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Thomas v. Grimm

Commonwealth Court of Pennsylvania

February 17, 2017

Gregory Thomas, Appellant
v.
Patrick Grimm

          Argued: November 15, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge

          OPINION

          RENÉE COHN JUBELIRER, JUDGE

         Gregory Thomas (Thomas) appeals from the December 8, 2015 Order of the Court of Common Pleas of Washington County (common pleas), sustaining the Preliminary Objections (POs) of Patrick Grimm, common pleas' Court Administrator, (Defendant) and dismissing the Complaint filed by Thomas following his resignation from his employment with common pleas in 2014. At issue is the applicability of the Whistleblower Law[1] to judicial employees. On appeal, Thomas alleges that: (1) common pleas erred in sustaining Defendant's POs because the Pennsylvania Supreme Court negated any separation of powers concerns by expressly invoking the Whistleblower Law in its Code of Conduct For Employees of the Unified Judicial System (Code of Conduct)[2] and in a document entitled "A Progress Report on Implementation of the Recommendations of the Interbranch Commission on Juvenile Justice" (Progress Report);[3] (2) this Court's decision in Russo v. Allegheny County, 125 A.3d 113 (Pa. Cmwlth. 2015), aff'd, 150 A.3d 16 (Pa. 2016), is inapplicable here; and (3) the Legislature waived the Commonwealth's sovereign immunity for claims against judicial employees under the Whistleblower Law. (Thomas's Br. at 15, 21, 23, 25.) Upon review, we affirm.

         I. Background

         A. The Complaint

         Thomas initially filed his Complaint in the United States District Court for the Western District of Pennsylvania (District Court) against: Washington County, Pennsylvania; Defendant; Daniel Clements, Chief of Juvenile Probation; and Thomas Jess, Deputy Court Administrator (collectively, Defendants). (Compl. ¶¶ 4-7.) In that Complaint, Thomas asserted claims arising under the Whistleblower Law (Count I) and the First and Fourteenth Amendments to the United States Constitution (Count II) pursuant to Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Thomas sought lost wages and fringe benefits, compensatory and punitive damages, and attorneys' fees and costs. (Compl., Prayer for Relief ¶¶ (c)-(e), R.R. at 12a.)

         Thomas subsequently requested that the District Court dismiss Count II as against all of the Defendants, which the District Court approved. (Plaintiff's Notice of Dismissal of Only First Amendment Claim, Certified Record; Order of Court, both filed July 13, 2015, R.R. at 16a.) By order dated July 15, 2015, the District Court thereafter declined to exercise jurisdiction over Thomas's remaining state law claim under the Whistleblower Law and dismissed the action without prejudice to Thomas refiling in a state court. (Dist. Ct. Order, R.R. at 17a.) Thomas then re-filed his Complaint against the Defendants in common pleas[4]asserting that he was terminated by the Defendants in retaliation for his making a good faith report of wrongdoing in violation of the Whistleblower Law. (Compl. ¶ 30, R.R. at 1a, 11a.)

         The allegations in his Complaint are as follows. Thomas began working for common pleas as a Juvenile Probation Officer on October 26, 2009. (Compl. ¶ 8.) In August of 2012, the President Judge of common pleas (PJ) held a meeting for all Juvenile Probation staff after an anonymous letter surfaced regarding alleged illegal activity by Clements in the Juvenile Probation Office. (Id. ¶ 11.) The PJ allegedly told everyone at the meeting that if they spoke negatively about Clements or the probation office, they would be fired. (Id.) Thomas was not at the meeting, but Jess told him what the PJ said. (Id. ¶ 12.) All staff in the Juvenile Probation Office must complete 40 hours of training each year, and in July of 2014, Clements directed Thomas to email the purchasing department stating that mixed martial arts training occurred on June 6 and 7. (Id. ¶¶ 15-16.) Clements told Thomas exactly what to write in the email and even gave Thomas a name of the training instructor. (Id. ¶ 16.) Clements received the funding, and told Thomas that he attended the training. (Id. ¶ 17.)

