Opinion
No. 1849 C.D. 2013
05-19-2014
Lenora L. Lewis, Appellant v. County of Butler, t/d/b/a/ Sunnyview Nursing and Rehabilitation Center
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Lenora L. Lewis appeals from the September 9, 2013, order of the Court of Common Pleas of Butler County (trial court) sustaining the preliminary objections in the nature of a demurrer filed by the County of Butler, t/d/b/a Sunnyview Nursing and Rehabilitation Center (County), and dismissing Lewis' complaint with prejudice. We affirm.
Lewis worked for the County as a nurse's aide from August 4, 2003, until July 8, 2011, when she was terminated. On June 6, 2011, Lewis injured her neck and back at work while assisting a co-worker in lifting a 300-pound patient, who had fallen out of his wheelchair.
Lewis filed a claim under the Workers' Compensation Act and, thereafter, on June 13, 2011, was asked to submit to a chemical test for controlled substances. Lewis was not under suspicion of abusing narcotics or any other controlled substance and was not involved in any accident that would have justified post-accident testing pursuant to the collective bargaining agreement (CBA) between the County and Lewis' union.
Act of June 2, 1915, P.L. 736, as amended, 35 P.S. §§1-1041.4, 2501-2708.
The County terminated Lewis on July 8, 2011, presumably for testing positive for Oxazepam. Lewis, believing her termination was due to the pending workers' compensation claim, filed a complaint with the trial court on July 7, 2013, alleging wrongful discharge. In her complaint, Lewis averred that the County acted in violation of public policy in terminating her because she filed a workers' compensation claim, alleged damages from loss of income and benefits of employment, and requested punitive damages for willful disregard of her rights.
The County filed preliminary objections in the nature of a demurrer to Lewis' complaint, alleging that it is immune from suit under sections 8541 and 8542 of the Judicial Code, 42 Pa. C.S. §8541-8542, commonly known as the Political Subdivision Tort Claims Act (PSTCA), and, further, that Lewis is not entitled to pursue a wrongful discharge claim because she is subject to a CBA. The trial court sustained the preliminary objections and dismissed Lewis' complaint with prejudice. This appeal followed.
Our review of an order sustaining preliminary objections in the nature of a demurrer "is limited to whether the law states, with certainty, that no recovery is possible." McNichols v. Department of Transportation, 804 A.2d 1264, 1266 (Pa. Cmwlth. 2002). "[T]his [c]ourt assumes as true all material facts set forth in the complaint and all inferences reasonably deducible therefrom." Id.
Initially, Lewis argues that the PSTCA should not preclude an action against a local agency for wrongful discharge. We disagree.
Section 8541 of the PSTCA provides that "[e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa. C.S. §8541. There are eight exceptions to local agency immunity under section 8542(b) of the PSTCA, 42 Pa. C.S. §8542(b), and a claim for wrongful discharge is not a listed exception.
The local agency exceptions to liability are: (1) vehicle liability, (2) care, custody, or control of personal property, (3) real property, (4) trees, traffic controls, and street lighting, (5) utility service facilities, (6) streets, (7) sidewalks, and (8) care, custody, or control of animals. 42 Pa. C.S. §8542(b).
Both parties agree that McNichols v. Department of Transportation, 804 A.2d 1264 (Pa. Cmwlth. 2002), is on point. In McNichols, a Pennsylvania Department of Transportation (DOT) at-will employee alleged that DOT wrongfully discharged him in retaliation for filing a workers' compensation claim. Id. at 1265-66. DOT filed preliminary objections asserting that the claim was barred by sections 8521 and 8522 of the Judicial Code, 42 Pa. C.S. §§8521-8522, commonly known as the Pennsylvania Sovereign Immunity Act. Id. at 1266. The trial court dismissed the action, and we affirmed, holding that wrongful discharge did not fall into one of the listed exceptions. Id. at 1266-67.
Lewis acknowledges that McNichols is directly on point and would have to be overturned in order for her to prevail in this appeal.
The sovereign immunity exceptions to liability are: (1) vehicle liability, (2) medical-professional liability, (3) care, custody, or control of personal property, (4) Commonwealth real estate, highways, and sidewalks, (5) potholes and other dangerous conditions, (6) care, custody, or control of animals, (7) liquor store sales, (8) National Guard activities, and (9) toxoids and vaccines. 42 Pa. C.S. §8522(b). --------
Here, Lewis alleges that County terminated her employment in retaliation for filing a workers' compensation claim and that the PSTCA should not preclude an action against the County for her wrongful discharge. However, Lewis' cause of action for wrongful discharge does not fall within any of the exceptions listed in section 8542(b) of the PSTCA. The facts here are indistinguishable from McNichols, and we see no reason to revisit McNichols. The trial court did not err in determining that the County is immune from suit.
Next, Lewis contends that a union employee, who is subject to a CBA, should not be precluded from maintaining an action for wrongful discharge. We disagree.
A union employee, who is subject to a CBA, cannot maintain a tort action against his or her former employer for wrongful discharge. Cairns v. Southeastern Pennsylvania Transportation Authority, 538 A.2d 659, 660-61 (Pa. Cmwlth. 1988). In Cairns, this court held that "'because the wrongful discharge action in Pennsylvania was judicially created to protect otherwise unprotected employees from indiscriminate discharge and to provide unorganized workers a legal redress against improper actions by their employers, we hold that an action for the tort of wrongful discharge is available only when the employment relationship is at will.'" Id. at 660 (citation omitted).
Because a tort action for wrongful discharge is available only when the employment relationship is at-will, a union-represented employee who wishes to contest a termination must do so through the grievance procedure outlined in his or her CBA, not by asserting an independent cause of action under the law. See Cairns, 538 A.2d at 660-61; Phillips v. Babcock & Wilcox, 503 A.2d 36, 37-38 (Pa. Super. 1986). The protection provided by the CBA negates any need for allowing an independent state law claim in the interest of public policy. See Cairns, 538 A.2d at 660-61; Phillips, 503 A.2d at 38.
Here, Lewis was a union member governed by a CBA and, therefore, may not pursue a wrongful discharge claim against the County. Lewis' only redress is through the grievance procedure outlined in the CBA. The trial court did not err in finding that an action for the tort of wrongful discharge was not available to Lewis.
The trial court correctly sustained the County's preliminary objections. Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 19th day of May, 2014, we hereby affirm the September 9, 2013, order of the Court of Common Pleas of Butler County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge