       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan M. Cicchiello,                     :
                                        :
                        Petitioner      :
                                        :
            v.                          :
                                        :
SEIU 1199P Union Service Employees      :   No. 361 M.D. 2015
International Union Kim Patterson       :
SEIU 1199 Secretary Treasurer           :   Submitted: December 24, 2015
Wilfredo Tellado MRC Director John      :
E Wetzel Secretary of Pennsylvania      :
Department of Corrections Ty Stanton,   :
Director Human Resources Michael        :
Wenerowicz, Acting Deputy Secretary     :
E. Region Former Deputy                 :
Superintendent (SCI Frackville)         :
Raphael Chieke, Equal Employment        :
for the Department of Corrections       :
Timothy A. Holmes, Assistant Council    :
for the Commonwealth,                   :
Commonwealth of Pennsylvania            :
Department of Corrections Brenda        :
Tritt Deputy Superintendent State       :
Correctional Institute at Frackville,   :
                                        :
                        Respondents     :


OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                        FILED: April 26, 2016


      Before this Court in our original jurisdiction are the twelve preliminary
objections (POs) of the Pennsylvania Department of Corrections (Department),
John E. Wetzel, Ty Stanton, Michael Wenerowicz, Raphael Chieke, Brenda Tritt,
and Timothy A. Holmes1 (Respondents) to the Second Amended Complaint2 filed
by Joan M. Cicchiello, representing herself. Service Employee International Union
(SEIU) 1199P, Kim Patterson, SEIU’s treasurer, and Wilfredo Tellado, SEIU’s
MRC Director (Union Respondents) have not yet responded to Cicchiello’s Second
Amended Complaint. Also before the Court is Cicchiello’s Motion for Summary
Judgment against Union Respondents, as well as a variety of other motions
Cicchiello has filed against both sets of respondents.
       Cicchiello was discharged from her position as a registered nurse at the State
Correctional Institution at Frackville (SCI-Frackville) in January 2007 for a variety
of reasons. She had SEIU, her union, file a grievance on her behalf, and the
grievance process took from 2006 until 2012. The Department and SEIU executed
a Settlement Agreement to resolve the grievance in October 2012; but, concerned
that Cicchiello might engage in litigation, it was determined that Cicchiello should




       1
          Respondent Wetzel is Secretary of the Department, and Respondents Stanton,
Wenerowicz, Chieke, and Tritt are various officials or employees of the Department and/or the
State Correctional Institution at Frackville (SCI-Frackville). Respondent Holmes is Assistant
Counsel for the Department. Holmes is represented by separate counsel and filed separate POs
from the remaining Respondents; however, the POs of all Respondents are almost identical.
       2
         Cicchiello filed an initial complaint on July 16, 2015, to which Respondents filed POs.
Cicchiello filed an amended complaint on August 24, 2015, and the initial complaint and
corresponding POs were stricken by Order dated August 25, 2015. Respondents filed POs to the
August 2015 amended complaint, and Cicchiello filed the Second Amended Complaint
(erroneously labeled “First Amended Complaint”) on September 9, 2015. The August 2015
amended complaint and corresponding POs were stricken by Order dated September 17, 2015.
Respondents filed POs to the Second Amended Complaint, and it is these POs that this Court is
reviewing. Cicchiello filed a Third Amended Complaint on February 8, 2016; however, this
Court struck that complaint, as well as one set of responsive POs, as being unauthorized by
Order dated March 11, 2016. The March 11, 2016 Order also stayed the numerous motions
Cicchiello had filed with the Court pending the disposition of these POs.

                                               2
also execute the Settlement Agreement which was done in December 2012.3
(Compl. ¶¶ 7-9.) The December 2012 Settlement Agreement provided, in relevant
part, that “[t]he Department will award Ms. Cicchiello whatever time was
necessary for her to attain twenty-five years of service with the Commonwealth.”
(Agreement ¶ 2, Ex. B to Second Amended Complaint.) It appears that this
provision was included in an effort to allow Cicchiello to receive medical benefits
upon her retirement. (Email from Holmes to Tellado (February 4, 2013), (Email),
Ex. C to Second Amended Complaint.) Thereafter, on February 4, 2013, Holmes
emailed Tellado of SEIU advising him that the Department could not comply with
the above provision because it was contrary to various express provisions of the
State Employees’ Retirement Code (Retirement Code), specifically 71 Pa. C.S. §§
5102, 5302, 5955.4 However, the Email noted that, in drafting this provision, the
parties mistakenly believed that Cicchiello needed 25 years to receive full health
insurance in her retirement but she only needed 15 years.                         Therefore, the
Department offered to hire Cicchiello back for 1 day, give her 1 year of
salary/service, subject to taxes and retirement contributions, which would give her
the 15 years of service she needed to be eligible for health insurance in retirement.
(Email; February 2015 Settlement Agreement ¶¶ 2-4, Ex. F to Second Amended


       3
          In her brief in opposition to the POs, Cicchiello acknowledges that the October 2012
and December 2012 Settlement Agreements “contained the exact same language.” (Cicchiello’s
Br. at 7.) Thus, we will refer to the Settlement Agreement that she wishes to be enforced as the
December 2012 Settlement Agreement.
        4
          The copy of the Email attached to the Second Amended Complaint is of poor quality
and appears to have the top part of the Email cut off. Cicchiello has included, as an attachment
to her brief to this Court in opposition to the POs, the full version of the Email which is of better
quality. (Full Version of Email, Cicchiello’s Br., Ex. C.) The full version of the Email indicates
that Tellado forwarded Holmes’ Email to Cicchiello on February 5, 2013. (Full Version of
Email, Cicchiello’s Br., Ex. C.)

                                                 3
Complaint.) SEIU and the Department executed this February 2015 Settlement
Agreement, but Cicchiello refused to do so.
      Thereafter, Cicchiello filed a breach of contract action against the
Department with the Board of Claims, which was rejected for lack of jurisdiction.
The Board of Claims’ determination was upheld by this Court in Cicchiello v.
Department of Corrections (Pa. Cmwlth., No. 83 C.D. 2015, filed August 5, 2015)
(Cicchiello I). In June and July of 2015, Cicchiello filed: the present matter in this
Court’s original jurisdiction; a second complaint in the Court of Common Pleas of
Northumberland County (common pleas); and a third complaint in the United
States District Court for the Middle District of Pennsylvania (Middle District
Court).5 Each of the complaints is based on the Department’s refusal to comply
with the December 2012 Settlement Agreement.
      In addition to the above-referenced facts, the Complaint avers that: the
Department and SEIU did not negotiate in good faith; Cicchiello has not received
the benefits promised by the December 2012 Settlement Agreement; the February
2015 Settlement Agreement does not take into consideration the time between
2012 and the present; and the Department continues to discriminate against
Cicchiello. (Compl. ¶¶ 13, 18-19, 24.) Cicchiello asserts that, had she continued
to work between 2006 and 2015, she would have had twenty-five years of service.
(Compl. ¶ 21.) She likewise maintains that the Department and SEIU had the
authority to ask for payment for her twenty-five years when it agreed to do so in
December 2012. (Compl. ¶ 20.)



      5
          The common pleas matter is at Docket No. 2015-1307, and the Middle District Court
matter is at Civ. Action No. 1:15-CV-01201-JEJ.

                                            4
      Cicchiello seeks a variety of relief in this matter, including “traditional tort
remedies such as compensatory damages, pain and suffering, physical and
emotional distress, economic loss, time loss.” (Compl. Wherefore Clause ¶ b.)
She also requests that this Court “[i]ssue declaratory and injunctive relief declaring
the above-described practices to be unlawful, and enjoining their past and
continued effects.” (Compl. Wherefore Clause ¶ c.) Cicchiello also asks for
punitive damages under 42 U.S.C. § 1983 (Section 1983) and Pennsylvania
common law, and a minimum of six million dollars in damages. (Compl. ¶ 30,
Wherefore Clause ¶¶ e, f.)
      The Second Amended Complaint contains three counts, and Respondents
have filed various POs to each count, as well as POs to the Second Amended
Complaint in general.              We will address each count separately and the
corresponding POs as necessary.           In reviewing POs, we apply the following
standard: “we must consider as true all well-pleaded material facts set forth in the
petition for review and all reasonable inferences that may be drawn from those
facts.” Meggett v. Pennsylvania Department of Corrections, 856 A.2d 277, 279
(Pa. Cmwlth. 2004). “Preliminary objections should be sustained only in cases [in
which it is] clear and free from doubt that the facts pleaded by appellant are legally
insufficient to establish a right to relief.” Werner v. Zazyczny, 681 A.2d 1331,
1335 (Pa. 1996).


      A. Count I
      Count I is brought pursuant to Section 19836 and asserts:

      6
          Section 1983 provides:

                                                                       (Continued…)
                                             5
       32. The Defendants acted in concert with each other under color of
          law to violate the rights of Plaintiff by depriving her of her
          constitutionally protected right to free speech, and other rights as
          guaranteed by the [F]irst and Fourteenth Amendments to the
          United States Constitution, in that Plaintiff was subjected to
          discipline and termination, all in violation of her rights under the
          First and Fourteenth Amendments and all other Amendments.

(Compl. ¶ 32.) Cicchiello avers that, as a result of these actions, she sustained a
variety of damages, including a loss of her reputation, income, enjoyment of
retirement and health care benefits, as well as “[p]hysical and mental pain and
suffering and anguish.” (Compl. ¶ 33.)
       Respondents set forth multiple POs to Count I in the nature of a demurrer
asserting that Cicchiello has not stated a claim upon which relief can be granted,
Pa. R.C.P. No. 1028(a)(4),7 under Section 1983 for a variety of reasons.
Respondents aver that Cicchiello’s claims, which are premised on the violation of
her constitutional rights by her discipline and termination, are barred by res
judicata and/or collateral estoppel8 because she previously sued the Department,

               Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia, subjects,
       or causes to be subjected, any citizen of the United States or other person within
       the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for redress. . . . For the
       purposes of this section, any Act of Congress applicable exclusively to the
       District of Columbia shall be considered to be a statute of the District of
       Columbia.

42 U.S.C. § 1983.
       7
          Pa. R.C.P. No. 1028(a)(4) states that “[POs] may be filed by any party to any pleading
and are limited to the following grounds: . . . legal insufficiency of a pleading (demurrer).”
       8
          “As a general rule, res judicata is an affirmative defense and should be pleaded as new
matter.” Philadelphia Fraternal Order of Correctional Officers v. Rendell, 701 A.2d 600, 607
(Pa. Cmwlth. 1997). However, if the opposing party does not challenge “the procedural
                                                                                 (Continued…)
                                                6
and others included as respondents here, in the Middle District Court asserting that
it retaliated against her, via discipline and termination, for exercising her First and
Fourteenth Amendment rights, and lost.                   (Holmes’ PO V ¶¶ 58-60, 63.9)
Respondents note that the Middle District Court granted summary judgment, which
was affirmed by the United States Court of Appeals for the Third Circuit (Third
Circuit), and that the United States Supreme Court denied certiorari. (Holmes’ PO
V ¶ 59 (citing Cicchiello v. Beard, 726 F. Supp. 2d 522 (M.D. Pa. 2010), aff’d, 458
Fed. Appx. 117 (3d Cir.), cert. denied, 133 S. Ct. 162 (2012) (Cicchiello II)).
Respondents assert that having had a full and fair opportunity to litigate her
retaliation claims in federal court and losing means that Cicchiello is barred from
reasserting those claims, or any others that could have been brought, in a new
action. (Holmes’ PO V ¶¶ 61-63.)
       Respondents further assert that Cicchiello’s Section 1983 claim is barred by
the applicable two-year statute of limitations, and, therefore, should be dismissed
on that basis as well.10        (Holmes’ PO VI ¶ 66.) According to Respondents,

