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Scrip v. Seneca

Commonwealth Court of Pennsylvania

July 23, 2018

David Scrip, Appellant
v.
Debbie O'Dell Seneca, in her individual capacity as President Judge of the Court of Common Pleas of Washington County; Thomas Jess in his official and individual capacity as both Director of Probation Services and Deputy Court Administrator of the Court of Common Pleas of Washington County; Daniel Clements in his official and individual capacity as Director of the Washington County Juvenile Probation Office/Chief Probation Officer; and County of Washington

          Argued: May 9, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge

          OPINION

          P. KEVIN BROBSON, JUDGE

         Presently before the Court is the appeal of David Scrip (Scrip) from the June 1, 2017 Order of the Court of Common Pleas of Washington County (common pleas), dismissing on preliminary objections the remaining two counts of his Complaint (Counts I and II)[1] against various judicial branch officers and employees and Washington County arising from his dismissal as a Juvenile Probation Officer in February 2014. In resolving the appeal, the central questions for our consideration are whether the Whistleblower Law[2] affords a cause of action to judicial employees and the extent to which sovereign immunity shields judicial branch officers and employees from civil liability for a claim of wrongful termination of employment.

         I. BACKGROUND

         A. The Complaint

         Scrip sets forth the following relevant and material factual allegations in his Complaint. (Reproduced Record (R.R.) 26-64.) It is important to note here that for purposes of appellate review only, we must accept as true the allegations of fact set forth in the Complaint. Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008).

         Scrip worked as a Juvenile Probation Officer in the Washington County Juvenile Probation Department (Department) for 25 years until his termination in February 2014. At all relevant times, Judge Debbie O'Dell Seneca (retired) (Judge O'Dell Seneca) served as the President Judge of the Court of Common Pleas of Washington County. Thomas Jess (Jess) served at various times as Director of Probation Services and Deputy Court Administrator, but at all relevant times he was Scrip's superior. Daniel Clements (Clements) served as Director of the Washington County Juvenile Probation Office/Chief Probation Officer and as Scrip's superior.

         Since joining the Department in 1988, Scrip "did excellent work," with the best interests of the children he served as his priority. (R.R. 30; Compl. ¶¶ 12, 13.) In or around 2011, Scrip reported directly to Clements, Clements reported to Jess, and Jess reported to Judge O'Dell Seneca. During this time, Clements engaged in a personal and intimate relationship with a Department employee, Beth Stutzman (Stutzman). Stutzman later left the Department for a recruiter position at Abraxas Youth and Family Services (Abraxas), which Scrip describes as a "placement resource for juvenile children." (R.R. 30; Compl. ¶ 16.) As a recruiter for Abraxas, Stutzman would solicit juvenile probation departments to recommend placements at an Abraxas facility. Scrip believed that the intimate relationship between Clements and Stutzman created a conflict of interest between the Department and Abraxas. Both Judge O'Dell Seneca and Jess were aware of the relationship and the alleged conflict, but they did not take any action. Clements, meanwhile, started to pressure probation officers to recommend Abraxas placements, which Scrip believed were not appropriate for particular juveniles. Clements did so to benefit Stutzman and her relationship with Abraxas.

         Under pressure from Clements, probation officers made inappropriate Abraxas placement recommendations, which juvenile masters and judges approved unwittingly. The placements benefitted Clements' relationship with Stutzman and her relationship with Abraxas, but the placements were not in the best interests of the juveniles involved. This "unethical practice" continued unabated for some time. (R.R. 32; Compl. ¶ 26.) Both Judge O'Dell Seneca and Jess knew of the activity.

         Troubled by this practice, Scrip reported his concerns by anonymous letter to then-Pennsylvania Chief Justice Ronald Castille, the Executive Director of the Juvenile Court Judges Commission, and Judge O'Dell Seneca. The Administrative Office of Pennsylvania Courts (AOPC) conducted an investigation, which Scrip avers was a "sham." (R.R. 32-33; Compl. ¶¶ 34, 35.) Following the investigation, in August 2012, Judge O'Dell Seneca reported on the results of the investigation to Department staff. By this time, Scrip's identity as the "whistleblower" had been leaked to Judge O'Dell Seneca and Jess. (R.R. 33; Compl. ¶ 35.) She relayed that the investigation found no relationship between Clements and Stutzman and no inappropriate or unethical placements with Abraxas. All of this, Scrip alleges, "was a complete and total falsehood." (R.R. 8; Compl. ¶ 37.) Judge O'Dell Seneca concluded the meeting by informing Department staff that she would not tolerate further criticisms of Clements or efforts to undermine his authority. What followed, Scrip alleges, were three instances of retaliatory discipline against him, leading ultimately to his termination from employment on February 18, 2014, purportedly for his failure to follow Judge O'Dell Seneca's directive during the aforementioned August 2012 meeting with Department staff.[3]

         Scrip filed his Complaint on August 18, 2014, naming as defendants Judge O'Dell Seneca (acting in her individual capacity on behalf of the Commonwealth), Jess (acting in his official capacity on behalf of Washington County or, in the alternative, in his individual capacity on behalf of the Commonwealth), Clements (acting in his official capacity on behalf of Washington County or, in the alternative, in his individual capacity on behalf of the Commonwealth), and Washington County.[4] In Count I of the Complaint, Scrip asserted a claim for retaliatory discharge under the Whistleblower Law. In Count II, Scrip asserted a claim for retaliatory discharge in violation of the public policy exception to Pennsylvania's at-will employment doctrine. Scrip sought compensatory and punitive damages, interest, attorney fees, "and any other relief to which he may be entitled whether legal or equitable." (R.R. 36, 38; Compl., Counts I, II, Prayers for Relief.)

         B. Preliminary Objections

         Judge O'Dell Seneca filed preliminary objections in the nature of a demurrer to both Counts I and II. (R.R. 149-83.) With respect to Count I, Judge O'Dell Seneca contended that Scrip cannot maintain a claim against her under the Whistleblower Law because the statute does not apply to the Judiciary.[5] With respect to Count II, Judge O'Dell Seneca maintained that Scrip's claim based on the public policy exception to the at-will employment doctrine is barred by sovereign immunity. Judge O'Dell Seneca filed a brief in support of her preliminary objections.

         Jess, Clements, and Washington County also filed preliminary objections. (R.R. 65-148.) With respect to Scrip's claim under the Whistleblower Law, Jess and Clements claimed to be employees of the Commonwealth shielded from suit by sovereign and official immunity. Moreover, like Judge O'Dell Seneca, Jess and Clements claimed that the Whistleblower Law does not apply to the Judiciary. Washington County claimed immunity from Scrip's Whistleblower Law claim under what is commonly referred to as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §§ 8541-8542. Moreover, Washington County contended that it cannot be held liable under the Whistleblower Law because it was not Scrip's employer. As to Scrip's claim under the public policy exception to the at-will employment doctrine, Washington County reiterated that it cannot be liable for such a claim because it was not Scrip's employer. In addition, Jess, Clements, and Washington County contended that Scrip was a union employee, protected under a collective bargaining agreement (CBA), and not an at-will employee. Scrip, therefore, cannot avail himself of an exception to a doctrine that does not apply to him. Finally, Jess, Clements, and Washington County contended that protected "whistleblower" activities do not fall within the narrow public policy exception to the at-will employment doctrine. Jess, Clements, and Washington County filed a brief in support of their preliminary objections.[6]

         Scrip filed a brief in opposition to the preliminary objections. (Original Record (O.R.) # 20.) Addressing the challenges to Count II first, Scrip acknowledged his membership in the union, but he claimed that the CBA provided no right to grieve the termination of his employment because of his at-will employee status. Scrip also disputed the characterization of his public policy exception claim as arising under the Whistleblower Law. Instead, he claimed that the public policy at issue is set forth in Part VIII.A of the Code of Conduct for Employees of the Unified Judicial System (Code of Conduct), adopted by the Pennsylvania Supreme Court and originally published on October 1, 2010. Scrip appended a copy of the Code of Conduct to his Complaint as Exhibit "C." (R.R. 56-63.) At that time, Part VIII.A of the Code of Conduct provided, in relevant part:

         VIII. DUTY TO REPORT

         A. Employees of the Unified Judicial System shall report to their immediate supervisor any attempt by anyone to induce them to violate any provisions of this Code of Conduct or any policy of the Unified Judicial System.

Note: Pennsylvania's Whistleblower Law (43 P.S. § 1421 et seq.) prohibits, among other things, the discrimination or retaliation against an employee who makes a good faith report of wrongdoing or participates in an investigation, hearing or inquiry held by an appropriate authority.

(Code of Conduct, Oct. 1, 2010, at 7; R.R. 62 (emphasis in original).) As for Judge O'Dell Seneca's immunity claim with respect to Count II, Scrip contended that Judge O'Dell Seneca waived immunity when she removed the suit to federal district court, citing Lombardo v. Pennsylvania Department of Public Welfare, 540 F.3d 190 (3d Cir. 2008).

         With respect to Count I, the Whistleblower Law claim, Scrip argued that this Court's recent reported panel decision in Thomas v. Grimm, 155 A.3d 128 (Pa. Cmwlth. 2017), is "patently infirm." (Scrip Br. at 10.) In crafting the Code of Conduct, Scrip argued, the Supreme Court clearly expressed its intent to provide a remedy to judicial employees under the Whistleblower Law. Scrip rejects any contention that doing so violates the principle of separation of powers.

         C. Common Pleas Decision

         By Order dated June 1, 2017, common pleas[7] sustained the preliminary objections "of all defendants" and dismissed Scrip's Complaint with prejudice. In a Memorandum accompanying the Order, common pleas explained its reasons for doing so. (R.R. 9-15.)

         Common pleas first noted that all named individual defendants are members of the Judiciary. As to Scrip's wrongful discharge claim (Count II), common pleas held that the individually-named defendants were immune from suit. 1 Pa. C.S. § 2310.[8] Alternatively, assuming for purposes of analysis that Scrip was an at-will employee, common pleas held that the Note in the October 1, 2010 version of the Code of Conduct was not a clear communication of public policy that would support Scrip's wrongful discharge claim. With respect to Scrip's claim under the Whistleblower Law, common pleas followed this Court's decision in Thomas, wherein this Court held that the Whistleblower Law does not apply to the Judiciary notwithstanding the reference to the law in the October 1, 2010 version of the Code of Conduct.

          Common pleas also held that the Complaint failed to clearly state the basis of the claim against Washington County, noting that Washington County had no authority to hire or fire Scrip, who, as a probation officer, was an employee of the Judiciary. Common pleas further noted that it was Judge O'Dell Seneca, and not Washington County, who fired Scrip. Alternatively, common pleas held that Washington County was immune from suit on Scrip's claims under the Tort Claims Act.

         Scrip's appeal from the common pleas' decision dismissing his Complaint is presently before the Court.

         II. DISCUSSION

         A. Standard and Scope of Review

         In reviewing an order sustaining preliminary objections and dismissing a complaint, we look to whether the court abused its discretion or erred as a matter of law. Shields v. Council of Borough of Braddock, 111 A.3d 1265, 1268 n.4 (Pa. Cmwlth. 2015). As to preliminary objections challenging ...


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