Bradley v. W. Chester Univ. Found.

• Decision Date: 12 January 2021
• Docket Number: No. 304 M.D. 2020,304 M.D. 2020
• Citation: Bradley v. W. Chester Univ. Found., 247 A.3d 1187(Table) (Pa. Commw. Ct. 2021)
• Parties: Colleen M. BRADLEY, Petitioner v. WEST CHESTER UNIVERSITY FOUNDATION, Respondent
• Court: Pennsylvania Commonwealth Court

247 A.3d 1187 (Table)

Colleen M. BRADLEY, Petitioner

v.WEST CHESTER UNIVERSITY FOUNDATION, Respondent

No. 304 M.D. 2020

Commonwealth Court of Pennsylvania.

Argued: November 12, 2020

Filed: January 12, 2021

MEMORANDUM OPINION BY JUDGE McCULLOUGH

Before the Court are the preliminary objections filed by the West Chester University Foundation (Foundation) to the Petition for Review(Petition) of Colleen M. Bradley(Bradley).Bradley has asserted that the Foundation violated the Whistleblower Law¹ by failing to hire her, and advances claims of intentional and negligent infliction of emotional distress.The Foundation seeks dismissal of Bradley's action on the basis that the Foundation is not part of "the Commonwealth government" for purposes of our original jurisdiction, 42 Pa.C.S. § 761(a)(1), and additionally contends that Bradley cannot state a claim against the Foundation because Bradley was never an employee of the Foundation.We sustain the Foundation's preliminary objections.

The facts set forth in the Petition, which we accept as true for purposes of ruling upon preliminary objections,² are as follows.Bradley was hired by West Chester University (WCU)³ in November 2011, and served as its Director of Budget and Financial Planning.(Petition¶8.)On multiple occasions throughout her employment, Bradley expressed concerns to WCU and its employees regarding what she viewed to be false, deceptive, and manipulative budgets that WCU submitted to the Commonwealth.Id.¶9.After complaining of these practices at a meeting in October 2014, Bradley's immediate supervisor, Mark Mixner, informed her that her employment would terminate on June 30, 2015, ostensibly because WCU needed "to seek a different kind of leadership."Id.¶10.Mixner, however, previously had rated Bradley as a high performer in her three annual written performance evaluations.Id.¶11.

With regard to the substance of her reports, Bradley avers that WCU presented "false break-even or near-break-even budgets" to the Commonwealth over three years, as a result of which WCU received in excess of $146 million in taxpayer-funded appropriations.Id.¶14.WCU's scheme, Bradley asserts, was to understate actual operating surpluses by overstating expenditures for the line item "Transfer to Plant," which represented funds needed for anticipated plant or facility maintenance or improvement expenditures.Id.¶¶16-17.Bradley claims that WCU deliberately manipulated this number to increase it to an amount that would reduce surpluses or reflect deficits, allowing WCU to maintain or increase its taxpayer-funded appropriations.Id.¶18.Bradley opposed this practice throughout her employment with WCU, until she ultimately was terminated.Id.¶20.

Bradley pursued claims in federal court against WCU and PASSHE to no avail.Id . ¶¶21-31, 35-41.She additionally sought relief in the Court of Common Pleas of Philadelphia County.On May 31, 2016, Bradley filed a three-count complaint against WCU and PASSHE, as well as several individual defendants, in which she raised claims identical to those advanced in the instant Petition, i.e. , a violation of the Whistleblower Law, intentional infliction of emotional distress, and negligent infliction of emotional distress.SeeBradley v. West Chester University(Pa. Cmwlth., No. 368 C.D. 2019, filed Jan. 10, 2020)(unreported).The trial court in that litigation ultimately entered a judgment of non pros against Bradley, but on appeal, Bradley argued that the trial court lacked subject matter jurisdiction over her claims in the first place.This Court agreed, concluding that "Bradley levied her whistleblower claim against two Commonwealth entities—PASSHE and [WCU]—thereby bestowing on this Court exclusive, original jurisdiction over her claim pursuant to Section 761(a)(1) of the Judicial Code,42 Pa.C.S. § 761(a)(1)."Id. , slip op. at 7.Consequently, this Court additionally concluded that we could exercise ancillary jurisdiction over Bradley's tort claims under 42 Pa.C.S. § 761(c).Id. , slip op. at 9.Accordingly, this Court vacated the trial court's order and docketed the matter as an action filed in our original jurisdiction.

