or ordinance, except one of a technical or minimal natui’e, qualified for whistleblower protection.
The Supreme Court next considered whether Golaschevsky’s evidence satisfied the causal connection requirement set forth in the Whistleblower Law. The evidence showed Golaschevsky was terminated because of his inability to complete assignments in a timely manner. On that basis, the Supreme Court affirmed the grant of summary judgment.
Here, the trial court relied upon Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed.Circ.2001), superseded by statute, Whistleblower Protection Enhancement Act of 2012, Pub.L. No. 112-199, 126 Stat. 1465. In Huffman, an employee of the U.S. Office of Inspector General filed a complaint alleging that he had been discharged for making disclosures protected by the federal Whistleblower Protection Act.
In 2012, Congress amended the federal law to provide that all reports of wrongdoing, whether or not made in the course of employment, were protected. Effectively, this amendment overruled , Huffman. Huffman interpreted the federal statute, which is similar to the Pennsylvania Whistleblower Law.
However, the trial court did not consider this Court’s holding in Gray, 651 A.2d 221. Rohner- explains that he reported wrongdoing, ie., the School District’s violations of the zoning ordinance. ' Under Gray, Rohner contends that he made reports of wrongdoing within the meaning of the Whistleblower Law because the Township enforces the zoning ordinance. Wé agree. Huffman cannot be reconciled with this Court’s holding in Gray, which is binding.
Rohner was required as the Township’s zoning enforcement officer to administer the zoning ordinance, grant or deny zoning permits, and issue or deny certificates of compliance. The trial court erred in holding that his denial of the certificate of compliance to the School District was not a report of wrongdoing or waste within the meaning of the Whistleblower Law.- Roh-ner’s report related specifically to the mission of his employer, ie., enforcement of the zoning laws. Gray, 651 A.2d at 224. Accordingly, his complaint stated a claim.
Rohner also contends that his discharge violated the public policy exception to at-will employment. He contends that the MPC and the Township’s ordinances express the public policy that an unpopular, politically incorrect or even erroneous decision of a zoning officer may be corrected only by hearing. It' is against that public policy for a municipality to fire a zoning officer for his honest work.
Pennsylvania is an at-will employment state. McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 750 A.2d 283, 286 (2000). Courts may declare what is or is not in accord with public policy in the rare case when “a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it.” Mamlin v. Genoe (City of Philadelphia Police Beneficiary Association), 340 Pa. 320, 17 A.2d 407, 409 (1941). “Only in the clearest of cases may a court make
There is no dispute that Rohner was an' at-will employee. The position of zoning officer is statutorily created and does not mention a term of years. Section 614 of the MPC, 53 P.S. § 10614. We must decide whether it is clear a public policy has been established to protect zoning officers who make unpopular decisions. The trial court held that there was no such policy. It explained that
[t]he Legislature, in making the zoning officer an employee at-will, must have foreseen circumstances in which the officer’s employers, unhappy with his or her decision(s) in applying the zoning ordinance, might choose to terminate the zoning officer’s employment. Nonetheless, the Commonwealth did not extend further protections to the zoning officer.
Here, the Legislature has given the [Township] supervisors the power to fire the zoning officer if they do not approve of the way the officer enforces the [zoning] ordinance. Likewise, the electorate has the power to disagree with the supervisors’ approach at the next election. It is not obvious that [Rohner’s] firing was contrary to the public policy of the Commonwealth.
Trial ct. op. at 7-8. We agree. It is not obvious that there is a clear public policy that protects zoning officers from being fired because they do their job with too much zeal for their employer’s taste.
In conclusion, we hold that Rohner has stated a valid claim under the Whistle-blower Law, but not under the public policy exception to at-will employment. Consequently, we affirm the trial court’s decision in part, reverse in part, and remand for further proceedings consistent with the above opinion.
ORDER
AND NOW, this 10th day of June, 2015, the order of the Monroe County Court of Common Pleas dated August 14, 2014, in the above-captioned matter is hereby AFFIRMED in part and REVERSED in part, and the matter is REMANDED to the trial court with instructions that the Township is to file an answer within twenty days from the date of this order in accordance with Pa. R.C.P. No. 1026.
Jurisdiction relinquished.
. Act of December 12, 1986, PiL, 1559, as amended, 43 P.S. §§ 1421-1428.
. Rohner filed his first complaint on February 28, 2014. The Township filed’ preliminary objections in the nature of a demurrer, and Rohner responded with an amended complaint.
. Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
. When reviewing an order granting preliminary objections in the nature of a demurrer, our standard of review is de novo and scope of review is plenary. Balletta v. Spadoni, 47 A.3d 183, 188 n. 2 (Pa.Cmwlth.2012). We will sustain the objections when, based on the facts pled, it is clear that the plaintiff'will be unable to prove facts legally sufficient to establish a right to relief. Id. We must accept as true all well-pled, material, and relevant facts alleged in the complaint and every inference that may be fairly deduced from those faqts. Id.
. Whistleblower Protection Act of 1989, Pub.L. No. 10-12, 103 Stat. 16 (codified in scattered sections of 5 U.S.C.). Section 2302(b)(8)(A) states:
[A government official may not] take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee ... because of any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial. and specific danger to public health or safety[.]
5 U.S.C. § 2302(b)(8)(A) (1994) (emphasis added).
. Rohner points out members of Congress stated that Huffman was incorrectly decided. ’ However, as was noted in O’Gilvie v. United States, 519 U.S. 79, 90, 117 S.Ct. 452, 136 L.Ed.2d 454 (1996), the "view of a later Congress cannot control the interpretation of an earlier enacted statute!”
. The trial court also cited Massarano v. New Jersey Transit, 400 N.J.Super, 474, 948 A.2d 653 (App.Div.2008), in support of its argument that there is no whistleblower protection for employees acting within the scope of their employment. Rohner counters that Massarano has been called into question by Lippman v. Ethicon, Inc., 432 N.J.Super. 378, 75 A.3d 432 (App.Div,2013), which has been appealed and is pending before the New Jersey Supreme Court. The cases from other jurisdictions are interesting, but not disposi-tive, as is Gray.