United States District Court, E.D. Pennsylvania
March 25, 2004.
DIANE ROMANO Plaintiff
BUCKS COUNTY WATER & SEWER AUTHORITY, et al. Defendants
The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
MEMORANDUM AND ORDER
Diane Romano has sued Bucks County Water & Sewer Authority and two
of its employees, Benjamin Jones and Jason Hillaert, under
42 U.S.C. § 1983 and Pennsylvania's Whistleblower Law ("Whistleblower
Law"), 43 Pa. Cons. Stat. §§ 1422-1428. The plaintiff has demanded a
jury trial and punitive damages under both statutes.
The defendants have moved to strike the jury trial demand with regard
to the plaintiff's Whistleblower Law claims and to dismiss all punitive
damage claims except with regard to the § 1983 action against Messrs.
Jones and Hillaert in their
individual capacities.*fn1 The parties discussed this motion at a
status conference held on October 10, 2003.
The plaintiff concedes that punitive damages are not available against
the defendant Bucks County Water & Sewer Authority because it is a
municipal body. See City of Newport v. Fact Concerts, 453 U.S. 247
(1981). The plaintiff also agrees that punitive damages are not available
against the defendants in their official capacities.
Two issues remain before the Court, both with regard to Pennsylvania's
Whistleblower Law: (1) whether there is a right to a jury trial in the
present action; and (2) whether punitive damages are available.
The Court finds that the plaintiff is entitled to a jury trial on her
Whistleblower Law claims and will deny the defendant's motion to strike
the jury demand as to these claims. The Court will issue a memorandum on
this issue at a later date.
The next question is whether punitive damages are available under the
Whistleblower Law. The Whistleblower Law
offers a specific list of remedies including, for example,
reinstatement, back pay, the reinstatement of fringe benefits and actual
damages. The list does not include punitive damages. Nothing in the
statute suggests the availability of remedies outside those identified.
The plain language of the statute strongly suggests that punitive damages
are unavailable under the Whistleblower Law. 43 Pa. Cons. Stat. §
The Supreme Court of Pennsylvania has recently confirmed this view in
dicta, stating that "recovery under the statute is proportionate to the
harm suffered, as punitive damages are not available." O'Rourke v.
Commonwealth, 778 A.2d 1194, 1203 (Pa. 2001).
Prior to O'Rourke, a court in this district considered the text of the
statute and came to the same conclusion. Rankin v. City of Philadelphia,
963 F. Supp. 463, 478 (E.D. Pa. 1997). The Rankin court noted that a
contrary result would conflict with the direction of both the General
Assembly and the Pennsylvania Supreme Court. Id. (citing 1 Pa. Cons.
Stat. Ann. § 1504 and In re 1632 S. Broad Street, 94 A.2d 772, 773
(Pa. 1953)). I agree with this analysis. See also Lawrence v. City of
Bethlehem, 97-CV-1824, 1999 WL 124471 (E.D. Pa. Mar. 1, 1999) (following
Rankin and granting defendants' motion for summary judgment on punitive
damage claims under the Whistleblower Law).
Because punitive damages are not available under the Whistleblower Law,
the Court will grant the defendants' motion to dismiss the punitive
damage claims against Mr. Jones and Mr. Hillaert under the statute.
An appropriate order follows.
AND NOW, this ___ day of March, 2004, upon consideration of the
defendants' Motion to Dismiss and Motion to Strike Jury Demand (Docket
No. 2), the plaintiffs' opposition thereto (Docket No. 3), the
defendants' supplemental memorandum of law (Docket No. 7), the
plaintiff's response thereto (Docket No. 8), and following oral argument
on the motion on October 10, 2003, IT IS HEREBY ORDERED that the motion
is GRANTED in part and DENIED in part for the reasons stated in a
memorandum of today's date. The Motion to Strike the Jury demand with
regard to the Whistleblower Law is denied. All claims for punitive
damages are dismissed, except for those under Section 42 U.S.C. § 1983
against the individual defendants in their individual capacities.