C.M. Bradley v. West Chester University

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colleen M. Bradley, :

Appellant :

:

v. :

:

West Chester University, Lawrence :

A. Dowdy, Greg R. Weisenstein, :

Pennsylvania State System of Higher :

Education, Lois M. Johnson, : No. 368 C.D. 2019

Ginger Coleman : Argued: November 12, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: January 10, 2020

Colleen M. Bradley (Bradley) appeals from the order of the Court of

Common Pleas of Philadelphia County dated December 5, 2018 denying Bradley’s

petition for relief (Petition) from the court’s December 21, 2016 judgment of non

pros. Upon review, we vacate and order the matter transferred to this Court.

Bradley alleged the following facts in her complaint. Bradley was hired

to serve as Director of Budget and Financial Planning at West Chester University

(University), which is part of the Pennsylvania State System of Higher Education

(PASSHE). Original Record (O.R.), Complaint at 6, ¶¶ 12 & 14. Bradley’s

immediate supervisor at the University was Mark Mixner (Mixner), the University’s

Chief Financial Officer. O.R., Complaint at 5, ¶ 9. Bradley’s responsibilities

included preparation, oversight and management of the University’s operating

budget and working collaboratively with a wide range of senior leaders at the

University. O.R., Complaint at 7-8, ¶ 26. Bradley also assisted in the preparation

of “BUD Reports”—budgets which the University submitted to PASSHE. O.R.,

Complaint at 16, ¶ 57. While working on one of the University’s annual BUD

Reports, Bradley alleges that PASSHE administrators instructed her to modify the

report in a way that would show a multi-million dollar deficit, even though the

University in fact had a multi-million dollar surplus, so as to secure appropriation

money from the Commonwealth. O.R., Complaint at 19, ¶ 66. In September 2012,

at one of the University’s weekly Administrative Budget Committee meetings,

which Bradley regularly attended, Bradley questioned the ethics and legality of the

BUD Report. Id. Shortly after the meeting, Mixner reprimanded Bradley. O.R.,

Complaint at 20, ¶ 69. Nevertheless, Bradley disseminated a memorandum

communicating her concerns at a subsequent Administrative Budget Committee

meeting. O.R., Complaint at 20, ¶¶ 72-73. More than two years later, Mixner and

Bradley again disagreed over the budget assessment, with Bradley asserting that the

proposed version contained misrepresentations. O.R., Complaint at 45-46, ¶¶ 162-

63. Contrary to Mixner’s instructions, Bradley relayed her concerns regarding the

budget at an Enrollment Management Committee meeting in October 2014. O.R.,

Complaint at 46, ¶ 164. On November 18, 2014, Mixner informed Bradley that her

employment with the University would terminate on June 30, 2015. O.R.,

Complaint at 49, ¶ 176. Bradley also received a letter from Mixner formalizing this

decision. Id. Bradley’s contract expired on June 30, 2015. Id.

2

On May 31, 2016, while a federal suit1 arising from the same subject

matter remained pending, Bradley filed a three-count complaint with the Court of

Common Pleas of Philadelphia County (trial court) against the University, PASSHE,

Lawrence A. Dowdy, Greg R. Weisenstein, Lois M. Johnson and Ginger Coleman

(collectively, Defendants). See Trial Court Docket at 1-5, Reproduced Record

(R.R.) at 1a-5a;2 O.R., Complaint at 1.3 Bradley’s complaint before the trial court

levied the following claims: violation of the Pennsylvania Whistleblower Law,4

intentional infliction of emotional distress and negligent infliction of emotional

distress. O.R., Complaint at 51-54, ¶¶ 189-204. On July 6, 2016, Bradley filed a

praecipe to reinstate her complaint, which was not yet served. See Trial Court

Docket at 5, R.R. at 5a. On August 26, 2016, Bradley failed to appear at a case

management conference. See Trial Court Docket at 6, R.R. at 6a. The complaint

still had not yet been served. See id. On or about September 8, 2016, the trial court

issued a rule returnable hearing for October 4, 2016, in connection with Bradley’s

failure to serve the complaint and to appear at the case management conference. Id.