         In September 2014, Defendant and Jess notified Thomas of an investigation by the Washington County District Attorney's Office concerning the misappropriation of funds by the Juvenile Probation Office, and that detectives would be meeting with him. (Id. ¶¶ 18-19.) Defendant spoke with Thomas privately and reiterated that Thomas did nothing wrong and praised his work performance in the office. (Id. ¶ 20.) On September 26, 2014, Thomas was suspended by Defendant and Jess pending an investigation, and he was directed to turn in his badge and firearm, but was not told why he was being suspended. (Id. ¶ 21.) Thomas was interviewed by detectives on October 7, 2014, during which Thomas told the truth, that he never attended the training. (Id. ¶ 23.) Clements allegedly had told Thomas to tell detectives otherwise. (Id. ¶ 22.) Thomas met with Defendant the next day. (Id. ¶ 24.) Defendant told Thomas he was being fired for four reasons: not disciplining a subordinate; not checking to see if certain staff had the proper clearances; improperly completing a grant packet; and failing to keep personnel files on certain staff. (Id. ¶ 27a-d.) Defendant gave Thomas the option to either resign or be fired. (Id. ¶ 29.) Thomas thereafter handed a resignation letter to Defendant that he prepared just in case. (Id. ¶ 30.) Thomas argues that he did report wrongdoing and the misappropriation of funds when he spoke to detectives. (Id. ¶ 32.)

         B. Defendant's POs

         Defendant filed POs to the Complaint alleging that: (1) "[t]he Whistleblower Law does not apply to judicial employees because doing so would violate . . . [the] separation of powers doctrine" (PO I); (2) Defendant "is entitled to sovereign immunity in his official capacity" and no exceptions to the defense apply (PO II); and (3) Thomas did not assert a viable claim under the Whistleblower Law (PO III). (POs, R.R. at 20a-21a.) Defendant also filed a brief in support of his POs.

         In support of PO I, Defendant argued that "[o]nly the Supreme Court has the authority to supervise the [J]udiciary, and only the [J]udiciary has the authority to hire, supervise, and discharge judicial employees." (Defendant's Br. in Support of POs, R.R. at 25a.) In support of PO II, Defendant argued that he is immune from suit when he is acting in his official capacity, as a suit against him is really a suit against common pleas, and the Legislature has not waived sovereign immunity here. (Id. at 27a.) With regard to PO III, and in the alternative, Defendant argued that even if the Whistleblower Law is applicable to judicial employees, Thomas has not met the requirement of that law that he report any instance of "wrongdoing or waste." (Id. at 28a.)

         Thomas filed a response in opposition to Defendant's POs arguing that: (1) judicial employees are protected under the Whistleblower Law because of the Supreme Court's specific mandate in its Code of Conduct and Progress Report that employees report wrongdoing, and Russo is inapplicable; (2) the Legislature waived sovereign immunity under that law, as evidenced by the definitions of "employer" and "public body" set forth in Sections 1 and 2 of the Whistleblower Law, 43 P.S. §§ 1421-1422, which includes all bodies created or funded in any amount by the state; and (3) in the alternative, Thomas did report wrongdoing under the law as that term is defined in Section 3 of the Whistleblower Law, 43 P.S. § 1423(b). (Thomas's Response in Opposition to POs, R.R. at 33a-40a.) Defendant filed a reply to Thomas's response in opposition to the POs, citing this Court's decision in Russo as support.

         C. Common Pleas' Orders

         After consideration of the parties' briefs and oral argument, [5] common pleas sustained Defendant's POs and dismissed Thomas's action with prejudice by Order dated December 8, 2015. (Common Pleas Order, Dec. 8, 2015, R.R. at 59a.) Thomas filed a Notice of Appeal in common pleas on January 7, 2016. As a result, common pleas filed another order on March 8, 2016, pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(a), [6] explaining the reasoning for the December 8, 2015 Order as follows. As a matter of law, judicial employees are "not the subject matter of the [Whistleblower Law.]" (Common Pleas Order, Mar. 8, 2016, at 1.) The state has not waived immunity for the Judiciary under the Whistleblower Law, and thus, "the separation of powers doctrine maintains that discipline within the unified [J]udiciary is exclusively the province of the Pennsylvania Supreme Court." (Id.) In accordance with Russo, although the Supreme Court's Code of Conduct and Progress Report mention the Whistleblower Law, the documents did not per se adopt the law as binding on the Judiciary. (Id. at 2.) This appeal followed.[7]

