                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Renner,                                  :
                               Appellant         :
                                                 :
                       v.                        :
                                                 :
The Court of Common Pleas                        :
of Lehigh County, County of Lehigh,              :    No. 1479 C.D. 2017
John J. Sikora and Mark Surovy                   :    Argued: September 18, 2018




OPINION
PER CURIAM                                       FILED: October 12, 2018

               Michael Renner (Renner) appeals from the Lehigh County Common
Pleas Court’s (trial court) July 10, 2017 order sustaining Lehigh County Common
Pleas Court’s (Common Pleas Court)1 preliminary objections (Preliminary
Objections) to Renner’s Complaint (Complaint) against Common Pleas Court, Lehigh
County, Lehigh County’s Chief Probation Officer John J. Sikora (Sikora) and Lehigh
County’s Benefits Manager Mark Surovy (Surovy), and dismissing Renner’s claims
against Common Pleas Court with prejudice.2 Renner presents two issues for this
Court’s review: (1) whether the trial court erred by sustaining Common Pleas Court’s
Preliminary Objections based on sovereign immunity; and (2) whether the trial court
erred by sustaining Common Pleas Court’s Preliminary Objections based on the
separation of powers. After review, we affirm.



       1
          In order to avoid confusion regarding the dual role of the Lehigh County Common Pleas
Court as both an appellee and the trial court in this matter, we refer to the court as Common Pleas
Court with respect to its role as the appellee in this action and as the trial court with respect to its
role as the trial court.
        2
          Lehigh County, Sikora, Surovy and Renner stipulated to the dismissal of the remaining
parties without prejudice so Renner could pursue this appeal.
                                           Background3
                On or about April 3, 1989, the Lehigh County Office of Adult Probation
hired Renner as a “Parole Officer.” Complaint ¶3. In July 2011, Renner disclosed to
Sikora that he had been diagnosed with a serious medical condition as he was
hospitalized at that time for said condition and subsequently absent from work on a
medical leave for four to six weeks. During Renner’s absence, Sikora called him
several times to confirm that Renner’s condition was legitimate. Upon Renner’s
return to work, Sikora and Surovy allegedly began treating him in a hostile manner
which included: (1) telling Renner to resign or take a leave of absence; (2) suggesting
that Renner was no longer capable of performing his job duties; (3) subjecting Renner
to new cases in excess of a normal caseload and increasing his reviews; (4) requiring
Renner to work without a functional laptop; (5) Sikora stopped working on charitable
projects with Renner, restricting his communication purely for business purposes;
and, (6) suggesting that Renner was faking his medical condition. Renner confronted
Sikora about his hostile behavior, but Sikora refused to discuss the matter. Surovy
requested that Renner be transferred out of Surovy’s supervision, but Sikora denied
the request.      Renner also requested a transfer, but Court Administrator William
Berndt refused his request. Sikora subsequently began insinuating that Renner was
gay and made inappropriate and hostile comments about gay people.
                In October 2013, Sikora allegedly asked Renner to resign because of his
medical condition. Instead, Renner opted to enter the employer sponsored employee
assistance program (EAP). In March 2014, Sikora terminated Renner’s employment
for failing to administer a urine test to an offender under his supervision. Renner
averred that the test was not required and his employment termination was pretextual.
Renner protested his employment termination to Common Pleas Court’s then


      3
          The facts are recited as set forth in Renner’s Complaint.
                                                   2
President Judge Carol K. McGinley (Judge McGinley) who was the designated
Appeals Officer under Lehigh County’s Rules and Regulations. Judge McGinley
allegedly refused to take any action.               Thereafter, Renner could not obtain
employment in any other court system. Renner therefore sought retraining as a
Municipal Police Officer, and completed his Police Academy training on June 26,
2015. Renner was offered a job by Northampton and Fountain Hill Boroughs as a
police officer. Renner’s duties as a police officer required that he be available to
appear in courts, including but not limited to Lehigh and Northampton Counties.
Police officers are permitted to remain armed with their duty weapons while in the
Lehigh County Courthouse. Through means unknown to Renner, Common Pleas
Court and Lehigh County allegedly learned that Renner was to be hired as a police
officer, and caused an order to be issued on October 1, 2015, banning him from
possessing a firearm or Taser in the Lehigh County Courthouse, Old Courthouse and
Government Center.
              Allegedly, as a direct consequence of this action by Common Pleas
Court and Lehigh County, Salisbury,4 Northampton and Fountain Hill Boroughs
rescinded their employment offers to Renner. Renner appealed from Salisbury’s
rescission letter, and was given a hearing date of February 11, 2016. Renner’s gun
ban was allegedly rescinded on February 3, 2016, and as a condition of the ban’s
rescission, Common Pleas Court and Lehigh County allegedly required Renner to
undergo a medical examination that is prohibited under the Pennsylvania Human
Relations Act (PHRA).5 On or about February 11, 2016, Salisbury’s Police Civil
Service Commission upheld the rescission of Renner’s job offer. Renner avers that

       4
         Although Renner, in the Complaint, refers to Salisbury’s employment offer rescission, see
Complaint ¶51, Renner avers that he received job offers only from Northampton Borough and
Fountain Hill. See Complaint ¶45.
       5
         Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.


