Rodgers v. Pennsylvania Department of Corrections

659 A.2d 63, 1995 Pa. Commw. LEXIS 229
CourtCommonwealth Court of Pennsylvania
DecidedMay 15, 1995
StatusPublished
Cited by25 cases

This text of 659 A.2d 63 (Rodgers v. Pennsylvania Department of Corrections) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodgers v. Pennsylvania Department of Corrections, 659 A.2d 63, 1995 Pa. Commw. LEXIS 229 (Pa. Ct. App. 1995).

Opinion

SMITH, Judge.

Before this Court are preliminary objections filed by respondents the Department of Corrections, Joseph P. Lehman, Commissioner of the Department, and William J. Wolfe, Superintendent of the State Correctional Institution at Cambridge Springs (collectively, DOC) to a complaint filed in this Court’s original jurisdiction by Robert A. Rodgers (Rodgers), alleging violations of the Whistle-blower Law (Law), Act of December 12, 1986, P.L. 1559, 48 P.S. §§ 1421-1428, the United States Constitution and the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-741.1005.1 The preliminary objections are in the nature of a demurrer, asserting that Rodgers’ complaint fails to state a cause of action against DOC under any of these provisions.2

Rodgers’ complaint avers that he has been employed with DOC since 1984. He was promoted to the rank of Correctional Officer III (Lieutenant) in 1992 and assigned to the correctional institution at Cambridge Springs, and while working there he received good evaluations and became a shift commander, the firearms instructor and the emergency response team leader. The portions of the complaint now at issue state:

9.In the winter of 1993, the Plaintiff became aware of certain irregularities regarding the operation of Cambridge Springs, to-wit: the expenditure of unnecessary funds, the dismissal of an employee for no apparent reason, requests to change evaluations, requests to alter reports to the Court and the use of inmates for personal reasons.
10. The Plaintiff, verbally and in writing, reported these matters to appropriate authorities.
11. Shortly after making said reports, the Plaintiff was placed on the daylight shift, contrary to his wishes.
12. The Plaintiff subsequently requested a transfer to the facility at Mercer, the institution to which he was previously assigned.
13. The Plaintiff was informed that there were vacancies at Mercer, but in the position of Correctional Officer I.
14. On or about February 24, 1994, the Plaintiff was advised that he was going to be the ‘Administrative’ Lieutenant and that he should not leave the office. The Plaintiff was further informed that he would no longer be shift commander. The Plaintiff was further removed as the emergency response team leader, on the pretext that he could not ‘get along with’ the Superintendent of the Cambridge Springs Institution. Similarly, the Plaintiff was chastised for his ‘behavior’ in contacting government officials about mismanagement at the prison.
15. The Plaintiff was thus faced with the choice of remaining at the Cambridge Springs Institution, where he was subjected to harassment and derision from his superiors, or of transferring to Mercer, were [sic] proper working conditions existed, but with a reduction in grade from Correctional Officer III (Lieutenant) to Correctional Officer I. The Plaintiff chose the latter and accepted a transfer to Mercer, effective March 13, 1994.
16. The Plaintiff has thus been deprived of the employment benefits as a Lieutenant, and has suffered a loss in compensation of approximately $12,000.00 a year.

[65]*65For the purpose of testing the legal sufficiency of a complaint in ruling upon a preliminary objection in the nature of a demurrer, the Court must accept as true all well-pleaded allegations of material fact as well as all reasonable inferences deducible therefrom. Pennsylvania Institutional Health Services, Inc. v. Department of Corrections, 158 Pa.Commonwealth Ct. 221, 631 A.2d 767 (1993), aff'd, 536 Pa. 544, 640 A.2d 413 (1994). See also Wurth v. City of Philadelphia, 136 Pa.Commonwealth Ct. 629, 584 A.2d 403 (1990). Because the sustaining of a demurrer results in the denial of a claim or the dismissal of a suit, it should be sustained only in cases that are clear and free from doubt, Wurth, and only where it appears, with certainty, that the law permits no recovery under the allegations pleaded. Runski v. American Federation of State, County and Municipal Employees, Local 2500, 142 Pa.Commonwealth Ct. 662, 598 A.2d 347 (1991), aff'd, 537 Pa. 193, 642 A.2d 466 (1994).

The substantive protection afforded to whistleblowers is set forth in Section 3(a) of the Law, 43 P.S. § 1423(a):

No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because 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 or waste.

Section 2, 43 P.S. § 1422, provides definitions of the operative terms.

The Law defines “employer” as a person supervising one or more employees, including the one involved, or a superior of that supervisor or an agent of a public body. A “public body” includes a state officer, agency, department, division, bureau, board, commission, council, authority or any other body in the executive branch of state government. “Appropriate authority” is broadly defined as a federal, state or local government body, agency or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct, ethics or waste, or any member, officer, agent, representative or supervisory employee of such. “Wrongdoing” is “[a] violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.” “Waste” is “[a]n employer’s conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.”

DOC asserts that Rodgers has failed to identify who was his supervisor or superior as defined by the Law, whose conduct constituted the irregularities alleged in Paragraph 9, what specific identifiable behavior constituted waste or wrongdoing within the statutory definition and who were the appropriate authorities to whom he allegedly made reports. Without specifics, DOC argues, there is a gap between the allegations and the named respondents that may be bridged only by an unwarranted factual or legal inference.

DOC concedes in the preliminary objections that the allegations of Paragraphs 11 and 14 presumably rise to the level of harassment but asserts that they fail to allege any connection between those facts and the individual respondents. In its brief, however, DOC argues that it is unclear whether the allegations of those paragraphs constitute conduct prohibited by the Law.

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Bluebook (online)
659 A.2d 63, 1995 Pa. Commw. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodgers-v-pennsylvania-department-of-corrections-pacommwct-1995.