         II. Proceedings Before this Court

         A. Thomas's Motions

         At the outset, Thomas has requested that this Court take judicial notice of: the revised Code of Conduct, which was edited in May 2016, after Thomas's appeal and common pleas' certification of the record; and the Supreme Court's Policy on Non-Discrimination and Equal Employment Opportunity (Non-Discrimination Policy). Because the two documents are available on the Unified Judicial System's (UJS) website, Thomas argues that 225 Pa. Code § 201 (permitting the court to take judicial notice of a fact that is not subject to reasonable dispute because it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned"), applies. (Motion for Judicial Notice of Two PA Supreme Court Documents, filed July 28, 2016, at 1-2.) Thomas has appended the documents to his brief. (Thomas's Br., Exs. A-B.) The revised Code of Conduct removed any reference to the Whistleblower Law.[8] In his brief to this Court, Thomas argues that the Non-Discrimination Policy supports his argument that the Whistleblower Law applies here because the Non-Discrimination Policy outlines detailed internal complaint procedures that employees may follow and does not reference any other anti-discrimination laws providing protection to employees, unlike the revised Code of Conduct which does not mention any internal complaint procedure that must be followed by employees and which specifically cited to the Whistleblower Law as providing protection to employees. (Thomas's Br. at 18-19.)

         Generally, an appellate court may consider only the facts which have been certified in the record on appeal. Rule 1921 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1921. Extra-record documents "cannot become part of the record on appeal merely by being appended . . . to a brief." Hempfling v. Unemployment Comp. Bd. of Review, 850 A.2d 773, 777 (Pa. Cmwlth. 2004). However, "appellate courts may take judicial notice of extra-record materials where it is appropriate to do so and where notice could not have been taken by the trial court." G. Darlington, K. McKeon, D. Schuckers & K. Brown, Pennsylvania Appellate Practice § 1921:10.1 (West 2016-2017). We will take judicial notice of the revised Code of Conduct, the accuracy of which is undisputable, and which occurred after common pleas certified the record. However, although the Non-Discrimination Policy may indicate that there is no elaborate internal complaint procedure for whistleblower claims, Thomas could have raised this argument before common pleas instead of raising it for the first time in his brief to this Court. Thus, for purposes of the instant appeal, we decline to take judicial notice of the Non-Discrimination Policy. See Pa. Bankers Ass'n v. Pa. Dep't of Banking, 962 A.2d 609, 621 (Pa. 2008) ("It is well settled that issues raised for the first time on appeal are waived.").

         Thomas also filed a Petition for Nunc Pro Tunc Relief (Petition) on October 20, 2016, requesting that this Court exercise its discretion pursuant to Rule 105 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 105, [9] to consider his Reply Brief, which was filed one day late, as timely filed. In the Petition, Thomas's counsel (Counsel) states that his secretary made an error in electronically submitting the Reply Brief and asserts that he served a copy of it on opposing counsel on October 19, 2016, the day the Reply Brief was due. Counsel, realizing the error, filed his Reply Brief with the Court the next day, without objection. We grant the Petition.

         B. Parties' Arguments on Appeal

         On appeal, Thomas argues that common pleas erred in sustaining Defendant's POs because the Supreme Court negated any separation of powers concerns by expressly invoking the Whistleblower Law in its Code of Conduct and Progress Report. Specifically, Thomas contends that he is permitted to invoke the Whistleblower Law's protections because his whistleblower claim arose in 2014, and the reference to the Whistleblower Law in the Code of Conduct was not removed until May 2016. Thomas further argues that Russo is not applicable here because this Court did not consider the Code of Conduct and Progress Report. Thomas also contends that the Legislature waived the Commonwealth's sovereign immunity for claims against judicial employees under the Whistleblower Law.

         In response, Defendant asserts that the Whistleblower Law does not apply to judicial employees because that would impermissibly violate Pennsylvania's separation of powers by allowing the legislative branch to dictate how the Judiciary makes employment decisions, and, even if the law did apply to judicial employees, the claim against Defendant in his official capacity is barred in its entirety based on sovereign immunity. (POs ¶¶ 1-2.) In the alternative, Defendant argues that Thomas has not made a viable claim under the Whistleblower Law. (POs ¶ 3.)

         C. Discussion

         When reviewing a court of common pleas' decision to sustain preliminary objections in the nature of a demurrer, "our standard of review is de novo and our scope of review is plenary." Owens v. Lehigh Valley Hosp., 103 A.3d 859, 862 n.4 (Pa. Cmwlth. 2014) (citation omitted).

We may affirm a grant of preliminary objections only when it is clear and free from doubt that, based on the facts pled, the plaintiff will be unable to prove facts legally sufficient to establish a right to relief. In evaluating the legal sufficiency of the challenged pleading, we accept as true all well-pled, material, ...

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