On March 21, 2019, Bradley applied for the position of Vice President of Administration and Finance for WCU, which was actively seeking applicants for the position.(Petition¶¶42, 44.)She was not offered the position.Id.¶46.On November 6, 2019, Bradley commenced another action against WCU, averring that WCU refused to hire her due to her previous reports of wrongdoing.Id.¶47.On October 21, 2019, Bradley applied for the position of Chief Financial Officer (CFO) for the Foundation, which was actively seeking applicants for the position.Id.¶¶48, 50.She was not offered the position.Id.¶51.Bradley then commenced the instant litigation against the Foundation on May 13, 2020.

Bradley asserts that this Court has jurisdiction over her Petition because the Foundation is an "alter ego" of WCU, and WCU is a member university of PASSHE and, thus, a Commonwealth agency.Id.¶¶3-4, 7.In Count I of the Petition, Bradley asserts that, by refusing to hire her, the Foundation retaliated against her in violation of the Whistleblower Law, due to her good faith reports of wrongdoing and waste at WCU.Id.¶¶52-55.⁴She requests an award in excess of $1.5 million for past and future loss of income and employment opportunities, and an amount in excess of $5 million for physical and emotional distress, attorney's fees, and litigation costs.In Count II, of the Petition, Bradley asserts a claim of intentional infliction of emotional distress, contending that the Foundation's retaliatory conduct was intended to cause her severe emotional distress, or was undertaken with reckless disregard for or indifference to the probability of causing her such distress.Id.¶¶56-59.Her request for damages is identical to that set forth in Count I. In Count III of the Petition, Bradley asserts a claim of negligent infliction of emotional distress, largely echoing the averments of Count II, but couching the Foundation's conduct in terms of negligence.Id.¶¶60-64.Her request for damages is identical to those set forth in the previous counts.

In its preliminary objections, the Foundation primarily contests Bradley's assertion that it is the "alter ego" of WCU.(Preliminary Objections¶¶10-21.)Because it does not view itself to be the alter ego of WCU, and because it otherwise does not constitute a Commonwealth agency, the Foundation asserts that Bradley cannot maintain an action against it in our original jurisdiction.The Foundation additionally advances a demurrer, asserting that, because Bradley was never employed by the Foundation, but rather by WCU, she is unable to state a claim against the Foundation under the Whistleblower Law.Id.¶¶22-32.Additionally, because Bradley's claims of intentional and/or negligent infliction of emotional distress are ancillary to her claim under the Whistleblower Law, the Foundation asserts that the former claims must be dismissed alongside the latter.Id.¶33.

In advancing their contrary positions, the parties primarily dispute the significance of this Court's decision in West Chester University of Pennsylvania v. Schackner , 124 A.3d 382(Pa. Cmwlth. 2015).Schackner , a decision concerning the Right-To-Know Law (RTKL),⁵ involved a request for records relating to WCU's retention of a lobbying firm, the Bravo Group, Inc.(Bravo), to support legislation that would allow it to separate from PASSHE.Relevantly, WCU, the Foundation, and Bravo had argued in part that, because it was the Foundation that had contracted with Bravo, and not WCU itself, the records therefore were not subject to disclosure as records of WCU.Id. at 386.The Office of Open Records(OOR) granted access to the written contract and records relating to Bravo's lobbying activities, citing this Court's decision in Bagwell v. Pennsylvania Department of Education , 76 A.3d 81(Pa. Cmwlth. 2013),⁶ and noting that WCU officials serve as ex officio Foundation officials as a result of their government positions, and that they had received the requested records by virtue of their positions.Id. at 387.This Court agreed.We stated:

Foundations at the various institutions of [PASSHE] in large part are alter egos of the member universities to carry out activities that those universities want to undertake; otherwise, they would not exist.As a result, the OOR did not err in determining that the requested documents are ‘public records’ subject to disclosure under the RTKL.SeeBagwell , 76 A.3d at 90("The non-agency status of the creator or sender of records does not preclude their public status.Private persons and entities may create correspondence and send it to an agency, thereby potentially making it a record of the agency ....")(citations omitted).

Id. at 395.

The OOR additionally had concluded that records relating to Bravo's lobbying activities were public records under section 506(d)(1) of the RTKL, which requires disclosure of a record not otherwise exempt when it is "in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function."65 P.S. § 67.506(d)(1).Because the Foundation's bylaws delegated to it the management of contracts for the advancement of WCU, and because the Bravo contract directly related to the performance of a governmental function, the OOR concluded that the records were public under section 506(d)(1).Schackner , 124 A.3d at 387, 395-96.This Court agreed with the OOR on this point as well.We found it abundantly clear that the Foundation's bylaws made "managing contracts for the advancement of WCU" to be a core function of the Foundation.Id. at 395.Moreover, this Court noted that the decision to engage Bravo for lobbying services was made upon the request of WCU's trustees, because WCU's...