The opinion of the court was delivered by: Judge Leadbetter
Argued: September 11, 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY JUDGE LEADBETTER
Pennsylvania Social Services Union, Local 688 of the Service Employees International Union (Union), and Eugene Quaglia and Joel Levin, individually and on behalf of similarly situated employees, (collectively, Union), have filed a motion for partial summary judgment in their action against the Commonwealth, the Governor, the Secretary of Administration and the Secretary of Public Welfare (collectively, Commonwealth) seeking injunctive relief. The Commonwealth has also filed a motion for summary judgment and a motion for judgment on the pleadings seeking dismissal of the Union's entire action. After careful review of the record and relevant case law, we grant the relief sought by the Union in part.
The Union is the exclusive representative of the Commonwealth's employees in the social and rehabilitative collective bargaining unit, which includes income maintenance caseworkers (caseworkers) and income maintenance casework supervisors (supervisors), first-level supervisors, employed at the county assistance offices of the Department of Public Welfare (DPW). Quaglia is a caseworker at the Berks County Assistance Office. Levin works as a supervisor at the Philadelphia County Assistance Office. In April 2009, the Union, Quaglia and Levin filed a petition for review in this Court's original jurisdiction, seeking to enjoin the Commonwealth from requiring the caseworkers and the supervisors to file statements of financial interests (SFIs) pursuant to the Code of Conduct for Appointed Officials and State Employees (Code of Conduct), found in 4 Pa. Code §§ 7.151 - 7.179.
The following events led to the Union's filing of the instant action. In a letter dated September 22, 2008, James A. Honchar, the Deputy Secretary for Human Resources and Management for the Office of Administration, requested an opinion of the State Ethics Commission (Commission) as to whether DPW's 4530 caseworkers were required to file SFIs pursuant to Section 1104(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa. C.S. § 1104(a), which provides in relevant part:
Each public employee*fn1 and public official of the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency, body or bureau in which he is employed or to which he is appointed or elected no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. [Emphasis added.]
SFIs required by the Ethics Act must be filed on a form prescribed by the Commission (Commission's SFI form). Section 1105(a) of the Ethics Act, 65 Pa. C.S. § 1105(a).
Following the enactment of the original Ethics Act in 1978, then Governor Thornburgh issued Executive Order No. 1980-18 in 1980, adopting the Code of Conduct. Public officials enumerated in the Code of Conduct and "[e]mployees of all classes required by the Office of Administration to file financial disclosure under the [Ethics Act]" must file SFIs on a separate form prescribed by the Secretary of Administration (Form STD-323) (Code of Conduct's SFI form) within 30 days from the date of assuming office and by May 1 of each year thereafter. 4 Pa. Code §§ 7.161(6) and 7.163(a) and (d). An employee failing to file an SFI may be removed from office. 4 Pa. Code § 7.163(e). The Code of Conduct's SFIs "may not be open to persons for commercial purposes," but they "shall be available, upon request, for inspection by accredited reporters employed by general news organizations, as well as the Secretary of Administration and the General Counsel ...." 4 Pa. Code § 7.163(d).
In response to Honchar's request for the Commission's opinion, the Commission's chief counsel issued an advice of counsel. She determined that the caseworkers met the definition of "public employee" under the Ethics Act and, therefore, must file SFIs. The Union and Quaglia appealed the advice of counsel, which was affirmed by the Commission. The Union and Quaglia appealed the Commission's decision to this Court (555 C.D. 2009). In the meantime, the Office of Administration informed the caseworkers and the supervisors that they must file the Code of Conduct's SFIs. The Union also filed a class-action grievance with DPW, asserting that the Commonwealth unilaterally imposed the filing requirement without bargaining with the Union in violation of past practice, the Collective Bargaining Agreement and the Memorandum of Understanding, which set forth the terms and conditions of the first level supervisors. DPW and the Office of Administration denied the grievances.
In April 2009, the Union, Quaglia and Levin filed the instant petition for review. In the subsequently amended petition for review, the Union alleges that the caseworkers and the supervisors have not been required to file SFIs since the enactment of the Ethics Act and that the filing requirement violates the past practice, the Collective Bargaining Agreement and the Memorandum of Understanding. The Union further alleges that disclosure of personal financial information will subject the caseworkers and the supervisors to possible identity thefts and commercial exploitations. In Count III of the amended petition for review, the Union claims that the filing requirement violates employees' constitutional right to privacy. The Union seeks to enjoin the Commonwealth from implementing the filing requirement pending the outcome of the appeal from the Commission's decision (Count I) and pending arbitration of its grievances (Count II),*fn2 and seeks to permanently enjoin the Commonwealth from implementing the requirement based on the alleged violation of the right to privacy (Count III).*fn3
While this action was pending, this Court affirmed the Commission's determination that the caseworkers are public employees subject to the disclosure requirements of the Ethics Act. See Quaglia v. State Ethics Comm'n, 986 A.2d 974 (Pa. Cmwlth. 2010), appeal denied, 607 Pa. 708, 4 A.3d 1056 (2010). After completion of discovery, the Union filed a motion for partial summary judgment on Count III (right to privacy claim). The Commonwealth also filed a motion for summary judgment and a motion for judgment on the pleadings seeking dismissal of the Union's entire action.
The Union concedes that Count I seeking an injunction pending the outcome of its appeal from the Commission's decision has been rendered moot by the Court's Quaglia decision. Thus, the remaining issues to be decided by the Court are whether the Commonwealth is entitled to judgment on Count II seeking to enjoin the Commonwealth from implementing the SFI filing requirement pending arbitration and whether the Union is entitled to judgment on Count III seeking to permanently enjoin the Commonwealth from implementing the requirement based on the alleged violation of the constitutional right to privacy.
Summary judgment may be granted in whole or in part, "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report..." Pa. R.C.P. No. 1035.2(1). Grant of summary judgment is proper when viewing all the facts in the light most favorable to the nonmoving party and resolving all doubts as to the existence of any material fact against the moving party, the moving party is entitled to judgment as a matter of Law. McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Cmwlth. 2008). Summary judgment may be granted only when the moving party's right is clear and free from doubt. Kahres v. Henry, 801 A.2d 650 (Pa. Cmwlth. 2002). A motion for judgment on the pleadings filed in an action in this Court's original jurisdiction is in the nature of a demurrer. Pa. State Ass'n of Twp. Supervisors v. Dep't of Gen. Servs., 666 A.2d 1153 (Pa. Cmwlth. 1995), aff'd, 547 Pa. 160, 689 A.2d 224 (1997). A motion for judgment on the pleadings may be granted only when there is no genuine issue of fact, and the moving party is entitled to judgment as a matter of law. Parish v. Horn, 768 A.2d 1214 (Pa. Cmwlth. 2001), aff'd, 569 Pa. 45, 800 A.2d 294 (2002).
Stating that the Commonwealth agreed not to require the caseworkers and the supervisors to file SFIs pending the Union's appeal from the Commission's decision and the instant petition for review, the Commonwealth argues that Count II of the amended petition for review should be dismissed as moot. In the alternative, the Commonwealth seeks to dismiss Count II on the basis that the Union failed to resolve the disputes through grievances available under the Collective Bargaining Agreement and the Memorandum of Understanding.
The Commonwealth's argument disregards the relief sought by the Union in Count II. The Union asks the Court to enjoin the Commonwealth from implementing the SFI filing requirement under the Code of Conduct "pending the result of arbitration of the grievance filed by PSSU." Amended Petition for Review at 34. Section 903 of the Public Employe Relations Act (Act), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.903, provides that "[a]rbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory" and that "the final step shall provide for a binding decision by an arbitrator." Article 32, Section 2 of the Collective Bargaining Agreement, covering the period from July 1, 2007 to June 30, 2011, provides for grievance procedures for a dispute arising out of interpretation of the agreement and requires an arbitrator to issue a decision within 30 days after a hearing. Appendix to the Union's Motion for Summary Judgment (Appendix), Exhibit 1. Recommendation No. 32 of the Memorandum of Understanding covering the same period contains the same language as in Article 32, Section 2 of the Collective Bargaining Agreement. Id., Exhibit 2. In Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981), our Supreme Court affirmed this Court's decision to grant the union's request for preliminary injunction, enjoining the Commonwealth from ...