Zerbe v. City of Sunbury

7 Pa. D. & C.4th 483, 1990 Pa. Dist. & Cnty. Dec. LEXIS 221
CourtPennsylvania Court of Common Pleas, Northumberland County
DecidedJanuary 24, 1990
Docketno. CV-87-963
StatusPublished
Cited by2 cases

This text of 7 Pa. D. & C.4th 483 (Zerbe v. City of Sunbury) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zerbe v. City of Sunbury, 7 Pa. D. & C.4th 483, 1990 Pa. Dist. & Cnty. Dec. LEXIS 221 (Pa. Super. Ct. 1990).

Opinion

FEUD ALE, J.,

Before the court are the defendant’s preliminary objections in the nature of a demurrer to counts I through VI and a motion to strike demand for jury trial for counts IV through VI of plaintiff’s second amended complaint. Plaintiff has also filed a preliminaiy objection to the preliminary objections filed by defendant. Briefs have been filed and argument held, and the objections are, therefore, ready for disposition.

PROCEDURAL HISTORY

Plaintiff filed a complaint against defendant City of Sunbury on or about June 9,1989. Defendant filed preliminary objections to plaintiff’s complaint; these preliminary objections being in the nature of a motion for demurrer and a request for a more specific pleading.

This court, after oral argument, entered an order granting in part, and denying in part, the preliminary objections of defendant. The order was dated August 22, 1989. Plaintiff was given 20 days from the date of the order, to file an amended complaint. The amended complaint was to provide more specificity as to counts III, IV, V, VI, and VIII.

[485]*485Plaintiff filed an amended complaint on September 8, 1989, within the time provided by the court’s order. Defendant on or about September 20, 1989 filed preliminary objections to the amended complaint. Plaintiff exercised his right, under the rules of civil procedure, to file an amended pleading without the need for court hearings. Plaintiff filed -his second amended complaint on September 29, 1989. This pleading contains six separate counts and alleges wrongful discharge from employment under the Whistleblower’s Act, the Civil Service provisions of the Third Class City Code, and under contract law.

On or about October 10, 1989, defendant filed preliminary objections to the second amended complaint. These preliminary objections are in the nature of a demurrer to counts I through VI. Also included in these objections was a motion to strike demand for jury trial.

On or about October 3, 1989, plaintiff filed a reply to defendant’s preliminary objections to the second amended complaint, together with preliminary objections to the preliminary objections. Plaintiff’s preliminary objections are in the nature of a motion to strike and assert that defendant has raised three issues in his last set of preliminary objections which it failed to raise previously, and, therefore, said objections are waived. The issues consist of punitive damages, elements necessary for proof of emotional distress, and the right to a jury, trial.

Thus, presently, defendant’s preliminary objections and the preliminary objections by plaintiff are the only outstanding matters before the court and said motions are ripe for consideration.

STATEMENT OF FACTS

Plaintiff was employed with the City of Sunbury from June 1986, until the date of his termination on [486]*486April 11, 1989. Plaintiff was the code enforcement officer and was responsible for enforcement of the City of Sunbury’s building code ordinance or law. Plaintiff left employment with Paulsen Wire and Rope to take the position of code enforcement officer with the city. At the time of plaintiff’s termination of employment with the city, plaintiff was receiving workmen’s compensation for a job-related disability. It is not alleged that his discharge was related to his filing a workman’s compensation claim.

Defendant, by and through its representatives Michael Apfelbaum (solicitor for the city) and John Michaels (Director of Public Safety), requested that plaintiff voluntarily resign his position as code enforcement officer. No reason was allegedly given by either Apfelbaum or Michaels as to why this request was being made.

Plaintiff questioned Apfelbaum and Michaels regarding the reason for their request that he voluntarily resign and they allegedly refused to respond and requested that he render a decision immediately. When plaintiff refused to resign, defendant’s representatives, Apfelbaum and Michaels, terminated plaintiff’s employment, said termination to be effective immediately.

Plaintiff requested a written response from the city that his employment was being terminated and further requested the reasons be set forth in writing as to his termination of employment as code enforcement officer. A letter was received by plaintiff on April 13, 1989, but said letter only indicated his termination as code enforcement officer and did not state any reasons for his termination. However, an enclosure of an evaluation from the City of Sunbury of plaintiff was enclosed in this correspondence.

[487]*487Plaintiff did specifically request a hearing and a written statement of specific and relevant charges regarding his discharge, such request being made in writing and sent by certified mail to the mayor, City Council, and solicitor for the city. The city denied plaintiff the opportunity for such hearing. Wherefore, plaintiff filed a complaint in the within matter.

Plaintiff alleges he was never verbally reprimanded nor provided with any writing from the city which would indicate he was performing his job in a manner that was not satisfactory to the city. To the contrary, plaintiff stated he was commended for his job performance by the Director of Public Safety, John Michaels, as recently as November 16, 1988, as reflected by the personal commendation attached to plaintiff’s second amended complaint as exhibit “A.”

Finally, plaintiff alleges his termination of employment does not relate to his job performance as code enforcement officer, but is an act of retaliation against him for his cooperation with certain investigative agencies.

Plaintiff further asserts that as a result of the information provided by plaintiff, the Department of Community Affairs froze all state funds from the city. Plaintiff was allegedly advised at one point by the Director of Public Safety, John Michaels, that he should not provide any further information or cooperate.

Plaintiff stated in his second amended complaint a multiplicity of violations related to local state and federal matters. He made allegations of improprieties related to local taxes, parking and landfill monies, and turned information on same over to the Sunbury Police Department upon the advice of the Inspector General’s Office. Further allegations were made relevant to a municipal rehabilitation project [488]*488(Chestnut Street Rehabilitation Project) regarding workmanship, safety, substandard materials and alleged improprieties by a contractor as to insurance, tax and workman’s compensation. Finally, plaintiff alleged misuse of city equipment for political functions in violation of the Hatch Act, violation of Department of Environmental regulations and conflicts of interest between a city official and professional. employees.

It is further alleged that Solicitor Apfelbaum represented to the plaintiff: “Plaintiff should not provide the information to any investigative agency as it could cause an investigation and open a big can of worms for the city.” Plaintiff allegedly had knowledge of John Michaels being an electrical contractor and doing electrical work in violation of section 109.7 of the BOCA Building Code. Plaintiff avers further that John Michaels, as a representative of the city, knew that plaintiff had such knowledge and may have provided such information to the investí-. gative agencies involved.

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Bluebook (online)
7 Pa. D. & C.4th 483, 1990 Pa. Dist. & Cnty. Dec. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zerbe-v-city-of-sunbury-pactcomplnorthu-1990.