Opinion
No. 432 C.D. 2012
12-13-2012
Dawn Metzger, Appellant v. Pike County
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Dawn Metzger (Appellant) appeals from an order of the Court of Common Pleas of Pike County (common pleas court) that granted Pike County's (County/Appellee) motion for judgment on the pleadings and denied the County's motion for summary judgment as moot.
On April 13, 2011, Appellant filed an amended complaint and alleged:
Appellant filed her original complaint on March 16, 2011.
7. Plaintiff [Dawn] Metzger [Appellant] was employed by the Defendant [Appellee] as the Director of Children and Youth Services ("CYS") from on or about August 20, 2006 until on or about February 25, 2009, the date of her retaliatory termination.
8. At all relevant times hereto, Plaintiff Metzger [Appellant] maintained a satisfactory job performance rating and fulfilled all of the duties and obligations
commensurate with her employment. Indeed, Plaintiff [Appellant] was given annual salary increases during the term of her employment.
9. On or about January 14, 2009 . . . Metzger [Appellant] learned that a seven (7) year old child who was in the custody of CYS had been suspended from school for continual disruptive behavior and inappropriate behavior, including, but not limited to, repeatedly masturbating in class and striking a teacher. Said child had a long history of sexual abuse.
10. Plaintiff Metzger [Appellant] additionally learned that the child's school had recommended that he be admitted to Friendship House for partial hospitalization to undergo intensive mental therapy. Plaintiff Metzger [Appellant] believed that the child's admittance to Friendship House was inappropriate in that said institution was not in the best interest of this child. Furthermore, the child would have to travel up to four (4) hours per day on a bus to commute to said institution, which would have been potentially dangerous for the child, other children and/or the bus driver given the child's violent propensities.
11. Plaintiff Metzger [Appellant] immediately opposed the child's admittance to Friendship House to Tammy McCullough ("McCullough"), Assistant Director of CYS, Kathy McCloskey ("McCloskey"), Supervisor of Placement Unit for CYS, Oressa Campbell ("Campbell"), CYS Solicitor, and Shannon Sumner ("Sumner"), Caseworker.
12. Believing that the child's health and well-being may be at risk and in accordance with her job duties and authority as Director of CYS, Plaintiff Metzger [Appellant] arranged for the child to be evaluated at The Meadows Psychiatric Center, an institution specifically geared toward the psychiatric treatment of younger children.
. . . .
14. While the child was en route to the institution, Harry Forbes ("Forbes"), County Commissioner, contacted Plaintiff Metzger [Appellant] and directed her to return the child to his foster parents and cancel the scheduled evaluation at The Meadows Psychiatric Center. Significantly, Commissioner Forbes had no formal training or experience with regard to appropriate placement of children in the custody of CYS. Nor did Commissioner Forbes have the legal authority to make placement decisions for CYS children. At the time, Plaintiff Metzger [Appellant] registered her opposition to Commissioner Forbes direction but complied therewith.
15. Thereafter, on January 15, 2009, Plaintiff Metzger [Appellant] reported her concerns about the health and welfare of children in CYS custody and Commissioner Forbes' unlawful interference with her placement decision as Director of CYS to Edward Coleman ("Coleman"), Northeast Regional Director for the Commonwealth of Pennsylvania Department of Public Welfare, and Jackie Maddon ("Maddon"), Northeast Regional Assistant Director for the Commonwealth of Pennsylvania Department of Public Welfare. Both Coleman and Maddon agreed with Plaintiff Metzger's [sic] [Appellant] that Commissioner Forbes' actions, in interfering with Plaintiff Metzger's [Appellant] authority to make placement decisions for a child in CYS custody, were unlawful.
16. In retribution for registering her opposition to Commissioner Forbes' conduct and the aforesaid complaint to Coleman and officials of the Commonwealth of Pennsylvania regarding Commissioner Forbes' unlawful activities, the Defendant [Appellee] suspended Plaintiff Metzger's [Appellant] employment on January 15, 2009 pending an investigation.
. . . .
18. As further retribution for opposing the unlawful activities of Commissioner Forbes, on or about February 25, 2009, the Defendant [Appellee] attempted to transfer her to the County Jail as a Treatment Counselor and ultimately terminated Plaintiff Metzger [Appellant] from her position of employment with Defendant [Appellee].
19. Plaintiff Metzger [Appellant] believes and avers that no legitimate business reason existed for her termination and that her employment was in fact terminated in retaliation for expressing her opinion on a matter of public concern, namely her opposition to the unlawful interference of Commissioner Forbes with regard to the placement of children in CYS custody by Plaintiff Metzger [Appellant] in her capacity as Director of CYS.
Count I
(State Claim-Freedom of Expression-Article 1,
Section 7-PA Constitution)
. . . .
21. The actions of the Defendant [Appellee] . . . constituted a violation of Plaintiff Metzger's [Appellant] right to freedom of speech guaranteed to her as a citizen of the Commonwealth of Pennsylvania as provided for in Article 1, Section 7 of the Pennsylvania Constitution.
22. The acts of the Defendant [Appellee], as aforesaid, were willful, malicious, wanton, in bad faith and in reckless disregard of Plaintiff Metzger's [Appellant] rights.
. . . .
24. As the direct result of the willful, wanton, reckless, careless and negligent acts of the Defendant acting as aforesaid, Plaintiff Metzger [Appellant] was exposed to public disgrace, injury to her good name and reputation, and subjected to ongoing humiliation from her friends, acquaintances, and the community at large.
. . . .
Count III
(The Pennsylvania Whistleblower Law, 43 P.S. § 1421
et seq.)
. . . .
27. The actions of Defendant [Appellee], through its agents, servants and employees in taking the aforesaid adverse action against Plaintiff Metzger [Appellant] and ultimately terminating her from her position of employment in retaliation for registering opposition in good faith to Commissioner Forbes' unlawful activities, constituted a violation of the Pennsylvania Whistleblower Law.