propriety of another party’s preliminary objections raising res judicata” by filing POs thereto, the
“defect is deemed waived.” Id. Cicchiello has not filed objections to the procedural defect of
Respondents raising these defenses in its POs.
        9
           Although Department respondents and Holmes filed separate sets of POs, they are
virtually identical in their bases for relief and in their numbering. Accordingly, we cite only to
the Holmes’ POs as the other Respondents’ POs directly correspond therewith with only a few
minor deviations.
        10
           Like res judicata and collateral estoppel, the defense of the expiration of the statute of
limitations is an affirmative defense that should be raised as new matter. Pa. R.C.P. No. 1030(a).
“However, where an affirmative defense is clear on the face of the pleadings, it may be
addressed by the court at the preliminary objection stage.” Scavo v. Old Forge Borough, 978
A.2d 1076, 1078 (Pa. Cmwlth. 2009). “[T]he failure of the opposing party to file preliminary
objections to the defective preliminary objections, raising the erroneous defenses, waives the
procedural defect and allows the trial court to rule on the preliminary objections.” Id. (internal
quotation omitted). Cicchiello has not filed objections to the procedural defect of Respondents
raising this defense in its POs.

                                                 7
Cicchiello’s claims arose in either 2007 when she was discharged or in February
2013, when she became aware that the Department was not going to comply with
the December 2012 Settlement Agreement and, therefore, her original Complaint,
filed on July 16, 2015, was beyond the two-year limitations period. (Holmes PO
VI ¶¶ 66-67, 69.)
      Cicchiello responds, generally,11 that as a pro se litigant, her pleadings
should be considered under less stringent standards and appears to argue that any
untimeliness was due to her being misled, contradictory language between a rule
and court order, or fraud. (Cicchiello’s Br. at 16-18.) She further asserts that the
totality of the circumstances should be considered and she should be permitted to
amend her complaint to overcome the POs. (Cicchiello’s Br. at 18.)


                i.     Res Judicata/Collateral Estoppel
      After reviewing the Second Amended Complaint and Cicchiello’s prior
action in federal court, we agree with Respondents that this matter is barred by res
judicata and collateral estoppel and, therefore, Cicchiello has failed to state a claim
upon which relief can be granted in Count I. “Res judicata encompasses two
related, yet distinct principles: technical res judicata and collateral estoppel.” J.S.
v. Bethlehem Area School District, 794 A.2d 936, 939 (Pa. Cmwlth. 2002).
“Technical res judicata provides that where a final judgment on the merits exists, a
future lawsuit on the same cause of action is precluded.” Id. “[R]es judicata
requires the coalescence of four factors: (1) identity of the thing sued upon or for;
(2) identity of the causes of action; (3) identity of the persons or parties to the
action; and (4) identity of the quality or capacity of the parties suing or being

      11
           Cicchiello does not respond directly to the POs.

                                                 8
sued.” Id. “Res judicata applies to claims that were actually litigated as well as
those matters that should have been litigated.” Id. “Collateral estoppel acts to
foreclose litigation in a subsequent action where issues of law or fact were actually
litigated and necessary to a previous final judgment.” Id.

      [C]ollateral estoppel bars a subsequent lawsuit where (1) an issue
      decided in a prior action is identical to one presented in a later action,
      (2) the prior action resulted in a final judgment on the merits, (3) the
      party against whom collateral estoppel is asserted was a party to the
      prior action, or is in privity with a party to the prior action, and (4)[]
      the party against whom collateral estoppel is asserted had a full and
      fair opportunity to litigate the issue in the prior action.
Id. “A judgment is deemed final for purposes of res judicata or collateral estoppel
unless or until it is reversed on appeal.”        Philadelphia Fraternal Order of
Correctional Officers v. Rendell, 701 A.2d 600, 607 (Pa. Cmwlth. 1997). “Causes
of action may be considered identical when, in both the current and prior
proceedings, the subject matter and the ultimate issues are the same.” Id.
      In Cicchiello II, Cicchiello sued the Department’s Secretary and various
employees at SCI-Frackville, including Respondent Wenerowicz, under Section
1983 claiming that her January 2007 discharge from her position as a registered
nurse at SCI-Frackville violated her rights under the First and Fourteenth
Amendments to the United States Constitution. Cicchiello II, 726 F.Supp.2d at
525, 528. She asserted that this was done because she was exercising her First
Amendment rights. Id. at 529-30. Count I asserts an action under Section 1983
claiming that she “was subjected to discipline and termination, all in violation of
her rights under the First and Fourteenth Amendments.” (Compl. ¶ 32 (emphasis
added).) Although many of Cicchiello’s factual allegations in the present matter
involve the circumstances surrounding her grievance and the various settlement
agreements, she also implies that she was terminated on or about January 2007
                                          9
“[d]ue to [her] being [r]epresentative for S[EIU] Health Care Union 1199P.”
(Compl. ¶¶ 2-3.) The action in Cicchiello II did not assert a claim based on her
being discharged because of her status as a union representative, but it was a claim
that could have been raised during that proceeding and, therefore, is subject to res
judicata. J.S., 794 A.2d at 939. Accordingly, we view the claims and ultimate
issues in Count I as being identical to those in Cicchiello II or ones that could have
been raised therein, thereby meeting these requirements for both res judicata and
collateral estoppel.
      We, likewise, conclude that both matters involve the same parties or parties
in privity to each other, and those parties are of the same quality or capacity. In
Cicchiello II, Cicchiello named as defendants Respondent Wenerowicz, the then-
sitting Department Secretary, the Superintendent at SCI-Frackville at that time, as
well as others employed by the Department.            Respondent Wenerowicz, the
successor Secretary (Respondent Wetzel), Deputy Superintendent of SCI-
Frackville (Respondent Tritt), and several other officials or employees of the
Department and SCI-Frackville, in their official capacities, are named as
defendants in the present matter.       “Privity is broadly defined as mutual or
successive relationships to the same right of property, or such an identification of
interest of one person with another as to represent the same legal right.”
Hillgartner v. Port Authority of Allegheny County, 936 A.2d 131, 140 (Pa.
Cmwlth. 2007) (quotation omitted). These defendants are either the same or in
privity to the original defendants in Cicchiello II in that they have an identification
of interest in the allegations raised by Cicchiello and in that they are all sued in
their official capacities as representatives and employees of the Department.
Moreover, as observed by the federal courts, “merely . . . naming additional


                                          10
defendants . . . will not convert one cause of action into a second cause of action if
both actions involve the same liability-creating conduct on the part of the
defendants and the same alleged invasion of the plaintiff’s rights.” Coggins v.
Carpenter, 468 F.Supp. 270, 280 (E.D. Pa. 1979).                The factual bases for
Cicchiello’s Section 1983 claim in Count I are the same as in Cicchiello II, thus,
her naming new or different defendants does not convert the prior matter into a
new cause of action not subject to res judicata.
      Moreover, Cicchiello II reached a final judgment on the merits of
Cicchiello’s constitutional claims, the same claims as those asserted in the present
matter, as it was affirmed by the Third Circuit and the United States Supreme
Court denied certiorari. Philadelphia Fraternal Order of Correctional Officers, 701
A.2d at 607. Additionally, Cicchiello, the party against whom collateral estoppel
is being asserted, was the plaintiff in Cicchiello II, and, therefore, this factor is met.
Finally, we conclude that Cicchiello had a full and fair opportunity to litigate her
constitutional claims in the Section 1983 action filed in Cicchiello II. In that case,
Cicchiello: filed her complaint; filed an amended complaint; the parties engaged
in discovery; upon being presented a motion for summary judgment, the Middle
District Court reviewed the merits of Cicchiello’s claims that her rights under the
First and Fourteenth Amendments were violated; and the Middle District Court
concluded that Cicchiello’s claims were without merit and granted summary
judgment to the defendants. Cicchiello II, 726 F.Supp.2d at 529-32.




                                           11
       For the above reasons, we agree with Respondents that Cicchiello’s Section
1983 claim asserted in Count I of the Second Amended Complaint is barred by res
judicata and collateral estoppel.12 Accordingly, we sustain Respondents’ PO V.


               ii.    Statute of Limitations
       We also conclude that Count I is barred because it was filed beyond the
statute of limitations for Section 1983 claims. “[A] § 1983 claim is governed by
the statute of limitations that applies to personal injury tort claims in the state in
which such a claim arises.” Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009).
Pursuant to Section 5524(7) of the Judicial Code, such actions are subject to a two-
year statute of limitations. 42 Pa. C.S. § 5524(7). The statute of limitations begins
to run when a plaintiff knew or should have known of the injury upon which the
action is based. Wilson v. El–Daief, 964 A.2d 354, 361-62, 369 (Pa. 2009). Here,
the cause of action raised in Count I accrued when Cicchiello “was subjected to
discipline and termination, all in violation of her rights under the First and
Fourteenth Amendments.” (Compl. ¶ 32 (emphasis added).) This occurred in
January 2007 when she was discharged or, at the latest, in February 2013 when she
became aware that the Department was not going to fulfill the terms of the

       12
          We note that Report and Recommendation of the United States Magistrate Judge in the
corresponding Middle District Court matter also came to the conclusion that Cicchiello’s Section
1983 claims were barred by res judicata. Cicchiello v. Wetzel, No. 1:15-CV-01201-JEJ, slip op.
at 7-9 (M.D. Pa. filed January 5, 2016). Per Middle District Court Local Rule 72.3, “any party
may object to a magistrate judge’s proposed findings, recommendations or report” within
fourteen days of being served with that decision by “serv[ing] . . . written objections which shall
specifically identify the portions of the proposed findings, recommendations or report to which
objection is made and the basis for such objections.”                                Available at
http://www.pamd.uscourts.gov/sites/default/files/local_rules/LR120114.pdf (last visited March
29, 2016). It is unclear whether Cicchiello has properly objected to the Magistrate Judge’s
Report and Recommendation.

                                               12
December 2012 Settlement Agreement. Cicchiello filed her initial complaint in
this Court on July 16, 2015, which was more than two years after her action
accrued.13 Accordingly, we sustain Respondents’ PO VI.


       B. Count II
       Count II alleges, inter alia, that Respondents “[c]onspired against Plaintiff
and conspired against any and all fair Labor Practice Acts/Laws.” (Compl. ¶ 35.)
SEIU said it “had a time frame when to enforce the [December 2012] [S]ettlement
[A]greement” but, when Cicchiello went to the Pennsylvania Labor Relations
Board, it said that Tellado’s one-year time frame was incorrect. (Comp. ¶¶ 36-
37a.14) The December 2012 Settlement Agreement was the only valid agreement
that settled Cicchiello’s grievance and any other agreements are null and void.
(Compl. ¶¶ 38-39.) Notably, Count II does not reference which labor laws were
violated.
       On this Count, Respondents assert that Cicchiello has failed to state a claim
for any violation of labor law because:              (1) the Department, and other state
employers, are exempt from both federal labor law15 and the Pennsylvania Labor
Relations Act (PLRA);16 and (2) those claims are barred by the relevant statutes of
limitations under federal labor law and the PLRA, see DelCostello v. International


       13
           We note that Magistrate Judge’s Report and Recommendation in the corresponding
Middle District Court matter also came to the conclusion that Cicchiello’s Section 1983 claims
were time-barred. Cicchiello, No. 1:15-cv-01201-JEJ, slip op. at 10 n.4.
        14
           There are two paragraph 37s in the Complaint.
        15
           Section 2(2) of the National Labor Relations Act excludes, inter alia, “any State” from
the definition of employer. 29 U.S.C. § 152(2).
        16
           43 P.S. §§ 211.1-211.13. Section 3(c) of the PLRA specifically excludes, inter alia, the
Commonwealth from the definition of employer under the PLRA. 43 P.S. § 211.3(c).

                                               13
Brotherhood of Teamsters, 462 U.S. 151, 169-70 (1983) (recognizing that under
Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) an
employee must bring an unfair labor charge within six months); Section 9(e) of the
PLRA, 43 P.S. § 211.9(e) (requiring any charge to be brought within six weeks).
(Holmes’ PO VII ¶¶ 72-75.) Noting that Cicchiello acknowledges that she was
aware of the Department’s position in February 2013 and she did not file her
claims until July 16, 2015, Respondents maintain that such claims are time-barred.
(Holmes’ PO VII ¶¶ 73, 77.)
       Respondents further argue that Count II should be dismissed pursuant to Pa.
R.C.P. No. 1028(a)(7)17 because Cicchiello failed to exhaust her administrative
remedies before filing the present matter with the Court as required by Section 9(h)
of the Pennsylvania Human Relations Act18 (PHRA), 43 P.S. § 959(h) (requiring
that a complaint be filed “within [180] days after the alleged act of
discrimination”), or Title VII, 42 U.S.C. § 2000e-5(e)(1) (requiring that a claim be
filed within 180 days of “the alleged unlawful employment practice” or within 300
days of such practice if the person “initially instituted proceedings with a State or
local agency”). (Holmes’ PO VIII ¶ 80.) No such charges were ever filed by
Cicchiello. (Holmes’ PO VIII ¶ 80 n.5.)
       Cicchiello responds by reiterating that Respondents and Union Respondents
did not negotiate in good faith and are acting in collusion to deny her the benefits
of the December 2012 Settlement Agreement. She further argues that Union




       17
          Pa. R.C.P. No. 1028(a)(7) states that “[POs] may be filed by any party to any pleading
and are limited to the following grounds: . . . failure to exercise or exhaust a statutory remedy.”
       18
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 959(h).

                                                14
Respondents have failed in their responsibility to represent her interests as a
member of SEIU.

              i.     Respondents are exempt from labor laws and Count II is time-
                     barred
       After reviewing both federal and state labor laws, we conclude that
Respondents are both exempt from those laws’ provisions and Cicchiello’s labor
law claims are time-barred.          The Second Amended Complaint names the
Department and the various individual Respondents in their respective roles as
Department officials or employees. As Respondents point out, both the National
Labor Relations Act and PLRA exclude the Commonwealth from the definition of
“employer.” Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2);
Section 3(c) of the PLRA, 43 P.S. § 211.3(c). These laws likewise require that any
action be filed within the relevant agency within six months and six weeks,
respectively. 29 U.S.C. § 160(b); 43 P.S. § 211.9(e). Given the broad nature of
Cicchiello’s claim, we also review the Public Employe Relations Act19 (PERA),
which does apply to public employers such as the Department. However, pursuant
to Section 1505 of PERA, Cicchiello was required to have filed a claim for
violation within four months of the alleged violation. 43 P.S. § 1101.1505. Under
any of these standards, Cicchiello’s initial complaint, filed on July 16, 2015, was
untimely.20 Accordingly, we sustain Respondents’ PO VII to Count II.



       19
          43 P.S. §§ 1101.101-1101.2301.
       20
          Common pleas issued its decision December 7, 2015, in which it granted Respondents’
POs to Cicchiello’s labor law claims as being time-barred under Section 1505 of PERA.
Cicchiello v. SEIU 1199P Union (Service Employees International Union) et. al, Docket Number
2015-1307 (C.P. Pa. 2015), slip op. at 3-4.

                                             15
              ii.     Failure to Exhaust Administrative Remedies
       We also conclude that Count II is barred because Cicchiello failed to exhaust
the administrative remedies that were available to her. The PHRA, the terms of
which applies to the Department,21 requires, in relevant part, that a person claiming
to be a victim of unlawful discrimination file a complaint with the Pennsylvania
Human Relations Commission (Commission) “within [180] days after the alleged
act of discrimination.” 43 P.S. § 959(a), (h). Our Supreme Court has indicated
that if a complainant does not file a complaint for discrimination under the PHRA
with the Commission within 180 days, judicial remedies are barred.22 Vincent v.
Fuller Co., 616 A.2d 969, 974 (Pa. 1992). “This rule of ‘exhaustion of remedies’
has long applied by the courts of this Commonwealth to claims under the
[PHRA].”      Id.   Title VII contains a similar requirement that a complaint of
discrimination be filed with the Equal Employment Opportunity Commission
(EEOC) within 180 days of the alleged unlawful employment practice, which is
extended to 300 days if a complaint is filed with a similar state agency. 42 U.S.C.
§ 2000e-5(e)(1). It likewise provides the circumstances, after a charge is filed with
the EEOC, when a complainant can file a civil complaint in a court. 42 U.S.C. §
2000e-5(f). Here, there is nothing in the Second Amended Complaint alleging that
Cicchiello has filed the necessary timely, complaint with the Commission or the
EEOC that would subsequently permit her to file the present matter in this Court.

