D. Scrip v. Debbie O'Dell Seneca, in her individual capacity as President Judge of the Court of Common Pleas of Washington County

Citation: 191 A.3d 917Docket: 881 C.D. 2017

Court: Commonwealth Court of Pennsylvania; July 23, 2018; Pennsylvania; State Appellate Court

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David Scrip appeals the June 1, 2017 Order from the Court of Common Pleas of Washington County, which dismissed the remaining counts of his Complaint against various judicial officers and Washington County following his termination as a Juvenile Probation Officer in February 2014. The appeal raises two central issues: whether the Whistleblower Law provides a cause of action for judicial employees, and the extent of sovereign immunity protecting judicial branch officers from civil liability for wrongful termination claims.

Scrip's Complaint details his 25-year tenure as a Juvenile Probation Officer, during which he reported to Daniel Clements, the Chief Probation Officer, and Thomas Jess, the Deputy Court Administrator. Scrip alleges that Clements had a personal relationship with an employee, Beth Stutzman, which created a conflict of interest involving her new role at Abraxas Youth and Family Services, a placement resource for juveniles. Scrip contends that both Judge O'Dell Seneca and Jess were aware of this relationship and the conflict but failed to act. Clements allegedly pressured probation officers to recommend placements at Abraxas that were not appropriate for the juveniles, benefiting his relationship with Stutzman and compromising the best interests of the juveniles involved. Both Judge O'Dell Seneca and Jess were purportedly aware of these unethical practices, which persisted without intervention.

Scrip raised concerns about unethical practices via an anonymous letter to key judicial figures, including Chief Justice Ronald Castille and Judge O’Dell Seneca. The Administrative Office of Pennsylvania Courts (AOPC) investigated but Scrip claims this investigation was a sham. In August 2012, Judge O’Dell Seneca reported the investigation's findings to Department staff, asserting no unethical placements were found, despite Scrip alleging these conclusions were false. Following the meeting, Judge O’Dell Seneca warned against criticizing Clements, leading to three retaliatory actions against Scrip, culminating in his termination on February 18, 2014, for allegedly disobeying her directive.

Scrip filed a complaint on August 18, 2014, against Judge O’Dell Seneca, Jess, Clements, and Washington County, alleging retaliatory discharge under the Whistleblower Law (Count I) and under the public policy exception to Pennsylvania’s at-will employment doctrine (Count II). He sought compensatory and punitive damages, interest, attorney fees, and other relief.

Judge O’Dell Seneca filed preliminary objections, arguing that the Whistleblower Law does not apply to the Judiciary and that Scrip's public policy claim is barred by sovereign immunity. Jess, Clements, and Washington County also filed objections, asserting immunity and claiming the Whistleblower Law does not apply to them as employees of the Commonwealth. Washington County further contended it was not Scrip’s employer and that he was protected under a collective bargaining agreement, negating his claims under the at-will employment doctrine.

Jess, Clements, and Washington County argued that whistleblower activities do not qualify for the public policy exception to at-will employment. They submitted a brief supporting their preliminary objections, while Scrip opposed these objections. Scrip acknowledged his union membership but asserted that the collective bargaining agreement (CBA) did not grant him the right to contest his termination due to his at-will status. He also challenged the notion that his public policy claim stemmed from the Whistleblower Law, asserting instead that it originated from the Code of Conduct for Employees of the Unified Judicial System, specifically Part VIII.A, which mandates reporting attempts to induce violations of the Code.

Scrip referenced Pennsylvania’s Whistleblower Law, which protects employees from retaliation for good faith reporting of wrongdoing. Regarding Judge O'Dell Seneca's claim of immunity in Count II, Scrip argued she waived her immunity by removing the case to federal court, citing Lombardo v. Pennsylvania Department of Public Welfare. For Count I, Scrip contended that a recent court decision, Thomas v. Grimm, misinterpreted the applicability of the Whistleblower Law to judicial employees, asserting that the Supreme Court intended to provide remedies for such employees under this law.

The Common Pleas Court ruled on June 1, 2017, sustaining the defendants' preliminary objections and dismissing Scrip’s Complaint with prejudice. It noted that the individual defendants, being part of the Judiciary, had immunity from suit. Additionally, it found that even if Scrip were an at-will employee, the Code of Conduct did not clearly express a public policy to support his wrongful discharge claim. The court also followed the precedent set in Thomas, concluding that the Whistleblower Law does not apply to the Judiciary. Furthermore, it stated that Washington County could not be held liable for Scrip's claims since it lacked hiring or firing authority over him, which rested with Judge O'Dell Seneca. The court also ruled that Washington County was immune under the Tort Claims Act. Scrip has appealed this decision, which is currently under review.