28. As a direct result of the aforesaid unlawful retaliatory employment practices engaged in by the Defendant [Appellee], in violation of the Pennsylvania Whistleblower Law, Plaintiff Metzger [Appellant] has suffered emotional distress, humiliation, embarrassment, loss of self-esteem, and has sustained a loss of earnings, plus loss of future earning power, plus loss of back pay and front pay and interest due thereon.
. . . .
Amended Complaint, April 13, 2011, Paragraphs 7-12, 14-16, 18-19, 21-22, 24, and 27-28 at 3-7.
The Whistleblower Law, Act of December 12, 1986, P.L. 1559, 43 P.S. §§1421-1428.
The Whistleblower Law, Act of December 12, 1986, P.L. 1559, 43 P.S. §§1421-1428.
On May 31, 2011, Appellee filed an Answer and New Matter:
. . . .
7. . . . By way of further answer, Metzger [Appellant] was not the victim of retaliatory discrimination.
8. . . . By way of further answer, Pike County Commissioners received comments from the Court of Common Pleas of Pike County, members of the Delaware County [sic] School District, a Solicitor for
Pike County Children and Youth, and Supervisors under Metzger's [Appellant] direction, relating to Metzger's [Appellant] unsatisfactory work performance.
. . . .
18. . . . By way of further answer, on February 12, 2009, Metzger [Appellant] and Pike County [Appellee] reached a settlement whereby Metzger voluntarily agreed to leave her position as Director of CYS and become a Treatment Counselor at the Pike County Correctional Facility, Pike County [Appellee] admits that Metzger [Appellant] was terminated from her position as Treatment Counselor on February 25, 2009 after refusing to appear for work. Pike County [Appellee] denies that Metzger [Appellant] was terminated for expressing her disagreement with Commissioner Forbes. Pike County [Appellee] denies that Commissioner Forbes acted unlawfully.
. . . .
Count I
. . . .
21-25. . . . By way of further answer, Pennsylvania law does not recognize a cause of action based on the violation of any right secured by the Pennsylvania Constitution. The claims in this count fail as a matter of law.
. . . .
New Matter
1. On February 12, 2009, Metzger [Appellant] entered into a settlement agreement with Pike County in which she voluntarily agreed that:
a. She would no longer be the Director of the Pike County Children & Youth;
b. She would remain on vacation until February 22, 2009;
c. Beginning on February 23, 2009 she would begin new employment at the Pike County Correctional Facility as Treatment Counselor at a salary of $35,000.00 per year with medical benefits similar to her prior position;Answer with Affirmative Defenses to Plaintiff's First Amended Complaint on behalf of Defendant, Pike County, May 31, 2011, Paragraphs 7-8, 18, and 21-25 at 4-6, New Matter, Paragraphs 1 and 4-8 at 7-8; R.R. at 57a-62a.
d. If she did not like working at the Pike County Correctional Facility, she would be entitled to resign from her position and collect unemployment compensation.
. . . .
4. Plaintiff's [Appellant] claims are barred and/or limited by the statute of limitations, (emphasis added).
5. Plaintiff's [Appellant] state court lawsuit, filed on April 13, 2011 for which events occurred in January 2009 is untimely, (emphasis added).
6. Plaintiff's [Appellant] claims are barred and/or limited by her failure to pursue her available administrative remedies, (emphasis added).
7. To the extent that the Plaintiff [Appellant] states any causes of action based on violations of Pennsylvania law, her claims are barred by the Political Subdivision Tort Claims Act [, 42 Pa. C.S. §§ 8541-8542].
8. Plaintiff's claims are barred and/or limited by the doctrine of estoppel.
This Court assumes that Appellee intended to use the term "Delaware Valley School District."
The settlement agreement is part of the Certified Record and attached to Appellee's motion for summary judgment.
This Court assumes that Appellee intended to use the term "Delaware Valley School District."
The settlement agreement is part of the Certified Record and attached to Appellee's motion for summary judgment.
On June 20, 2011, Appellant responded to Appellee's New Matter and denied that she "entered into a settlement agreement . . . that she agreed to begin new employment at the Pike County Correctional Facility . . . that she waived any right to pursue her claims against Pike County. Instead Plaintiff [Appellant] has timely filed her claims against Pike County." (emphasis added). Plaintiff's Answer to New Matter, June 20, 2011, at 1-2; R.R. at 64a-65a.
On August 16, 2011, Appellee filed a motion for judgment on the pleadings and asserted:
. . . .Motion for Judgment on the Pleadings on Behalf of Defendant Pike County, August 16, 2011, Paragraphs 6-10 at 2; R.R. at 70a.
6. In an opinion and order filed on February 28, 2011, Judge Munley awarded Pike County Summary Judgment on Metzger's [Appellant] federal claims and dismissed Metzger's state law claims without prejudice . . . .
7. Metzger's state law claims are time-barred because she filed her Complaint in this court after the statute of limitations expired on both of her state law claims. (emphasis added).
8. Metzger did not preserve her federal filing date for purposes of the statute of limitations because she did not promptly perfect the transfer of her case to this Court as required by 42 Pa. C.S.A. [sic] § 5103(b). (emphasis added).
9. It is too late for Metzger to comply with Section 5103 (b) because nearly six months has passed since her federal claims were dismissed. (emphasis added).
10. The Pennsylvania Superior Court has held that six months is too long to perfect an appeal under Section 5103(b) and that dismissal with prejudice is required. See Williams v. F.L. Smithe Machine Co., . . . 577 A.2d 907 (Pa. Super. 1990). (emphasis added).
On September 15, 2011, Appellee filed a motion for summary judgment and alleged that there were no genuine issues of material fact because Metzger was terminated for poor job performance, not because she "complained to DPW about Forbes or other Commissioners." Motion for Summary Judgment, September 15, 2011, Paragraphs 2 and 81 at 1 and 20; R.R. at 75a and 94a.
On October 11, 2011, the common pleas court found:
1. Plaintiff [Appellant] was suspended on January 15, 2009 and terminated from her job as Director of Pike County Children & Youth Services on February 25, 2009.
2. Plaintiff [Appellant] filed her complaint asserting wrongful termination on March 16, 2011 and an Amended Complaint on April 13, 2011, both specifically alleging violations of Article 1, Section 7 of the Pennsylvania Constitution and the Whistleblower Statute.
3. Plaintiff [Appellant] had previously alleged the same claims in federal court . . . .
4. On February 28, 2011, Summary Judgment was granted in favor of Pike County on Plaintiff's [Appellant] federal law claims and the state law claims were dismissed without prejudice. (emphasis added).
5. Plaintiff [Appellant] did not perfect the transfer of her case to this Court pursuant to 42 Pa. C.S.A. [sic] § 5103(b).
Statement of Reasons (Opinion) of the Common Pleas Court, Findings of Fact (F.F.) Nos. 1-5 at 1-2.
The correct cite is Consolidated Statute, and not, Consolidated Statute Annotated.
The correct cite is Consolidated Statute, and not, Consolidated Statute Annotated.
The common pleas court concluded that "[u]pon examination of the relevant pleadings, this Court found that the applicable statute of limitations periods for the Plaintiff's claims were 180 days for the Whistleblower Law [claim] [Section 4(a) of the Whistleblower Law, 43 P.S. §1424(a)] and two years on the State Constitutional Claim [42 Pa. C.S. §5524(2) .]" (footnotes omitted and emphasis added). Opinion of the Common Pleas Court at 2-3. Further, the common pleas court "concluded that as the Federal Court dismissed the state claims for lack of jurisdiction, Plaintiff [Appellant] was required to comply with [42 Pa. C.S.] §5103(b)(2) . . . [and] [f]ailure to do so was fatal to her claims and therefore, the statute of limitations had run without tolling by her federal claims." Opinion of the Common Pleas Court at 3. The common pleas court granted Appellee's motion for judgment on the pleadings and dismissed its motion for summary judgment as moot.
I. Whether Appellant's State Constitutional Claim Was "Time-Barred"
Pursuant To 42 Pa. C.S. §5524(2)'s Two-Year Statute Of Limitations?
Appellant contends that the federal cases cited by Appellee and the common pleas court only apply to alleged federal constitutional claims brought under a 42 U.S.C §1983 action. Therefore, the two-year statute of limitations does not apply to her state constitutional claim.
When reviewing a common pleas court's grant of a motion for judgment on the pleadings, this Court's review is plenary. North Sewickley Township v. LaValle, 786 A.2d 325 (Pa. Cmwlth. 2001), appeal denied, 568 Pa. 729, 797 A.2d 918 (2002). Further, this Court "must confine our considerations to the pleadings filed, accepting as true all well pled statements of facts, admissions and any documents properly attached to the pleadings presented by the party against whom the motion is filed." (footnote omitted). Id. at 327. Finally, this Court will affirm the common pleas court's grant of judgment on the pleadings "only where the movant's right to succeed is certain and the case is free from doubt that trial would be a fruitless exercise." Id. at 327.
This Court will address Appellant's arguments pursuant to the common pleas court's conclusions. First, that 42 Pa. C.S. §5524(2)'s two-year statute of limitations time-barred Appellant's constitutional claim. Second, that 42 Pa. C.S. §5103(b)(2) time-barred Appellant's Whistleblower claim.
Appellee responds that analogous to federal law a state cause of action for an alleged violation of the United States Constitution is recognized pursuant to 42 U.S.C. §1983. Appellee directs this Court's attention to Fitzgerald v. Larson, 769 F.2d 160, 162 (3d Cir. 1985) where the United States Court of Appeals for the Third Circuit applied Pennsylvania's two-year statute of limitations under 42 Pa. C.S. §5524(2) for an alleged violation of 42 U.S.C. §1983. Likewise, Appellee contends that the two-year statute of limitations time-barred Appellant's state constitutional claim which was filed on March 16, 2011, in the common pleas court.
Article I, Section 7 of the Pennsylvania Constitution relevantly provides that "[t]he free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty . . . ." (emphasis added).
42 Pa. C.S. §5524(2) provides that "[t]he following actions and proceedings must be commenced within two years . . . [a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another." (emphasis added).
In Fitzgerald, the United States Supreme Court vacated the decision of the United States Court of Appeals for the Third Circuit and remanded for further consideration in light of its holding in Wilson v. Garcia, 471 U.S. 261 (1985). In Fitzgerald, Francis Fitzgerald (Fitzgerald) filed an action against the Pennsylvania Department of Transportation on June 7, 1979, in the United States District Court for the Eastern District of Pennsylvania and alleged that he was wrongfully discharged because of his political affiliation in violation of the First Amendment of the United States Constitution. Fitzgerald sought reinstatement, back pay and benefits, attorney's fees and costs. On April 2, 1981, the United States District Court determined that "defendants were sued in their official capacities and that plaintiff's claim for monetary relief was barred by the Eleventh Amendment but that he could maintain an action for reinstatement." Id. at 161.
"On May 5, 1982, Fitzgerald filed the present action in the Commonwealth Court of Pennsylvania seeking essentially the same relief against the same defendants, but adding an allegation against defendants as individuals." Id. at 161. Defendants removed the action to United States District Court for the Middle District of Pennsylvania and "[t]he parties agreed to hold the prior action in the Eastern District in suspension pending resolution of this action." Id. at 161. Defendants sought to dismiss the action based upon either the statute of limitations at 42 Pa. C.S. §5522(b)(1) (six-month limitation period) or the two-year statute of limitation at 42 Pa. C.S. §5524(2). The matter was referred to a federal magistrate who recommended the action be dismissed pursuant to the two-year statute of limitations under 42 Pa. C.S. §5524(2) and the United States District Court adopted the recommendation. The United States Court of Appeals for the Third Circuit reversed and concluded that "Fitzgerald's claim was more analogous to a state law action for wrongful discharge or interference with contractual or economic rights, for which we concluded there was no specific limitation period in the Pennsylvania statute." Id. at 162.
The United States Court of Appeals determined that the appropriate statutory limitation to use was the "six-year residuary statute for civil actions" under 42 Pa. C.S. § 5527 and, as a result of its application, Fitzgerald's claim was timely. Id. at 162. However, on remand the United States Supreme Court directed the United States Court of Appeals to revisit its prior decision. The United States Court of Appeals stated:
42 Pa. C.S. §5527(b) provides that "[a]ny civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years."
In Wilson v. Garcia . . . the Supreme Court resolved the differences among the circuits and held that federal courts, in choosing the most analogous state law limitation for purposes of §1983, should characterize all such claims as personal injury actions. It thus rejected the approach this court had taken in its earlier cases in characterizing each such claim individually. We now reconsider this case in light of the Supreme Court's decision.
We have recently held in applying Wilson v. Garcia, that the two-year Pennsylvania limitation for personal injury actions of 42 Pa. Const. Stat. . . . §5524 governs all §1983 actions brought in Pennsylvania . . . . The parties here, who have been given the opportunity to comment, agree that because this action was filed more than two years after the injury accrued, Pennsylvania's two-year statute of limitations for personal injury actions would
require dismissal if Wilson v. Garcia applies retrospectively. Thus we turn to the issue of retrospective application.
. . . .
In Smith [v. City of Pittsburgh, 764 F.2d 188 (3rd Cir. 1985) we found that Wilson v. Garcia did overturn established precedent of this circuit and that the decision had not been signaled or foreshadowed by prior Supreme Court precedent . . . .
. . . [W]e noted that the purpose of Wilson v. Garcia in promoting uniformity and the minimization of unnecessary litigation would be served by applying the two-year statute of limitations to all plaintiffs . . . . Although the policies of Wilson v. Garcia did not militate clearly in favor of retrospective application, we held that they did not militate against such application. Id. We see no reason to depart from that analysis here.
. . . In this case, all three of this court's cases on which Fitzgerald claims he "justifiably relies" for the applicability of the six year statute of limitations, Skehan v. Trustees of Bloomburg State College, 590 F.2d [470] at 476 [(3rd Cir. 1978)]; Davis v. U.S. Steel Supply, 581 F.2d 335 (3d Cir. 1978); and Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894 (3d Cir. 1977), were decided under the Pennsylvania statutes of limitations before they were revised, a fact expressly noted in Skehan. See 590 F.2d at 477 n.2.
Furthermore, Fitzgerald's claim of reliance on the six-year statute of limitations is questionable in the circumstances of this case. Fitzgerald promptly filed a law suit challenging his termination within four months after the event. Only after his motion to amend in that first action was denied did he file this action. That denial, which appears to be the precipitating event for this suit, was ordered more than two years after Fitzgerald's dismissal. It is unlikely, therefore, that he relied on any prior precedent of this court with respect to
the statute of limitations in delaying the filing of the second action. In any event, because established precedent did not warrant reliance on the six year statute, we conclude it would not be inequitable or harsh to apply Wilson v. Garcia retrospectively to bar Fitzgerald's claim asserted in this complaint. (emphasis added).Fitzgerald, 769 F.2d at 162, and 164. The United States Court of Appeals affirmed the United States District Court's dismissal of Fitzgerald's action as untimely because the action was filed more than two years after Fitzgerald's termination.
Additionally, in Bartholomew v. Fischel, 782 F.2d 1148 (3rd Circuit 1986), James R. Bartholomew (Bartholomew) was appointed "Acting Executive Director of the BiCity Health Bureau (BCHB) created by the cities of Allentown and Bethlehem, in Pennsylvania, in 1974." Bartholomew, 782 F.2d at 1149. "The Bureau [BCHB] was independent of the two cities and of their mayors, receiving its funding from the Pennsylvania Department of Health, and was governed by the BiCity Board of Health, which consisted of members appointed by the cities of Allentown and Bethlehem." Id. at 1149. Bartholomew contended that Mayor Frank Fischl (Fischl) had opposed his appointment as permanent Executive Director of BCHB because of Bartholomew's "pro-fluoridation stance" and that Fischl attempted to block his appointment "by various means." Id. at 1150. After Bartholomew's appointment, Fischl was successful in his attempt to have the city councils of Allentown and Bethlehem dissolve the BCHB and Bartholomew's position was eliminated. On September 10, 1981, Bartholomew "filed his lawsuit in federal court under §1983 . . . naming the City of Allentown and Mayor Fischl as defendants." Id. at 1150. Bartholomew alleged that the termination of his employment "amid public charges of dishonesty and incompetency and without a hearing violated his due process rights . . . and the ultimate elimination of his position were in retaliation for Bartholomew's public statements advocating fluoridation of Allentown's water, and thus infringed his first amendment right to free speech." Id. at 1150. The United States District Court denied Fischl's motion to dismiss and determined that Bartholomew "had alleged sufficient facts to state a claim that his termination of employment, coupled with public accusations of a defamatory nature and without a hearing, had deprived him of a liberty interest without due process . . . ." Id. at 1150. However, the United States District Court determined that Bartholomew's "complaint had inadequately identified the alleged factual basis for the city's liability under Monell v. Department of Social Services, 436 U.S. 658 (1978) . . . and for the defendants' liability under §1985(3) and ordered [Bartholomew] to amend his complaint to remedy these defects in his pleadings." Id. at 1151.
Bartholomew alleged a violation of 42 U.S.C. §1985(3) based upon a conspiracy among Fischl and his cabinet members to violate his constitutional rights. Bartholomew deleted his 42 U.S.C §1985(3) claim from his amended complaint.
Fischl and Allentown moved for dismissal of the complaint or for summary judgment and raised for the first time that "Bartholomew's action was barred by the statute of limitations [42 Pa. C.S. §5523(1)'s one-year statute of limitations for defamation actions]." Id. at 1151. "The district court granted summary judgment for defendant Fischl, concluding that the cause of action against him was governed by Pennsylvania's one-year statute of limitations in defamation actions, 42 Pa. [C.S. §5523(1)], and that it had not been timely filed within one year after Bartholomew's position was eliminated on December 31, 1979." (footnote omitted). Id. at 1154. "Subsequent to the district's order granting summary judgment", the United States Court of Appeals for the Third Circuit noted:
. . . [T]he Supreme Court held in Wilson v. Garcia . . . that §1983 suits are governed by state personal injury statutes of limitations. Pennsylvania provides for a two-year statute of limitations for personal injury actions. See 42 Pa. [C.S. § 5524(2)]. If that statute applies to Bartholomew's case, §1983 action was timely brought within two years of the date upon which his employment ceased. Thus, we must determine whether Wilson is to be applied retroactively to allow plaintiff's [Bartholomew's] action.Bartholomew, 782 F.2d at 1155-56.
. . . .
We conclude that, in this case, . . . no clear precedent existed before Wilson regarding which statute of limitations governed §1983 claims of this kind asserted by Bartholomew. Furthermore, . . .the purpose of the holding in Wilson, namely uniformity, certainty, and providing adequate opportunity for the vindication of constitutional rights, are best served by retroactive application in this case.
. . . .
Because we determine that Bartholomew's suit was erroneously dismissed on the pleadings as against the City of Allentown, and it is not time-barred as against either defendant, the district court order dismissing the complaint for failure to state a cause of action against the city and granting summary judgment for defendant Fischl will be vacated and the matter remanded for further proceedings consistent with this opinion. (emphasis added).
In the present controversy, the United States District Court for the Middle District, No. 09cv1217, (Judge James M. Munley) granted summary judgment in favor of Appellee "with respect to Plaintiff Dawn Metzger's claim for First Amendment retaliation under section 1983 (Count I) . . . ." February 28, 2011, Order at 14; R.R. at 20a. The United States District Court reasoned:
Here, Metzger's [Appellant's] First Amendment claim for retaliation fails because the record indicates that Metzger [Appellant], in her conference call with Coleman and Maddon, was not speaking as a general citizen. There is no genuine issue of material fact but that Metzger [Appellant], acting in her capacity as Director of CYS, called to complain about Forbes and determine the appropriate action Metzger [Appellant] should take as Director of CYS. Coleman did not interpret the complaint as Metzger [Appellant] reporting a violation of Pennsylvania law, but as a call for advice in determining who had authority and what course Metzger [Appellant] should take as director. Tellingly, Coleman and Maddon suggested that the solution to the impasse was a court ordered psychiatric evaluation for A.W.-not a court action against the Commissioners for violation of Pennsylvania laws or regulations. Because we find that Metzger [Appellant] was not speaking as a general citizen, but rather as Director of CYS, Pike County's motion for summary judgment will be granted on Metzger's [Appellant] section 1983 claim for violation of her First Amendment rights.Memorandum and Order, February 28, 2011, at 12-13; R.R. at 18a-19a.
Having determined that summary judgment will be granted on Metzger's [Appellant's] claim under section 1983, we decline to retain jurisdiction over Metzger's [Appellant's] two pendent state law claims . . . . Thus, Metzger's [Appellant's] claims under Article 1, Section 7 of the of the Pennsylvania Constitution (Count II) and under the Pennsylvania Whistleblower Law . . . (Count III), will be dismissed without prejudice to Metzger [Appellant] bringing such claims in state court." (emphasis added).
Here, Appellant again alleged a violation of her right to freedom of expression guaranteed under Article 1, Section 7 of the Pennsylvania Constitution when she filed her complaint on March 16, 2011, and the amended complaint on April 13, 2011, in the Court of Common Pleas of Pike County. Critically, there is no dispute that Appellant was terminated from her employment on February 25, 2009. It is also clear that the United States District Court issued its decision on February 28, 2011, and that Appellant filed her complaint on March 16, 2011, more than two years after her employment termination. Because Pennsylvania federal courts have applied the two-year statute of limitations to all claims involving violations of the United States Constitution, this Court is constrained to apply 42 Pa. C.S. §5524(2) to Appellant's claim that Appellee violated her state constitutional rights guaranteed under Article 1, Section 7 of the Pennsylvania Constitution. Therefore, this Court discerns no error in the common pleas court conclusion that Appellant's state constitutional claims were "time-barred."
Appellant also argues that the two-year statute of limitations does not apply because "Appellant is not pursuing monetary damages for her Pennsylvania Constitutional claim, and instead is only seeking injunctive relief." (emphasis in original). See Brief of Appellant at 16 and R.R. at 49a. This Court's believes this argument is without merit. Here, Appellant sought similar relief to that requested in Fitzgerald and Bartholomew. Specifically, Appellant sought to have Appellee "reinstate Plaintiff Metzger [Appellant] to her former position of employment, with a rate of pay and other benefits and emoluments of employment, to which she would have been entitled, had she not been unlawfully terminated." Amended Complaint, WHEREFORE Clause at 7; R.R. at 49a.
In Fitzgerald, Fitzgerald "sought reinstatement, backpay and benefits, attorney's fees and costs." Fitzgerald, 769 F.2d at 161. In Bartholomew, Bartholomew sought "the salary that had been withheld from him." Bartholomew, 782 F.2d at 1150.
