Russo v. Allegheny Cnty.
| Decision Date | 07 October 2015 |
| Docket Number | No. 185 M.D. 2015,185 M.D. 2015 |
| Citation | 125 A.3d 113 |
| Parties | Alfred J. RUSSO, Petitioner v. ALLEGHENY COUNTY, and the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, Respondents. |
| Court | Pennsylvania Commonwealth Court |
Joseph J. Chester, Pittsburgh, for petitioner.
Caroline Liebenguth, Philadelphia, for respondents.
BEFORE: DAN PELLEGRINI, President Judge, P. KEVIN BROBSON, Judge, JAMES GARDNER COLINS, Senior Judge.
OPINION BY Senior Judge JAMES GARDNER COLINS.
Before the Court are the preliminary objections filed by the Court of Common Pleas of Allegheny County, Criminal Division (CCP) to the complaint filed by Alfred J. Russo, following his termination from employment with CCP in 2009. This matter was initially filed in the Court of Common Pleas of Allegheny County1 (Trial Court) against CCP and Allegheny County as dual employers. The Trial Court transferred the action against CCP to this Court based on the Trial Court's lack of jurisdiction over claims asserted against Commonwealth parties, but retained the case against Allegheny County. For the reasons stated below, we sustain the preliminary objections filed by CCP and dismiss the complaint.
In his complaint, Russo alleges that he was hired by CCP as a minute clerk in 1974 and he was eventually promoted to the position of Manager of the Criminal Division of CCP in charge of all minute clerks, tip staff and arraignment clerks. (Compl. ¶¶ 7, 8 & n.1.) Throughout his entire term as an employee of CCP until his discharge in 2009, Russo alleges that he worked under an employment contract and enjoyed tenure in his position as long as he did not commit a crime or "bring[ ] disrespect upon the Court." (Id. ¶¶ 8, 9.) Russo alleges that this employment contract is evidenced through various oral representations, memoranda, administrative orders, regulations and other documents. (Id. ¶ 9.) Russo alleges that he continually received high marks on his performance evaluations but he was forced to resign on February 20, 2009 after being threatened with either a demotion to the lowest minute clerk position with a substantial reduction in salary or termination without the possibility of an early retirement. (Id. ¶¶ 7, 12, 16, 17.) Russo alleges that this constructive discharge was in part a reprisal for his cooperation with federal and state authorities who were investigating CCP and also allowed CCP to clear the way for a patronage hire with no relevant work experience. (Id. ¶¶ 11, 15, 18.)
Russo filed his complaint against CCP and Allegheny County2 in the Trial Court on February 9, 2011 asserting five causes of action: (i) wrongful discharge based upon the violation of his employment contract; (ii) failure to pay for accrued sick days in violation of his employment contract; (iii) a common-law wrongful discharge claim; (iv) a whistleblower claim based upon his employment contract; and (v) a statutory whistleblower claim. (Compl. ¶¶ 23–34.) Russo seeks reinstatement to his position and damages to compensate him for a loss of earnings, his lost sick days, reimbursement for medical coverage and emotional distress. (Compl. ¶¶ 19–22, Relief Requested.)
CCP and Allegheny County each filed preliminary objections to the complaint. On February 12, 2015, the Trial Court issued an order transferring the action against CCP to this Court on the basis that original jurisdiction over claims relating to Commonwealth entities lies exclusively with this Court. See 42 Pa.C.S. § 761(a)(1) (). On that same date, the Trial Court issued an order granting Allegheny County's preliminary objections and dismissing the complaint against Allegheny County.3
CCP argues in its preliminary objections that the common law claims asserted by Russo are barred by sovereign immunity because the claims are not encompassed in the General Assembly's waivers of sovereign immunity for tort or contract claims against Commonwealth parties. CCP further argues that the claim under the Whistleblower Law4 must be dismissed because the Whistleblower Law does not apply to CCP, Russo did not allege that he reported wrongdoing to an appropriate authority and the claim was untimely filed outside the six-month statute of limitations. Finally, CCP argues that his claims are precluded by the doctrine of res judicata because Russo had the opportunity to assert these claims in a previous lawsuit in federal court, which involved the same parties, concerned the same alleged wrongful discharge and was decided against Russo.5 See Russo v. Allegheny County, (W.D.Pa., No. 10CV00711, filed Oct. 28, 2010), 2010 WL 4366288.