1

On May 14, 2015, shortly before her contract with the University was set to expire,

Bradley filed a four-count complaint in the U.S. District Court for the Eastern District of

Pennsylvania against Mixner, the University, PASSHE, and several University and PASSHE

administrators. See District Court Complaint at 1-62, R.R. at 54a-115a. Bradley appealed the

District Court’s decision to the Third Circuit Court of Appeals. See Bradley v. W. Chester Univ.,

880 F.3d 643 (3d Cir.), cert. denied, 139 S. Ct. 167 (2018). On October 1, 2018, the federal

proceedings came to a final conclusion when the United States Supreme Court denied Bradley’s

petition for certiorari. Bradley v. W. Chester Univ. of the Pa. State Sys. of Higher Educ., 139 S.Ct.

167 (2018).

2

We note that we have added the letter “a” following citations to pages within the

Reproduced Record, as per Pennsylvania Rule of Appellate Procedure Number 2173.

3

Bradley’s state court complaint is not in the reproduced record but is in the original trial

court record.

4

Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.

3

On September 20, 2016, the trial court rescheduled the rule returnable hearing for

October 11, 2016. Id. Bradley filed another praecipe to reinstate her complaint on

October 10, 2016. Trial Court Docket at 7, R.R. at 7a. On October 12, 2016, and

then again on December 6, 2016, the trial court continued the rule returnable hearing

to permit Bradley to effectuate service. Trial Court Docket at 7-8, R.R. at 7a-8a. On

December 19, 2016, Bradley again filed a praecipe to reinstate her complaint. Trial

Court Docket at 8, R.R. at 8a. That same day, Bradley filed an acceptance of service

with the trial court, documenting the University’s acceptance of service of the

(amended) complaint. Trial Court Docket at 9, R.R. at 9a. On December 20, 2016,

the trial court conducted the rule returnable hearing, which Bradley did not attend.

See id. By order dated December 20, 2016, the trial court entered a judgment of non

pros against Bradley due to her failure to effectuate service and appear at the hearing.

Id.; see also O.R., Trial Court Order, 12/21/16.

On October 30, 2018, Bradley filed the Petition, which was denied by

order dated December 5, 2018. See Trial Court Docket at 9, R.R. at 9a; Trial Court

Order, 12/5/18, R.R. at 524a. Bradley timely appealed to the Superior Court, which

then transferred the appeal to this Court. See Trial Court Docket at 11, R.R. at 11a.

In its opinion, the trial court noted that, pursuant to Pennsylvania Rule

of Civil Procedure No. 3051, in order to obtain relief from a judgment of non pros,

a petitioner must establish that “(1) the petition is timely filed, (2) there is a

reasonable explanation or legitimate excuse for the conduct that gave rise to the entry

of judgment of non pros, and (3) there is a meritorious cause of action.” Trial Court

Opinion, 2/8/19 at 2, R.R. at 526a. The trial court concluded that Bradley failed to

establish each of these elements.

4

Before this Court, Bradley first argues that the trial court’s judgment of

non pros is void, because this Court, rather than the trial court, had subject matter

jurisdiction over her claims. Bradley’s Brief at 48-49 (citing Commonwealth v.

Danysh, 833 A.2d 151, 152 (Pa. Super. 2003)). Bradley therefore asserts that the

trial court’s judgment of non pros should be vacated and that the case should be

transferred to this Court for adjudication on the merits. Id. at 47-49 (citing 42

Pa.C.S. § 5103(a)).