II. Whether Appellant's Whistleblower Claim Was Untimely?
Appellant next contends that she properly tolled the 180-day statute of limitations for her Whistleblower claim pursuant to 28 U.S.C. § 1367(d). Alternatively, Appellant contends she also complied with 42 Pa. C.S. §5103(b)(2) because she "promptly" filed a certified transcript with the common pleas court.
Specifically, Section 4(a) (Civil action) of the Whistleblower Law, 43 P.S. § 1424 provides that "[a] person who alleges a violation of this act may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief for damages, or both, within 180 days after the occurrence of the alleged violation."
Appellee responds that 28 U.S.C § 1367(d) does not preempt 42 Pa. C.S. §5103(b)(2). Specifically, Appellee argues that 42 Pa. C.S. §5103(b)(2) accomplishes the same purpose as 28 U.S.C. §1367(d) from the perspective of both the litigant and the judiciary. Specifically, Appellee states 42 Pa. C.S. §5103(b)(2) does not require the filing of a new complaint but only that a certified transcript of the federal court's final judgment and the federal pleadings be filed with the common pleas court. Appellee asserts that Appellant filed "the certified transcript of the judgment and related pleadings on August 30, 2011, . . . [and that] Metzger's delay of approximately six months is equally inexcusable." Brief of Appellee Pike County at 24.
28 U.S.C. § 1367 provides:
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
. . . .
(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be
tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period. (emphasis added).
In Turner v. Knight, 938 A.2d 863, 864-65 (2008), the Court of Special Appeals of Maryland stated that "[i]n determining the meaning of 'tolling,' we are asked to decide, in short, whether § 1367 suspends the running of the applicable state statute of limitations or merely the effect of that statute during the pendency of the federal case . . . ." The Court of Special Appeals concluded that "§ 1367 tolls the consequences, but not the progression, of a state statute of limitations, and that the 30-day period provided by § 1367 begins to run at the end of the federal district court proceedings . . . ." Id. at 865.
In Turner v. Knight, 938 A.2d 863, 864-65 (2008), the Court of Special Appeals of Maryland stated that "[i]n determining the meaning of 'tolling,' we are asked to decide, in short, whether § 1367 suspends the running of the applicable state statute of limitations or merely the effect of that statute during the pendency of the federal case . . . ." The Court of Special Appeals concluded that "§ 1367 tolls the consequences, but not the progression, of a state statute of limitations, and that the 30-day period provided by § 1367 begins to run at the end of the federal district court proceedings . . . ." Id. at 865.
42 Pa. C.S. § 5103 provides:
(b) Federal cases.-
(1) . . . In order to preserve a claim under Chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court for a district embracing any part of this Commonwealth is not required to commence a protective action in a court or before a district justice of this Commonwealth. Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth by complying with the transfer provisions set forth in paragraph (2). (emphasis added).
(2) Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth. The pleadings shall have the same effect as under the practice in the United States court, but the transferee court or district justice may require that they
be amended to conform to the practice in this Commonwealth. Section 5535(a)(2)(i) (relating to termination of prior matter) shall not be applicable to a matter transferred under this subsection. (emphasis added).
In Kelly v. Hazleton General Hospital 837 A.2d 490 (Pa. Super. 2003), our Pennsylvania Superior Court extensively analyzed the policy requirement necessary for complying with 42 Pa. C.S. §5103(b)(2):
We have spoken previously to the matters of policy . . . . "The stated policy behind this section is to preserve a claim or cause of action timely filed in federal court on the ground that claimant should not lose her opportunity to litigate the merits of the claim simply because she erred regarding federal jurisdiction." Commonwealth v. Lambert, 765 A.2d 306, 320 (Pa. Super. 2000).
Some confusion has attended the Legislature's failure to provide any time period to limit when such a transfer can be effected. To fill this void, this Court created a general promptness requirement . . . which the Commonwealth Court in turn adopted. See Kurtz [v. Lockhart], 656 A.2d 160 (Pa. Cmwlth. 2005)] at 163-64.
. . . .
. . . With that decision, [Williams v. F.L. Smithe Machine Co., Inc. . . . , 577 A.2d 907 (1990)] however, this
Court endeavored to clarify the law under Section 5103, and thus hone its requirements for future litigants.
[F]or benefit of both bench and bar, we now emphasize that in order to protect the timeliness of an action under 42 Pa. C.S.A. §5103, a litigant, upon having his case dismissed in federal court for lack of jurisdiction, must promptly file a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action. The litigant shall not file new pleadings in state court.
Id. This qualifying language suggested that the equities driving this Court's decision in that case included not only the minimal prejudicial effect of plaintiff-appellants' procedural faults on the defense, but also the lack of clear precedent interpreting Section 5103 . . . . ("We are hopeful . . . that our Legislature will see fit in the future to include a time requirement in the provision of 42 Pa. C.S.A. §5103 ."). By implication, then, Williams was sui generis, and plaintiffs would be held to a higher standard in the future.
That reading of Williams was vindicated by our subsequent decision in Collins v. Greene County Memorial Hospital, . . . 615 A.2d 760 [Pa. Super.] (1992). In that case, plaintiffs' federal claims were dismissed on August 23, 1990 . . . . In March of 1991, they for the first time signaled their intent to seek relief in state court by filing a certified transcript of their federal proceedings in the court of common pleas . . . . Although
their filing fully satisfied Section 5103's material requirements, we found the seventh-month delay dispositive against them . . . .Kelly, 837 A.2d at 494-96.
In Collins . . . [s]imilarly, we concluded, if "a litigant fails to promptly transfer the action to the appropriate court, then the litigant abuses that protection, . . . subverts the policies underlying the statute of limitations, and undermines the speedy and efficient processes of justice." . . . [Collins, 615 A.2d] at 763. Our decision in Ferrari v. Antonacci . . . further reinforced the Collins holding. See 456 Pa. Super. 54, 689 A.2d 320, 323 (1997) (finding dispositive against plaintiffs a delay of nearly one year before any gesture towards seeking transfer to state court).
. . . As in Williams, Kelly filed a complaint in state court soon after the dismissal of her claims from the district court. She did not even approach perfecting her transfer under Section 5103, however, until nearly nine months after dismissal, a time period comparable to those in Collins and Ferrari. In fact, it is not entirely clear that she has yet perfected her filings . . . .
. . . Viewed in light of Collins and Ferrari, Williams merely carved out a one-time exception to the plain requirements of Section 5103, which was warranted on that occasion due to the lack of precedent governing the amount of time given plaintiffs to satisfy Section 5103. After those three cases, no precedential void remains, and counsel has no excuse for failing to satisfy the promptness requirements we long ago read into the statute.
. . . We choose not to define "promptness" by reference to a specific number of days. We leave that task to the Legislature . . . . (emphasis added and citations omitted).
In Williams, "the plaintiff filed her complaint in federal court in September 1988 . . . [i]t was dismissed for want of federal subject matter jurisdiction in March 1989 . . . . Two weeks later after the dismissal from federal court, she filed a new complaint substantially identical to that filed with the federal court, in the court of common pleas, and included a certified district court docket and order . . . ." Kelly, 837 A.2d at 494. "In April 1989, she filed with the state court uncertified copies of the pleadings previously submitted to the district court . . . [o]nly in October 1989 did she bring herself fully into compliance with the terms of Section 5103 by filing with the court of common pleas certified copies of the aforementioned pleadings." (emphasis in original). Id. at 494. Our Pennsylvania Superior Court concluded:
We ruled in favor of the plaintiff-appellants and reversed the trial court's dismissal of all claims as time-barred, because "[g]iven the dearth of case law interpreting the provisions of 42 Pa. C.S.A. [sic] §5103, appellants' initial partial compliance with the statute's requirements, and eventual complete compliance' did not warrant the 'harsh result of dismissal." See id. at 910.
In Williams, "the plaintiff filed her complaint in federal court in September 1988 . . . [i]t was dismissed for want of federal subject matter jurisdiction in March 1989 . . . . Two weeks later after the dismissal from federal court, she filed a new complaint substantially identical to that filed with the federal court, in the court of common pleas, and included a certified district court docket and order . . . ." Kelly, 837 A.2d at 494. "In April 1989, she filed with the state court uncertified copies of the pleadings previously submitted to the district court . . . [o]nly in October 1989 did she bring herself fully into compliance with the terms of Section 5103 by filing with the court of common pleas certified copies of the aforementioned pleadings." (emphasis in original). Id. at 494. Our Pennsylvania Superior Court concluded:
We ruled in favor of the plaintiff-appellants and reversed the trial court's dismissal of all claims as time-barred, because "[g]iven the dearth of case law interpreting the provisions of 42 Pa. C.S.A. [sic] §5103, appellants' initial partial compliance with the statute's requirements, and eventual complete compliance' did not warrant the 'harsh result of dismissal." See id. at 910.
Here, this Court is persuaded that 42 Pa. C.S. §5103 controls, not 28 U.S.C. §1367(d), concerning the proper implementation of the statute of limitations. With that in mind, the Pennsylvania Superior Court in Kelly made a few poignant observations and conclusions concerning the term "promptness" and its application to when a "certified transcript" of a federal proceeding is timely filed in a court or magisterial district in this Commonwealth.
First, our Superior Court recognized that such review by a court and appellate court would be an easier task if our Legislature would have selected a "specific number of days." Kelly, 837 A.2d at 496. Second, the Superior Court cautioned that the promptness requirement will not be measured by an exact number of days. Third, with that in mind, the Superior Court did determine that a certified transcript of the final judgment and pleadings of a federal court was not "promptly filed" within the following time periods. In Kelly, the Superior Court determined that a nine-month period to file a certified transcript was too long. In Collins, the Superior Court determined that a seventh-month time period to file a certified transcript was too long. In Ferrari, the Superior Court determined a one-year time period to file a certified transcript was too long. And more recently in Falcone v. The Insurance Company of the State of Pennsylvania, 907 A.2d 631 (Pa. Super. 2006), the Pennsylvania Superior Court determined that a ten-month period to file a certified transcript was too long.
In Collins, Jean and Terry Collins filed an action against Greene County Memorial Hospital and Dr. Arunava Das in the United States District Court for the Western District of Pennsylvania. "This suit was comprised of a federal claim based upon the Civil Rights Act of 1964 and several state claims which were before the court on the basis of pendent jurisdiction." Collins, 615 A.2d at 761. "On August 17, 1990, following a settlement between the parties on the federal civil rights claim, the district court entered judgment on that claim . . . [s]ix days later, the court dismissed the remaining state claims for lack of jurisdiction." Id. at 760. "Nearly seven months later, on March 19, 1991, the Collinses filed a certified copy of the complaint, pleadings, and final judgment from the district court, as well as a Praecipe to Transfer, with the Greene County Court of Common Pleas in order to litigate their state claims." (emphasis added). Id. at 760.
In Ferrari, Ferrari, S.P.A. (Ferrari) initially filed "an action in April of 1993 in the United States District Court for the Eastern District of Pennsylvania . . . [and] set forth claims arising from agreements and events which in 1989 and 1990 and which related to the creation of a United States distributor for Ferrari' products." Ferrari, 689 A.2d at 321. "On July 26, 1994, the federal court dismissed Ferrari's action, without prejudice, for lack of subject matter jurisdiction." Id. at 321. "Nearly, one year later, on July 24, 1995, Ferrari filed a complaint in the Court of Common Pleas of Chester County alleging the same causes of action which it had pled in the federal action." "A certified transcript of the pleadings filed in the federal court or of the final judgment, was not filed with the complaint." (emphasis added). Id. at 321.
In Falcone, "[o]n or about April 23, 2003, [Chris Falcone, Inc.] . . . commenced an action in the United States District Court for the Eastern District of Pennsylvania against [Insurance Company of the State of Pennsylvania] . . . [Insurance Company] . . . ." Falcone, 907 A.2d at 634. "On June 11, 2004, the Federal District Court action against [Insurance Company] was dismissed for lack of subject matter jurisdiction without prejudice [to transfer the case to state court]." Id. at 634. "On June 24, 2004, [Chris Falcone, Inc.] . . . filed a complaint in the Philadelphia Court of Common Pleas . . . [and] [o]n April 11, 2005, . . . [Chris Falcone, Inc.], for the first time sought to transfer the certified record from the federal action, pursuant to Section 5103." (emphasis added). Id. at 634. "On May 23, 2005, the trial court granted . . . [Insurance Company's] motion for summary judgment and dismissed . . . [Chris Falcone, Inc.'s] complaint . . . [t]he court reasoned that . . . [Chris Falcone, Inc.] could not invoke the protection of Section 5103, absent prompt compliance with its requirements." Falcone, 907 A.2d at 634.
Here, the United States District Court entered its order on February 28, 2011, and dismissed Appellant's state claims. On March 16, 2011, Appellant filed her original complaint in the Court of Common Pleas of Pike County and alleged the identical state claims that appeared in her federal complaint. On August 30, 2011, Appellant complied with 42 Pa. C.S. §5103(b)(2) and filed the certified transcript of the federal "final judgment" and "related pleadings" in the common pleas court.
In the present controversy, this Court must determine whether a six-month delay in the filing of the federal certified transcript was untimely. A review of the federal docket admitted into the certified record before this Court fails to indicate when Appellant requested a certified transcript from the United States District Court and how long it took for the federal court to comply with Appellant's request. The first federal docket entry was when Appellant filed her complaint against Appellee on June 26, 2009. Certified Record (C.R.) at Docket No. 1. The last federal docket entry was February 28, 2011: "Memorandum and Order granting 22 dft Pike County's Motion for Summary Judgment; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 2/28/11 (sm,) (Entered: 02/28/2011)." United District Court Middle District of Pennsylvania (Scranton) Civil Docket For Case #: 3:09-cv-0127-JMM.
Likewise, the certified transcript of the common pleas court is silent as to when Appellant requested the federal certified transcript and how much time elapsed before it was provided. The certified record only reflected that the "attached certified transcript of the final judgment in the United States District Court for the Middle District of Pennsylvania" was filed on August 30, 2011. Certified Record from the Pike County Prothonotary's Office at Docket Entry No. 20; R.R. at 4a. However, the certified record indicated that there was continuous docket activity beginning on March 16, 2011, with the filing of Appellant's complaint and continuing throughout the months of April, May, June, July, August, September, October, November, December of 2011, and ending on January 12, 2012, with "Exit File to Superior Court Filed." See Docket Entries Nos. 1-45 of the C.R. The certified record establishes that there was no inactivity on the part of either Appellant or Appellee. Therefore, there was no record evidence that Appellant did not proceed promptly throughout the proceeding, without any notable prejudicial effect to Appellee. Although there was approximately a six-month delay until the certified transcript was filed, this Court finds that Appellant "promptly" complied with the procedural requirements of 42 Pa. C.S. §5103(b)(2).
Specifically, there was a six-month and two day delay from the dismissal of Appellant's federal action and a five-month and fourteen day delay from the filing of Appellant's state action until she filed the certified transcript. --------
III. Whether Appellee's Motion For Summary Judgment Is Moot?
Last, Appellant argues that the common pleas court properly determined that Appellee's motion for summary judgment was moot. Alternatively, before this Court, Appellant asserts that summary judgment should be denied because genuine issues of material fact exist.
Appellee responds that summary judgment should be granted because Appellant failed to establish that her transfer and eventual discharge was the result of her complaints to DPW officials.
Because this Court determined that the common pleas court erred when it granted Appellee's motion for judgment on the pleadings, the motion for summary judgment is no longer moot. However, the common pleas court never addressed the merits concerning the state constitutional and Whistleblower claims raised by Appellant in her amended complaint and Appellee's issues raised in its motion for summary judgment and the responses thereto. Therefore, this Court is unable to render meaningful appellate review on the merits.
IV. Summary
Accordingly, this Court affirms the common pleas court's decision to grant judgment on the pleadings in favor of Appellee as to Appellant's Count I (State Claim-Freedom of Expression-Article 1, Section 7-PA Constitution) of her amended complaint based upon the two-year statute of limitations. This Court reverses the common pleas court's decision to grant judgment on the pleadings in favor of Appellee as to Count III (The Whistleblower Law) of Appellant's amended complaint based upon Appellant's prompt compliance with 42 Pa. C.S. §5103(b)(2). Last, this Court reverses the common pleas court's decision regarding its denial of Appellee's motion for summary judgment as moot. Therefore, the present matter is remanded for further proceedings on the merits of Appellant's Count III of her amended complaint, Appellee's answer to Count III, and Appellee's motion for summary judgment.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 13th day of December, 2012, the order of the Court of Common Pleas of Pike County in the above-captioned case is affirmed as to the grant of Pike County's motion for judgment on the pleadings regarding Count I of Dawn Metzger's amended complaint. The order of the common pleas court is reversed as to the grant of Pike County's motion for judgment on the pleadings regarding Count III of Dawn Metzger's amended complaint, as untimely, and also reversed as to the denial of Pike County's motion for summary judgment as moot. The present matter is remanded to the Court of Common Pleas of Pike County to address the merits of Count III of Dawn Metzger's amended complaint and Pike County's motion for summary judgment regarding Count III and the responses thereto.
Jurisdiction relinquished.
/s/_________
BERNARD L. McGINLEY, Judge
Kelly, 837 A.2d at 494.