Opinion
No. 114 C.D. 2012
11-13-2012
Appeal of Dr. Lawrence Robinson From Decision of: The City of Philadelphia Civil Service Commission and Dr. Lawrence Robinson v. City of Philadelphia, Donald Schwartz, Karla Hill, Albert Dattillio Appeal of: Dr. Lawrence Robinson
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Dr. Lawrence Robinson (Robinson) appeals from an order of the Philadelphia County Court of Common Pleas (trial court) that affirmed the decision of the Philadelphia Civil Service Commission (Commission), and dismissed his two-count complaint against the City of Philadelphia (City) on preliminary objections. Robinson challenges the trial court's failure to address his claims of wrongful discharge/layoff and its refusal to allow him to file another amended complaint. For the foregoing reasons, we affirm in part, and vacate and remand in part.
I. Background and Procedural History
Robinson worked for the City Department of Public Health (DPH). Due to impending budget cuts, Robinson's position as Deputy Commissioner for Health Promotion was designated for economic layoff. On December 5, 2008, Robinson received notice that he would be laid off effective January 16, 2009. On January 5, 2009, Robinson appealed the layoff to the Commission. In that appeal, Robinson complained of discrimination, improper calculation of his layoff score, and incorrect rating of his performance as satisfactory. He also claimed that he was improperly compared with a non-exempt employee for layoff purposes. Further, Robinson asserted that he was previously improperly denied leave in 2007-2008. Significantly, Robinson did not allege constructive discharge.
Robinson submitted a notice of retirement, effective January 15, 2009, a few days after filing his civil service appeal. Robinson retired before his scheduled layoff date to take advantage of employment benefits that would not be available to him if he was laid off, including $40,000 in health coverage, plus sick time compensation. In a letter to the City, Robinson advised that he viewed his retirement as involuntary. Reproduced Record (R.R.) at 1494a. Robinson claimed he was compelled to retire by the economic choice the City imposed on him.
Without holding a hearing, the Commission dismissed Robinson's appeal on the grounds that he voluntarily retired before the layoff took effect, rendering his challenge to the layoff moot. Specifically, the Commission stated: "Although you received notice that you would be laid off effective 1/16/09, you voluntarily retired from your position in the Health Department effective 1/15/09. Therefore, the layoff did not take place and there is no basis for an appeal under Regulation 16.017." R.R. at 28a.
Thereafter, Robinson wrote to the Commission to request that his layoff appeal "be clarified to include the issue that the inappropriate layoff notice that the City gave him on or about December 5, 2008, caused his involuntary resignation/constructive discharge." R.R. at 167a. The Commission rejected his request because Robinson failed to timely request reconsideration. In addition, because Robinson already appealed the Commission's earlier decision to the trial court, the Commission lacked jurisdiction over clarifications and amendments.
Robinson filed a notice of appeal from the Commission and a separate action by writ of summons classified as "Employment-Wrongful Discharge." R.R. at 47a. The trial court consolidated Robinson's appellate and original jurisdiction actions. Robinson filed a consolidated complaint comprised of the civil service appeal and wrongful discharge claims, and added federal claims against representatives of the City (City Defendants). The City Defendants removed the case to federal court.
More than one year later, Robinson filed an amended complaint in federal court containing six claims: Count I appealed the Commission's denial of his appeal; Count II claimed the civil service law and regulations constituted a contract the City breached by laying Robinson off; Counts III and IV alleged a race and age discrimination claim pursuant to federal law; Counts V and VI alleged discrimination claims under the Pennsylvania Human Relations Act, 43 P.S. §§951-963; and, Count VII alleged a procedural due process claim under 42 U.S.C. §1983 based upon the Commission's denial of his request for hearing.
Robinson asserted race discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000a, and age discrimination pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621-634.
Act of October 27, 1955, P.L. 744, as amended.
Counts I and II were dismissed from the federal action and remanded to the trial court. The federal court granted summary judgment to the City Defendants on Count IV (age discrimination) and Count VII (Section 1983 action), which the Third Circuit Court of Appeals affirmed on appeal. The race discrimination claims in Count III proceeded to trial, after which, the federal court entered judgment in the City Defendant's favor. Robinson did not appeal that decision.
Robinson v. City of Phila., No. 11-3852, 2012 U.S. App. LEXIS 14381 (3d Cir., filed July 13, 2012).
At the state level, the City filed preliminary objections to Counts I and II. The trial court affirmed the Commission's dismissal of the case. By retiring after appealing his layoff, the trial court reasoned, Robinson essentially withdrew the appeal of his layoff. Robinson only asserted constructive discharge after the Commission rejected his appeal, despite having the opportunity and administrative mechanism to timely assert that theory when he initially filed. However, the trial court did not expressly address the breach of contract claim in Count II.