                                                3
Common Pleas Court and Lehigh County continue to interfere with his employment
opportunities, including but not limited to, providing false and misleading job
references to municipal police agencies. Fountain Hill Borough allegedly has refused
to hire Renner based solely upon information supplied by Common Pleas Court and
Lehigh County that Renner is not favored by the Lehigh County Judges.
              Renner believes that Common Pleas Court and Lehigh County provided
information to Salisbury Township that resulted in its decision to uphold the
rescission of his job offer. Renner alleges that Common Pleas Court and Lehigh
County took no remedial action to prevent this discriminatory and retaliatory conduct,
and permitted such conduct to continue unabated.


                                     Procedural History
              On August 29, 2014, Renner filed a charge of unlawful discrimination
with the Equal Employment Opportunity Commission (EEOC), which was dual-filed
with the Pennsylvania Human Relations Commission (PHRC), against Lehigh
County Adult Probation, Sikora and Surovy. On November 10, 2016, Renner filed
his Complaint in the trial court.6 Common Pleas Court filed Preliminary Objections,
along with a Brief in Support of Preliminary Objections, on December 16, 2016.
Renner filed a response and Memorandum of Law in Opposition to Common Pleas
Court’s Preliminary Objections on December 22, 2016. The trial court held oral
argument on June 2, 2017. On July 10, 2017, the trial court sustained the Preliminary
Objections and dismissed all claims against Common Pleas Court with prejudice.
Renner appealed to this Court.7

       6
         According to Renner’s Complaint, as of the filing thereof, his action remained pending
with the PHRC.
       7
         “When reviewing a trial court’s order sustaining preliminary objections in the nature of a
demurrer, our standard of review is de novo and our scope of review is plenary.” Young v. Estate of
Young, 138 A.3d 78, 84 (Pa. Cmwlth. 2016).
                                                4
                                          Discussion
              Initially, Renner intertwines his arguments by relying on Court of
Common Pleas of Erie County v. Pennsylvania Human Relations Commission, 682
A.2d 1246 (Pa. 1996), as support for his position that the General Assembly in its
enactment of the PHRA waived immunity for the common pleas courts and that the
PHRA does not violate the separation of powers doctrine. However, to correctly
apply Erie County it is important to understand its context. Before Erie County was
decided, this Court issued Allegheny County v. Wilcox, 465 A.2d 47 (Pa. Cmwlth.
1983), wherein it explained that because Section 4(b) of the PHRA’s definition of
employer does not specifically except the common pleas court from the PHRA’s
ambit, it was the legislature’s intent that the common pleas court be subject to the
PHRA. The Allegheny County Court further rejected the common pleas court’s
argument that the PHRC’s action violated the separation of powers clause, holding:
              [U]nder the facts of the case before us, we do not believe
              that the [common pleas court] has carried its burden of
              establishing that the PHRA is unconstitutional. The
              [PHRC’s] order does not direct the [common pleas court] to

              In ruling on preliminary objections, we must accept as true all well-
              pleaded material allegations in the petition for review, as well as all
              inferences reasonably deduced therefrom. The Court need not accept
              as true conclusions of law, unwarranted inferences from facts,
              argumentative allegations, or expressions of opinion. In order to
              sustain preliminary objections, it must appear with certainty that the
              law will not permit recovery, and any doubt should be resolved by a
              refusal to sustain them.
              A preliminary objection in the nature of a demurrer admits every
              well-pleaded fact in the complaint and all inferences reasonably
              deducible therefrom. It tests the legal sufficiency of the challenged
              pleadings and will be sustained only in cases where the pleader has
              clearly failed to state a claim for which relief can be granted. When
              ruling on a demurrer, a court must confine its analysis to the
              complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
                                                5
            hire anyone into confidential employee positions or to fire
            such an employee. Rather, the [PHRC’s] order merely
            requires the upgrading or equalization of pay, and it is clear
            that the courts can compel the appropriate legislative body
            to appropriate sums which are reasonably necessary for
            their proper operation and administration. We do not find,
            therefore, under the facts presented, any impairment of the
            independence or function of the [common pleas court].

