R. Dudash v. Com. of PA and Council 13, AFSCME, AFL-CIO, Local 1816

Citation: Not availableDocket: 545 M.D. 2019

Court: Commonwealth Court of Pennsylvania; December 28, 2021; Pennsylvania; State Appellate Court

Original Court Document: View Document

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Petitioner Ryan Dudash filed an amended complaint against the Commonwealth of Pennsylvania and Council 13, American Federation of State, County and Municipal Employees, AFL-CIO, Local 1816, regarding his employment and subsequent mental health issues. The Commonwealth and the Union both filed preliminary objections to Dudash's claims. The court, led by Judges Brobson, Cohn Jubelirer, and Fizzano Cannon, addressed these objections, sustaining some and dismissing others as moot, ultimately dismissing Dudash's amended complaint with prejudice.

In reviewing the preliminary objections, the court accepted all well-pleaded allegations as true while disregarding legal conclusions and argumentative assertions. The court noted that it could only sustain objections if the law clearly indicated the petitioner could not succeed on his claims. Dudash, employed by the Department of Transportation since 2003, experienced significant mental health issues, including PTSD, following a fatal work-related accident in 2010. He was granted intermittent leave under the Family and Medical Leave Act in 2013 for treatment but faced barriers when attempting to return to work, which he argues violated his employment contract and various agreements.

In Spring 2014, Dudash expressed concerns to the Department regarding the use of his FMLA leave and requested to switch to unpaid leave, but the Department stated there were no unpaid leave options with benefits. On June 3, 2014, Dudash fell seriously ill and obtained a medical excuse to be off work until July 6, 2014. The Department provisionally approved this absence as extended FMLA leave. Dudash contested this designation, claiming the new medical condition was unrelated to his original FMLA leave, and the Department requested FMLA paperwork to assess the connection, which Dudash did not submit. He returned to work on July 6, 2014, but was later notified of a pre-discipline hearing regarding his failure to provide the extension paperwork. At the hearing, Dudash stated he believed an extension was not applicable. Subsequently, he was suspended without pay on August 5, 2014, and terminated on August 25, 2014, for allegedly missing work without permission from June 5 to July 4, 2014.

On September 19, 2018, Dudash filed an Amended Complaint with four causes of action against the Commonwealth and/or the Union. Count I alleges breach of contract against the Commonwealth for wrongful termination without cause, and against the Union for inadequate representation. Count II claims fraudulent/negligent misrepresentation by both the Commonwealth and the Union. Count III asserts negligent representation by the Union. Count IV alleges FMLA violation by the Commonwealth. The Commonwealth responded with six preliminary objections: (1) state law claims are barred by sovereign immunity; (2) improper service of the Amended Complaint; (3) failure to attach the relevant contract as required by law; (4) inability to maintain a breach of contract claim due to collective bargaining agreements; (5) failure to exhaust grievance remedies; and (6) failure to present a timely FMLA claim.

The Union filed preliminary objections to Dudash's Amended Complaint, asserting that he did not provide adequate factual support for his claims against the Union for breach of contract, fraudulent and/or negligent misrepresentation, and negligence. The Union argued that Dudash's claims are legally insufficient, and if he intended to assert a breach of the duty of fair representation, that claim lacks factual support. Additionally, the Union contended that any tort claims are barred by the statute of limitations.

The Commonwealth raised a preliminary objection based on sovereign immunity, claiming that Dudash's breach of contract and misrepresentation claims are insufficient since they do not fall under any exceptions to this immunity. Dudash contended that the Commonwealth's immunity argument was prematurely raised and should have been included as an affirmative defense in its response. 

According to Article I, Section 11 of the Pennsylvania Constitution, the Commonwealth can only be sued in specified manners, and sovereign immunity extends to intentional torts. However, immunity is waived for certain negligent acts and contract claims under specific conditions, which do not apply in this case. Sovereign immunity is typically an affirmative defense that should be raised in new matter but can also be considered in preliminary objections if its applicability is clear from the pleadings. Dudash failed to file a preliminary objection to the Commonwealth's assertion of sovereign immunity, which resulted in a waiver of his right to contest it, rendering his procedural challenge to the immunity argument erroneous.