Defendants agree that the trial court lacks jurisdiction over Bradley’s

Pennsylvania Whistleblower Law claim (at least “presumably” with respect to the

University and PASSHE and some of the individual Defendants) because, with

limited exceptions, this Court has original and exclusive jurisdiction in all civil

actions against Commonwealth agencies and officers. Defendants’ Brief at 29-30

(citing University’s Memo. of Law in Opp. to Bradley’s Petition at 8, R.R. at 496a-

97a). However, Defendants assert that the trial court had subject matter jurisdiction

over Bradley’s tort claims. Id.

Our scope and standard of review with regard to questions of subject

matter jurisdiction is as follows:

Jurisdiction over the subject matter is conferred solely by

the Constitution and laws of the Commonwealth. The test

for whether a court has subject matter jurisdiction inquires

into the competency of the court to determine

controversies of the general class to which the case

presented for consideration belongs. Thus, as a pure

question of law, the standard of review in determining

whether a court has subject matter jurisdiction is de novo

and the scope of review is plenary. Whether a court has

subject matter jurisdiction over an action is a fundamental

issue of law which may be raised at any time in the course

5

of the proceedings, including by a reviewing court sua

sponte.

Office of Att’y Gen. ex rel. Corbett v. Locust Township, 968 A.2d 1263, 1268–69

(Pa. 2009).

Courts of common pleas generally enjoy unlimited original jurisdiction

over all actions and proceedings except where exclusive, original jurisdiction is

vested in another Pennsylvania court by statute or general rule. 42 Pa.C.S. §

931(a); see also Pa. Const. art. 5, § 5(b) (providing that courts of common pleas

“hav[e] unlimited original jurisdiction in all cases except as may otherwise be

provided by law”). With a few exceptions, this Court possesses exclusive, original

jurisdiction over “all civil actions or proceedings . . . [a]gainst the Commonwealth

government,[5] including any officer thereof, acting in his official capacity[.]” 42

Pa.C.S. § 761(a)(1); see also 42 Pa.C.S. § 761(b) (providing that the original

jurisdiction of the Commonwealth Court under subsection (a) shall be exclusive,

except as provided by certain exclusions not applicable here, which delineate when

the Court shares concurrent jurisdiction).

5

Section 102 of the Judicial Code defines the term “Commonwealth government” as

follows:

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.

6

Here, Bradley levied her whistleblower claim6 against two

Commonwealth entities—PASSHE and the University—thereby bestowing on this

Court exclusive, original jurisdiction over her claim pursuant to Section 761(a)(1)

of the Judicial Code, 42 Pa.C.S. § 761(a)(1). See O.R., Complaint at 6-7, ¶¶ 14-15

& 20; see also Cooper v. Pa. State Athletic Conference, 841 A.2d 638, 640 (Pa.

Cmwlth. 2004) (citing E. Stroudsburg Univ. v. Hubbard, 591 A.2d 1181 (Pa.

Cmwlth. 1991)) (noting, “[i]t is undisputed that [PA]SSHE is an agency of the

Commonwealth government” for purposes of this Court’s original jurisdiction); E.

Stroudsburg Univ. v. Hubbard, 591 A.2d 1181, 1184 (Pa. Cmwlth. 1991) (citing

Beaver v. Ortenzi, 524 A.2d 1022 (Pa. Cmwlth. 1987)) (stating, with regard to this

Court’s original jurisdiction, that “[t]he identity of [a] University [within PASSHE]

as a Commonwealth agency is not in dispute”).

Bradley also named the following five individual Defendants:

 Dr. Gregory R. Weisenstein, System employee and the

University’s President and Chief Executive Officer.

Responsibilities included, among other things,

developing the University’s strategic plan, establishing

its policies, managing its day-to-day operations, and

presenting operating budgets to the University’s

Council of Trustees for approval.

 Lawrence A. Dowdy, PASSHE employee and

Executive Deputy to the University President, as well

as a Member of the University’s Administrative

Budget Committee.