Allegheny County, 465 A.2d at 52 (emphasis in original; citations omitted).
Thereafter, in Erie County, the Pennsylvania Supreme Court expounded:
            The present case, unlike [Allegheny County], implicates a
            court’s power to discharge its personnel. In order to carry
            out the duties delegated to the judiciary by the Constitution,
            the courts must retain the authority to select the people who
            are needed to serve in judicial proceedings and to assist
            judges in performing their judicial functions. By reviewing
            court personnel decisions, the PHRC would encroach upon
            this authority. The separation of powers doctrine thus
            prohibits the PHRC from hearing a discharged court
            employee’s claim. Otherwise, the PHRC could potentially
            reinstate an employee terminated by the judiciary.

Erie County, 682 A.2d at 1248 (citation omitted). Finally, the Supreme Court in First
Judicial District of Pennsylvania v. Pennsylvania Human Relations Commission, 727
A.2d 1110 (Pa. 1999), revisited Allegheny County and Erie County, and clarified:
            In [Erie County], this [C]ourt held that ‘in order to carry out
            the duties delegated to the judiciary by the Constitution, the
            courts must retain the authority to select the people who are
            needed to serve in judicial proceedings and to assist judges
            in performing their judicial duties.’ [Id.] at 1248. In that
            case, the [PHRC] sought to assert jurisdiction over the
            [common pleas court] in a complaint alleging that a court
            employee was fired because of his race. Although we held
            that the [PHRC] had no jurisdiction in such a case because
            of the separation of powers doctrine, we did not reject the
            rationale    [of    Allegheny      County]     wherein      the
            Commonwealth Court had held that the [PHRC] may
            require a court to equalize pay in a gender discrimination
            suit under the [PHRA] without violating the separation of
            powers doctrine. Thus, the state of the law concerning the
                                          6
             [PHRC’s] jurisdiction following [Erie County] could be
             summarized as allowing the [PHRC’s] involvement in some
             aspects of court personnel policies and practices, but not
             others.    In order to discover whether a particular
             involvement was acceptable, the matter would have to be
             adjudicated to determine whether it was impermissibly
             invasive under the constitution. We now reject this view.
             Further, we hold that the [PHRC] has no jurisdiction,
             because of the separation of powers doctrine, to
             adjudicate any complaints against the judicial branch.
             This holding is only a logical extension of the holding in
             [Erie County] that ‘the separation of powers doctrine
             requires that judges retain the authority to select, discharge
             and supervise court employees.’ [Id.] at 1247, citing
             Bradley v. Pa. Labor Relations Bd., . . . 388 A.2d 736 ([Pa.]
             1978). It is self-evident that if the [PHRC] imposed
             methods of employee selection or supervision or discharge,
             or directed that certain working conditions rather than
             others must apply, judges would have lost the power to
             control these aspects of the operation of the courts. The
             fundamental error in [Allegheny County] was not
             recognizing that a non-judicial agency’s involvement in
             running the courts can never survive constitutional scrutiny,
             for no matter how innocuous the involvement may seem,
             the fact remains that if an agency of the executive branch
             instructs a court on its employment policies, of necessity,
             the courts themselves are not supervising their operations.

First Judicial District, 727 A.2d at 1112 (emphasis added).
             It is against this backdrop, we examine Renner’s arguments. Renner
first argues that the trial court erred by concluding that sovereign immunity barred his
Complaint. Section 2310 of the Statutory Construction Act of 1972 (SCA), states in
pertinent part:

             [I]t is hereby declared to be the intent of the General
             Assembly that the 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.


                                           7
1 Pa.C.S. § 2310 (emphasis added). Further, Section 8521(a) of the Judicial Code
states: “Except as otherwise provided in this subchapter, no provision of this title
shall constitute a waiver of sovereign immunity for the purpose of [Section 2310 of
the SCA] (relating to sovereign immunity reaffirmed; specific waiver) or otherwise.”
42 Pa.C.S. § 8521(a). Section 8522(a) of the Judicial Code provides:

             The General Assembly, pursuant to [S]ection 11 of Article I
             of the Constitution of Pennsylvania, does hereby waive, in
             the instances set forth in subsection (b) . . . , sovereign
             immunity as a bar to an action against Commonwealth
             parties, for damages arising out of a negligent act where the
             damages would be recoverable under the common law or a
             statute creating a cause of action if the injury were caused
             by a person not having available the defense of sovereign
             immunity.
42 Pa.C.S. § 8522(a). This Court has summarized:
             The nine exceptions to sovereign immunity, as provided by
             [Section 8522(b) of the Judicial Code], 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 and control of
             animals; (7) liquor store sales; (8) National Guard activities;
             and (9) toxoids and vaccines.

