author: SOKOLOVE, J.,

text:
    Faust v. Commonwealth

      Doris Applebaum, for plaintiffs.

      Claudia M. Tesoro, for defendant Commonwealth of Pennsylvania.
    September 11, 1990
   SOKOLOVE, J.,

Plaintiffs have appealed to the Commonwealth Court from our order granting the preliminary objections of defendant Commonwealth of Pennsylvania and granting the motion for judgment on the pleadings of the remaining 10 individual defendants.

Pursuant to our further order, plaintiffs have filed a statement of matters complained of on appeal, consisting of the following:

“(1) The trial court erred in deciding that the State of Pennsylvania is not a person within the meaning of section 1983 of the Federal Civil Rights Act of 1871.

“(2) The trial court erred in deciding as a matter of law that the Commonwealth agency being sued, the Department of Revenue, and its employees, servants and agents, are cloaked with sovereign immunity for their intentional torts carried out within the scope and course of their employment.

“(3) The trial court erred in deciding as a matter of law that plaintiff’s complaint does not state a cause of action in mandamus against the Secretary of the Department of Revenue, Barton A. Fields, and the Director of Personnel of the Department of Revenue, John S. Greecher.

“(4) The trial court erred in deciding as a matter of law that the plaintiff could not state a cause of action in mandamus under any set of facts through the filing of an amended complaint.”

To explain our order in light of plaintiffs’ statement above, we will review the pleadings in this matter, with an emphasis on plaintiffs’ complaint.

On September 1, 1989 plaintiffs filed a 39-page complaint, naming as defendants the Commonwealth of Pennsylvania, Department of Revenue and 10 individual employees of the Department of Revenue. The complaint, both in the caption and the body, specified the exact employment titles of the respective individual defendants, stated that they were named in their official capacities and alleged that they were acting as agents and employees of the Department of Revenue at all relevant times.

The complaint generally alleges that plaintiff Marian Jane Faust was employed as a revenue investigator by the defendant Department of Revenue for over 16 years. The first count alleges that, as the result of an anonymous tip concerning Ms. Faust’s work habits, certain of the individual defendants undertook an internal investigation of her, beginning on or about May 8, 1987. The investigation caused Ms. Faust emotional distress. After a fact-finding, predisciplinary conference, attended by representatives of Ms. Faust’s union among others, Ms. Faust was suspended for two days without pay. She served the suspension on February 25 and 26, 1988. According to the complaint, the aforementioned violated Ms. Faust’s federal civil rights to freedom of speech and due process of law, as guaranteed by the First and 14th Amendments to the U.S. Constitution and enforced by the Civil Rights Act of 1871 codified at sections 1983, 1985, 1986 and 1988 of Title 42 of the U.S. Code. The first count demanded relief for Ms. Faust from the department and seven of the individual defendants, jointly and severally, in the form of reimbursement for her two-day suspension without pay, purging her personnel record of any reference to the suspension and disciplinary action, reimbursement of her medical expenses brought about by the investigation, compensation in excess of $20,000 for the violation of her civil rights and her resulting physical pain, mental pain, emotional distress, harm to reputation and inconvenience and punitive damages in the amount of $100,000 or as determined by the court and attorney’s fees.

In the second count of the complaint, plaintiffs allege that Ms. Faust was targeted for dismissal from her job with the department by certain of the individual defendants by reason of her political registration in, affiliation with and activities for the Republican party. With this motivation and in conspiracy with each other, the various defendants instituted another internal investigation of Ms. Faust’s daily work on or about April 19, 1988. The complaint avers that defendant James Furlong, the local district administrator for the department, improperly reprimanded Ms. Faust for a collection she had made with his permission and scheduled another fact-finding, predisciplinary conference pursuant to the reprimand. The conference was held on May 10, 1988, but the complaint does not state that Ms. Faust was disciplined as a result of the conference. Although Ms. Faust reported to work the following day, she suffered a mental breakdown and had to leave to seek medical treatment. Her emotional distress also aggravated her asthmatic condition. The complaint further alleges that, upon her doctor’s advice, Ms. Faust took early retirement (one year early) from her job with the department. This count of the complaint specifically states that defendants acted willfully, maliciously and with a specific intent to injure and harm Mrs. Faust in her employment and business reputation and to abridge and deny her constitutional rights. The second count requests relief against all defendants except Alfonso Nicola as follows: the full purging of any reference in Ms. Faust’s personnel record of the reprimand and the May 10, 1988 predisciplinary hearing, Ms. Faust’s reinstatement to the same employment with the department, payment to Ms. Faust of all benefits she would have received had she not taken early retirement, payment of the wages Ms. Faust would have earned had she not taken early retirement, money damages in excess of $20,000, punitive damages of $100,000 or an amount determined by the court and attorney’s fees.

The third count of the complaint repeats the factual allegations of the first count but asserts a violation of the Pennsylvania Constitution, specifically Article I, sections 1, 2, 5, 7, 11 and 26, as opposed to the federal Constitution. Likewise, the fourth count incorporates the facts of the second count to set forth state constitutional grounds. The fifth count consists of the claim of plaintiff Harry S. Faust Sr., Ms. Faust’s husband, for loss of consortium.

After the filing of the complaint, defendants removed the matter to federal district court pursuant to 28 U.S.C. §1446(d). While the action was pending in federal court, the individual defendants all filed answers to the complaint with seven affirmative defenses. For our purposes, the only relevant affirmative defenses raised by the individual defendants were that the complaint failed to state a claim upon which relief could be granted (known in our state courts as a demurrer) and that plaintiffs’ state law claims were barred by sovereign immunity. The defendant department did not file an answer. Upon motion of plaintiffs, the federal district court remanded the case to our court, whereupon the individual defendants filed their motion for judgment on the pleadings, and the department filed preliminary objections in the nature of a demurrer and a motion to strike the punitive damages claims. We held oral argument and received memoranda of law, including supplemental memoranda, from both sides.

After analyzing the law, we sustained the department’s demurrer and entered judgment in favor of the individual defendants on their motion. We purposely did not allow the filing of an amended complaint because we found that, under the facts alleged, plaintiffs could not state a valid cause of action. The first two counts, attempting to set forth federal civil rights claims, were precluded by the U.S. Supreme Court’s holdings in Will v. Michigan Department of State Police, _ U.S. _, 109 S.Ct. 2304, 105 L.E.2d 45 (1989), and Griffin v. Breckenridge, 403 U.S. 88 (1971). The third and fourth counts, sounding in state law, were barred by the doctrine of sovereign immunity and did not set forth cognizable claims in mandamus. The fifth count for loss of consortium was derivative of the other claims and, therefore, also failed. Krupa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983).

We are surprised that plaintiffs have challenged our ruling on the federal counts. At oral argument, plaintiffs’ counsel expressly admitted that counts I, II and V were defeated by Will v. Michigan Department of State Police, supra. So conceding she pleaded with us that “all we want is our day in court and to get the personnel record expunged.” Any questions concerning our dismissal of the first two counts were waived. Nevertheless, it is indisputable that our decision in this regard was correct.

The statutes under which plaintiffs brought their federal claims, 42 U.S.C. §§1983, 1985, 1986 and 1988, provide for private rights of action to recover civil damages for the infringement of civil rights. Specifically, section 1983 imposes liability upon “every person” who under color of state law deprives another of any rights, privileges or immunities secured by the Constitution and laws of the United States. The U.S. Supreme Court unequivocally held in Will, supra, that neither states nor state officials acting in their official capacities are “persons” within the meaning of section 1983. There can be no successful argument that we are not bound by decisions of the U.S. Supreme Court. Since plaintiffs’ complaint makes allegations against the department, a state agency, and the other defendants exclusively in their official capacities, the section 1983. claim cannot prevail.

Similarly, sections 1985 and 1986 refer to civil liability for actions taken by “persons” — the conspiracy by two or more persons to interfere with civil rights, 42 U.S.C. §1985, and the neglect of a person to prevent the section 1985 conspiracy and its wrongs, 42 U.S.C. §1986. The Will holding may be extended to these sections. Furthermore, the U.S. Supreme Court stated in Griffin v. Breckenridge, supra, that racial or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’ action is a required element of a cause of action under section 1985. Plaintiffs alleged no such animus on the part of defendants to support the section 1985 and section 1986 claims.

Finally as to the propriety of our dismissal of the first two counts, section 1988 allows for the award of attorney’s fees to the prevailing party in an action under 42 U.S.C. §§1981-1986. Inasmuch as plaintiffs cannot prevail on their complaint under sections 1983, 1985 or 1986, they cannot possibly be awarded attorney’s fees pursuant to section 1988.

Regarding their state law claims, plaintiffs argue that defendants are not protected by sovereign immunity for intentional torts committed within the scope and course of employment. We disagree.

Sovereign immunity is the general rule in Pennsylvania. Title 1 Pa.C.S. §2310 provides:

“Pursuant to section II of Article I of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of Title 42 (relating to the judiciary and judicial procedure) unless otherwise specifically authorized by statute.”

Title 42 Pa.C.S. §8522 waives sovereign immunity for Commonwealth agencies and employees acting within the scope of their employment only in nine strictly defined negligence categories. It is well established that any waiver of sovereign immunity must be strictly construed in favor of the Commonwealth. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989).

In carefully perusing the sovereign immunity statutes in view of the mandate of strict construction, we find that there is no waiver of sovereign immunity for intentional, as opposed to negligent, acts of Commonwealth agencies and employees in their official capacities. The Commonwealth Court also made this finding in Yakowicz v. McDermott, 120 Pa. Commw. 479, 548 A.2d 1339 (1988), where it held that sovereign immunity barred an action for defamation against an employee of a Commonwealth agency. There, the Commonwealth Court wrote:

“We note that the immunity defense provided by the General Assembly to local agencies and their employees in 42 Pa.C.S. §8541-8564 is lost to local agency employees where their actions constitute a ‘crime, actual fraud, actual malice or willful misconduct.’42 Pa.C.S. §8550. . . . The General Assembly has not included any such abrogation of the immunity provided to Commonwealth agency employees.” 120 Pa. Commw. at 488, n.5, 548 A.2d at 1334, n.5. (emphasis in original)

This reasoning applies to shield the defendants here from liability for any intentional torts alleged by plaintiffs.

The last question we must address is whether plaintiffs stated, or could have stated, a viable cause of action under state law in mandamus.

It is true that sovereign immunity does not block a proper action in mandamus. Borough of Jefferson v. Century III Associates, 60 Pa. Commw. 94, 430 A.2d 1040 (1981), vacated on other grounds, 498 Pa. 57, 444 A.2d 665; City of Philadelphia v. Shapp, 44 Pa. Commw. 303, 403 A.2d 1043 (1979). The standards for mandamus are clear. The remedy of mandamus will only lie to compel the official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant and the lack of any other adequate and appropriate remedy at law. Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 493 A.2d 1351 (1985). Mandamus is an extraordinary remedy and will not lie to compel the performance of discretionary acts except when the exercise or non-exercise of discretion is arbitrary, fraudulent or based upon a mistaken view of law. Maden v. Jeffes, 85 Pa. Commw. 414, 482 A.2d 1162 (1984). For an action in mandamus to lie, it must involve the assertion of a present right which has been refused by an agency or governmental officer whose clear duty it is to perform. Camiel v. Thornburgh, 507 Pa. 337, 489 A.2d 1360 (1985). See Pa.R.C.P. 1095.

The relief MsJ Faust seeks in her state law counts is not available to her in mandamus for several reasons. Aside from compensatory and punitive damages, she asks for expungement of any disciplinary action from her personnel records, for reinstatement of her employment and benefits and for back wages. First, mandamus will not support the recovery of employment, benefits and wages in this case. The complaint plainly states that Ms. Faust resigned from her employment. Mandamus will not provide a remedy for action she took herself in resigning. See Porter v. Board of Supervisors of North Franklin Township, 82 Pa. Commw. 440, 474 A.2d 124 (1984). Second, the removal of information from Ms. Faust’s personnel records does not involve a purely ministerial act or mandatory duty on the part of the department’s officials. The discipline of employees is clearly a discretionary function. Cf. Beckert v. Warren, 497 Pa. 137, 439 A.2d 638 (1981). Further, Ms. Faust has not alleged that she ever made a request for the modification of her records to the department, which request was arbitrarily or fraudulently refused. Lastly, and most significantly, mandamus is not proper in this matter because Ms. Faust had an adequate and appropriate remedy at law which she chose not to pursue. As a unionized employee, Ms. Faust had the right to invoke administrative, labor law procedures to appeal the disciplinary action taken against her.

To sustain a demurrer, the complaint must indicate on its face that the claim cannot be sustained and that the law will not permit recovery. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). Judgment on the pleadings may be granted only in cases where no facts are at issue, and the law is so clear that a trial would be a fruitless exercise. Beardell v. Western Wayne School District, 91 Pa. Commw. 348, 469 A.2d 1373 (1985). We are satisfied that these requirements were met in this matter as explained in detail above. The alleged facts were not disputed; they could not support any cause of action against these defendants. Although sovereign immunity is technically an affirmative defense to be pleaded as new matter, we ruled on the Commonwealth’s demurrer on this, as well as other grounds, because a delay in the ultimate decision would have served no purpose. City of Philadelphia v. Shapp, supra. Although the amendment of pleadings should be liberally allowed, we did not grant plaintiffs the opportunity to file an amended complaint to plead mandamus. We fully considered their right to mandamus and concluded that they could not maintain an action in mandamus under the facts they alleged and for the relief they sought. Further pleadings would be futile.

The foregoing explains our order.


source: Caselaw Access Project

author: GILBERT, Member,

license: Public Domain

text:
    In re Anonymous No. 2 D.B. 86
    Disciplinary Board Docket no. 2 D.B. 86.
    June 1, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GILBERT, Member,

Pursuant to rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

HISTORY OF PROCEEDINGS

By order of the Supreme Court of Pennsylvania, dated May 29, 1987, petitioner [ ] was suspended for a period of three years commencing January 9, 1986. The term of this suspension expired on January 28, 1989.

On July 6, 1989, petitioner filed this petition for reinstatement with the Disciplinary Board. On August 2, 1989, the matter was referred to Hearing Committee [ ] consisting of [ ]. A reinstatement hearing was held on November 7, 1989 at which petitioner was represented by [A], Esq., and assistant disciplinary counsel appeared for the Office of Disciplinary Counsel. At the hearing, petitioner testified on behalf of himself, but presented no witnesses. Petitioner also offered into evidence the following documentary exhibits: (A) release from probation, (B) transcript of the sentencing hearing, (C) plea agreement, (D) judgment and probation order, (E) indictment, (F) report of Disciplinary Board recommending suspension, (G) income tax returns, and (H) petition for reinstatement. Office of Disciplinary Counsel did not present any witnesses or exhibits.

By its report filed February 5, 1990, the hearing committee recommended petitioner be reinstated to the practice of law in the Commonwealth of Pennsylvania. On February 26, 1990, Office of Disciplinary Counsel filed a brief on exceptions to the report of the hearing committee. Respondent argued that petitioner failed to meet his burden of proof by clear and convincing evidence that he has the moral qualifications required for readmission to the practice of law. On March 9, 1990, petitioner filed a brief opposing respondent’s exceptions, requesting adoption of the hearing committee’s recommendation for reinstatement.

FINDINGS OF FACT

Petitioner, [ ], age 62, was admitted to the practice of law in the Commonwealth of Pennsylvania on May 22, 1979. His address for both his office and home, where he resides with his wife, is [ ].

Petitioner obtained his undergraduate degree in 1948 from the City College of [ ]. Petitioner earned both his law degree (1951) and LL.M. degree (1955) from [ ] Law School. Respondent was admitted to practice law in the State of [ ] (1953); United States Tax Court (1953); United States District Court for the [ ] and [ ] District (1954); United States Court of Appeals for the [ ] Circuit (1954); United States Supreme Court (1976) and the United States Court of Claims (1981).

