R.H. Lee, Jr. v. . PA, DOC, J.E. Wetzel, in his Official Capacity as Secretary of Corrections

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert H. Lee, Jr., :
Petitioner :
:
v. : No. 714 M.D. 2019
: Submitted: March 11, 2022
Commonwealth of Pennsylvania, :
Department of Corrections, John :
E. Wetzel, in his Official Capacity :
as Secretary of Corrections, :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: July 14, 2022
Robert H. Lee, Jr., pro se, has filed a petition for review in this Court’s
original jurisdiction against John E. Wetzel, in his official capacity as Secretary of
Corrections, and the Department of Corrections (collectively, Department).1 Lee
seeks judgment against the Department for wrongfully terminating him after he
reported a drug distribution ring involving inmates and staff. The Department has
filed preliminary objections asserting sovereign immunity, which we sustain.2
BACKGROUND
Lee is a retired Philadelphia Police Department officer.3 In October
2017, the Department hired Lee, ultimately placing him at State Correctional
1
Lee initially filed a complaint in the Court of Common Pleas of Philadelphia County. See
Cmwlth. Ct. Mem. & Order, 7/29/21. We will refer to the complaint as a petition for review.
2
Lee also averred a violation of the Whistleblower Law, Act of December 12, 1986, as
amended, 43 P.S. §§ 1421-1428. The Department has not filed preliminary objections to that count.
3
We derive these facts from Lee’s petition.
Institution (SCI) Chester as a trainee correctional officer. Following his placement,
Lee notified his superiors of various issues involving co-employees, including a tip
from an inmate that staff was facilitating the delivery of narcotics into the prison on
behalf of an inmate/inmates. A supervisor advised Lee that an investigation would
commence, but no such investigation took place. Thereafter, Lee allegedly suffered
“a host of discriminatory and/or retaliatory actions while performing his job at SCI
Chester.” Pet. for Rev., 5/28/19, ¶ 15(A)-(H). On or about October 2, 2018, the
Department terminated Lee’s employment.
On May 28, 2019, Lee commenced this action, asserting a violation of
the Whistleblower Law and wrongful termination. On October 18, 2019, the
Department responded with preliminary objections asserting that (1) this Court has
exclusive original jurisdiction over actions brought against Commonwealth agencies
and officers, and (2) sovereign immunity bars Lee’s wrongful termination claim.
The Court of Common Pleas of Philadelphia County sustained the Department’s
preliminary objection asserting lack of jurisdiction and transferred the case to this
Court. Common Pleas Ct. Order, 12/3/19.
DISCUSSION
The Department asserts that Lee’s claim for wrongful termination
against the Department and Secretary Wetzel is barred because it is not an
enumerated exception to sovereign immunity. Resp’ts’ Br. at 3-4. Lee concedes that
his wrongful termination claim is not listed as a statutory exception to sovereign
immunity. Pet’r’s Br. at 3. Yet, Lee contends that the doctrine of sovereign immunity
does not bar suits that seek to compel state officials to carry out their duties in a
lawful manner. As a result, Lee concludes, he is entitled to injunctive relief in the
form of reinstatement as well as equitable relief. Id. at 3.
2
In ruling on preliminary objections in the nature of a demurrer, we
accept as true all well-pleaded material allegations in the petition for review and
reasonable inferences that we may draw from the averments. Pennsylvania AFL-
CIO v. Commonwealth, 219 A.3d 306, 313-14 (Pa. Cmwlth. 2019) (citing Meier v.
Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994)). The Court, however, is not bound
by legal conclusions, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion encompassed in the petition for review. Id. We may sustain
preliminary objections only when the law makes clear that the petitioner cannot
succeed on the claim, and we must resolve any doubt in favor of the petitioner. Id.Generally, sovereign immunity is an affirmative defense that is raised
as new matter. See Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017).
Nevertheless, sovereign immunity may be raised in preliminary objections where it
is apparent on the face of the pleading that the cause of action does not fall within
the statutory exceptions to sovereign immunity. Kull v. Guisse, 81 A.3d 148, 160
(Pa. Cmwlth. 2013) (internal citation omitted).
Sovereign immunity acts as a bar to suits against Commonwealth
parties, including its officials and employees acting within the scope of their duties.
1 Pa.C.S. § 2310.4 The General Assembly has waived sovereign immunity only in
certain specified instances “arising out of a negligent act.” 42 Pa.C.S. § 8522(a).
We agree with the Department that Lee’s wrongful termination claim
is barred by sovereign immunity. Sovereign immunity applies to the Department as
a state agency and to Secretary Wetzel because he was sued in his official capacity.
42 Pa.C.S. § 8501; see Paluch v. Pa. Dep't of Corr., 175 A.3d 433, 438 (Pa. Cmwlth.
4
A Commonwealth party is defined in Section 8501 of the Judicial Code as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act within the scope
of his office or employment.” 42 Pa.C.S. § 8501.
3
2017) (barring claims directed against the Department and numerous employees
based on sovereign immunity); Smith v. Cortes, 879 A.2d 382 (Pa. Cmwlth. 2005),
aff'd sub nom. Smith v. Cortez, 901 A.2d 980 (Pa. 2006) (holding claims directed
specifically against the Commonwealth’s Secretary of State were barred by
sovereign immunity because the Secretary acted within the scope of his duties).
Further, wrongful termination is not one of the enumerated exceptions to sovereign
immunity. See 42 Pa.C.S. § 8522(b); McNichols v. Dep't of Transp., 804 A.2d 1264,
1267 (Pa. Cmwlth. 2002). Accordingly, this Court sustains the Department’s
preliminary objection and dismisses Lee’s claim for wrongful termination.5
LORI A. DUMAS, Judge
5
This Court need not address Lee’s assertion that he is entitled to injunctive and equitable
relief. See Pet’r’s Br. at 3. He offers neither an explanation nor analysis in support thereof. In any
event, Lee did not seek such relief in his petition. See Pet. for Rev., ¶ 30 (requesting money
damages).
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert H. Lee, Jr., :
Petitioner :
:
v. : No. 714 M.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Corrections, John :
E. Wetzel, in his Official Capacity :
as Secretary of Corrections, :
Respondents :
ORDER
AND NOW, this 14th day of July, 2022, the preliminary objection to
Robert H. Lee, Jr.’s claim asserting wrongful termination, filed on behalf of
Respondents, Pennsylvania Department of Corrections and John E. Wetzel is
SUSTAINED, and the claim is DISMISSED WITH PREJUDICE. The Pennsylvania
Department of Corrections is hereby ORDERED to file an Answer to Lee’s
Whistleblower claim within 30 days.
LORI A. DUMAS, Judge