Heicklen v. Hoffman, 761 A.2d 207, 209 n.7 (Pa. Cmwlth. 2000).
             Renner contends that Section 4(b) of the PHRA which defines
“employer” reveals the General Assembly’s intent to expressly waive sovereign
immunity and make Common Pleas Court liable for its alleged unlawful
discriminatory and retaliatory conduct. That Section provides, in pertinent part:
             the Commonwealth or any political subdivision or
             board, department, commission or school district
             thereof and any person employing four or more persons
             within the Commonwealth, but except as hereinafter
             provided, does not include religious, fraternal, charitable or
             sectarian corporations or associations, except such
             corporations or associations supported, in whole or in part,

                                            8
              by governmental appropriations. The term ‘employer’ with
              respect to discriminatory practices based on race, color, age,
              sex, national origin or non-job related handicap or
              disability, includes religious, fraternal, charitable and
              sectarian corporations and associations employing four or
              more persons within the Commonwealth.

43 P.S. § 954(b) (emphasis added). This Court in Allegheny County concluded that
the above definition does include common pleas courts.                However, it expressly
rejected the common pleas court’s sovereign immunity argument because it was not
sufficiently argued in its brief, not because the General Assembly waived sovereign
immunity by including common pleas court in the PHRA’s definition of employer.
Thus, the fact that the PHRA’s definition of employer could be construed to include
the common pleas court is not dispositive of the sovereign immunity issue.
              Renner further relies upon Erie County in support of his argument that
the legislature waived sovereign immunity for the common pleas court and thus,
Common Pleas Court can be sued for unlawful employment discrimination.8 Renner
concedes that in Erie County, the Pennsylvania Supreme Court held that the
separation of powers doctrine prohibits the PHRC from hearing a case involving the
common pleas court’s hiring or firing of personnel. However, Renner emphasizes
that the Erie County Court continued:
              [C]ourt employees who are discriminated against are not
              without recourse. After the PHRC dismisses their claims
              for lack of jurisdiction, such employees may file actions in
              the court of common pleas based on the rights granted by
              the PHRA.[9] See [Section 12 of the PHRA,] 43 [P.S.] §
              962(c)(1) [(‘In cases involving a claim of discrimination, if
              a complainant invokes the procedures set forth in this act,
              that individual’s right of action in the courts of the
              Commonwealth shall not be foreclosed.’)].

       8
         Renner also cited to Mansfield State College v. Kovich, 407 A.2d 1387 (Pa. Cmwlth.
1979), to support his position; however, that case did not involve the common pleas courts or the
sovereign immunity thereof.
       9
         Significantly, Renner did not include Common Pleas Court in his PHRC Complaint.
                                               9
Erie County, 682 A.2d at 1249. It is Renner’s contention that this translates to a
recognition that Common Pleas Court is not protected by sovereign immunity.
Contrary to Renner’s assertion, sovereign immunity was not before the Court in Erie
County.     Thus, as in Allegheny County, Erie County did not address sovereign
immunity.
              This Court has explained:
              Under Article 5, Section 1 of the Pennsylvania Constitution,
              the ‘judicial power of the Commonwealth shall be vested in
              a unified judicial system.’ Pa. Const. art. 5, § 1. The courts
              of common pleas are included in the unified judicial system.
              Id.; [Section 301(4) of the Judicial Code,] 42 Pa.C.S. §
              301(4) (‘The judicial power of the Commonwealth shall be
              vested in a unified judicial system consisting of the . . .
              [c]ourts of common pleas’).

Russo v. Allegheny Cty., 125 A.3d 113, 116 (Pa. Cmwlth. 2015), aff’d, 150 A.3d 16
(Pa. 2016). “Accordingly, . . . [common pleas court], as a court of the unified judicial
system, is entitled to the sovereign immunity of the Commonwealth.” Id. at 117.
Because our Supreme Court has not declared in Erie County or otherwise that the
General Assembly has expressly waived sovereign immunity under the PHRA as
Renner contends, we reject Renner’s argument that the Erie County Court established
waiver of the common pleas court’s sovereign immunity.
              Renner next argues that the trial court erred by sustaining Common Pleas
Court’s preliminary objections based on the separation of powers. However, Renner
concedes that in Erie County, the Pennsylvania Supreme Court held that the
separation of powers doctrine prohibits the PHRC from hearing a case involving the
common pleas courts’ hiring or firing of personnel. Renner asserts that because the
Erie County Court permitted court employees who are subjected to unlawful
discrimination to file actions in the common pleas court based on the rights granted