For most of his legal career, petitioner’s practice has involved military procurement work and related matters. Petitioner was enlisted in the Army from 1951 to 1953. After his discharge, he was employed by a [ ] law firm for six years. Petitioner’s work history also includes private practice for a short period of time, corporate counsel for a company engaged in contract work, and in 1967 petitioner enlisted in the Navy where he was employed in the Office of General Counsel for the Department of the Navy.

Initially, petitioner was assigned as counsel to the [ ] Navy Shipyard where he worked for approximately five years handling both personnel problems and government contracting issues. In approximately 1970, petitioner became deputy counsel in the Navy Regional Contract Office. One year later, petitioner was transferred and promoted to Chief Legal Counsel at the Navy Ship Parts Control Center at [ ], Pa.

While employed in his position of Chief Legal Counsel, petitioner was indicted August 7, 1985 by the Grand Jury of the United States District Court for the [ ] District of Pennsylvania of two counts of knowingly accepting a thing of value for himself from a contractor in return for making favorable decisions on contracts and on one count of accepting a thing of value in return for obtaining proprietary drawings for the same contractor. Petitioner initially entered a plea of not guilty to the indictment. Subsequently, the petitioner entered into a plea agreement whereupon the petitioner agreed to waive indictment by the grand jury and to plead guilty to a felony information charging the petitioner with two counts of unlawfully accepting gratuities for or because of an official act performed or to be performed by him as chief legal counsel in violation of 18 U.S.C. §201(g).

Petitioner entered his plea of . guilty to the above charges. On November 20, 1985 the Honorable [B], U.S. District Judge, [ ] District of Pennsylvania, sentenced the petitioner to a two-year period of imprisonment and imposed the fine of $10,000 on count I. The sentence as to imprisonment on count I was suspended and petitioner was placed on probation for three years. The three-year probation period was subject to special condition of performance of 400 hours of community service work. On count II, the sentence was the same as proposed in count I and was to run consecutive as to the fine only. Petitioner’s probation ended approximately seven months early on the petition of the probation officer to Judge [B] who agreed to terminate the probation.

DISCUSSION

In order for petitioner to gain reinstatement to the practice of law before the bar of the Supreme Court of Pennsylvania, he has the burden of demonstrating, by clear and convincing evidence, that he has both the moral qualifications and the competency and learning in the law required for admission to practice in this Commonwealth. In addition, he has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. See rule 218(c)(3)(i) of the Pennsylvania Rules of Disciplinary Enforcement.

Moral Qualifications

Petitioner pled guilty to two counts of unlawfully accepting gratuities for or because of an official act performed or to be performed by him as Chief Legal Counsel in violation of 18 U.S.C. §201(g). The gratuities petitioner received include a discount on the price of a used Cadillac, several lunches, two [ ] football tickets worth $14, and a free turkey along with a “gag” gift which petitioner received at an annual Christmas party. Subsequently, on August 29, 1986, the Department of the Navy debarred petitioner from doing business with the Navy for a period of three years. Petitioner’s debarment ended in December 1989.

Petitioner is fully aware of the egregious mistakes he has made in the past and has resolved to avoid situations in which such conflicts of interest may arise. Petitioner testified that in his current business associations, he maintains a strict business relationship and does not socialize so to avoid all question of impropriety. Petitioner has stated that he has learned from his past transgressions as follows: “Certainly I’ve made an objective decision not to deal with contractors per se and to deal through attorneys. But I think that this may have been an aberration of a one-time thing that certainly will never happen again. I think I’ve learned my lesson.”

The record indicates that petitioner has complied with all the terms of his sentence. Petitioner paid all the fines and in 1987 completed the 400 hours of community work with the Cystic Fibrosis Foundation. In fact, petitioner has continued in his work and is currently a volunteer for the foundation. Petitioner’s probation was ended approximately seven months early on the petition of the probation officer to the sentencing judge who agreed to terminate the probation.

During the reinstatement hearing, the issue was raised as to whether petitioner paid the sales tax for the purchase of the Cadillac which was involved in the indictment. Petitioner testified that although he took steps to settle the matter, the taxes remained unpaid. On February 18, 1990, petitioner paid the sales tax on the used Cadillac. (Verification of payment — exhibit A attached to petitioner’s brief opposing exceptions.)

During the period of suspension, petitioner did not engage in the practice of law. Petitioner supported his family by working in the area of international trade which included arranging the purchase of housing units for clients from Ethiopia, and the bartering of items from Brazil on behalf of the [C] Corporation.

Office of Disciplinary Counsel agrees that petitioner properly provided notice of his suspension to clients and other jurisdictions where he is admitted to practice law and petitioner provided correct and truthful answers on the reinstatement questionnaire. At the end of the reinstatement hearing, Office of Disciplinary Counsel stated that it was not opposed to petitioner’s reinstatement and was not offering any evidence in opposition. However, in an apparent change of position, respondent filed a brief on exceptions and objected to the reinstatement arguing that petitioner has failed to meet his burden of proof that the petitioner has the moral qualifications to practice law in the Commonwealth of Pennsylvania.

In its brief, Office of Disciplinary Counsel raised several issues. Respondent argues that petitioner’s association with [D] during petitioner’s suspension and debarment by the Navy does not reflect rehabilitation. [D], a friend of petitioner, worked as a consultant for a company called [E]. [E] was investigated by the FBI due to an anonymous tip that [E] purposely shipped to the Navy 67 faulty lifeboats. [E] was cleared of the charge and was allowed to continue to do business with the Navy. During the investigation the press associated petitioner’s name with [D’s] in the newspapers. Petitioner explained that he simply drove [D] to a meeting with [E]. Petitioner had signed the guest sheet at the building, but did not participate in the meeting.

[D] pled guilty to a federal offense for acting as a conduit for illegal campaign contributions for defense contributors. Petitioner was in no way involved in [D’s] conviction.

It is true that petitioner is a friend of [D] whom petitioner met through his employment with the Navy. Petitioner also did some consulting work for [D]. However, the board refuses to hold petitioner accountable for [D’s] conduct. [D’s] conviction was totally unrelated to his friendship with petitioner. Petitioner’s friendship with [D] does not necessarily imply that petitioner condones the actions of his friends.

Another issue raised by Office of Disciplinary Counsel concerns the final disposition of the $500 in cash that petitioner found in an envelope on his desk while employed by the Navy in 1979. During the 1986 disciplinary proceeding, petitioner’s position in regard to this matter was that he did not report the receipt of the money to anyone and gave the money to charity. During the reinstatement hearing, petitioner testified that he failed to report the funds to the proper authorities, but discussed the matter with the admiral on base and then donated the money to the Multiple Sclerosis Society. The board agrees that there is an inconsistency in petitioner’s testimony. However, during the reinstatement hearing, petitioner was not asked to explain this discrepancy. Instead, on cross-examination, petitioner was asked whether he realized any benefit from the funds. Petitioner testified' that he had not. The hearing committee found the testimony of petitioner to be credible and the board concurs in this determination.

The board agrees with Disciplinary Counsel that reinstatement does not automatically follow a period of suspension. Office of Disciplinary Counsel v. Braun, 520 Pa. 157, n.1, 553 A.2d 894, n.1 (1989). In a reinstatement proceeding, petitioner has the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications required for admission to the practice of law. Pa.R.D.E. 218(3)(i). Also in a reinstatement proceeding, Office of Disciplinary Counsel shall conduct cross-examination of the petitioner’s witnesses and submit any evidence in opposition to the petition for reinstatement. Pa.R.D.E. 218(d). The hearing committee must assess the credibility of the witnesses and consider all the evidence to determine whether petitioner has been rehabilitated and is now morally fit to resume the practice of law.

In the case at bar, Office of Disciplinary Counsel offered no evidence in opposition of petitioner’s request for reinstatement. Petitioner’s case solely relied on petitioner’s own testimony on behalf of himself. Respondent argues that petitioner offered “no evidence from those he professionally associated with during his suspension.” Although petitioner’s case would have been more persuasive if he had presented testimony of character witnesses, the board does not choose to establish a per se rule which would require petitioners to present a certain number of witnesses in order for petitioner to meet the burden of proof that he or she is morally fit to resume the practice of law.

The Disciplinary Board concurs in the hearing committee’s belief that petitioner’s testimony was credible and petitioner has clearly met his burden of proof and should be reinstated to the practice of law in the Commonwealth of Pennsylvania.

Competency and Learning in the Law

Petitioner has kept abreast of the law in the area of government contracts by reading books on the subject and conducting research problems using a LEXIS terminal. Petitioner has attended several seminar courses on government contracts including a two-day session in [ ] on Contract Administration. Petitioner also has attended the Pennsylvania Basic Practice Course at [ ] School of Law, [ ] on August 10 through 13, 1988. Petitioner testified that if he were reinstated to the practice of law, he would strictly limit his practice to government contracts and would most likely operate his practice out of his home.

In light of these facts, petitioner has proven, by clear and convincing evidence, that he has the competency and learning in the law required for reinstatement to practice law in the Commonwealth of Pennsylvania.

CONCLUSIONS OF LAW

The Disciplinary Board of the Supreme Court of Pennsylvania finds and concludes that petitioner has demonstrated by clear and convincing evidence that he has both the moral qualifications and the competency and learning in the law required for admission to practice in this Commonwealth. In addition, he has demonstrated that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania respectfully recommends that your honorable court grant the instant petition for reinstatement of [petitioner] to the practice of law in the Commonwealth of Pennsylvania.

The board further recommends that, pursuant to rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of said petition for reinstatement.

Board members Heh and Brown did not participate in the adjudication.

ORDER

And now, August 15, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated June 1, 1990, the petition for reinstatement is granted.

Pursuant to rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: D’ALESSANDRO, J.,

text:
    Seal-Tite Bag Co. v. Brennen

      Lee A. Solomon, for plaintiff.

      Alfred O. Breinig, for defendant.
    January 30, 1989
   D’ALESSANDRO, J.,

Before this court comes plaintiff, Seal-Tite Bag Co., and its petition to file an appeal from an award of arbitrators nunc pro tunc.

This action, for breach of contract, was commenced by the filing of a complaint on December 11, 1987, at which time a compulsory arbitration date was set for August 18, 1988. Plaintiff’s complaint was reinstated on March 15, 1988 and service was effectuated on April 7, 1988.

Plaintiff’s counsel failed to appear at the arbitration hearing due to a clerical error. On August 22, 1988, the report and award of arbitrators, finding for defendants, for plaintiff having failed to appear, was docketed by the prothonotary. Petitioner failed to file a notice of appeal within 30 days after the entry of the award on the docket.

Petitioner contends that his appeal should be granted nunc pro tunc since he failed to receive notice of the award of arbitrators finding for defendants, for plaintiff having failed to appear.

Generally, appeals nunc pro tunc have only been permitted in extraordinary situations involving fraud or some breakdown in the court’s operation, through default of its officers. Cadogan Township v. Dept. of Environmental Resources, 121 Pa. Commw. 18, 20, 549 A.2d 1363, 1364 (1988). Negligence on the part of counsel is not justification for an appeal nunc pro tunc. Rostosky v. Department of Environmental Resources, 26 Pa. Commw. 478, 364 A.2d 761 (1976).

Pennsylvania Rule of Civil Procedure 1307, which governs the entry, docketing and service of awards of arbitrators, provides that:

“(a) The prothonotary shall

“(1) enter the award of record upon the proper docket and in the judgment index;

“(2) immediately send by ordinary mail a copy of the award, with notice of the date and time of its entry on the docket and the amount of arbitrators’ compensation to be paid upon appeal, to each party’s attorney of record, or to the party if he has no attorney of record; and

“(3) note in the docket the date of mailing the notice. ” (emphasis supplied)

The explanatory notes to Pennsylvania Rule of Civil Procedure 1307 elucidates that:

“Subdivision (a)(2) provides that it is theprothonotary’s duty to mail copies of the award and notice of the date and time of entry. This will make a change in some judicial districts which require the chainpan of the arbitration board to mail the copies and certify to the mailing on the award file with the prothonotary,... who will mail it and record the mailing on the docket.” (emphasis supplied) '

Pa.R.C.P. 1307 mandates that it is the prothono-tary’s duty to mail a copy of the award of arbitrators and record the mailing in the docket. In the case sub judice, the mailing of the award of arbitrators is not recorded in the docket and petitioner states that he has no record of and does not recall a notice of the award of arbitrators.

Thus, petitioner has shown a breakdown in the court’s operation through default of its officers, for which nunc pro tunc appeals have been permitted. Therefore, this court shall grant Seal-Tite Bag Co.’s petition to file an appeal from an award of arbitrators nunc pro tunc.


author: SMITH, J.,

text:
    Klein v. Mitchell

      Steven L. Sugarman, for plaintiff.

      James C. Sargent Jr., for defendants.
    August 31, 1990
   SMITH, J.,

We heard this case on January 16, 1990, and we make the following

FINDINGS OF FACT

(1) Plaintiff is John M. Klein, an adult individual who resides at 203 Vassar Circle, Strafford, Chester County, Pennsylvania 19087.

(2) Since 1973 plaintiff has been in the real estate business. He is a licensed real estate broker and developer and has participated in innumerable transactions involving purchase and sale of real estate for his own account or that of others.

(3) Defendants, William F. Mitchell and Leslie Mitchell, his wife, are adult individuals who reside at 1220 Mayapple Lane, West Chester, Chester County, Pa. 19382.

(4) At all times material hereto, the Mitchells were and still are the title owners of the commercial building located at 12 South Valley Road, Tredyffrin Township, Paoli, Chester County, Pa. 19301.

(5) At all times relevant, defendant William Mitchell conducted his business, Mitchell Marketing Inc., at the subject building.

(6) On December 28, 1984, KZlein, as buyer, and the Mitchells, as sellers, entered into a written agreement of sale for the subject property for the purchase price of $194,500.

(7) At the time of the agreement of sale, Klein owned an adjacent parcel consisting of five commercial rental units abutting Lancaster Avenue in Paoli and seven residential apartment units located above the commercial stores.

(8) The agreement of sale contained the following special clause 5(a):

“5(a). This agreement of sale is contingent upon the buyer’s ability to obtain a mortgage in the amount of 80 percent of the purchase price at an interest rate and under terms committed by the mortgage lender. Buyer shall use his best efforts to obtain such a mortgage and application for said mortgage shall be made within 10 days of full execution of this agreement and committment [sic] for said mortgage will be issued on or before 60 days of the execution date of this agreement. Buyer shall give written notice of the receipt of such commitment to seller within five days of receipt. In the event that committment [sic] for said mortgage is not issued within the 60-day period, then this agreement of sale shall become null and void, and all deposit monies shall be returned- to the buyer, and there will be no further obligation of buyer or seller under this agreement.” (Emphasis in text refers to amendments written into contract and initialed by all parties.)

(9) With the exception of the emphasized language in special clause 5(a), plaintiff drafted clause 5(a) including the language “commitment. . . issued . . . null and void.”

(10) The emphasized language in special clause 5(a) was requested and drafted by the Mitchells.

(11) The language of clause 5(a) establishes that the parties intended a written commitment to have been received on or before the 60th day following the execution date.

(12) Defendants specifically negotiated for language making the agreement null and void if the mortgage commitment was not issued by the 60th day following the execution date.

(13) The foregoing language was self-executing, making the agreement null and void if the commitment was not received in a timely manner.

(14) The 60th day following execution of the agreement was February 26, 1985.

(15) Defendants specifically negotiated for language requiring written notice of receipt of the mortgage commitment within five days after February 26, 1985, or on or before March 3, 1985.

(16) In accordance with the agreement of sale, Klein deposited the initial amount of $1,000 with the escrow holder, Scott E. Miller, Esq., on December 28, 1984, and thereafter, deposited down monies in the amount of $9,000 with the escrow holder on January 10, 1985.

(17) Pursuant to the agreement of sale, Klein applied for the requisite mortgage within 10 days of executing the agreement.

(18) The mortgage application was submitted to Independence Mortgage Service Company through a mortgage broker contracted by Klein, Thomas P. Lynch.

(19) On February 26, 1985, plaintiff received verbal approval of his mortgage application.

(20) A mortgage commitment was issued on or about March 5, 1985. See Exhibit D-l, memorandum of understanding.

(21) Klein requested that the Mitchells execute an endorsement to the agreement of sale providing for an additional 15 days from February 26 for Klein’s submission of a written commitment to the Mit-chells.

(22) The endorsement to the agreement of sale was never executed.

(23) The mortgage commitment was received by plaintiff on March 11, 1985.

(24) No written notice of the mortgage commitment was sent to defendant until on or after March 15, 1985.

(25) Times referred to for the performance of any of the obligations of this agreement are of the essence of the agreement. (See Exhibit P-4, agreement of sale, clause 16).

DISCUSSION

The question presented in this case is whether plaintiff has complied with the mortgage contingency clause found in the agreement of sale. To answer this question we must discern the intention of the parties and the fair import of the words selected by them to reflect their agreement.

We start with the fact that this is a real estate transaction, and it is through documents that conveyances are made. This case turns on the language of special clause 5(a) of the agreement. The parties specifically negotiated special terms in this clause as evidenced by the handwritten amendments initialed, by the parties. The handwritten amendments were requested by defendants and assented to by plaintiff.

These amendments included (1) that the buyer shall use his best efforts to obtain such a mortgage; (2) commitment for said mortgage will be issued on or before 60 days of the execution date of the agreement; (3) buyer shall give written notice of the receipt of such commitment to seller within five days of receipt.

“It is well established that, in interpreting the intent of parties in a written contract, when the words are clear and unambiguous, the intent is to be determined only from the express language of the agreement.” Ormond Realty v. Ninnis, 341 Pa. Super. 101, 491 A.2d 169 (1985) (citations omitted); see also, Rosen v. Empire Valve and Fitting Inc., 381 Pa. Super. 348, 553 A.2d 1004 (1989); Robert F. Felte Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973).

Examining special clause 5(a) in the context of the entire agreement and the applicable dates, we find special clause 5(a) provides that failure of the mortgage commitment to issue within the 60-day period, ending February 26, 1985, causes the agreement to become null and void. Although plaintiff obtained verbal approval of his loan application on February 26, 1985, we find this insufficient to satisfy the language of the agreement requiring the issuance of a mortgage commitment by February 26, 1985.

A mortgage commitment is defined as “[a] formal communication by a lender, agreeing to make a mortgage loan on specific property, specifying the loan’s amount, length of time, and conditions.” Black’s Law Dictionary 912 (5th ed. 1979). We find that the plain meaning of the agreement required a written document from the lender agreeing to make the mortgage. Furthermore, defendants never executed plaintiff’s proposed endorsement to the agreement of sale extending the time for a mortgage commitment. Consequently, the parties are bound by the intent of the agreement.

We note, also, that the agreement specifically provides that the times referred to for the performance of any of the obligations of this agreement are of the essence. See Exhibit P-4, agreement of sale, clause 16. This language could not be any clearer or any less ambiguous and therefore, we must conclude that this clause reflects the intentions of the signatory parties.

CONCLUSIONS OF LAW

(1) The court has equity jurisdiction over the subject matter and parties in this case.

(2) The parties entered into a valid and enforceable agreement of sale dated December 28, 1984.

(3) A mortgage commitment by its very definition requires a written communication by a lender agreeing to make a mortgage and containing specific terms and conditions.

(4) The agreement did not provide for an oral assurance or oral approval as sufficient to satisfy the terms of the agreement.

(5) The agreement required that a mortgage commitment be issued on or before February 26, 1985.

(6) The foregoing requirement was for the benefit of the sellers.

(7) The agreement further required receipt of a written notice from buyer to seller, stating that the mortgage commitment had been issued, on or before March 3, 1985.

(8) Defendants specifically bargained for certainty in the agreement.

(9) The requirement that a written notice be provided to defendants within five days after receipt of the mortgage commitment was for the specific benefit of the sellers.

(10) The agreement by its own terms was null and void if no commitment was issued by February 26, 1985.

(11) Time was of the essence under the agreement.

(12) The buyer failed to satisfy the requirement in the agreement that the mortgage commitment be issued on or before February 26, 1985.

(13) Additionally, buyer failed to provide seller with the required written notice on or before March 3, 1985.

(14) Under the specific language of special clause 5(a) of the agreement, the requirement of written notice of receipt of the commitment on the 60th day was intended by the parties to make the clause 5(a) self-authenticating; buyer’s failure to provide such notice is dispositive of whether the commitment was received in time.

(15) Consequently, the agreement became null and void as of February 26, 1985.

(16) Plaintiff is entitled to return of his deposit monies pursuant to special clause 5(a) of the agreement.

(17) However, plaintiff is not entitled to any additional monies in the way of damages.

Accordingly, we enter the following

ORDER

And now, August 31, 1990, upon consideration of the pleadings, trial, and the briefs of counsel, it is hereby ordered and decreed the agreement of sale is null and void and that Scott E. Miller, Esq., escrow holder, is directed to release to plaintiff the money deposited in connection with this action, together with the interest accrued thereon.

      . The language in the agreement in the instant case is distinguishable from the agreement in. Kalina v. Eckert, 345 Pa. Super. 220, 223, 497 A.2d 1384, 1385 (1985), “ ‘[t]his contract to be null and void if financing is not obtained on or before. . . .’ ” “Financing” is broader than mortgage commitment. See also, Session v. Yack, 18 D.&C. 2d 333 (1958), “mortgage approval” is broader than mortgage commitment. Cf. Miner v. Bobinis, 63 D.&C. 2d 668 (1973).

      . Cf. Hrivnak v. Meyers, 15 D.&C. 3d 36 (1980). Hrivnak is distinguishable from the instant case in that the Hrivnak agreement had “no applicable provision of the contract providfing] that any time limit set was of the essence of the contract.” Id. at 45. We note clause 16 of the agreement in the instant matter. Furthermore, sellers in Hrivnak had “given notice that they did not intend to go through with the deal” before the commitment date provided in their agreement, indicating time was not of the essence. Id. This did not occur in our case.


author: MILLER, J.,

text:
    Davis v. Pennsylvania National Life Insurance Co.

      John F. Spataro, for plaintiff.

      E. Max Weiss, for defendant.
    August 2, 1990
   MILLER, J.,

When the plaintiff is permitted to amend his complaint, not to add new counts but to make more specific factual allegations and plead punitive damages, may the plaintiff then successfully request a jury trial in that amended complaint after he has filed three pleadings where a jury trial was not demanded and when a non-jury trial is scheduled in two weeks?

On March 22, 1988 plaintiff filed a complaint for breach of an employment contract and defamation. On December 29, 1989 and on March 1, 1990 plaintiff filed the certificates of readiness, the first having been stricken. Plaintiff filed a reply to defendant’s answer and later filed an amendment to that reply. A non-jury trial was scheduled for June 28, 1990 but continued until August 13, 1990 because plaintiff filed two motions to amend his complaint to add facts surrounding the defamation count, to request punitive damages and, we believe, to allege wrongful termination and discharge of an employment relationship. Defendant also filed a motion for partial summary judgment.

On July 19, 1990 we permitted plaintiff to amend his complaint but limited that right to additional facts regarding defamation (count V) and punitive damages for defamation. The reason for that limitation was that of the amendments we permitted those were the only allegations that plaintiff specifically indicated he wanted to add. On July 24, 1990 plaintiff did file an amended complaint which included, for the first time, a demand for a jury trial. Defendant now files preliminary objections asking that we strike the jury trial demand. Defendant advances the following reasons in support thereof: that the amended complaint is not a permissible pleading; that plaintiff has already waived his right to a jury trial; that plaintiff did not ask for, nor did plaintiff receive, leave to amend his complaint to include a jury trial demand; that defendant is prejudiced because it will be required to change its method of presenting evidence on the theory that cases are tried differently when tried before a jury than by the court sitting non-jury; that plaintiff must show good cause for his delay in demanding a jury trial.

The right to a jury trial is guaranteed by the Pennsylvania Constitution (Article I, section 6) and by statute (42 Pa.C.S. 5104(a)). That right to a jury trial may be waived expressly or by implication. Jones v. Van Norman, 513 Pa. 572, 522 A.2d 503 (1987). The Pennsylvania Rules of Civil Procedure prescribe a method for demanding a jury trial in a civil case (Pa.R.C.P. 1007.1). Therefore a party who fails to follow the proper method for demanding a jury trial waives his right to a jury trial. Jones v. Van Norman, supra.

We agree, at least philosophically, with defendant. This jury trial demand seems to be coming very late. It comes in the fourth pleading plaintiff has filed in a suit that has been on our docket for over two years. It comes in an amended complaint that was allowed by the court simply for the purpose of adding additional facts and to request punitive damages, all in a count that had been pled over two years ago. Not much new has been added. Additionally, plaintiff really does not advance any significant reasons for the request for the jury trial other than, possibly, a change of mind.

We think that the decision to elect a jury trial should be made earlier or be tantamount to a waiver. We also think that a change in position should be accompanied by solid reasons. But is that the current state of the law in Pennsylvania? We think not. Our philosophy not withstanding, we are obligated to follow the law as we view it.

Courts of various jurisdictions view this question differently. For instance, some would require the defendant to show prejudice by this late request. Others would require the plaintiff to show just cause for the delay. Other jurisdictions would hold that the plaintiff has waived his right to a jury trial by not making the election early, 64 ALR 2d 506. In Pennsylvania, however, any party has the right to serve a written demand for a jury trial within “20 days after service of the last permissible pleading.” (Pa.R.C.P. 1007.1(a)). Is the amended complaint a “permissible pleading”?

In Jones v. Van Norman, supra, the Supreme Court held that a pretrial memorandum, where a jury trial demand was first made, was not a pleading. In doing so it made reference to the pleadings that are allowed by the Rules of Civil Procedure (Pa.R.C.P. 1017(a)). The Supreme Court did not go so far as to hold that a jury trial demand could only be raised by a 1017(a) pleading. Nor does rule 1007.1(a) make reference to rule 1017(a). The Supreme Court, by the use of the term “permissible pleading” apparently expanded the pleadings that would qualify under 1007.1(a). We also must be mindful of the fact that a party may file an amended pleading either by consent of the other party or by leave of court (Pa.R.C.P. 1033). In the sense that an amended pleading is sanctioned by the court it becomes a “permissible pleading.”

In Wudkwych v. Borough of Canonsburg, 111 Pa. Commw. 322, 533 A.2d 1104 (1987), the right to demand a jury trial in an amended complaint was refused where the amended complaint was filed after the case was returned to the trial court for a new trial. Interestingly enough, the Commonwealth Court theorized that an amended complaint could be a “permissible pleading.” 111 Pa. Commw. at 327, 533 A.2d at 1106-7. In upholding the denial of the jury trial demand in an amended complaint, the Wudkwych court did not base its decision on the fact that the demand appeared in an amended complaint but rather the time at which it was made. The case was coming back for a second trial and the court felt the request was just too late. Wudkwych is not exactly on point, nor is Rodney v. Wise, 347 Pa. Super. 537, 500 A.2d 1187 (1985), which involves the right to withdraw a jury waiver on the day of trial.

In Dauphin Deposit Bank & Trust Co. v. Pifer, 383 Pa. Super. 275, 556 A.2d 904 (1989), the grant of an untimely request for a jury trial was not reversed. There a request for a jury trial was made at a pretrial conference. It is true that the ultimate trial was held three months later but we do not know, from the opinion, if the non-jury trial was scheduled earlier. We can guess that if there was a pretrial conference on November 12, 1987 then a non-jury trial might have been scheduled shortly thereafter.

Nonetheless, the Superior Court discussed the interrelationships between rules 1007.1 and 126 of the Pennsylvania Rules of Civil Procedure and stated:

“As a procedural right, the right to trial by jury allows for some flexibility in its application. It is for this reason that the right can be waived. Additionally, the constitutional magnitude of the right permits greater flexibility in dealing with delayed demands for jury trial. . .”

“However, this is not to imply that full compliance with the Rules of Procedure is not required or that failure to do so is without peril. The administration of justice requires the efficient operation of the judicial system with compliance with the Rules of Procedure a necessity, . . . but the rules cannot ‘be accorded of the status of substantive objectives requiring rigid adherence’ . . . Through Pa.R.C.P. 248, the rules allow for some exceptions in time requirements by allowing the time period of any rule of civil procedure to be lengthened or shortened by written agreement of the parties or by order of court.” Dauphin Deposit Bank & Trust Co., supra. (citations omitted)

In Pennsylvania, therefore, it appears that a jury trial can be demanded within 20 days after the filing of the last permissible pleading, which would include an amended complaint sanctioned by court order. Also, in Pennsylvania a late demand for a jury trial may also be granted by the court in its sound discretion. Therefore, we hold today that the jury demand contained in plaintiff’s amended complaint, that was filed with leave of court under Pa.R.C.P. 1033, falls within Pa.R.C.P. 1007.1(a) since it is a permissible pleading. This is not a case of a withdrawal of a waiver since plaintiff never expressly waived his right to a jury trial. Any waiver here would be by implication but that implication does not arise until 20 days pass from the date of the filing of the last permissible pleading.


author: FEUD ALE, J.,

text:
    Zerbe v. City of Sunbury

      Douglas N. Engelman, for plaintiff.

      Michael Apfelbaum, for defendant.
    January 24, 1990
   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.

Plaintiff 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 April 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.

Plaintiff 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 (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.

Finally, plaintiff maintains Michaels allegedly represented and made statements to plaintiff that he should stop playing detective in a heated discussion between Michaels and plaintiff.

It is well-settled that a demurrer admits all relevant facts sufficiently pled in the complaint and all inferences fairly deducible therefrom. See Reardon v. Wilbur, 441 Pa. 551, 272 A.2d 888 (1971); Engel v. Friend’s Hospital, 439 Pa. 559, 266 A.2d 685 (1970). Only if it is free and clear of all doubt that a cause of action has not been pled should a trial court grant a demurrer. When making such a determination this court must resolve all doubts in favor of overruling the demurrer. Steiner by Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 517 A.2d 1348 (1986).

We will now address each of defendant’s arguments.

Count I Should Be Dismissed Since Zerbe Avers the Existence of an Employment Agreement Without Setting Forth the Essentials of a Contract and He Discusses an Implied Covenant of Good Faith Without Setting Forth the Essential Elements of an Implied Contract

It has been law in this Commonwealth and most of this nation that absent a contract or statutory right, employees may be discharged at any time, for any reason, or no reason at all. O’Neill v. ARA Services Inc., 457 F.Supp. 182, 185 (E.D. Pa. 1978). The rationale is that it is necessary to preserve managerial discretion in the workplace and maintain freedom of contract. Such was bottomed on a laissez-faire view of the free enterprise system.

A presumption arose that employment was at-will unless there was a contract for a specific duration. This presumption emanated from the American “Wood Rule.” H.G. Wood, Law of Master and Servant, §134 at 274 (1877); in Feinman, “The Development of the Employment At Will,” rule, 20 American J. Legal History 118, 126 (1977). It was different from the English common law which presumed that employment contracts were for one year and that an employer would be liable for breach of contract if he terminated the contract before the year without reasonable cause. See e.g., Vol. 1, W. Blackstone, Commentaries 413.

Since the age of laissez-faire economics has passed, various courts have taken the position that the presumption should no longer be adhered to with “unquestioned deference.” See Wooley v. Hoffman-LaRouche Inc., 491 A.2d 1257 (N.J. 1985). While inroads have indeed been made on the termination at-will doctrine, questions have been raised as to whether abrogation of the doctrine should occur through “judicial erosion” or by “legislative mandate.” K.H. Decker, “At Will Employment in Penna. — A Proposal for its Abolition and Statutory Regulations,” 87 Dickinson L. Rev. 477, 479 (1983).