6

Section 4(a) of the Pennsylvania Whistleblower Law does not delineate which courts have

original jurisdiction over whistleblower claims, but rather provides that “[a] person who alleges a

violation of this act may bring a civil action in a court of competent jurisdiction for appropriate

injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.”

43 P.S. § 1424(a) (emphasis added).

7

 Lois M. Johnson, PASSHE employee and Associate

Vice Chancellor for Administration and Finance in the

Office of the Chancellor of the PASSHE.

Responsibilities included budget planning and

reporting to the PASSHE Chancellor.

 Ginger Coleman, PASSHE employee and Budget

Planning/Analysis Manager for Administration and

Finance in the PASSHE Office of the Chancellor.

Responsibilities included budget planning and

reporting to Johnson.

 Mark G. Pavlovich,7 PASSHE employee, Vice

President of Advancement and Sponsored Research

and voting member of the Administrative Budget

Committee.

See O.R., Complaint at 6-7, ¶¶ 16-18 & 21-22. Section 761(c) of the Judicial Code

provides that this “Court shall have ancillary jurisdiction over any claim or other

matter which is related to a claim or other matter otherwise within its exclusive

original jurisdiction.” 42 Pa.C.S. § 761(c). Therefore, we decline to address whether

each individually named defendant is an officer of the Commonwealth for purposes

of this Court’s original jurisdiction, because, irrespective of their status, we may

exercise ancillary jurisdiction over Bradley’s whistleblower claim with respect to

these Defendants.8 See Bowers v. T-Netix, 837 A.2d 608, 614 (Pa. Cmwlth. 2003)

7

We note that Mark G. Pavlovich was omitted from the caption of the Complaint but is

named in the body of the Complaint and the Civil Cover Sheet as a defendant in this matter. See

O.R., Complaint at 1 & 7, ¶ 18; O.R., Civil Cover Sheet at 2.

8

Officers of the Commonwealth for purposes of this Court’s original jurisdiction under

Section 761(a)(1) of the Judicial Code, 42 Pa.C.S. § 761(a)(1), may include “those persons who

perform state-wide policymaking functions and who are charged with responsibility for

independent initiation of administrative policy regarding some sovereign function of state

8

(noting petitioner’s claims against a Commonwealth agency as a potential basis for

exercising ancillary jurisdiction over petitioner’s related statutory claims against a

private company pursuant to Section 761(c) of the Judicial Code, 42 Pa.C.S. §

761(c)); Reider v. Bureau of Corr., 502 A.2d 272, 274 (Pa. Cmwlth. 1985)

(exercising jurisdiction over petitioner’s claims against Bureau of Corrections

employees as “ancillary to the claims against Commonwealth parties” pursuant to

Section 761(c) of the Judicial Code, 42 Pa.C.S. § 761(c), where petitioner filed a

petition for review addressed to this Court’s jurisdiction challenging the denial of

prerelease status by the Bureau); Long v. Kistler, 457 A.2d 591, 592 & 594 (Pa.

Cmwlth. 1983) (holding, in a case where this Court had original jurisdiction over an

action challenging a Commonwealth entity’s determination of an assessed value to

fair market value ratio, that claims against the school district for assessing unequal

taxes as a result of using this ratio were “clearly ancillary” to the action against the

Commonwealth entity and thus could “properly [] be presented to this Court”).

Similarly, although Bradley’s torts claims, against all Defendants,

would typically fall within the original jurisdiction of the trial court as “actions or

proceedings in the nature of trespass as to which the Commonwealth government

formerly enjoyed sovereign or other immunity” for purposes of Section 761(a)(1)(v)

of the Judicial Code, 42 Pa.C.S. § 761(a)(1)(v), Section 761(c) also extends our

jurisdiction to those claims. As this Court has exclusive, original jurisdiction over

Bradley’s whistleblower claim against the University and PASSHE pursuant to

Section 761(a), it has ancillary jurisdiction over the related tort claims raised in the

same complaint under Section 761(c). See Bowers v. T-Netix, 837 A.2d 608, 614

government.” Balshy v. Rank, 490 A.2d 415, 417–18 (Pa. 1985) (quoting Opie v. Glasgow, Inc.,

