Wagner v. Pa. Capitol Police Dep't, 2247 C.D. 2014
| Decision Date | 15 January 2016 |
| Docket Number | No. 2247 C.D. 2014,2247 C.D. 2014 |
| Citation | 132 A.3d 1051 |
| Parties | Keith WAGNER, Capitol Police Officer, Appellant v. PENNSYLVANIA CAPITOL POLICE DEPARTMENT, Department of General Services, and Gregory A. Green, Individually and in his Official Capacity as Director of the Bureau of Human Resources, Richard Shaffer, in his Individual Capacity and as acting as Superintendent of the Capitol Police, Robert J. Dillard, in his Individual Capacity and as acting as Deputy Superintendent of the Capitol Police. |
| Court | Pennsylvania Commonwealth Court |
Cynthia L. Pollick, Pittston, for appellant.
Sean A. Kirkpatrick, Deputy Attorney General, Harrisburg, for appellees.
BEFORE: BONNIE BRIGANCE LEADBETTER, Judge, PATRICIA A. McCULLOUGH, Judge, ROCHELLE S. FRIEDMAN, Senior Judge.
OPINION BY Judge McCULLOUGH
.
Keith Wagner (Wagner) appeals from the November 17, 2014 order of the Court of Common Pleas of Dauphin County (trial court) granting in part his motion for attorney fees and costs and denying his motion for delay damages.
Wagner began his employment with the Pennsylvania Capitol Police Department in 1998. In 2004, Wagner sustained physical injuries when a suspect tried to run him over, and he subsequently developed a seizure disorder that prevented him from carrying a weapon, driving, or directing traffic. Wagner was off work during September and October 2005. When his doctor released him to return to light duty work on October 17, 2005, the Capitol Police did not reinstate him, stating that it did not have a position available within his restrictions. Wagner returned to work in January 2006 when a position within his restrictions became available and was approved by his doctor.
On July 5, 2007, Wagner filed a complaint in the Court of Common Pleas of Lackawanna County under 42 U.S.C. § 1983
and the Pennsylvania Human Relations Act (PHRA)1 against the Capitol Police; the Department of General Services; Gregory A. Green, individually and in his official capacity as Director of the Bureau of Human Resources; Richard Shaffer, in his individual capacity and as acting Superintendent of the Capitol Police; and Robert J. Dillard, in his individual capacity and as acting Deputy Superintendent of the Capitol Police (collectively, Appellees). Specifically, Wagner alleged that Appellees refused to allow him to return to work when his physician released him on October 17, 2005, and denied him a pre-deprivation and a post-deprivation hearing. Count I of the Complaint asserted a violation of Wagner's constitutional right to due process and requested all remedies available under § 1983 ; Count II asserted a violation of the PHRA against all Appellees; Count III asserted a violation of the PHRA against Appellees Green, Shaffer, and Dillard; and Count IV asserted negligent supervision claims against Appellees Shaffer and Dillard.
On July 23, 2007, Appellees removed the matter to the Federal District Court for the Middle District of Pennsylvania. On February 23, 2009, the district court granted Appellees' motion for summary judgment with respect to the federal constitutional claims and remanded the remaining state law claims to the Court of Common Pleas of Lackawanna County.
In 2008, Wagner filed a second complaint based on events that occurred in 2007. In that complaint, Wagner alleged that, in retaliation for Wagner's filing of the first action, Appellees and Connie Tennis issued an ultimatum for him to return to work in full-duty capacity or be discharged. However, the present appeal involves only the first complaint, docketed at No. 2009–CV–13930–CV.
At Appellees' request, both actions were transferred to the Court of Common Pleas of Dauphin County. Following the transfer, there was no docket activity for at least two years, resulting in the issuance of a Notice of Proposed Termination on June 1, 2012. Wagner simultaneously filed a Statement of Intent to Pursue Action and a Certificate of Trial Readiness on July 23, 2012.2
A jury trial was held on August 11–13, 2014. The jury found that Appellees did not provide reasonable accommodations to Wagner when they refused to allow him to return to work in a light duty position in the communications room in October 2005. The jury awarded Wagner $14,000.00 in lost wages; however, it did not award him any damages for mental anguish, embarrassment, or humiliation.
Wagner filed three post-trial motions, requesting: (1) $125,420.87 in attorney fees and costs; (2) delay damages; and (3) reinstatement of his seniority. The trial court granted Wagner's motion to reinstate his seniority; granted his request for attorney fees and costs in part, awarding $5,600.00 representing 40% of the jury's award; and denied his request for delay damages.3
On December 11, 2014, Wagner filed a notice of appeal, which was returned due to his failure to follow service requirements. He filed an amended notice of appeal on January 30, 2015.
In its opinion, the trial court first stated that Wagner did not provide any case law or cite any rule of court to support his request for delay damages. The trial court noted that Pa.R.C.P. No. 238 (Rule 238
) provides that delay damages can be added to compensatory damages "in a civil action seeking monetary relief for bodily injury, death or property damage. " Rule 238(a)(1) (emphasis added). Additionally, the trial court observed that delay damages cannot be awarded for any time period within which the plaintiff caused the delay. Rule 238(b)(ii). The trial court explained that this matter was an action for employment discrimination; there were no allegations that Wagner suffered bodily injury, death, or property damage as a result of the alleged employment discrimination; therefore, delay damages are not available under Rule 238.
The trial court also noted that there had been no docket activity from October 2009, when the matter was transferred to Dauphin County, to July 20, 2012, when the notice of proposed termination was filed and Wagner filed a certificate of trial readiness, asserting that he had previously filed one in Lackawanna County prior to the transfer. However, the certificate of readiness was not included in the documents that were transferred to Dauphin County. Appellees filed objections to the certificate of readiness, asserting that the certificate was improperly filed in Lackawanna County prior to any discovery on the state law claims and that it was also improperly filed in Dauphin County because discovery had not yet been completed, Wagner's counsel failed to consult with Appellees' counsel with respect to trial dates, and there had not been any attempt at settlement. The trial court granted Appellees' objection and the trial was removed from the October 2012 trial list. Based on those circumstances, the trial court concluded that any delay between October 2009 and July 20, 2012, was caused by Wagner's failure to follow the rules of civil procedure and the local rules of court and, therefore, delay damages would be inappropriate.
The trial court next addressed Wagner's request for $125,420.87 in attorney fees and costs. The trial court noted that, under the PHRA, a court may award attorney fees and costs to the prevailing plaintiff if the court finds that a defendant engaged in or is engaging in any unlawful discriminatory practices as defined in the act, and that an award of attorney fees and costs is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 748, 752 (1998)
. The trial court explained that, in contrast to the pervasive sexual harassment at issue in Hoy, no evidence was presented that Appellees engaged in or continued to engage in pervasive discriminatory behavior. In addition, the trial court stated that the fee agreement between Wagner and his counsel was not submitted into evidence. Finally, it appeared to the trial court that the records that were submitted by Wagner's counsel reflected work relating to both actions Wagner filed, as well as claims on which he did not prevail. Accordingly, the trial court concluded that no additional attorney fees were warranted in this case.
On appeal to this Court, Wagner asserts that the trial court erred by not awarding costs as a matter of course to the prevailing party; by awarding less than the full amount of attorney fees; and by denying delay damages where Appellees never made a settlement offer.
Wagner first argues that the trial court erred by not awarding costs to the prevailing party. In making this argument, Wagner quotes a passage from Zelenak v. Mikula, 911 A.2d 542, 544–45 (Pa.Super.2006)
: Wagner contends that the trial court did not have discretion to deny his request for costs because they are given as a matter of course to the prevailing party.
In this brief section of his argument, Wagner offers no summary of Zelenak, cites no other authority, and fails to elaborate. In fact, Zelenak was a negligence action; on appeal, the Superior Court held that the prevailing party was entitled to record costs (costs of proceeding in court/filing fees) under 42 Pa.C.S. § 1726(a)(2)
. In this appeal, however, the issue of costs is governed by section 12(c.2) of the PHRA, added by the Act of December 20, 1991, P.L. 414, 43 P.S. § 962(c.2).
Appellees respond that Pennsylvania follows the American Rule, i.e., litigants are responsible for their own litigation costs and may not recover them from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception. In Re Farnese, 609 Pa. 543, 17 A.3d 357, 370 (2011)
. The relevant section of the PHRA...
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