                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Jefferson University                     :
Hospitals, Inc.,                                :
                       Petitioner               :
                                                :
                 v.                             :
                                                :
Pennsylvania Department of                      :
Labor and Industry, Bureau of                   :
Labor Law Compliance,                           :   No. 2275 C.D. 2014
                        Respondent              :   Argued: October 6, 2015


BEFORE:          HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
                 HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                         FILED: January 6, 2016

                 Thomas Jefferson University Hospitals, Inc. (TJU) petitions this Court
for review of the Pennsylvania Department of Labor and Industry, Bureau of Labor
Law Compliance’s (Department) November 17, 2014 order granting Elizabeth
Haubrich’s (Haubrich) request to inspect her personnel file under the Personnel Files
Act (Act).1       TJU presents two issues for this Court’s review: (1) whether Haubrich is
a “current” employee under the Act; and (2) whether the Department’s finding that
Haubrich had no notice of her employment termination is supported by substantial
evidence. After review, we affirm.
                 Haubrich was employed by TJU until she was discharged on August 9,
2013.       Since the date of her employment termination, Haubrich has not been
employed or reemployed by TJU, nor has she been laid off with reemployment rights
or on a leave of absence. On August 16, 2013, Haubrich made a request by and


        1
            Act of November 26, 1978, P.L. 1212, as amended, 43 P.S. §§ 1321-1324.
through counsel to inspect her TJU personnel file. On August 26, 2013, TJU denied
Haubrich’s request. On January 20, 2014, Haubrich filed a Complaint with the
Department seeking her records under the Act.                   TJU filed an Answer to the
Complaint on or about April 21, 2014.
               On May 8, 2014, the Department appointed a hearing examiner. On July
2, 2014, a pre-hearing conference took place, wherein, counsel agreed that an
evidentiary hearing was unnecessary because the parties would submit a joint
stipulation of facts, followed by briefs and oral argument. Counsel further agreed
that argument would center on the narrow legal issue of whether or not Haubrich
should be considered an “employee” under the Act. Oral argument was held before
the hearing examiner on August 27, 2014. On November 17, 2014, the Department
granted Haubrich’s request to inspect her personnel file. TJU appealed to this Court. 2
               TJU first argues that Haubrich is not an employee under the Act because
she is no longer employed by TJU, the Act’s legislative history confirms that former
employees are not included in the definition of employee under the Act, and dicta in
Beitman v. Department of Labor and Industry, 675 A.2d 1300 (Pa. Cmwlth. 1996) is
not controlling.
               Initially, “the purpose of the Act is to acknowledge the right of both
public and private employees to review files held by their employers that contain
information about themselves[.]” Bangor Area Educ. Ass’n v. Angle, 720 A.2d 198,
202 (Pa. Cmwlth. 1998).           Section 2 of the Act provides in relevant part: “An
employer shall, at reasonable times, upon request of an employee, permit that


      2
        “[O]ur review is limited to determining whether constitutional rights were violated, an error
of law was committed and whether necessary findings are supported by substantial evidence.”
Dep’t of Labor & Indus., Bureau of Labor Law Compliance v. Lawson Demolition & Hauling Co.,
856 A.2d 860, 862 (Pa. Cmwlth. 2004).
       By Notice of Intervention filed with this Court on January 5, 2015, Haubrich intervened in
this matter.
                                                 2
employee . . . to inspect his or her own personnel files used to determine his or her
own    qualifications   for   employment,       promotion,   additional   compensation,
termination or disciplinary action.” 43 P.S. § 1322 (emphasis added). Section 1 of
the Act, defines an “[e]mployee]” as “[a]ny person currently employed, laid off with
reemployment rights or on leave of absence. The term ‘employee’ shall not include
applicants for employment or any other person.” 43 P.S. § 1321.
             Section 1903 of the Statutory Construction Act of 1972 (Statutory
Construction Act) states:

             (a) Words and phrases shall be construed according to rules
             of grammar and according to their common and approved
             usage; but technical words and phrases and such others as
             have acquired a peculiar and appropriate meaning or are
             defined in this part, shall be construed according to such
             peculiar and appropriate meaning or definition.
             (b) General words shall be construed to take their meanings
             and be restricted by preceding particular words.

