Perry v. Tioga County

• Decision Date: 03 March 1995
• Citation: 649 A.2d 186,168 Pa.Cmwlth. 126
• Parties: Evan H. PERRY, Appellant, v. TIOGA COUNTY.
• Court: Pennsylvania Commonwealth Court

Page 186

649 A.2d 186

168 Pa.Cmwlth. 126

Evan H. PERRY, Appellant, v. TIOGA COUNTY.

Commonwealth Court of Pennsylvania.

Argued Sept. 19, 1994.

Decided Oct. 18, 1994.

Petition for Allowance of Appeal Denied March 3, 1995.

Warren R. Baldys, for appellant.

Edith L. Dowling, for appellee.

Before PELLEGRINI and KELLEY, JJ., and SILVESTRI, Senior Judge.

PELLEGRINI, Judge.

Evan H. Perry (Perry) appeals an order of the Court of Common Pleas of Tioga County (trial court) sustaining the preliminary objections in the nature of a demurrer of the Tioga County Human Services Agency (Employer) and dismissing his complaint.

Perry was employed by Employer as a Maintenance Supervisor. On October 5, 1990, he called off sick and went to the doctor and was diagnosed as having sinusitis and tonsillitis. That same day, he was observed at his father's house by his supervisor. On his return to work, his supervisor accused Perry of misusing his sick leave to help his father construct a garage and suspended him for three days. Perry attempted to give his supervisor a medical excuse from his doctor, but the supervisor refused to accept it. In response, Perry told his supervisor that the supervisor had made a mistake and would pay for it. Employer recommended that Perry be discharged for insubordination and violating sick leave policy which was approved by the County Commissioners.

In December of 1991, Perry filed a complaint contending breach of an employment contract, wrongful discharge in violation of public policy and the Whistleblower Law. ¹ He contended that personnel policies adopted after his employment constituted a contract resulting in his no longer being an at-will employee. According to Perry, because the policy outlining a grievance procedure that prohibited suspension without good cause was not followed, he was entitled to be reinstated. Perry contended that he was discharged in violation of the Whistleblower Law and public policy, because prior to his discharge, he had reported improper conduct in bidding practices and the use of agency personnel for private work to a County Commissioner. According to Perry, he was discharged to discredit him with higher authorities and the charge of insubordination was pretext. Even though his complaint was filed 14 months after his discharge, Perry contended his Whistleblower claim was timely filed because the 180 day filing deadline in the Law ² was discretionary and not mandatory, and the two year statute of limitations for tort actions applied.

The Employer filed preliminary objections contending that Perry was an at-will employee and he failed to allege a violation of public policy sufficient to give rise to a wrongful discharge cause of action. They contended that even though as an at-will employee Perry could be discharged for no reason, insubordination was a legitimate reason for his discharge. The Employer also contended that the 180 day filing deadline in the Whistleblower Law was mandatory and, thus, that part of Perry's action was time-barred.

While the litigation was proceeding, the County Solicitor sent a Proposed Release to Perry offering a payment of $40,000 in exchange for discontinuance of his complaint. The Release was executed by Perry, but he did not at that time discontinue his complaint. The County Commissioners, however, refused to ratify the agreement. Thereafter, Perry amended his pleadings adding a breach of contract action contending the Release was a valid offer that he accepted and that he was not required to discontinue his complaint until payment was received. The Employer filed a preliminary objection contending that because the Release had not been approved in an open meeting as required by the Sunshine Act, ³ and the County Solicitor did not have express authority to settle the claim, it was not a binding contract. However, even if the Release was a valid offer, they contended that Perry had not provided the bargained for exchange of discontinuing his lawsuit.

In dismissing the actions, the trial court held that the personnel policy pled did not change as a matter of law Perry's status as an at-will employee and no discharge hearing was required. As to the Whistleblower Law count, the trial court held that such a complaint must be brought within 180 days of the alleged retaliatory action. As to the added contract count to enforce settlement, the trial court noted that the Employer's contention that the Proposed Release was not authorized at a public meeting and that the County Solicitor did not have express authority to make the offer concerned facts not of record which could not be considered on preliminary objections. However, it dismissed the contract claim because Perry failed to discontinue his lawsuit as the release stated and there was a failure of consideration. McGuire v. Schneider, Inc., 368 Pa.Superior Ct. 344, 534 A.2d 115 (1987). Consequently, the trial court sustained the Employer's preliminary objections and dismissed Perry's complaint. This appeal followed. ⁴

As to the 180 day filing deadline contained in the Whistleblower Law, Perry contends that it is discretionary and not mandatory, and that the two year tort statute of limitations applies. The Whistleblower Law prohibits a public employer from retaliating against a public employee who reports wrongdoing. Section 4 of the Law states "[a] person who alleges a violation of this act may bring a civil action ... within 180 days after the occurrence of the alleged violation." Under this provision, the trial court correctly held that the use of the permissive term "may" in the statute gives an individual the option of filing a lawsuit, but requires that such must be filed within 180 days of the adverse personnel action. Any contrary interpretation would make this provision meaningless. Not having brought the action within 180 days, Perry's Whistleblower action is time-barred.

Perry next contends that it was error for the trial court to hold that he was an at-will employee and not entitled to a hearing on his discharge. Unless a statute or contract establishes otherwise, public employees in Pennsylvania are considered to have employment at-will only. DeAngelis v. Delliponti, 152 Pa.Commonwealth Ct. 518, 521, 620 A.2d 35, 36 (1993). Perry contends that the Grievance Procedure contained in Employer's personnel policy constituted an implied contract allowing discharge for "just cause" only. The Grievance Procedure, however, does not cover procedures for discharge. ⁵ Instead, the Disciplinary Procedure contained in the personnel manual provides for no grievance procedure and the employer retains the absolute right to discharge. ⁶ Even if the personnel policy was meant to apply to Perry, it does not change his at-will status.

Perry contends, however, that even if he was an at-will employee, his discharge was against public policy. He contends that there is a clear public policy against discharging an employee for reporting wrongdoing. ⁷ To advance that public interest, the General Assembly enacted the Whistleblower Law to provide public employees with protection against retaliation for reporting wrongdoing. It is the sole and exclusive...