       21
           Section 4(b) of the PHRA defines “employer” as including the Commonwealth and
department thereof. 43 P.S. § 954(b).
        22
           Section 9(d.1) of the PHRA provides that, after the Commission’s investigation, the
Commission may provide written notice to the parties allowing them to file a civil action in this
Court’s original jurisdiction. 43 P.S. § 959(d.1). Section 12(c) describes when an action may be
filed in the courts of this Commonwealth if the Commission dismisses a complaint or does not
enter into a conciliation agreement with the complainant as a party. 43 P.S. § 962(c).

                                               16
Therefore, we agree with Respondents that Cicchiello has not exhausted her
administrative remedies and sustain Respondents’ PO VIII.


       C. Count III
       Count III asserts a breach of contract action by incorporating the prior
paragraphs of the Second Amended Complaint. (Compl. ¶ 41.) Cicchiello then
sets forth a variety of assertions, including: the elements of a breach of contract
action, the damages available in such actions, that settlement agreements are
contracts, and that a party may not repudiate a settlement agreement. (Compl. ¶¶
42-45.)
       Respondents aver that any breach of contract claim against them is barred by
the doctrine of sovereign immunity as set forth in Section 2310 of Title I of the
Pennsylvania Consolidated Statutes, 1 Pa. C.S. § 2310, and, therefore, Cicchiello
has not stated a claim upon which relief can be granted. 23                  Pa. R.C.P. No.
1028(a)(4) (demurrer). (Holmes’ PO I ¶¶ 20-21, 31.) Respondents note that
sovereign immunity for breach of contract claims remains intact unless such claims
fall within the jurisdiction of the Board of Claims. (Holmes’ PO I ¶¶ 22-24, 26
(citing Scientific Games International v. Commonwealth, 66 A.3d 740, 753 n.17,
755 (Pa. 2013)).) According to Respondents, the Board of Claims does not have
jurisdiction over employment agreements or collective bargaining agreements,
which includes “‘claims arising from employment contracts entered into with the


       23
          Respondents acknowledge that typically sovereign immunity is an affirmative defense,
but maintain that it can be asserted where, as here, it is “apparent on the face of the pleading
under attack.” (Holmes’ PO I ¶ 32 (citing Faust v. Department of Revenue, 592 A.2d 835, 838
n.3 (Pa. Cmwlth. 1991)); Ziccardi v. School District of Philadelphia, 498 A.2d 452, 453 (Pa.
Cmwlth. 1985).) Cicchiello does not object to the assertion of this defense in the POs.

                                              17
Commonwealth.’” (Holmes’ PO I ¶¶ 25-26 (quoting Dubaskas v. Department of
Corrections, 81 A.3d 167, 176 (Pa. Cmwlth. 2013)).)
      Respondents further assert that Cicchiello’s breach of contract claim should
be dismissed for failure to state a claim because the contract she seeks to enforce,
the December 2012 Settlement Agreement, was an illegal or invalid contract that
conflicted with specific provisions the Retirement Code. (Holmes’ PO II ¶¶ 34-35,
40-41.)   Respondents note that only the State Employees’ Retirement Board
(SERB), the body that administers the State Employees’ Retirement System
(SERS), has the authority to grant retirement credits and that, under the Retirement
Code, “in no case, shall a state employee receive more than one year’s credit for
any 12 consecutive months.” (Holmes’ PO II ¶¶ 36-37 (citing Section 5302 of the
Retirement Code, 71 Pa. C.S. § 5302).) Because “the December 2012 [S]ettlement
[A]greement purport[ed] to award Ms. Cicchiello time for which benefit
contributions [were] not being made,” i.e., twenty-five years with only fifteen
years of contributions, and “with more than one year’s credit, in a 12 month period,
in order to attain twenty-five years,” the December 2012 Settlement Agreement
contained an illegal term that is unenforceable as a matter of law. (Holmes’ PO II
¶¶ 38-39 (citing, e.g., Watrel v. Department of Education, 518 A.2d 1158, 1162
(Pa. 1986)).)
      Cicchiello responds that Union Respondents breached the contract by not
“submit[ting the] settlement in a timely manner” and not “represent[ing] her in
further action to ensure that she received the benefits that had been awarded” in
any of the settlement agreements. (Cicchiello’s Br. at 11.) She further asserts that
“Holmes had a responsibility to submit a document for settlement that was legally
sound” and that his “[f]ailure to do so represents a lack of good faith bargaining


                                        18
and also a violation of his legal and moral obligations as a salaried government
worker.”     (Cicchiello’s Br. at 11, 12-14.)         Cicchiello maintains that the
Respondents and Union Respondents colluded to deny Cicchiello her rights under
the December 2012 Settlement Agreement. She notes that neither SEIU nor the
Department has requested a court to negate the December 2012 Settlement
Agreement and, therefore, it remains binding, and they are simply refusing to
comply with the terms therein.


             i.     Sovereign Immunity
      We agree with Respondents that they are entitled to sovereign immunity
from Cicchiello’s breach of contract claims set forth in Count III.              “[T]he
Commonwealth, and its officials and employees acting within the scope of their
duties, shall continue to enjoy sovereign immunity and official immunity and
remain immune from suit except as the General Assembly shall specifically waive
the immunity.” 1 Pa. C.S. § 2310. With regard to contracts, the Commonwealth
Procurement Code (Procurement Code) provides that the Board of Claims has
“exclusive jurisdiction to arbitrate claims arising from . . . [a] contract entered into
by a Commonwealth agency in accordance with this part,” defines contract as “[a]
type of written agreement, regardless of what it may be called, for the procurement
. . . of . . . services . . .,” but excludes “employment agreements or collective
bargaining agreements” from the term “services.”        Sections 103, 1724(a) of the
Procurement Code, 62 Pa. C.S. § 103, 1724(a) (emphasis added). In Dubaskas, we
held that claims arising out of employment or collective bargaining agreements do
not fall within the Board of Claims’ jurisdiction and, therefore, sovereign
immunity is not waived for such claims. Dubaskas, 81 A.3d at 176-77. We relied


