Opinion
No. 1597 C.D. 2011
06-11-2012
Winston J. Banks, Appellant v. Court of Common Pleas, FJD
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Winston J. Banks (Banks), pro se, appeals the Order of the Court of Common Pleas of Philadelphia County (trial court) docketed on November 18, 2010, that sustained the Preliminary Objections (POs) in the nature of a demurrer filed by the Court of Common Pleas, First Judicial District of Pennsylvania (FJD), and dismissed Banks's Complaint with prejudice stating that it was incoherent, did not contain any counts or facts that would establish a prima facie cause of action or for which there would be a remedy under the law, and requested relief that was unintelligible. (Trial Ct. Op. at 1.)
In his Complaint, filed with the trial court on September 21, 2010, Banks alleged that he was terminated from his employment as judicial tipstaff to Judge Glynnis Hill after a courtroom incident that occurred on October 20, 2006. Banks alleged that after a case was heard, but while court was still in session, an attorney was leaving the courtroom while a woman on a motorized cart was attempting to enter. She asked a question of the attorney who was leaving, but holding the door. This created noise and Judge Hill became displeased that his staff, including Banks, could not keep the courtroom quiet. Banks alleged that Judge Hill directed his anger at him in open court and allegedly said that if Banks could not keep the room quiet, Judge Hill would find someone to replace Banks. Banks further alleged that, after the last case that day, he informed Judge Hill that he needed to seek medical treatment because he was having back spasms, but he was told that he would be terminated if he left. Banks alleges that he went up to Judge Hill's chambers to pick up his coat and left for the hospital where he was treated and cleared to return to work the next business day. (Complaint at 1-3.)
In response to the Complaint, the FJD filed the POs on October 18, 2010. Therein, the FJD contended that: the trial court did not have original jurisdiction pursuant to Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1); the FJD is not subject to the Pennsylvania Human Relations Act (PHRA); the PHRA claim was time-barred for failure to meet the 180-day filing requirement of the PHRA; as tipstaff, Banks was a personal assistant to an elected public official subject to at-will dismissal; the two-year statute of limitations for wrongful termination expired, barring the suit; the request to unionize is not cognizable in the law; the claim for overtime pay was barred by sovereign immunity; and collateral estoppel precluded the action because Banks either raised or could have raised his claims in his prior federal action. Banks filed a Response to the POs, which did not address the issues raised therein.
The FJD's POs included a copy of the charge which Banks filed with the Equal Employment Opportunity Commission (EEOC) dated July 12, 2007. (FJD's POs, Ex. A.) Banks previously filed an action in the federal District Court for the Eastern District of Pennsylvania on July 10, 2008. (FJD's POs, Ex. B.) The District Court dismissed Banks's complaint, (District Court Order, December 10, 2008; POs Ex. C), and Banks appealed to the Third Circuit, which affirmed the District Court's Order. (Banks v. Court of Common Pleas, 342 Fed. Appx. 818 (3d Cir. 2009); POs Ex. D; Banks's Br. at 4.) The Third Circuit interpreted Banks's complaint filed in federal court as seeking relief under the employment provisions of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, the self-care provisions of the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654, and the Pennsylvania Human Relations Act (PHRA), Act of Oct. 27, 1955, P.L. 744, as amended, 43 P.S. § 951-963. Banks, 342 Fed. Appx. at 820. The Third Circuit stated that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Concluding that the ADA claim was barred by the Eleventh Amendment and that private suits for damages may not be brought against states for alleged violations of the FMLA arising under that act's self-care provision, the Third Circuit dismissed the ADA and FMLA claims. Id. at 820-21. In addition, the Third Circuit did not find any abuse of discretion by the District Court "in refusing to exercise supplemental jurisdiction over Banks's PHRA claim" after dismissing the federal claims. Id. at 821.
Act of Oct. 27, 1955, P.L. 744, as amended, 43 P.S. § 951-963.
When a trial court rules on POs, it may take judicial notice of a fact that the parties have admitted or which is incorporated into a complaint by reference to another action. Styers v. Bedford Grange Mutual Insurance Co., 900 A.2d 895, 899 (Pa. Super. 2006). Here, the trial court took notice of Banks's federal case and its disposition because Banks's Complaint refers to a final determination letter from the Pennsylvania Human Relations Commission and the federal court case. (Complaint at 1.)