However, a review of the law on a state and national level as to termination at will reveals the area is extremely volatile. As Martin v. Capital Cities Media Inc., 354 Pa. Super. 199, 511 A.2d 830 (1986) explained:

“Taking a nationwide view of the law in this area, it is apparent that what once was a corpus juris of employment relations has become an amorphous mass of confusion replete with holdings that defy reconciliation from one jurisdiction to the next. The at-will presumption, the citadel that once governed the field with such predictability has been eroded of late by piecemeal attack on both the contract and tort fronts and the entire field seems precariously perched on the brink of change.”

In the present action Zerbe does not set forth a specific term of employment based upon a statute or a contract. Rather, he asserts that there is a valid consideration for an implied contract for long-term employment. He indicated in paragraph 27 of his second amended complaint that “Defendant impliedly represented that his employment would be long term.” Inferentially, he also relies on the alleged lack of criticism in Michaels’ letter of commendation dated November 16, 1988.

The law in Pennsylvania is clear that “the at-will employment presumption will be overcome only if the employee can show with clarity and specificity that the parties contracted for a definite period.” DiBonaventura v. Consolidated Rail Corp., 372 Pa. Super. 420, 539 A.2d 865 (1988), citing Green v. Oliver Realty Co., 363 Pa. 534, 526 A.2d 1192 (1987).

The court does not believe Zerbe has alleged sufficient factors to support his claim under count I. Lacking is a consistent pattern of dealing between the employee and employer over a given time period, oral and written words or phrases negating the at-will employment relationship, or employee forbearance from economic gain in exchange for position security. Herein, Zerbe was employed less than three years, left a position in Sunbury at Paulsen Wire Rope for a salary presumably in the same general range as he was previously earning. While the position is an important one, the court does not perceive any significant career enhancement or relocation that indicates an implied contract was formed.

Public Policy Exception

As pointed out by Zerbe, the city chose to essentially sidestep the issue of whether the discharge under the facts pled violated a legally protected public interest or policy.

Pennsylvania common law permits a tort cause of action for wrongful termination where a significant and recognized public policy is contravened. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). To recover, the employee must show that there has been a “violation of a clearly mandated public policy which strikes at the heart of a citizen’s social rights, duties, and responsibilities.” Paul v. Lankenau Hospital, 375 Pa. Super 1, 14, 543 A.2d 1148, 1155 (1988).

In Geary, an at-will employee was terminated for notifying the employer of serious defects in several products marketed by the employer. In affirming the case’s dismissal, the court determined that the employee bypassed the employer’s chain of command and created a nuisance. The court, however, indicated that in some circumstances an employee could have a cause of action for wrongful termination. The court stated:

“It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of'the areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened . . . We hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at-will has no right of action against his employer for wrongful discharge.” Id. at 184-5, 319 A.2d at 180.

Since Geary, actions for public violations have been recognized in Pennsylvania for termination for serving on a jury, Reuter v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978); refusing administration of a statutorily prohibited polygraph examination, Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir. 1979); refusing to participate in an allegedly illegal price-fixing scheme, McNulty v. Borden Inc., 474 F.Supp. 1111 (E.D. Pa. 1979); terminating to substantially reduce pension benefits, Shipkowski v. U.S. Steel Corp., 585 F.Supp. 66 (E.D. Pa. 1983); refusing to commit a criminal offense, Hansrote v. American Industrial Techniques Inc., 586 F.Supp. 113 (W.D. Pa. 1984), aff’d. 770 F.2d 1070 (3d Cir. 1985); retaliation for filing a worker’s compensation claim, Rettinger v. American Can Co., 574 F.Supp. 806 (M.D. Pa. 1983); disclosure of self-dealing under federal securities statutes, Klages v. Sperry Corp., 118 L.R.R.M. (BNA) 2463 (E.D. Pa. 1984); and complaints about occupational hazards to a state agency, Klipshuk v. Delaware County Soc., 672 F.Supp. 542 (E.D. Pa. 1986).

Public policy violations have not been found where employees have performed their duties properly, Marsh v. Boyle, 366 Pa. Super. 1, 530 A.2d 491 (1987); for disagreeing with employer policy makers and disrupting administrative operations, Rinehimer v. Luzerne County, 372 Pa. Super. 480, 539 A.2d 1298 (1988); for believing that unspecified statutes were violated, McGonagle v. Union Fidelity Corp., 383 Pa. Super. 223, 556 A.2d 878 (1989); for refusing to rehire an employee after acquittal of criminal charges, Cisco v. United Parcel Services, 328 Pa. Super. 300, 476 A.2d 1346 (1984); or for associating at employees functions with members of the opposite sex that were not the employee’s spouse, Staats v. Ohio National Life Insurance Co., 620 F.Supp. 118 (W.D. Pa. 1983).

In the present case Zerbe alleges he was discharged as an act of retaliation against him for his cooperation with certain investigative agencies. He also asserts that as a result of the information provided the Department of Community Affairs froze all state funds designated for the city.

What constitutes clearly mandated public policy? There is no precise definition of the term. In general it can be said that public policy concerns what is right and just and what affects the citizens of the state or community collectively. Although there is no clear line of demarcation dividing matters of public policy from matters purely personal, a survey of the cases cited shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed. As a code enforcement officer, Zerbe was charged with the responsibility of insuring that the Building, Lumber and Electrical Codes were complied with.

Clearly there is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of our citizens. Additionally, employees such as Zerbe have a responsibility to inform the “appropriate officials” including, where relevant, law enforcement, regarding any violation that falls within the ambit of his responsibilities. Unlike Geary, supra, there is nothing in the complaint to indicate whether Zerbe bypassed normal operations. The facts as alleged seem to suggest he, unlike the employee in Geary, followed the chain of command. Also significant is the fact that Zerbe is arguably an expert in the area of. code enforcement, knows the various regulations, and allegedly knew the regulations relevant to the Chestnut Street Rehabilitation Project. Also, while the complaint may be less specific than it could be, it informs the City of Sunbury of the crux of the claim, which in effect alleges Zerbe was dismissed for performing his responsibilities as code enforcement officer or providing information to the Sunbuiy Police Department as allegedly directed by the Inspector General’s Office.

Given the aforegoing, and in consideration of the facts alleged, as well as the principle that the court must resolve all doubt in favor of overruling a demurrer, the public policy averments of count I shall be allowed.

Count II Should Be Dismissed Involving Intentional Infliction of Emotional Distress and Punitive Damage Since Zerbe Fails to Set Forth the Essential Elements of a Claim for Tort

Initially, the court agrees the Zerbe complaint improperly makes a claim for punitive damages against a municipality. In Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986) the court held that an award of punitive damages against an agency of the Commonwealth was inappropriate. Id. The court followed Newport v. Facts Concerts Inc., 453 U.S. 247, 69 L.Ed. 2d 616, 101 S.Ct. 2748 (1981) in reasoning that the windfall to a plaintiff should be prohibited since the end result is a burden upon a taxpayer.

In Township of Bensalem v. Press, 93 Pa. Commw. 235, 501 A.2d 331 (1985) the court discussed the application of the rule on punitive damages with respect to a municipality. The court agreed with “great weight of authority” and found that punitive damages cannot be imposed against a municipal subdivision. Id., citing Feingold v. SEPTA, 339 Pa. Super. 15, 488 A.2d 284 (1985). Also, see, McQuillen, 18 Municipal Corporations §53.18(a), at 220.

Count II, based on intentional infliction of emotional distress as defined by the Restatement (Second) of Torts, §46(1) (1965) occurs when “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe embtional distress to another.” This has been accepted as reflecting the law in Pennsylvania. See D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981); Clay v. Advanced Computer Applications Inc., supra; Reiner v. Tien, 356 Pa. Super. 192, 514 A.2d 566 (1986); the requisite conduct is described in comment (d) as being:

“So outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!’ ”

When such allegations are raised in a complaint, “[i]t is for the court to determine, in the first instance, whether the defendant’s conduct may be regarded as so extreme and outrageous as to permit recovery.” Restatement (Second) of Torts, §46(1), comment h, (1965), cited with approval in Reimer v. Tien, supra; and Dawson v. Zayre Department Stores, 346 Pa. Super. 357, 499 A.2d 648 (1985).