Preliminary objections regarding the legal sufficiency of a pleading (demurrer) can only be affirmed if it is clear that the plaintiff cannot prove facts sufficient for relief based on the pled facts. When evaluating the sufficiency, all well-pled and relevant facts and reasonable inferences are accepted as true, while legal conclusions, unwarranted inferences, and argumentative allegations are not. The review standard is de novo, with a plenary scope.

In his appeal, Scrip raises seven issues, primarily questioning whether the common pleas court erred in dismissing his Whistleblower Law claim, arguing it conflicts with the intent of the Pennsylvania Supreme Court's adoption of the October 2010 Code of Conduct. He cites a 2011 Progress Report that references the Code and notes its protection against retaliation for reporting wrongdoing. Scrip also challenges the dismissal based on sovereign immunity, asserting that the Supreme Court has waived this immunity for Judiciary employees under the Whistleblower Law and public policy exceptions to at-will employment. He claims the court failed to consider that he sued the individual defendants in their personal capacities.

Judge O’Dell Seneca argues that the dismissal aligns with established precedent from Russo and Thomas. She maintains that her actions during Scrip's termination were within her employment scope, granting her immunity under 1 Pa. C.S. 2310. Other defendants, Jess and Clements, echo her arguments and assert their immunity as well, while also indicating that common pleas properly recognized Washington County's immunity under the Tort Claims Act. They contend that Scrip did not sufficiently establish a claim under the public policy exception regarding the Code of Conduct.

Common pleas dismissed Scrip's claims against Washington County for various reasons, and upon review, the Court found no arguments challenging the dismissal. Consequently, any issues related to this dismissal are not part of the current appeal, as per Pennsylvania Rule of Appellate Procedure 1925(b)(4)(vii), which states that issues not raised in the statement of errors are waived.

The analysis progresses to the Whistleblower Law claim, beginning with an overview of sovereign immunity as established by Article I, Section 11 of the Pennsylvania Constitution. This provision allows the Legislature to dictate the manner and courts for suits against the Commonwealth. The Legislature's enactment of 1 Pa. C.S. 2310 reinforces this immunity for government officials acting within their duties, which is designed to protect government policymaking and public funds. While the doctrine of sovereign immunity can be controversial, particularly regarding perceived government misconduct, it is constitutionally upheld, limiting judicial authority to bypass legislative immunity stipulations.

The Sovereign Immunity Act (42 Pa. C.S. 8521-8528) provides specific waivers of immunity for certain negligence claims. Scrip's Complaint includes a count under the Whistleblower Law, which prohibits public bodies from retaliating against employees for good faith reports of wrongdoing. Employees may pursue civil actions for violations of this law, seeking damages or injunctive relief. Scrip asserts that both he and the defendants were Judiciary officials or employees, as recognized by common pleas. The critical issue is whether the Whistleblower Law applies to the Judiciary, which is now set to be examined in light of recent panel decisions, particularly the case of Thomas.

The case addresses whether the Whistleblower Law applies to judicial employees, centering on a retaliation claim by former Washington County Juvenile Probation Officer Thomas. The court dismissed Thomas’s claim with prejudice, ruling he could not pursue an action under the Whistleblower Law. On appeal, Thomas argued that the law applies to the Judiciary based on its language and, alternatively, that the Supreme Court’s reference to the law in its Code of Conduct implied its applicability. The appellate court rejected both arguments, referencing its earlier decision in Russo, which determined the General Assembly did not intend to include the Judiciary under the Whistleblower Law, thereby precluding wrongful termination claims for former Judiciary employees.

In examining the Code of Conduct's reference to the Whistleblower Law, the court found no intent from the Supreme Court to extend the law’s applicability to Judiciary employees. The description in the Code merely illustrated public policy favoring protections for whistleblowers, lacking any explicit intention to include the Judiciary. The court emphasized that more than a general reference would be required to alter the established separation of powers and independence of the Judiciary. 

