Javitz v. Luzerne Cnty., 2025 Pa. Commw. LEXIS 154
(August 21, 2025) McCollough, J.
This appeal returns to us following a remand from the Supreme Court of Pennsylvania, which granted the petition for allowance of appeal of Donna Davis Javitz (Appellant), the former Director of Human Resources of Luzerne County (County). In Javitz v. Luzerne County (Pa. Cmwlth., No. 115 C.D. 2020, filed July 19, 2021) 1 (Javitz I), rev’d, 293 A.3d 570 (Pa. 2023) (Javitz II), this Court affirmed the December 18, 2019 order of the Court of Common Pleas of Luzerne County (trial court), entering summary judgment in favor of the County, Robert Lawton, and David Parsnik (Appellees), and against Appellant as to all counts of her “whistleblower” complaint. In particular, the Supreme Court held that this Court misapplied the standard that a plaintiff must meet in order to establish a prima facie claim under the Pennsylvania Whistleblower Law (Whistleblower Law), 43 P.S. 1423, 2 and remanded to us to consider “the balance of the issues raised by [Appellant] on appeal,” including “her challenge to the trial court’s ruling that she failed to establish wrongdoing by a public body.” Javitz II, 293 A.3d at 586, n.21.
For the reasons that follow, we affirm, in part, reverse, in part, and remand for further proceedings.
Judge McCullough filed a dissenting opinion.
The case was originally dismissed from Federal Court because it was found that the employee was at will and did not have a property interest in her governmental position.
Following the completion of discovery, Appellees filed a motion for summary judgment, arguing that the record facts demonstrate that Appellant was terminated for poor work performance, and that, given these facts, Appellant cannot satisfy the requirement of the Whistleblower Law (Count IV) of a report of wrongdoing or show that her discharge was in retaliation for a report of wrongdoing. Appellees also argued that Schnelly was acting as a representative of AFSCME, not a “public body,” at the time she allegedly recorded Appellant and, therefore, her Whistleblower Law claim fails.
The Federal case was ultimately tried in the middle district and the jury found that free speech was not a motivating factor in the decision to terminate. The third circuit had reversed the middle district originally throwing out the case.
Based on the foregoing, we conclude that there is sufficient evidence, if believed by the factfinder, to find that Schnelly committed the Wiretap Act violation. Thus, we conclude that the trial court erred in granting summary judgment on this basis.
Thus, Appellant made a showing sufficient to establish Schnelly engaged in criminal activity while on duty as an employee of the County. Accordingly, we find the trial court erred by concluding that Appellant could not establish wrongdoing by a public body and granting summary judgment on this basis.
Appellant did not present sufficient evidence to establish a causal connection between her report and her termination. These are the same grounds upon which it based its dismissal of the Whistleblower Law Claim.
The fact that the particular recourse Appellant seeks does not exist under the Ethics Code does not authorize the trial court or this Court to act outside its role to create a remedy that Luzerne County did not provide, or to apply a remedy that does not arise under the Ethics Code. See Columbia County Commissioners v.Rospendowski (Workers’ Compensation Appeal Board), 286 A.3d 436, 444-45 (Pa. Cmwlth. 2022). Because the Ethics Code does not include any mechanism, either expressly or by implication, for Appellant to be reinstated, recoup back pay or front pay, punitive damages, or attorney fees and costs, there is no reason for this claim to proceed to trial. Accordingly, for this reason, we find that the trial court did not err in granting summary judgment on the Ethics Code claim. See Medina v. Harrisburg School District, 273 A.3d 33, 35, n.1 (Pa. Cmwlth. 2022) (stating that this Court may affirm a trial court based on a differing rationale); Slusser v. Black Creek Township Zoning Hearing Board, 124 A.3d 771, 772 (Pa. Cmwlth. 2015) (stating this Court may affirm the decision of the trial court on any grounds); see also FP Willow Ridge Associates, L.P. v. Allen Township, 166 A.3d 487, 496 (Pa. Cmwlth. 2017), appeal denied, 178 A.3d 106 (Pa. 2018) (stating this Court may affirm on other grounds wheregrounds for affirmance exist).
For the foregoing reasons, we reverse the trial court’s order granting summary judgment on Appellant’s Whistleblower Law claim and remand the matter for further proceedings consistent with this Opinion. We affirm the trial court’s dismissal of Appellant’s Ethics Code claim, and her common law claim for wrongful termination in violation of public policy.
• This case came back to Pennsylvania Supreme Court after a trial in Federal Court.
• Trial Court’s order granting summary judgment on Whistleblower claim reversed and the matter remanded for further proceedings consistent with the opinion.
• The Commonwealth Court, however, affirmed the Trial Court’s dismissal of the ethics code claim and the employee’s common law claim for wrongful termination of violation of public policy.
• This case explains the Whistleblower Law and what it covers and does not cover very thoroughly.
