O'Hara v. Alaron Corp.

23 Pa. D. & C.5th 88
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMarch 15, 2011
Docketno. 11654 of 2004
StatusPublished

This text of 23 Pa. D. & C.5th 88 (O'Hara v. Alaron Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Hara v. Alaron Corp., 23 Pa. D. & C.5th 88 (Pa. Super. Ct. 2011).

Opinion

COX, J.,

Before the court for disposition are the preliminary objections filed on behalf of the defendants Alaron Corp., Joseph Harverson, Paul Martin and Sherry Vassilaros, which argue that Count II of the amended complaint is legally insufficient as the plaintiff has failed to establish a claim under the whistleblower provision of the Low-Level Radioactive Waste Disposal Act.

On May 26, 1987, the plaintiff began employment at Alaron Corp. (hereinafter “Alaron”), which is a Pennsylvania corporation located at R.D. #2, Box 2140, Wampum, Lawrence County, Pennsylvania, as atechnician and was eventually promoted to project manager. Alaron is engaged in the business of decontaminating radioactive materials from nuclear power plants and also rebuilds pumps, motors, valves and other components from nuclear power plants. According to the complaint, the plaintiff was refurbishing a small motor which belonged to Surry Power Plant when he noticed Paul Duesenberry, an employee of the Electric Motor Company1, attempt to operate a crane belonging to Alaron. The plaintiff explained to Mr. Duesenberry that he was not permitted to operate the crane and he also informed his supervisors at [91]*91Alaron of Mr. Duesenberry’s actions.

The plaintiff was having difficulty cleaning the small motor he was refurbishing. Initially, Steve Miller, a supervisor for the Electric Motor Company, instructed the plaintiff that he was only permitted to clean the motor with distilled water, but the plaintiff noticed that distilled water did not accomplish the desired result. Mr. Miller subsequently informed the plaintiff to do whatever was necessary to clean the motor. As a result, the plaintiff utilized two types of degreasers and well water to clean the motor. Shortly thereafter, the plaintiff reported the instructions, provided by Mr. Miller, to his superiors at Alaron because he believed that the actions were dangerous to Alaron’s employees, employees of the Electric Motor Company and the general public. On June 28, 2004, the plaintiff’s employment was terminated by Alaron for alleged poor performance. However, the plaintiff believes he was terminated in retaliation for reporting the incidents involving Mr. Duesenberry’s use of the crane and Mr. Miller’s directions to improperly clean the motor.

On December 27, 2004, the plaintiff filed a writ of summons with the Office of the Prothonotary of Lawrence County. Eventually, the plaintiff also filed a complaint on January 11, 2010, which was approximately five years after he filed the writ of summons. The defendants responded by filing preliminary objections, which included the aforementioned claims of legal insufficiency and request for judgment of non pros. Oral argument regarding the defendants’ preliminary objections was held before this court on June 28, 2010. The court sustained the defendants’ preliminary objections on September 22, 2010, and dismissed counts I through IV and counts VI [92]*92through VIII with prejudice. It must be noted that count V regarding the Pennsylvania Whistleblower Law was also dismissed, but the plaintiff was permitted to amend that claim. However, the court denied the defendants’ request for judgment of non pros.

On October 12, 2010, the plaintiff filed an amended complaint, which contained five counts. It is important to note that the amended complaint was substantially the same as the original complaint filed by the plaintiff and included the claims that were dismissed with prejudice. The plaintiff subsequently contacted the Office of the District Court Administrator and requested a time to file and argue various motions, which was done on October 28,2010. At that time, counsel for plaintiff presented a motion for leave to file amended complaint, a motion for certification for interlocutory appeal and a motion for reconsideration. It is important to note that those documents were presented to the court beyond the 30-day period from the filing of the order of court on September 22, 2010, sustaining the original preliminary objections. In response, the defendants filed preliminary objections to the amended complaint on October 29,2010. The court entered an order on November 19, 2010, denying the motion for leave to file amended complaint, the motion for certification for interlocutory appeal and the motion for reconsideration. At the same time, the defendants presented a motion for sanctions, which the court granted and dismissed Counts I, III, IV and V of the plaintiff’s amended complaint as those claims were previously dismissed with prejudice.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, [93]*93Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved'based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v. Tronetti, 627 A.2d 1219, 1221 (Pa. Super. 1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R. W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (2005) (citing Orner v. Mallick, 515 Pá. 132,135, 527 A.2d 521, 523 (1987)).

Count II of the plaintiff’s amended complaint asserts that Alaron violated the Pennsylvania Whistleblower Law and the whistleblower provision in the Low-Level Radioactive Waste Disposal Act. This court previously dismissed the plaintiff’s claim pursuant to the Pennsylvania whistleblower Law in the order of court dated September 22, 2010. In his amended complaint, the plaintiff again failed to plead sufficient facts to sustain a cause of action under the Pennsylvania Whistleblower Law in accordance with the court’s opinion dated September 22, 2010.

Now, the court must. address whether Alaron has established a claim pursuant to the whistleblower provision of the Low-Level Radioactive Waste Disposal Act, which states, “No employer may discharge, threaten [94]*94or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing.” 35 P.S. §7130.509(a).

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Related

Cardenas v. Schober
783 A.2d 317 (Superior Court of Pennsylvania, 2001)
Hess v. Fox Rothschild, LLP
925 A.2d 798 (Superior Court of Pennsylvania, 2007)
Lerner v. Lerner
954 A.2d 1229 (Superior Court of Pennsylvania, 2008)
Orner v. Mallick
527 A.2d 521 (Supreme Court of Pennsylvania, 1987)
R.W. v. Manzek
888 A.2d 740 (Supreme Court of Pennsylvania, 2005)
McArdle v. Tronetti
627 A.2d 1219 (Superior Court of Pennsylvania, 1993)
Cooper v. Frankford Health Care System, Inc.
960 A.2d 134 (Superior Court of Pennsylvania, 2008)

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Bluebook (online)
23 Pa. D. & C.5th 88, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohara-v-alaron-corp-pactcompllawren-2011.