375 A.2d 396, 398 (Pa. Cmwlth. 1977)).

9

(Pa. Cmwlth. 2003); Reider, 502 A.2d at 274; Long, 457 A.2d at 592. As such, all

three claims should have been transferred by the trial court to this Court pursuant to

Section 5103(a) of the Judicial Code, which provides:

A matter which is within the exclusive jurisdiction of a

court or magisterial district judge of this Commonwealth

but which is commenced in any other tribunal of this

Commonwealth shall be transferred by the other tribunal

to the proper court or magisterial district of this

Commonwealth where it shall be treated as if originally

filed in the transferee court or magisterial district of this

Commonwealth on the date when first filed in the other

tribunal.

42 Pa.C.S. § 5103(a) (emphasis added). Thus, based on the foregoing, the trial court

lacked subject matter jurisdiction over the matter.

An action is null and void for purposes of appellate review if the trial

court lacked subject matter jurisdiction. Grimm v. Grimm, 149 A.3d 77, 85 (Pa.

Super. 2016). Thus, “if the court below lacked subject matter jurisdiction, its order

is void.” Danysh, 833 A.2d at 152 (vacating order of court of common pleas with

respect to claim over which the court lacked subject matter jurisdiction, as original

jurisdiction in fact lay with this Court); see also Davis v. City of Philadelphia, 702

A.2d 624, 625-27 (Pa. Cmwlth. 1997) (deeming void and vacating judgment of non

pros where court of common pleas lacked subject matter jurisdiction to enter

judgment based on plaintiff’s failure to appear at arbitration hearing); Pisano v. Se.

Pa. Transp. Auth., 673 A.2d 442, 443 (Pa. Cmwlth. 1996) (deeming void and

vacating judgment of non pros entered by court of common pleas for same reasons

stated in Davis); Grimm, 149 A.3d at 77 (vacating trial court’s judgment of non pros

where trial court lacked subject matter jurisdiction over plaintiff’s claims at the time

10

it entered judgment, because defendant had died and no personal representative had

been substituted in his place). As the trial court lacked subject matter jurisdiction

over Bradley’s claims at the time it entered judgment of non pros, we, therefore, find

that the non pros judgment is void and the trial court was without jurisdiction to enter

an order upon the Petition.9

Accordingly, we vacate the trial court’s December 5, 2018 order

denying Bradley’s Petition, vacate the judgment of non pros, and will docket the

matter as a petition for review in this Court’s original jurisdiction.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

9

Defendants point out that in our unreported decision of Vance v. Cheyney (Pa. Cmwlth.,

No. 1751 C.D. 2017, filed Dec. 7, 2018), the trial court did not transfer Vance’s statutory and tort

claims accompanying her whistleblower claim as ancillary to the whistleblower claim pursuant to

Section 761(c) of the Judicial Code, 42 Pa.C.S. § 761(c). See Vance, slip op. at 3-4 & 15.

However, our decision did not address ancillary jurisdiction. Therefore, it is inapposite.

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colleen M. Bradley, :

Appellant :

:

v. :

:

West Chester University, Lawrence :

A. Dowdy, Greg R. Weisenstein, :

Pennsylvania State System of Higher :

Education, Lois M. Johnson, : No. 368 C.D. 2019

Ginger Coleman :

ORDER

AND NOW, this 10th day of January, 2020, the December 5, 2018

order of the Court of Common Pleas of Philadelphia County (trial court) is vacated,

and the trial court’s order dated December 20, 2016 entering judgment of non pros

is also vacated. The Prothonotary of the Commonwealth Court is directed to docket

this matter as a petition for review in this Court’s original jurisdiction.

__________________________________

CHRISTINE FIZZANO CANNON, Judge