claims asserted in
Counts IV, V, and VI involve intentional torts, the Court concludes that
the Tort Claims Act bars these claims against the City. Ballas, 2001
U.S. Dist. LEXIS 657, at *31-32. The Court therefore grants judgment on
Counts IV, V, and VI with respect to the City of Reading. Plaintiff is
denied leave to amend these Counts with respect to the City of Reading.
The Tort Claims Act further extends immunity from liability to
officials acting within the scope of their duties to the same extent as
the local agency, except for acts constituting a crime, actual fraud,
actual malice or willful misconduct. 42 Pa. Cons. Stat. Ann. §§ 8545,
8550 (West 2000). Read generously, the claims here involve willful
misconduct by Eppihimer and Pena. Am. Compl. ¶¶ 28, 49, 50, 65.
Thus, the Torts Claims Act does not operate to bar the suits against the
individuals. Ballas, 2001 U.S. Dist. LEXIS 657, *32-33. The Court denies
Defendant Pena's Motion for Judgment on Counts IV, V, and VI.
3. Preemption of Common Law Remedies
Finally, Defendants contend that any common law claims here are
barred, because there is a statutory remedy (the Whistleblower Act) which
encompasses Plaintiff's claims. Under Pennsylvania law, there is an
action for wrongful discharge only where there is no available statutory
remedy for the aggrieved employee. See Novosel v. Nationwide Ins. Co.,
721 F.2d 894, 899 (3d Cir. 1983); Hicks v. Arthur, 843 F. Supp. 949, 957
(E.D.Pa. 1994); Jacques v. Akzo Int'l Salt Inc., 619 A.2d 748, 753
(Pa.Super.Ct. 1993). Courts have specifically applied this rule to bar
common law claims where a plaintiff had cognizable claims under the
Whistleblower Act. See Freeman v. McKellar, 795 F. Supp. 733, 742
(E.D.Pa. 1992) ("On the facts alleged, plaintiff has an appropriate
statutory remedy under the Whistleblower Act. . . . Accordingly, the
court will dismiss Counts III and IV.")
Pennsylvania's Whistleblower Act, 43 Pa. Cons. Stat. Ann § 1421, et
seq., prohibits an employer from discharging, threatening, or otherwise
discriminating or retaliating against an employee because the employee
"makes a good faith report or is about to report. . . to the employer or
appropriate authority an instance of wrongdoing or waste" or if the
employee "is requested by an appropriate authority to participate in an
investigation, hearing or inquiry. . ." 43 Pa. Cons. Stat. Ann. §
Defendants claim that Katzenmoyer's claims fall under the Act because
the Plaintiff alleges he reported wrongdoing by Eppihimer. Specifically,
Plaintiff alleges that, "Mr. Katzenmoyer expressed his view that Mr.
Eppihimer violated the City of Reading City Charter and its ethics
provisions, by reporting in 1998 to Mr. Katzenmoyer's department head Mr.
Mucha that defendant Eppihimer had committed an ethics violation." Am.
Compl. ¶ 95. To the extent that any common law retaliation or
wrongful termination claims are based on this specific allegation, the
claim might fall under the Whistleblower Act, assuming the allegation
supports the conclusion that the incident involved a "good faith report"
to an "employer or appropriate authority" regarding wrongdoing by
Eppihimer. See 43 Pa. Cons. Stat. Ann. ¶ 1423(a). Therefore, any
common law claims would be preempted.
However, a fair reading of Plaintiff's wrongful termination and
retaliation claims in Counts IV, V, and VI show that his claims are
principally based upon First Amendment and similar claims, including the
voicing of his political views and his
support of political positions
adversarial to those held by Eppihimer. Am. Compl. ¶¶ 88, 93, 94; see
also Am. Compl. ¶ 68. These alleged acts of wrongdoing are
completely independent and unrelated to the allegations regarding
Katzenmoyer's reporting of ethics violations by Eppihimer. The Court
concludes that these actions do not fall under the Whistleblower Act, and
that the common law claims based on these acts are not preempted by the
existence of a statutory remedy. Therefore, the Court denies Defendants
motion for judgment on Counts IV, V, and VI on this basis.
E. Counts VII and VIII — Claims by Charlotte Katzenmoyer
In the original complaint, Count VII stated a claim for loss of
consortium and Count VIII stated a claim for injunctive relief. In her
proposed Amended Complaint, however, Plaintiff appears to have converted
Count VII to a § 1983-due process claim, and also amended the relief
sought in Count VIII.*fn8 Because of the change in nature of the claims
in these counts, Defendants did not address the claims as contained in
the proposed amendment in their motion for judgment on the pleadings. The
Court therefore grants Plaintiffs leave to file the amended Counts VII
For the reasons stated, the Court denies Defendants' Motion for
Judgment except with respect to Counts IV, V, and VI against the City of
Reading and Eppihimer. For all the remaining counts, Plaintiffs are
granted leave to amend their Complaint. An appropriate Order follows.
AND NOW, this day of May, 2001, upon consideration of Defendants'
Motion for Judgment on the Pleadings (Doc. No. 4), Plaintiffs' Motion to
Amend the Complaint (Doc. No. 7), and all supporting and responsive
briefing, IT IS HEREBY ORDERED that said Motions are GRANTED in part and
DENIED in part. In furtherance thereof, it is specifically ordered that:
1. Counts I and III of the Complaint are DISMISSED.
Plaintiffs are granted leave to amend Counts I and
2. Defendants' Motion for Judgment on Count II is DENIED.
Plaintiffs are granted leave to amend Count II.
3. Judgment is GRANTED in favor of Defendants City of
Reading and Joseph Eppihimer on Counts IV, V, and VI.
Plaintiffs are DENIED leave to amend these counts with
respect to these defendants.
4. Defendant Jesus Pena's Motion for Judgment on
Counts IV, V, and VI is DENIED. Counts IV, V, and VI
may go forward as to Defendant Pena only.
5. Plaintiffs are GRANTED leave to amend Counts VII
and VIII of the Complaint.
6. Plaintiff shall file with the Clerk of the Court an
Amended Complaint consistent with the accompanying
Memorandum, on or before June 11, 2001.