The trial court sustained the FJD's POs and dismissed the Complaint by an Order docketed on November 18, 2010. Thereafter, the trial court issued an Opinion in support of its dismissal. As previously indicated, the trial court first noted that the Complaint was incoherent and did not contain any counts or facts that would establish a prima facie cause of action or for which there would be a remedy under the law, and requested relief that was unintelligible. (Trial Ct. Op. at 1.) Citing Smith v. Wagner, 588 A.2d 1308 (Pa. Super. 1991), the trial court noted that preliminary objections in the nature of a demurrer test the legal sufficiency of a complaint. (Trial Ct. Op. at 4.) The trial court reasoned that the courts or any agency of the Unified Judicial System of Pennsylvania, which includes the FJD, are within the definition of the "Commonwealth government" pursuant to Section 102 of the Judicial Code, 42 Pa. C.S. §102; therefore, notwithstanding the incoherency of the Complaint, the trial court interpreted this case as a civil action or proceeding against the "Commonwealth government" and accepted the uncontested POs of the FJD that this action was within the original jurisdiction of this Court pursuant to Section 761(a)(1) of the Judicial Code. (Trial Ct. Op. at 4.) The trial court additionally addressed the POs on their merits and stated that "'under the administrative rules of the Supreme Court, each individual judge has the unlimited prerogative to hire or fire his or her judicial secretary and judicial tipstaff.'" (Trial Ct. Op. at 6 (quoting Commonwealth ex rel. Gallas v. Pennsylvania Labor Relations Board, 636 A.2d 253, 260 (Pa. Cmwlth. 1993)).) Noting that the Complaint alleged that Banks was a judicial tipstaff—a confidential, personal staff member to an elected official—the trial court concluded that Banks was an at-will employee subject to at-will dismissal, a conclusion that was supported by Banks himself in his Complaint and Memorandum in Support of Response to POs. (Trial Ct. Op. at 6-7.) Therefore, the trial court found that the Complaint stated no cause of action against the FJD. (Trial Ct. Op. at 5.) The trial court further concluded that if this were a wrongful termination action, which it could not ascertain, it would have been barred by the applicable two-year statute of limitations because Banks was terminated on October 20, 2006, but did not file his Complaint until September 21, 2010, nearly four years later. (Trial Court Op. at 7.) In sum, after considering the POs on the merits, the trial court concluded that the Complaint was not only time-barred, but failed to state a cause of action. This appeal followed.
The "Commonwealth Government" is defined as:
The government of the Commonwealth, including the courts and other officers or agencies of the unified judicial system, the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, authorities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or local authority.42 Pa. C.S. § 102.
By order dated June 27, 2011, the Superior Court transferred this appeal sua sponte to this Court. We note that neither Banks nor the FJD now objects to our appellate jurisdiction of this matter. Therefore, our appellate jurisdiction will be treated as perfected for the purposes of this appeal as allowed by Section 704(a) of the Judicial Code, 42 Pa. C.S. § 704(a). See also Hanson v. Department of Transportation, 568 A.2d 991, 993 n.3 (Pa. Cmwlth. 1990) (noting that in a case where the Superior Court has sua sponte transferred a matter to this Court and the parties do not object to our appellate jurisdiction, such jurisdiction will be treated as perfected and we will proceed to review the matter).
In this appeal we have a limited scope of review and can "overturn the trial court's decision [sustaining POs] only if there has been an error of law or a clear abuse of discretion." O'Bien v. Township of Ralpho, 646 A.2d 663, 665 (Pa. Cmwlth. 1994). However, we, like the trial court, are unable to discern with any clarity the cause or causes of action which Banks attempted to raise in his Complaint. We agree with the trial court that Banks's Complaint neither clearly sets forth any specific cause of action, provides legally sufficient facts on the face of the Complaint, nor requests relief cognizable in law. It appears that Banks is attempting to seek redress for his termination from employment, but it is not clear by what cause or causes of action Banks seeks such redress. In the Complaint, Banks requests the appointment of counsel, the right to unionize judicial staff, mediation, reinstatement, and overtime pay. (Complaint at 1-2, 5-6.) Banks refers to a final determination letter from the Pennsylvania Human Relations Commission, but the letter is neither attached to the Complaint nor included in the record. Additionally, Banks has not otherwise stated that he has exhausted his administrative remedies pursuant to Section 9(h) of the PHRA, 43 P.S. § 959(h) (among others). In fact, it is not clear whether Banks's Complaint attempts to state a claim under the PHRA.