The court determines that, despite a procedural error, it can consider the Commonwealth’s sovereign immunity defense at the preliminary objection stage. Delaying this ruling until the Commonwealth responds to Dudash’s Amended Complaint is deemed unnecessary. The court asserts that while exceptions to sovereign immunity may exist for certain Commonwealth parties, they do not apply to the Commonwealth itself. Consequently, Dudash’s claims for breach of contract and fraudulent or negligent misrepresentation against the Commonwealth are dismissed, sustaining the Commonwealth’s preliminary objection.

Regarding the Union's preliminary objection, the court addresses Dudash’s failure to state actionable claims for breach of contract, fraudulent or negligent misrepresentation, and negligence. The Union argues that such claims are not recognized under the collective bargaining agreement between the Department and the Commonwealth, asserting that Dudash’s only potential claim against it would be for breach of the duty of fair representation, which he allegedly does not adequately assert in his Amended Complaint. In his response, Dudash claims he has presented a valid breach of the duty of fair representation/bad faith claim against the Union. The Union cites *Waklet-Riker v. Sayre Area Education Association* as precedent, where the court affirmed that grievances related to collective bargaining agreements must follow specific arbitration procedures under the Public Employe Relations Act (PERA), confirming the unions as exclusive bargaining representatives.

The appellant's claims center on the unions' failure to adhere to the terms negotiated in the collective bargaining agreement regarding the processing of the appellant’s grievance. The dispute necessitates an interpretation of the Pennsylvania Employee Relations Act (PERA), particularly Section 903, which mandates arbitration for grievances related to such agreements. Court relief is restricted; a public employee can only seek equitable relief to compel arbitration if the union has breached its duty of fair representation in bad faith. Unions are only liable for bad faith actions, not negligence. An exception exists if the employee can demonstrate the employer's active participation in the union's bad faith.

The court found that the appellant's claims for breach of contract and misrepresentation against the union were dismissed due to the lack of a valid claim for breach of fair representation. The court also addressed the expiration of statutes of limitations concerning the appellant’s FMLA claim against the Commonwealth and the fair representation claim against the union. The Commonwealth contended that the FMLA claim was time-barred since it was added post-statute expiration. The appellant argued that the claim was validly initiated via a writ of summons, which was acknowledged by both the Commonwealth and the union during negotiations. The union maintained that the fair representation claim was also time-barred because the writ of summons was not properly served, despite the appellant asserting that the union had actual knowledge of the summons. The court emphasized that a timely filed and served writ of summons can toll the statute of limitations, with established case law supporting this principle.

To toll the statute of limitations upon filing a praecipe for writ of summons, a plaintiff must demonstrate a good-faith effort to provide notice of the action. The statute of limitations for a willful violation of the Family and Medical Leave Act (FMLA) is three years from the last event constituting the violation, while the limit for a breach of the duty of fair representation is two years. In Dudash's case, the last relevant event occurred on August 25, 2014, when his employment was terminated. Consequently, he had until August 25, 2017, to file against the Commonwealth/Department and until August 25, 2016, to file against the Union. Although Dudash filed the praecipe on September 22, 2014, he failed to take necessary steps to serve it, consciously delaying service due to his poor condition and concerns about reliving the situation in litigation. Despite his claims of communication with the Commonwealth and the Union, he did not provide evidence of these exchanges or their dates, leading to the conclusion that his actions were intended to stall proceedings rather than advance them. As a result, the praecipe did not effectively toll the statute of limitations. Furthermore, Dudash's initial complaint was filed on May 7, 2018, which was after the expiration of both the FMLA claim and the breach of representation claim.

Dudash's claims against the Commonwealth for a violation of the Family and Medical Leave Act (FMLA) and against the Union for breach of the duty of fair representation are dismissed as time-barred. The court sustains the preliminary objections raised by both the Commonwealth and the Union, leading to the dismissal of Count IV of the Amended Complaint and any related claims against the Union. Remaining preliminary objections from both parties are deemed moot. Consequently, the Amended Complaint is dismissed with prejudice. The ruling was issued by Judge P. Kevin Brobson on December 29, 2021.