Rohner v. Atkinson

41 Pa. D. & C.5th 311
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedAugust 14, 2014
DocketNo 9345 CV 2013
StatusPublished

This text of 41 Pa. D. & C.5th 311 (Rohner v. Atkinson) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rohner v. Atkinson, 41 Pa. D. & C.5th 311 (Pa. Super. Ct. 2014).

Opinion

ZULICK, J.,

Plaintiff Wayne Rohner filed a complaint seeking reinstatement and damages under the Pennsylvania Whistleblower Law, 43 P.S. §1423 (1991) and for termination of at-will employment in violation of public policy on February 28, 2014. Defendants Annette Atkinson, Michael J. Dwyer, Mitchell K. Marcus, supervisors of Middle Smithfield Township and the township itself have filed preliminary objections to the complaint.

Mr. Rohner alleges in his complaint that while serving as Middle Smithfield Township Zoning Officer, he refused a certificate of compliance during building construction as requested by the East Stroudsburg Area School District (ESASD). The supervisors then suspended him as zoning officer, replaced him and ultimately fired him. His complaint alleges causes of action under the Whistleblower Law, 43 P.S. §1423 (1991) and for termination of an at-will employment in violation of public policy.

Defendants filed preliminary objections to both counts of the complaint. Mr. Rohner filed an amended complaint and the defendants again filed preliminary [313]*313objections. Defendants challenge the whistleblower claim by contending that: (1) there was no good-faith report of wrongdoing, (2) any wrongdoing that did occur was minimal or technical in nature, and (3) Mr. Rohner cannot establish a causal connection between his alleged reports of wrongdoing and his termination. Finally, defendants obj ect to Rohner’s claim that he was terminated in violation of public policy. Both parties briefed their positions, and the matter was argued before the court on June 2, 2014.

DISCUSSION

When considering preliminary objections, “all well-pleaded allegations, and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Defendant’s objections are in the nature of a demurrer.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

[314]*314Albert v. Erie Ins. Exchange, 65 A.3d 923, 927 (Pa. Super. 2013) (citations omitted).

The Whistleblower Law provides, in pertinent part:

(a) Persons not to be discharged. — 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 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 or waste.

43 P.S. § 1423 (1991). “In order to make out a case of retaliatory termination, a plaintiff must plead: (1) wrongdoing and (2) a casual connection between the report of wrongdoing and adverse employment action.” McAndrew v. Bucks County Bd. of Com’rs, 982 F.Supp.2d 491, 503 (E.D. Pa. 2013).

Defendants contend that actions taken by Mr. Rohner in his capacity as a zoning officer do not constitute a report of wrongdoing under the whistleblower statute. Specifically, they argue that Mr. Rohner’s denial of a certificate of compliance to the ESASD as part of his ordinary job duties did not give him whistleblower protection. This question has not been addressed by Pennsylvania’s appellate courts.

Federal courts have considered the question under federal law. The federal Whistleblower Protection Act (WPA) provided:

[A government official may not] take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee...because of...any disclosure of information by an employee or applicant which the [315]*315employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

5 U.S.C. § 2302(b)(8) (1994). This language was similar to that found in the Pennsylvania Whistleblower Law.

The question of whether the federal Whistleblower Protection Act protected employees who disclosed information in the course of their regular duties was addressed in Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001). There, the court held that these employees were not protected by the act:

We find no clear evidence in the legislative history of the WPA, apart from the history of the 1994 amendment discussed below, that the WPA was designed to trigger protection for performance of normal duties. The WPA was established to protect employees who go above and beyond the call of duty and report infractions of law that are hidden.”

Id. at 1353.

Congress later amended the WPA, enacting the Whistleblower Protection Enhancement Act in 2012. It provided, in part:

If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from [5 U.S.C. § 2302(b)(8)] if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.

[316]*316Pub. L. no. 112-199, 126 Stat. 1465, WPEA § 101. Following this amendment, persons making disclosures in the normal course of their duties were protected by the WPEA. Pennsylvania has not amended the Whistleblower Law to add these protections.

A New Jersey appellate court denied an employee’s claim under the Conscientious Employee Protection Act (CEPA),N.J.S.A. 34:19-1 to-8, holding that an employee’s report in line with regular job duties does not state a claim. In Massarano v. New Jersey Transit,

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Related

Kenneth D. Huffman v. Office of Personnel Management
263 F.3d 1341 (Federal Circuit, 2001)
Podgurski v. Pennsylvania State University
722 A.2d 730 (Superior Court of Pennsylvania, 1998)
WURTH BY WURTH v. City of Philadelphia
584 A.2d 403 (Commonwealth Court of Pennsylvania, 1990)
McLaughlin v. Gastrointestinal Specialists, Inc.
750 A.2d 283 (Supreme Court of Pennsylvania, 2000)
Massarano v. New Jersey Transit
948 A.2d 653 (New Jersey Superior Court App Division, 2008)
Penn Title Insurance Co. v. Deshler
661 A.2d 481 (Commonwealth Court of Pennsylvania, 1995)
Mikhail v. Pennsylvania Organization for Women in Early Recovery
63 A.3d 313 (Superior Court of Pennsylvania, 2013)
Albert v. Erie Insurance Exchange
65 A.3d 923 (Superior Court of Pennsylvania, 2013)
McAndrew v. Bucks County Board of Commissioners
982 F. Supp. 2d 491 (E.D. Pennsylvania, 2013)

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Bluebook (online)
41 Pa. D. & C.5th 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rohner-v-atkinson-pactcompllackaw-2014.