                                           10
by the PHRA, that the Erie County Court declared that Common Pleas Court can be
sued under the PHRA.
            The Pennsylvania Constitution provides:
                The Supreme Court shall have the power to
                prescribe general rules governing practice,
                procedure and the conduct of all courts, justices of
                the peace and all officers serving process or
                enforcing orders, judgments or decrees of any court
                or justice of the peace, including the power to
                provide for assignment and reassignment of classes
                of actions or classes of appeals among the several
                courts as the needs of justice shall require, and for
                admission to the bar and to practice law, and the
                administration of all courts and supervision of all
                officers of the Judicial Branch, if such rules are
                consistent with this Constitution and neither
                abridge, enlarge nor modify the substantive rights of
                any litigant, nor affect the right of the General
                Assembly to determine the jurisdiction of any court
                or justice of the peace, nor suspend nor alter any
                statute of limitation or repose. All laws shall be
                suspended to the extent that they are inconsistent
                with rules prescribed under these provisions.
            Art. V, Section 10(c). In pertinent part, this provision
            grants the [S]upreme [C]ourt ‘the power . . . to provide for .
            . . the administration of all courts and supervision of all
            officers of the judicial branch.’

First Judicial Dist., 727 A.2d at 1111-12. “Under the separation of powers doctrine,
the legislature may not exercise any power specifically entrusted to the judiciary.”
Erie County, 682 A.2d at 1247. “[T]hus[,] . . . legislation infringing upon [the
Pennsylvania Supreme] Court’s authority over Pennsylvania courts is invalid.” Id.
            Just as “the [PHRC] has no jurisdiction, because of the separation of
powers doctrine, to adjudicate any complaints against the judicial branch[,]” First
Judicial Dist., 727 A.2d at 1112, “[u]nder the doctrine of separation of powers, the
legislature may not exercise any power specifically entrusted to the judiciary[.]”

                                         11
Kremer v. State Ethics Comm’n, 469 A.2d 593, 595 (Pa. 1983).                         Accordingly,
because the General Assembly cannot interfere with the Supreme Court’s authority
“to provide for . . . the administration of all courts” through the PHRA, Renner could
not bring this action against Common Pleas Court thereunder. First Judicial Dist.,
727 A.2d at 1112. In other words, because Common Pleas Court is a part of the
judiciary, it is not subject to the PHRA. See L.J.S. v. State Ethics Comm’n, 744 A.2d
798 (Pa. Cmwlth. 2000) (A probation officer is a judicial employee, thus, under the
separation of powers doctrine, is not subject to the Public Official and Employee
Ethics Act.10); Russo, 125 A.3d at 121 (“[T]he General Assembly did not intend the
judiciary to be included within the definition of an employer subject to the
Whistleblower Law.[11]”12 The common pleas court is a part of the judiciary, thus,
under the separation of powers doctrine, is not subject to the Whistleblower Law.).



       10
            65 Pa.C.S. §§ 1101-1113.
       11
            Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421-1428.
       12

              An ‘employer’ under the Whistleblower Law is defined as a ‘public
              body’ or an individual, partnership, association or corporation that
              receives money from a public body to perform work or provide
              services to a public body. Section 2 of the Whistleblower Law, 43
              P.S. § 1422. A ‘public body’ is defined as:
                   (1) A State officer, agency, department, division, bureau,
                   board, commission, council, authority or other body in the
                   executive branch of State government.
                   (1.1) The General Assembly and its agencies.
                   (2) A county, city, township, regional governing body,
                   council, school district, special district or municipal
                   corporation, or a board, department, commission, council or
                   agency.
                   (3) Any other body which is created by Commonwealth or
                   political subdivision authority or which is funded in any
                   amount by or through Commonwealth or political
                   subdivision authority or a member or employee of that body.
             Id.
Russo, 125 A.3d at 120.
                                                12
Accordingly, the trial court did not err by sustaining Common Pleas Court’s
Preliminary Objections based on the separation of powers.
            For all of the above reasons, the trial court’s order is affirmed.




                                          13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Renner,                          :
                         Appellant       :
                                         :
                   v.                    :
                                         :
The Court of Common Pleas                :
of Lehigh County, County of Lehigh,      :   No. 1479 C.D. 2017
John J. Sikora and Mark Surovy           :


PER CURIAM
                                      ORDER


            AND NOW, this 12th day of October, 2018, the Lehigh County Common
Pleas Court’s July 10, 2017 order is affirmed.