We first address counts I, II and IV of the complaint which are premised on an alleged employment contract between Russo and CCP. CCP argues that as a court of the unified judicial system it is a part of the Commonwealth government and entitled to sovereign immunity as a Commonwealth entity. The Pennsylvania Constitution provides that the Commonwealth and its officers and employees may only be sued where the General Assembly has authorized the suit. Pa. Const. art. 1 § 11. The General Assembly has specified that "the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa.C.S. § 2310.
Under Article 5, Section 1 of the Pennsylvania Constitution, the "judicial power of the Commonwealth shall be vested in a unified judicial system." Pa. Const. art. 5, § 1. The courts of common pleas are included in the unified judicial system.Id.; 42 Pa.C.S. § 301(4) (). The Pennsylvania Constitution further provides that the Supreme Court has the sole authority to administer, supervise and prescribe rules of practice, procedure and conduct for the courts of the unified judicial system. Pa. Const. art. 5, § 10 (a), (c); see also 42 Pa.C.S. § 501. Moreover, the General Assembly has defined the "Commonwealth government" in the Judicial Code to include "the courts and other officers or agencies of the unified judicial system," 42 Pa.C.S. § 102, and our appellate courts have relied on this definition in determining that original jurisdiction lies in this Court for civil actions filed against judges and officers of the courts of common pleas pursuant to Section 761(a)(1) of the Judicial Code.6 See, e.g., Richardson v. Peters, 610 Pa. 365, 19 A.3d 1047, 1047–48 (2011) (per curiam ) (); In re Domestic Relations Hearing Room, 796 A.2d 407, 409–10 (Pa.Cmwlth.2002) (en banc ) ().
While the precise issue of whether courts of common pleas retain sovereign immunity has not been addressed, this Court has ruled that Magisterial District Judges are officers of the Commonwealth, rather than the counties in which they sit, and therefore enjoy sovereign immunity except where abrogated by the state.
Cimino v. DiPaolo, 786 A.2d 309, 311 (Pa.Cmwlth.2001) ; Heicklen v. Hoffman, 761 A.2d 207, 209 (Pa.Cmwlth.2000). Our Supreme Court has also held that judges of the courts of common pleas are officers of statewide jurisdiction, allowing the Supreme Court to hear a quo warranto action to remove a court of common pleas judge in its original jurisdiction. Commonwealth ex rel. Judicial Conduct Board v. Griffin, 591 Pa. 351, 918 A.2d 87, 92–93 (2007). Furthermore, the federal courts have consistently held that Pennsylvania courts, including the courts of common pleas, are immune from suit in federal court under the Eleventh Amendment of the U.S. Constitution. See, e.g., Benn v. First Judicial District of Pennsylvania, 426 F.3d 233, 238–41 (3d Cir.2005) ; Callahan v. City of Philadelphia, 207 F.3d 668, 672–73 (3d Cir.2000). Accordingly, we hold that CCP, as a court of the unified judicial system, is entitled to the sovereign immunity of the Commonwealth.
Having concluded that CCP is immune from suit except where authorized by the General Assembly, we must determine whether immunity has been waived with respect to the contract-based claims that Russo asserts in counts I, II and IV of the complaint. In Section 1702 of the Procurement Code, the General Assembly has waived sovereign immunity with respect to contract claims against the Commonwealth and its employees and officials acting within the scope of their duties in cases relating to protests of solicitations and awards, pre-litigation resolution of procurement contract disputes and claims in the Board of Claims related to certain classes of contracts. 62 Pa.C.S. § 1702(b) ; see also 62 Pa.C.S. §§ 1711.1, 1712.1, 1721 –1726. However, Section 1702 further provides that Commonwealth parties retain sovereign immunity except for those limited waivers. 62 Pa.C.S. § 1702(a) ; see also 1 Pa.C.S. § 2310. As our Supreme Court explained in Scientific Games International v. Commonwealth, 620 Pa. 175, 66 A.3d 740 (2013), by structuring the Procurement Code "to accord immunity, subject only to specific and limited exceptions," the General Assembly erected a jurisdictional bar to any claim against a Commonwealth party arising from contracts that fall outside one of the specific waivers of the Procurement Code. Id. at 753–56 ; see also Dubaskas v. Department of Corrections, 81 A.3d 167, 175–76 (Pa.Cmwlth.2013) (en banc ).
The waiver of sovereign immunity in Section 1702 applies only to claims against "Commonwealth agencies." 62 Pa.C.S. § 1702(b). A "Commonwealth agency" is defined in the Procurement Code as "[a]n executive agency, an independent agency or a State-affiliated entity," and each of...
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