Plaintiff has averred in his complaint that the actions of the defendant city were intentional and allegedly in retaliation for his action in cooperating with an investigative agency or agencies. He also alleged he was greatly distressed emotionally. While the court agrees the facts in support of the claim are sparsely pled, the court will await Zerbe and his physician’s testimony concerning his allegedly deteriorating emotional condition and whether there is a causal relationship to his termination.

Count III Should Be Dismissed Since Zerbe Demands in Excess of $10,000 for Unused Sick Pay and Vacation Time Without Setting Forth a Contract or Statute That Would Entitle Him to an Amount in Excess of Treble Damages

In his complaint, Zerbe alleges a loss of $2,746.31 for unused sick pay and compensation time. This is essentially a compensation matter and despite the wherefore clause demand for $10,000 plus which may have been an inadvertence, it will remain only as a claim for a sum certain.

Count IV Involving an Alleged Violation of the Whistleblower Law Should Be Dismissed Since Zerbe Continues to Fail to Set Forth the Specific Reports Made, Time of Making the Reports, and the Individuals Who Received the Reports

Title 43 Pa.C.S. §1422 defines a “whistleblower” as:

“A person who witnesses or has evidence of wrongdoing or waste while employed and who makes a good faith report of the wrongdoing or waste, verbally or in writing, to one of the person’s superiors, to an agent of the employer or to an appropriate authority.”

Further “wrongdoing” is defined as a violation which is not of a merely technical or minimal nature of a federal or state statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.

In the court’s view, the allegations in this count áre sufficient. While the facts under this count are somewhat lacking in specificity, the trial court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in rule 1019(a) is incapable of precise measurements. Further, the facts.recited are not to be read in isolation but in conjunction with all other facts recited* in the complaint. Local No. 163, International Union of United Brewery Workers v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). Also, a party is not required to plead purely evidentiary matters. Local No. 163, supra.

Count V of the Complaint Should Be Dismissed Since Zerbe Was Merely an Employee in the Building Inspection Office and Not the Code Official Entitled to a Hearing

The issue herein is whether under the BOCA Code, Zerbe is entitled to a hearing before removal from office. Under the code, the executive official in charge of the Code Office has a right to a hearing. It is the contention of the city that the Director of Public Safety (Michaels) as the “executive official” in charge of the Code Office is the only one entitled to a hearing. The Code of the City of Sunbury, §3-1 provides that the executive and administrative powers, authority, and duties of the City of Sunbury, are distributed into and among the five executive departments. Section 3-4 of the code, supra provides that the Department of Public Safety, which includes Housing, Building, Lumber and Electrical Codes, is one of the executive departments. Section 3-11 provides that executive shall have the right to hire and dismiss all persons necessary to the efficient operation of his department.

It is clear Michaels is the executive official in charge of the Code Office. The court is uncertain as to why a part-time elective official would be entitled to a discharge hearing and not the full-time code enforcement officer who is evidently duly appointed by the mayor and City Council. However, given the court’s ruling that Zerbe’s discharge falls within the public policy exception to discharge at will, we will dismiss this count since the outcome of any hearing would probably bring us back to the status quo.

Count VI of the Complaint Should Be Dismissed and Zerbe Should Be Denied the Protection Provided by the Civil Service Laws Since He Never Took a Civil Service Examination, and He Was Never Appointed to His Job According to the Civil Service Law

Zerbe does not dispute he never attained the status of a Civil Service employee, although the court agrees the position of code enforcement officer is a job position protected under the Civil Service provision of the Third Class City Code. Unfortunately, an employee must he a Civil Service employee in order to receive the benefits of Civil Service, such as a hearing. See Manning v. Civil Service Commission, 387 Pa. 176, 127 A.2d 599 (1957).

In Hecknauer v. Coder, 32 Pa. Commw. 308, 379 A.2d 638 (1977) the court affirmed Judge Greevy’s decision in a case similar to the case at bar. In Hecknauer, the mayor of Williamsport fired an employee who was the city zoning officer and the code administrator. The employee was not in a civil service job.

The Hecknauer court held that the employee could be properly discharged and that he was not entitled to a hearing. Id. at 310-1, 379 A.2d at 640.

In Municipality of Penn Hills, Appellant v. Municipality of Penn Hills Personnel Board/Civil Service Commission and Benjamin Westwood, 87 Pa. Commw. 552, 487 A.2d 1048 (1985), the court summarized the law involving an employee’s right to Civil Service protection when the employee was not properly appointed according to Civil Service Law. The court agreed with Manning v. Millbourne Borough Civil Service Commission, supra, and Detoro v. Pittston, 344 Pa. 254, 25 A.2d 299 (1942) that an employee must be properly appointed according to Civil Service law prior to receiving the guarantee of a hearing prior to a change in position or dismissal.

Zerbe’s Request for a Jury Trial for Counts TV through VI Should Be Stricken Since the Claims Are Based Upon Statutory Rights that Did Not Exist at the Time of the Adoption of the Constitution or at Common Law and They Are Equitable in Nature

This issue is also addressed by plaintiff in his preliminary objection to plaintiff’s preliminary objection. Counsel do not dispute there is no right to a jury trial for the Whistleblower, BOCA Code and Civil Service allegations. The issue is whether defendant’s failure to raise such in his initial set of preliminary objections resulted in a waiver of a right that did not initially exist.

Initially, the relief requested through the Whistle-blower Law, 43 P.S. §1421 involves a statutory remedy passed by the legislature in 1986. The statutory right to a trial for this type of alleged violation did not exist at common law when Pennsylvania adopted the Constitution. Further, the remedies offered in section 1424 of the Whistleblower Law do not provide a jury as an option for either party. Rather, the statute refers to injunctive relief or damages based upon the discretion of the court.

An analogous situation arose in Murphy v. Cartex Corp., 377 Pa. Super. 181, 546 A.2d 1217 (1988) involving the application of the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. In Murphy, an epileptic employee was suspended from his employment. A part of his claim heard by a jury involved a violation of the PHRA.

The Murphy court held that the court of common pleas erred by presenting the PHRA portion of the case to a jury. The court based its decision on reasons applicable to the Whistleblower Law in the Zerbe case. First, the plaintiff did not have a constitutionally protected right to a jury trial since the rights conferred by statute did not exist at the time the Constitution was adopted. Id. Second, the statute refers to legal relief that is equitable in nature, i.e., enjoining further unlawful discriminatory practice, ordering reinstatement of hiring of individuals, ordering the upgrading of employees, awarding back pay. Id.

It should also be noted that both the PHRA and the Whistleblower Law give the court authority to award damages. In the PHRA the language reads “any other legal or equitable relief, as the court deems appropriate.” In the Whistleblower Law, the language reads as follows:

“A court, in rendering a judgment in an action brought under this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of. fringe benefits and seniority rights, actual damages or any combination of these rights.”

The Whistleblower Law does not go any further than the PHRA in providing a right to trial by jury. Moreover, the Whistleblower Law never refers to a jury decision but rather the decision of the court with primarily equity powers.

While we have dismissed counts V and VI, the same argument involving the Whistleblower Law also applies to the alleged BOCA Code violation and the alleged Civil Service Law violation. These laws were not in effect at the time of the adoption of the Constitution, and the legislature did not provide for a statutory right to a jury trial. As to the failure to raise the issue in the first set of defendant’s preliminary objections, no citation relevant to the precise issue was provided. Since all of the above are statutory remedies, in the court’s view the absence of a legislative statement that a failure to object creates such a right, is dispositive of the issue.

For all of the aforementioned reasons we enter the following

ORDER

And now, January 24, 1990, for all of the reasons stated in the foregoing opinion, the plaintiff’s demurrer with respect to counts V and VI is granted and no right to jury trial shall exist as to count IV only.

It is further ordered that the demurrer to count I is granted as to the existence of an employment agreement, and denied as to the public policy exception; the demurrer to count II involving punitive damages is granted and denied as to the intentional infliction of emotional distress; the demurrer to count III is granted as to treble damages only; and the demurrer as to the Whistleblower Law is hereby denied. Defendant shall file an answer within 20 days from the date of this order.