We note that the record includes a Charge of Discrimination that Banks filed with the EEOC on July 12, 2007 and an EEOC Dismissal Notice stating that Banks' case was closed because "[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes." (Exs. A-B, FJD's POs.)
Critically for this appeal, Banks's brief does not offer any issues or arguments in support thereof that directly address the trial court's Order sustaining the POs. Banks's brief merely presents his version of the facts and events leading to his termination, including his prior medical and work history. An appellant's brief should present a cogent argument as to why he or she believes that the decision that is being appealed should be reversed. Without such a cogent argument by Banks, this Court, in attempting to address the merits of the trial court's Order, would be adding this Court's conjectures as to what error, if any, the trial court committed, upon the trial court's speculations as to what Banks may have been attempting to allege in his Complaint.
The single authority cited in the brief's "Argument" section is Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997), in which the issue was whether any set of facts could be asserted that would create an employer-employee relationship between law clerks and a county in the clerks' Title VII federal lawsuit alleging sexual harassment, hostile working environment and retaliation. This specific issue regarding the clerk-county employment relationship in the context of a Title VII lawsuit has not been raised in the present case and, therefore, this one citation is inapposite here.
We are mindful of the fact that Banks is proceeding pro se in this appeal. However, Banks's failure to identify the issues involved in this appeal, the lack of any organized and developed arguments regarding the issues, and the absence of citation of any relevant legal authority, has interfered with our ability to provide effective and meaningful appellate review. Even a liberal construction of Banks's brief cannot remedy the fact that he simply has not stated why the trial court erred in sustaining the FJD's POs. "We decline to become [Banks's] counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof." Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982); see also Barber v. Tax Review Board, 850 A.2d 866, 868 (Pa. Cmwlth. 2004) (quoting Huffman v. Unemployment Compensation Board of Review, 555 A.2d 287, 288 (Pa. Cmwlth. 1989) ("'[T]his Court cannot on review . . . formulate what we believe Claimant's argument on appeal . . . ought to be.'")).
Specifically, Banks has failed to comply with Pennsylvania Rules of Appellate Procedure 2116, 2118-2119. Rule 2116 requires that "[t]he statement of the questions involved must state concisely the issues to be resolved and that no question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa. R.A.P. 2116. Here, the brief includes a page entitled "Statement of Questions Involved" and includes three questions, none of which address the issues on appeal as a result of the trial court having sustained the FJD's POs. Rule 2116 further states that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Id. As such, Banks's brief does not comply with Rule 2116.
Rule 2118 requires that a succinct but accurate and clear picture of the argument actually made in the brief concerning the questions must be provided. Pa. R.A.P. 2118. Banks's brief does not comply with Rule 2118 because it does not summarize his legal argument on the questions for review. Rule 2119 provides that the brief must divide the argument "into as many parts as there are questions to be answered," followed by discussion and citation of authorities, setting forth the principle for which they are cited. Pa. R.A.P. 2119. Here, there is neither any division of the argument into as many parts as there are questions to be answered, nor is there any discussion and citation of relevant authorities.
The trial court attempted to address the merits of the POs and, given what has been presented to us, we are doubtful that Banks's appeal of the trial court's order would have been successful. If we interpreted Banks's Complaint as attempting to state a cause of action under the PHRA, we would affirm the trial court, because the Complaint did not contain the essential elements to establish a prima facie cause of action (it does not state that Banks exhausted his administrative remedies) and because it would have been time-barred (Banks did not file his charge with either the PHRC or the EEOC within the 180-day period that is required by the PHRC.)
For the foregoing reasons, we are constrained to quash this appeal.
Rule 2101 of the Pennsylvania Rules of Appellate Procedure provides that an appeal may be quashed or dismissed "if the defects [] in the brief [] are substantial." Pa. R.A.P. 2101. We note that, because the specific cause of action alleged in a complaint plays a role in any jurisdictional discussion and determination, we need not address the issue of whether this Court had original jurisdiction over the action filed by Banks since we cannot discern which cause or causes of action Banks has alleged in his Complaint. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 11, 2012, Winston J. Banks's appeal from the Order of the Court of Common Pleas of Philadelphia County, docketed on November 18, 2010, is hereby QUASHED.
/s/ _________
RENÉE COHN JUBELIRER, Judge