                                          19
on Dubaskas in Cicchiello I to affirm the Board of Claims’ determination that it
did not have jurisdiction over Cicchiello’s earlier breach of contract claim against
the Department. Cicchiello I, slip op. at 8. Because the Board of Claims does not
have jurisdiction over Cicchiello’s breach of contract claim based on the December
2012 Settlement Agreement, sovereign immunity remains intact, and, therefore, we
sustain Respondents’ PO I to Count III.24


             ii.    Unenforceable Contract
      We further conclude that the relevant provisions of the December 2012
Settlement Agreement, which purported to provide Cicchiello with retirement
credit to allow Cicchiello credit for twenty-five years of service, could not be
effectively performed without violating the Retirement Code and, therefore, was
“illegal, unenforceable, and void ab initio.” Watrel, 518 A.2d at 1160 (citation
omitted). As explained in Watrel, the “administration of the State Employees’
Retirement Fund is solely the responsibility of the SERB,” and the
Commonwealth’s other departments do not have the authority to alter the terms of
the Retirement Code, such as granting retirement credits, via settlement agreement.
Id. at 1160-62. For example, in Watrel, the Department of Education agreed, in a
settlement agreement, to accept a tenth year contribution from a discharged
employee to allow that employee to become vested in SERS.                  The former
employee, who was at the time employed in North Dakota, sent his contribution,
and the Department of Education forwarded the payment to SERB. SERB refused


      24
         Common pleas likewise concluded that Respondents were entitled to sovereign
immunity with respect to Cicchiello’s breach of contract claim. Cicchiello, Docket Number
2015-1307, slip op. at 2-3.

                                           20
to accept the payment as not being in accordance with the Retirement Code
because the former employee was not an “active member” as required thereby. Id.
at 1159. The former employee sued under a breach of contract theory, but our
Supreme Court held that there was no breach because the Department of Education
had no authority to vest the former employee as such authority lay with SERB. Id.
at 1161. Moreover, we have observed that neither SERB nor the courts have the
authority “to circumvent the express language of the [Retirement] Code,” or
provide “equitable relief contrary to the mandates of the Retirement Code.”25
Weaver v. State Employees’ Retirement Board, 129 A.3d 585, 589 (Pa. Cmwlth.
2015) (internal quotations omitted).
       Section 5302(a) of the Retirement Code provides that a state employee shall
receive credit “in each period for which [benefit] contributions are made” but that
“in no case shall [a member] receive more than one year’s credit for any 12
consecutive months or 26 consecutive biweekly pay periods.” 71 Pa. C.S. §
5302(a). Paragraph 2 of the December 2012 Settlement Agreement states that
“[t]he Department will award Ms. Cicchiello whatever time was necessary for her
to attain twenty-five years of service with the Commonwealth.” (Agreement ¶ 2.)
In so stating, it attempts to award Cicchiello retirement credit, i.e., time of service,

       25
            Section 5955 of the Retirement Code expressly provides that:

       pension rights of State employees shall be determined solely by this part or any
       amendment thereto, and no collective bargaining agreement nor any arbitration
       award between the Commonwealth and its employees or their collective
       bargaining representatives shall be construed to change any of the provisions
       herein, to require [SERB] to administer pension or retirement benefits not set
       forth in this part, or otherwise require action by any other government body
       pertaining to pension or retirement benefits or rights of State employees.

71 Pa. C.S. § 5955.

                                                21
for periods during which contributions were not being made. (Agreement ¶ 2.) In
particular, it sought to give Cicchiello credit for twenty-five years of service, even
though she only made contributions for fifteen years. (Agreement ¶ 2.) That
provision also attempted to give Cicchiello more than one year’s credit in a twelve
month period such that she could attain twenty-five years of service. (Agreement ¶
2.) Such terms are directly contrary to those provided in Section 5302(a) of the
Retirement Code and, therefore, cannot be enforced. Watrel, 518 A.2d at 1160-62.
Therefore, we sustain Respondents’ PO II to Count III.26


       D. Motion for Summary Judgment
       Cicchiello filed a Motion for Summary Judgment against Union
Respondents because “[SEIU] breached its contract when it reached a settleme[n]t
for Plaintiff Cicchiello and then failed to support Plaintiff through the legal
process, reaching the level of collusion within the group of Defendants.” (Motion
for Summary Judgment.) To this motion, she attached her “Motion to Enforce


       26
           Respondents’ other POs generally assert that the Second Amended Complaint should
be barred because: (1) it does not conform to law or rule of Court, Pa. R.C.P. No. 1028(a)(2), in
that it contains a defective Notice to Defend and does not contain a basis for this Court’s
jurisdiction, (Holmes’ PO III ¶¶ 42-47); and (2) the original Complaint did not contain a
summons and was not served by a sheriff as required by Pa. R.C.P. No. 400, 400(a), Pa. R.C.P.
No. 1028(a)(1), (Holmes’ PO IV ¶¶ 48-56). The POs also assert that: (1) Cicchiello has not
stated a claim for a substantive due process violation, (Holmes’ PO IX ¶¶ 83-89); (2) Cicchiello
cannot recover monetary damages from the individual respondents, such as Holmes, because
they were sued in their official capacities and, therefore, are not “persons” for the purposes of
Section 1983, (Holmes’ PO X ¶¶ 90-94); (3) Cicchiello has no breach of contract claim against
the individual respondents because they were not parties to the December 2012 Settlement
Agreement, (Holmes’ PO XI ¶¶ 95-100); and (4) Cicchiello’s claims are insufficiently specific
because, for the most part, they speak in only generalities, such as “all fair Labor Practice
Acts/Laws” or “all other Amendments,” (Holmes’ PO XII ¶¶ 101-05). However, because of our
disposition of the other POs, we will not address these objections.

                                               22
Sa[n]ctions and Punitive Damages Agains[t] SEIU” (Motion to Enforce Sanctions)
as the legal basis for summary judgment.        The Motion to Enforce Sanctions
reiterates that SEIU breached its contract with Cicchiello by not supporting her
through the legal process of enforcing the terms of the December 2012 Settlement
Agreement and by colluding with Respondents. (Motion to Enforce Sanctions ¶¶
1-2.) Cicchiello seeks, inter alia, traditional tort remedies, including compensatory
damages and punitive damages under Section 1983. (Motion to Enforce Sanctions
¶¶ 4, 7.)
       Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P.
1532(b), provides: “(b) Summary relief. At any time after the filing of a petition
for review in an appellate or original jurisdiction matter the court may on
application enter judgment if the right of the applicant thereto is clear.” “An
application for summary relief is properly evaluated according to the standards for
summary judgment.” McGarry v. Pennsylvania Board of Probation and Parole,
819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003). The court may grant a motion for
summary relief “if a party’s right to judgment is clear and no issues of material fact
are in dispute.” Myers v. Commownwealth, 128 A.3d 846, 849 (Pa. Cmwlth.
2015) (internal quotation omitted).      As described in our above analysis on
Respondents’ POs related to each count pertaining to the expiration of the relevant
statute of limitations, the failure to exhaust administrative remedies, and the
unenforceability of the relevant provision of the December 2012 Settlement
Agreement, we do not believe that Cicchiello’s right to judgment against Union
Respondents is clear in this matter and, therefore, we deny her Motion for
Summary Judgment. Id.



                                         23
       E. Other Motions
       In addition to the Second Amended Complaint and the Motion for Summary
Judgment, Cicchiello has filed the following additional motions naming both
Respondents and Union Respondents: (1) Motion for Discovery; (2) Motion to
Enforce Settlement Agreement; (3) “Resubmit A Motion for Summary Judgment/
Motion to Enforce the Settlement Agreement”; (4) a Motion to Reargue; and (5)
“Notice of Letters of Interrogatories and Subpeona [sic].”27                 Against Union
Respondents, she also filed the Motion to Enforce Sanctions. All of these motions
were stayed pending the disposition of Respondents’ POs by various orders of this
Court. Because we have sustained several of the POs by Respondents to each
Count of the Second Amended Complaint and, therefore, will dismiss with
prejudice the Second Amended Complaint as to Respondents, we likewise deny all
of these motions as they relate to Respondents. We continue the stay of the
remaining motions as against Union Respondents.


       F. Conclusion
       For the foregoing reasons, we sustain the Respondents POs I, II, V, VI, VII,
and VIII, and we dismiss with prejudice the Second Amended Complaint as
against Respondents. As a result, we deny all of the outstanding motions filed by
Cicchiello as against Respondents. We deny Cicchiello’s Motion for Summary
Judgment against Union Respondents. Union Respondents shall file an Answer
and/or appropriate dispositive motion within 30 days of this Order. The remaining

       27
          The motions generally reassert the allegations set forth in the Second Amended
Complaint, but also attempt to assert new legal bases for relief. For example, in the Motion to
Reargue, Cicchiello asserts a claim against Union Respondents for breaching their duty of fair
representation in this matter. (Motion to Reargue ¶¶ 20-29.)

                                              24
Motions filed by Cicchiello against the Union Respondents will remain stayed until
further notice.




                                       25
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joan M. Cicchiello,                     :
                                        :
                        Petitioner      :
                                        :
            v.                          :
                                        :
SEIU 1199P Union Service Employees      :   No. 361 M.D. 2015
International Union Kim Patterson       :
SEIU 1199 Secretary Treasurer           :
Wilfredo Tellado MRC Director John      :
E Wetzel Secretary of Pennsylvania      :
Department of Corrections Ty Stanton,   :
Director Human Resources Michael        :
Wenerowicz, Acting Deputy Secretary     :
E. Region Former Deputy                 :
Superintendent (SCI Frackville)         :
Raphael Chieke, Equal Employment        :
for the Department of Corrections       :
Timothy A. Holmes, Assistant Council    :
for the Commonwealth,                   :
Commonwealth of Pennsylvania            :
Department of Corrections Brenda        :
Tritt Deputy Superintendent State       :
Correctional Institute at Frackville,   :
                                        :
                        Respondents     :


PER CURIAM                           ORDER


      NOW, April 26, 2016, the Motion for Summary Judgment filed by Joan M.
Cicchiello against SEIU 1199P Union Service Employees International Union,
Kim Patterson and Wilfredo Tellado (Union Respondents) is hereby DENIED.
The Preliminary Objections to the Second Amended Complaint filed by the
Pennsylvania Department of Corrections, John E. Wetzel, Ty Stanton, Michael
Wenerowicz, Raphael Chieke, Brenda Tritt, and Timothy A. Holmes
(Respondents) in the above-captioned matter are resolved as follows:


  (1) Respondents’ Preliminary Objections V and VI to Count I of Second
      Amended Complaint are SUSTAINED;


  (2) Respondents’ Preliminary Objections VII and VIII to Count II of the
      Second Amended Complaint are SUSTAINED;


  (3) Respondents’ Preliminary Objections I and II to Count III of the
      Second Amended Complaint are SUSTAINED;


  (4) The   Second    Amended      Complaint    is   DISMISSED         WITH
      PREJUDICE as against Respondents;


  (5) All other Motions filed by Cicchiello are DENIED as they pertain to
      Respondents.


Additionally, Union Respondents shall file an Answer and/or appropriate
dispositive motion within 30 days of this Order.     All other Motions filed by
Cicchiello against Union Respondents hereby remain stayed until further notice.