After receiving the trial court's decision denying his appeal of Count I (civil service appeal), Robinson attempted to file a Second Amended Complaint. In the Second Amended Complaint, Robinson restated his civil service appeal and breach of contract action in Counts I and II, and added Count III, asserting the City violated a duty of good faith and fair dealing under the civil service laws. The Prothonotary, however, rejected the electronic filing based on the trial court's order. Robinson filed a notice of appeal.
Robinson also included an age discrimination claim (Count IV) despite the fact that the claim was dismissed on the merits in the federal lawsuit. Robinson v. City of Phila., No. 10-1277, 2011 U.S. Dist. LEXIS 92707 (E.D. Pa., filed Aug. 17, 2011).
II. Discussion
Robinson argues that the trial court erred in affirming the Commission and denying his appeal. He further contends that it was error for the trial court to decide his case without a hearing and in failing to expressly address his breach of contract claim. Robinson also asserts he was entitled to file the Second Amended Complaint. We address each of Robinson's contentions.
A. Count I - Civil Service Appeal
The Commission rejected Robinson's appeal of his "layoff" as moot because he retired before the layoff could take effect. Robinson challenges the Commission's finding that he retired voluntarily because the Commission did not hold a hearing or take any evidence to support that conclusion.
"[A]ppellate review of an adjudication of a municipal civil service commission is limited to determining whether constitutional rights have been violated, an error of law has been committed[,] or findings of fact necessary to support the adjudication are not supported by substantial evidence." Day v. Civil Serv. Comm'n of Borough of Carlisle, 593 Pa. 448, 455, 931 A.2d 646, 650 (2007).
Here, the trial court properly affirmed the Commission's dismissal. Robinson retired the day before the layoff was to take effect. The Commission has no obligation to provide a hearing when an employee takes action mooting his claim before the hearing can be granted. See Morgan v. Bucher, 442 Pa. 498, 276 A.2d 523 (1971) (employee who resigned, and then tried to withdraw resignation, on advice of counsel, acted knowingly and waived right to hearing); see also id. at 502, 276 A.2d at 526, (concurring) (reasoning as employee "resigned, he was neither 'dismissed or demoted,' and hence was not entitled to any appeal to the Commission ...."); Sofronsky v. Civil Serv. Comm'n of Phila., 695 A.2d 921 (Pa. Cmwlth. 1997) (holding resignation made for consideration and weighed as an option is voluntary).
Despite his sophistication, and the fact that he was represented by counsel throughout the many legal proceedings he initiated, Robinson did not allege a constructive discharge theory before the Commission. His only claim before the Commission pertained to "layoff" under Civil Service Regulation 16.
The Commission rejected Robinson's appeal on March 11, 2009 because it received notice that he retired before the layoff, and Robinson's only basis for appeal asserted improper layoff. The Civil Service Regulations offer a procedure for the Commission to reconsider its decision within 30 days. See Phila. Civil Serv. Reg. 17.063. Unfortunately, Robinson did not follow this available procedure. Instead, he allowed the time for seeking reconsideration to lapse. Robinson did not request to submit material challenging the voluntariness of his retirement until October 8, 2009, seven months after the Commission rejected his appeal as moot.
It is well-settled that a party is limited to the grounds stated in his administrative agency appeal. Pa. Banker's Ass'n v. Dep't of Banking, 599 Pa. 496, 962 A.2d 609 (2008). Robinson failed to allege constructive discharge, despite the fact that the Civil Service Regulations provide a mechanism to do so in Regulation 15. Therefore, he waived the issue. Id.; Bazargani v. State Civil Service Comm'n, 711 A.2d 529 (Pa. Cmwlth. 1998); see also Carlson v. Cmty. Ambulance Servs., Inc., 824 A.2d 1228 (Pa. Super. 2003) (failure to plead constructive discharge precludes arguments based thereon). As a result, Robinson cannot now assert constructive discharge on appeal.
On appeal to this Court, Robinson also contends he did not knowingly waive his right to a hearing before the Commission. We disagree. In actuality, Robinson decided to forego that remedy when he opted to retire. That option was supported by the receipt of over $100,000 in benefits. That in hindsight Robinson regrets his choice does not make it involuntary. Neals v. City of Phila., Bd. of Pension & Ret., 325 A.2d 341 (Pa. Cmwlth. 1974).
In sum, Robinson asserted improper layoff, and relied solely on Regulation 16 as grounds for his civil service appeal. It is clear the Civil Service Regulations allow constructive discharge to be raised under Regulation 15; however, Robinson did not do so. Robinson cannot now change his mind and bring claims at common law that he should have pursued through administrative means. Thus, the trial court's denial of Robinson's civil service appeal was proper.
