P. Zenak v. Police Athletic League of Philadelphia, City of Philadelphia
132 A.3d 541
| Pa. Commw. Ct. | 2016Background
- Officer Paul Zenak, a Philadelphia police officer assigned to the Police Athletic League (PAL) youth center, reported suspected asbestos and possible misuse of funds during PAL renovations; air testing later reported no asbestos.
- Zenak alleges retaliation by supervisors (counseling memos, increased inspections) after his complaints; he went on medical leave and later sought reinstatement and damages under the Pennsylvania Whistleblower Law, Philadelphia False Claims Ordinance, and negligence theories.
- At trial the court granted nonsuit for negligence and False Claims Ordinance claims but submitted the Whistleblower Law claim to a jury (after denying the City’s bifurcation request); the jury found for Zenak on the whistleblower claim and awarded relief including fees and costs.
- The trial court later entered JNOV vacating reinstatement (based on a prior settlement) and held a damage/fee assessment hearing, awarding reduced attorney’s fees and costs.
- Both sides appealed: the City challenged submission of the whistleblower claim to a jury, sufficiency of adverse action, and fees; Zenak appealed the nonsuits on negligence and the False Claims Ordinance.
- The Commonwealth Court affirmed in part, reversed in part, and remanded: it upheld nonsuits on negligence and False Claims Ordinance, but concluded submission of the whistleblower claim to a jury was prejudicial error and remanded for the trial court to make independent findings or, in its discretion, hold a bench retrial.
Issues
| Issue | Plaintiff's Argument (Zenak) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Right to jury trial on Whistleblower Law claim | Zenak relied on the trial procedure used and did not contest jury submission | City: Whistleblower Law provides no right to jury; trial court had no discretion to submit claim to jury | Court: No statutory/right-to-jury under Whistleblower Law; submission to jury was prejudicial error — remand for bench findings or new bench trial |
| Whether counseling memos and inspections constituted adverse employment action under Whistleblower Law | Zenak: counseling memos, increased inspections, and committee comments were retaliatory adverse actions causing stress and leave | City: actions were non-adverse (counseling not discipline); insufficient as a matter of law | Court: Could not say with certainty trial court would have reached same result; remanded for trial court factfinding (issue unresolved on appeal) |
| Alleged verdict against weight of evidence / entitlement to JNOV | Zenak: evidence supported jury verdict | City: evidence insufficient; trial court should have entered JNOV or new trial | Court: Because jury trial was improper and prejudicial, appellate court remanded for trial court to reconsider facts and law (no final resolution on weight/JNOV) |
| Reasonableness of awarded attorney’s fees and costs | Zenak: fee request supported by hearing and records | City: fees excessive; trial court failed to adequately analyze reasonableness | Held: Trial court held assessment hearing and adjusted fees; appellate court did not resolve fee excess claim on merits given remand on liability issues |
| Nonsuit on negligence claim | Zenak: expert testimony and emotional/physical stress sufficed to submit negligence to jury; negligence tied to retaliatory conduct | City: negligence unsupported; barred by Workers’ Compensation Act (exclusive remedy) | Court: Affirmed nonsuit — no proof of physical asbestos injury (emotional-distress damages not recoverable absent physical injury) and claim barred by WC Act |
| Nonsuit on Philadelphia False Claims Ordinance claim | Zenak: he made good-faith reports and engaged in acts in furtherance of FCA-type action; retaliation claim should proceed | City: Zenak failed to follow ordinance’s pre-suit procedural requirements; ordinance excludes suits "against the City" | Court: Affirmed nonsuit — Zenak did not satisfy ordinance’s procedural prerequisites and ordinance does not apply to claims against the City |
Key Cases Cited
- O’Rourke v. Commonwealth, 778 A.2d 1194 (Pa. 2001) (Whistleblower Law prima facie and burden-shifting framework)
- Golaschevsky v. Department of Environmental Protection, 720 A.2d 757 (Pa. 1998) (need to show connection between report and reprisal)
- Bensinger v. University of Pittsburgh Medical Center, 98 A.3d 672 (Pa. Super. 2014) (no statutory or constitutional right to jury trial under Whistleblower Law)
- Simmons v. Pacor, Inc., 674 A.2d 232 (Pa. 1996) (emotional-distress damages for asbestos exposure require demonstrable physical injury)
- Shick v. Shirey, 716 A.2d 1231 (Pa. 1998) (Workers’ Compensation Act generally bars common-law negligence claims against employers)
- Mishoe v. Erie Insurance Co., 824 A.2d 1153 (Pa. 2003) (statutory causes with court-focused remedies do not necessarily carry jury rights)
- Dombeck v. Milwaukee Valve Co., 40 F.3d 230 (7th Cir. 1994) (when jury trial was erroneous, appellate court may remand for the court to make independent findings rather than order a new jury trial)