Ultimately, the conclusions from Russo and Thomas affirm that the Whistleblower Law does not apply to the Judiciary and that the Supreme Court did not intend to incorporate it merely through a reference in the Code of Conduct. Scrip's challenge to this interpretation was dismissed, and the court acknowledged the Supreme Court's authority to create rules for employee protections but clarified that a mere reference to the Whistleblower Law was insufficient for such intent. The Supreme Court later removed the reference to the Whistleblower Law and implemented alternative language against retaliation and discrimination within the Judiciary.

The Supreme Court maintains oversight of the Judiciary under the Pennsylvania Constitution, but this authority does not allow it to override legislative power. The General Assembly did not intend for the Judiciary to be included under the Whistleblower Law, and any attempt by the Judiciary to apply this law contrary to that intent would violate the separation of powers. The Judiciary cannot recognize civil suits for wrongful discharge by its employees unless authorized by a legislative act, as any waiver of sovereign immunity must be legislated. Although Scrip argues that cooperation between the branches in creating the Interbranch Commission negates separation of powers concerns, such cooperation does not constitute a legislative act. Nevertheless, Judiciary employees reporting misconduct under the new Code of Conduct deserve protection from retaliation, and the Supreme Court can act against retaliation without overstepping its authority. However, it cannot amend statutes or waive sovereign immunity. Regarding wrongful discharge, Pennsylvania law generally does not recognize a common-law cause of action for at-will employees, except in limited cases where termination contravenes clear public policy. Employees must cite specific public policies from constitutional or statutory sources applicable to their situation; mere unfairness in employment actions is insufficient. Even with public policy considerations, an employer may still terminate an employee if there’s a legitimate reason for the discharge.

Scrip argues on appeal for the right to pursue a common law wrongful termination claim, asserting that the Supreme Court waived sovereign immunity regarding such claims and that the Code of Conduct mandating Judicial employees to report wrongdoing embodies a public policy of the Commonwealth. However, it is established that the Supreme Court cannot waive sovereign immunity, which prevents civil actions for wrongful termination against the Commonwealth and its officials acting within their official duties; only the Legislature can grant such authority. Scrip has not cited any law from the General Assembly waiving this immunity, reinforcing the dismissal of his wrongful termination claim as affirmed by the common pleas court.

Additionally, Scrip seeks to pursue claims against individual defendants in their personal capacities, referencing the case Halstead v. Motorcycle Safety Foundation, Inc., where the federal district court ruled that sovereign immunity does not protect state officials from personal liability. Although decisions from federal courts are not binding on this court, they can be influential. In Halstead, the court allowed certain common law claims against individual state employees to proceed while dismissing claims against the Pennsylvania Department of Transportation and its employees in their official capacities due to sovereign immunity. The court noted that the individual defendants could potentially be liable for actions outside the scope of their official duties, permitting further discovery to clarify their capacities and the nature of the claims.

The Eleventh Amendment restricts judicial power in the United States, preventing lawsuits against a state by citizens of another state or foreign nationals. Sovereign immunity applies to state officials and employees only when they act within the scope of their duties. A state official or employee is not protected under sovereign immunity for actions outside their official capacity. In the case referenced, Halstead, the district court allowed claims to proceed based on the allegation that employees acted in both individual and official capacities. Pennsylvania law requires fact pleading, meaning plaintiffs must present all relevant facts in their complaints to support their claims. 

In Stackhouse v. Pennsylvania State Police, the court found that allegations against the State Police Commissioner lacked sufficient factual support for individual liability, as the claims arose from actions within his official duties. The court ruled that even if the Commissioner acted improperly, he was shielded by sovereign immunity if acting within his employment scope. Stackhouse's argument for further factual development was rejected, as it could not change the outcome; if the Commissioner acted within his employment scope, he was immune, and if he acted individually, no duty was breached. Similarly, Scrip's Complaint failed to adequately allege that the individual defendants acted outside their official capacities, leading to a conclusion that the claims did not support individual liability.

Scrip alleges retaliatory motives behind his disciplinary write-ups and termination from his role as a Juvenile Probation Officer. He claims that his supervisors—Clements, Jess, and Judge O'Dell Seneca—were involved in the disciplinary actions taken against him, as they were part of his chain of command. The court concluded that, regardless of the individual defendants' motives, their actions occurred within the scope of their employment as Scrip's supervisors. Consequently, the court found no error in dismissing Scrip’s claims against these individuals in their personal capacities. The Commonwealth Court affirmed the lower court's decision to sustain the preliminary objections and dismiss Scrip's complaint with prejudice. Judge Fizzano Cannon did not participate in this decision.