B. Count II - Breach of Contract
Robinson next contends that the trial court's order denying his appeal deprived him of his right to have his claim for breach of contract adjudicated. Robinson's breach of contract claim is predicated upon his unsupported theory that the Civil Service Regulations create a contract between the City and its employees. The City filed a demurrer to Count II, arguing the regulations do not create a contract or a private right of action to enable Robinson's suit.
After hearing argument on the preliminary objections, the trial court entered the following order:
AND NOW, this 23rd day of Dec.R.R. at 721a. Notably, the order was captioned as "Appeal of Dr. Lawrence Robinson from a decision of the City of Philadelphia Civil Service Commission, April Term, 2009, No. 00377." Id. Neither the caption nor the contents of the order indicate that it pertains to the original jurisdiction claim, Count II, or that it resolves the preliminary objections filed as to the breach of contract claim. From the language of the order, it is unclear whether the trial court intended to resolve the preliminary objections.20092011, based upon consideration of the arguments of Appellant and Appellee and the evidence on the record, it is hereby ORDERED and DECREED that the appeal is DENIED and decision of the Philadelphia Civil Service Commission should be affirmed.
Similarly, the trial court's Pa. R.A.P. 1925(a) opinion does not address the preliminary objections or the breach of contract claim. Although the trial court lists its failure to address the breach of contract claim among the errors raised for further appeal, the trial court does not expressly address the claim.
Preliminary objections that raise an issue of legal insufficiency may be determined from the record, without the need to take evidence. See Pa. R.C.P. No. 1028 Note. However, the "[f]ailure of the trial court to consider the sufficiency of the complaint before sustaining preliminary objections and dismissing the case without leave to amend, is an abuse of discretion." Joloza v. Dep't of Transp., 958 A.2d 1152, 1155 (Pa. Cmwlth. 2008) (citing Schuylkill Navy v. Langbord, 728 A.2d 964, 965 (Pa. Super. 1999)).
In this case, there is no clear indication that the trial court considered the legal sufficiency of the breach of contract claim. It is likewise unclear whether the trial court sustained the preliminary objections in the nature of a demurrer. Therefore, to the extent the trial court dismissed Robinson's original jurisdiction claim without addressing it, the trial court abused its discretion.
Breach of an implied covenant of good faith and fair dealing is essentially a breach of contract action. Ash v. Continental Ins. Co., 593 Pa. 523, 932 A.2d 877 (2007). Thus, the disposition of Count II would also resolve the only claim remaining in Robinson's submitted, and rejected, Second Amended Complaint, that is, Count III.
Ultimately, the Commission and the trial court determined that Robinson retired voluntarily in order to receive certain benefits that would be denied to him if he were laid off. The trial court thus concluded there was no layoff from which Robinson could be aggrieved. We agree with that conclusion.
While we cannot conceive of a set of facts under which Robinson may prevail on his breach of contract claims, there is no clear indication in the trial court's opinion that it addressed these issues. As an appellate court, it is not our place to decide these claims in the first instance. Accordingly, we are constrained to remand to the trial court to address the demurrer filed as to Count II.
C. Amendment
Lastly, we address Robinson's contention that the trial court abused its discretion in failing to grant him leave to amend his complaint before denying his appeal. "[W]here a trial court sustains preliminary objections on the merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend." Jones v. City of Phila., 893 A.2d 837, 846 (Pa. Cmwlth. 2006) (quoting Harley Davidson Motor Co. v. Hartman, 442 A.2d 284, 286 (Pa. Super. 1982)).
There is no question that the discrimination claims are beyond the scope of this action and have already been addressed on the merits in the federal court action. Accordingly, the discrimination claims are precluded and Robinson cannot amend his complaint to include them.
As we agree with the trial court that there was no layoff, we are constrained to find that there is no way Count I of Robinson's complaint can be cured by an amendment. "Where there is no possibility of recovery under a better statement of the facts, leave to amend need not be granted." Id. Thus, the trial court did not err in denying Robinson's civil service appeal in Count I without permitting further amendment.
With regard to Count II, the trial court did not address the merits. Accordingly, the trial court needs to address the merits and then assess whether amendment of that Count is warranted.
III. Conclusion
For the foregoing reasons, the trial court's order denying the civil service appeal is affirmed. However, as the trial court did not address the breach of contract claim, we vacate and remand this matter so that it may do so expressly.
As it remains unclear that the trial court addressed Count II, the order is vacated only to the extent that it purports to address the original jurisdiction action. --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of November, 2012, the decision of the Court of Common Pleas of Philadelphia County is AFFIRMED IN PART as to its dismissal of the appeal from the Philadelphia Civil Service Commission in Count I of the Amended Consolidated Complaint, and VACATED IN PART and this matter is REMANDED to enable the Court of Common Pleas to issue an order and opinion addressing Count II, the breach of contract claim.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge