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Rohner v. Atkinson

Commonwealth Court of Pennsylvania

June 10, 2015

Wayne Rohner, Appellant
v.
Annette Atkinson, Michael J. Dwyer, Mitchell K. Marcus, and Middle Smithfield Township

Argued May 5, 2015

Appealed from No. 9345 CV 2013. Common Pleas Court of the County of Monroe. Zulick, J.

Cletus P. Lyman, Philadelphia, for appellant.

John F. Hunsicker, Jr., Radnor, for appellees.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

MARY HANNAH LEAVITT, Judge

Page 487

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). Rohner'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

Page 488

Whistleblower Law.[1] The trial court also concluded that because Rohner was an employee at will, he lacked alternate grounds to challenge his discharge.

At issue in this appeal is whether Rohner's amended complaint states a claim for wrongful discharge from his job as Zoning Enforcement Officer. The amended complaint alleges the following relevant facts.[2] Rohner served as the Township's Zoning Enforcement Officer from 2007 to 2013. One of his job duties was to inspect construction projects and issue reports to the Township. In 2007, the East Stroudsburg Area School District (School District) submitted a land development plan for a construction project, which was approved by the Township in 2007 or 2008. Amended Complaint ¶ ¶ 35-36. In 2008, the School District submitted a zoning permit application pursuant to its approved land development plan, which was also approved. Id. ¶ ¶ 37, 39. In 2012, Rohner made several written and oral reports to the Township that identified problems with the School District's construction project. Id. ¶ 40. Specifically, these reports pointed out leaks in the roof and deviations from the approved land development plan. Id. Copies of the reports were also given to the School District. On March 4, 2013, Rohner refused to issue a certificate of compliance for the project when it was requested by the School District. Id. ¶ 45. The School District appealed the denial to the Zoning Hearing Board, which scheduled a hearing for May 28, 2013. Id. ¶ 46.

On May 13, 2013, the Township suspended Rohner and, that same day, appointed James S. Kopchak as the Township's " Alternative Zoning Officer." Amended Complaint ¶ ¶ 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.

Rohrer challenged his discharge by filing the above-captioned action. Count I of the amended complaint asserts that Rohner reported, in good faith, " wrongdoing" because the School District's project was deficient and did not comply with its approved land development plan. The Whistleblower 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[3] (MPC) and the Township's Zoning Code. If a zoning enforcement officer makes a mistake, it can be corrected in a hearing before the Zoning Hearing Board. Discharging Rohner so that a replacement could do what Rohner declined to do " circumvented the MPC and the Township Land Development and Zoning Codes." Amended Complaint ¶ 77.

The Township filed lengthy preliminary objections that offered a series of arguments in support of its demurrer to Rohner's action. The Township contended

Page 489

that: (1) Rohner's report was not a report of wrongdoing within the meaning of the Whistleblower Law; (2) any wrongdoing he reported was minimal or technical in nature; (3) his reports did not cause his discharge; and (4) there is no public policy exception to the at-will employment of zoning officers.

On August 14, 2014, the trial court dismissed the complaint. In its opinion, the trial court stated that Rohner's refusal to ...


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