1 Pa.C.S. § 1903. “The object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly. Every statute shall
be construed, if possible, to give effect to all its provisions.” Section 1921(a) of
the Statutory Construction Act, 1 Pa.C.S. § 1921(a) (emphasis added). Finally,
Section 1922 of the Statutory Construction Act declares in pertinent part:

             In ascertaining the intention of the General Assembly in the
             enactment of a statute the following presumptions, among
             others, may be used:
             (1) That the General Assembly does not intend a result that
             is absurd, impossible of execution or unreasonable.
             (2) That the General Assembly intends the entire statute to
             be effective and certain.
1 Pa.C.S. § 1922.



                                            3
             Thus,
             [w]here, as here, a statute is unclear or susceptible to
             different interpretations, courts will look to the principles
             of statutory construction to determine the legislative intent.
             In determining legislative intent, all sections of a statute
             must be ‘read together and in conjunction with each
             other, and construed with reference to the entire
             statute.’ Additionally, courts must attempt to give meaning
             to every word in a statute as we cannot assume that the
             legislature intended any words to be mere surplusage.
             Furthermore, courts must avoid construing a statute in such
             a way as would lead to an absurd result.

Allstate Life Ins. Co. v. Commonwealth, 992 A.2d 910, 919 (Pa. Cmwlth. 2010)
(citations and footnote omitted; emphasis added), aff’d by divided court, 52 A.3d
1077 (Pa. 2012) (quoting Housing Auth. of Chester Cnty. v. Pa. State Civil Serv.
Comm’n, 730 A.2d 935, 945 (Pa. 1999)).
             Here, Haubrich made her request to inspect her personnel file one week
after her discharge. TJU asserts that Haubrich is not an employee under the Act
because she is not currently employed and therefore is not entitled to inspect her file.
However, “[a]ccording to Webster’s 11th Collegiate Dictionary, ‘current’ means
‘presently elapsing,’ ‘occurring in or existing at the present time’ or ‘most recent.’
Webster’s Eleventh Collegiate Dictionary 306 (2004).” Pickens (Estate of Sherman)
v. Underground Storage Tank Indemnification Bd., 890 A.2d 1117, 1119-20 n.9 (Pa.
Cmwlth. 2006) (second italics added). Haubrich’s employment, having terminated
one week prior to her request, clearly qualifies as “presently elapsed” employment
and/or “most recent” employment, thereby, falling within the statute. Id.
             Moreover, under the Act an employee is expressly permitted to inspect
one’s personnel file to determine the basis for his/her employment termination.
Contrary to TJU’s assertion, it would not be possible for one to inspect his or her file
regarding his or her employment termination while one is currently employed. In


                                           4
reading both provisions together, and in order to avoid an absurd result, a recently-
discharged employee must be included in the definition of employee.
             TJU further avers that the Act’s legislative history confirms that former
employees are not included in the definition of employee under the Act. Section
1921(c) of the Statutory Construction Act provides in pertinent part: “When the
words of the statute are not explicit, the intention of the General Assembly may be
ascertained by considering, among other matters . . .             [t]he contemporaneous
legislative history.” 1 Pa.C.S. § 1921(c) (emphasis added). Our Supreme Court has
explained:

             Legislative history is generally understood to encompass a
             retrospective review of the legislative consideration of a
             statute, not a review of the oxymoronic subsequent
             legislative history. See, e.g., Sullivan v. Finkelstein, 496
             U.S. 617, 631 . . . (1990) (Scalia, J., concurring) (‘The
             legislative history of a statute is the history of its
             consideration and enactment.           ‘Subsequent legislative
             history’—which presumably means the post-enactment
             history of a statute’s consideration and enactment—is a
             contradiction in terms.’).         We cannot discern the
             legislative intent of the General Assembly that passed
             the relevant . . . statute by examining the intent of the
             General Assembly that amended that statute. See Axe
             [Sci.] Corp. v. Commonwealth, . . . 293 A.2d 617, 620 ([Pa.
             Cmwlth.] 1972) (‘. . . to hold that subsequently[-]drafted
             amendatory legislation . . . can somehow demonstrate a
             legislative intent as to the previously[-]enacted legislation . .
             . would be to hold that legislators in a subsequent legislative
             session could be permitted to indicate the legislative intent
             of legislators at a prior legislative session . . . [.]’). Further,
             while the former version of a statute is relevant to discern
             the legislative intent of a later version when the statutory
             language is ambiguous, the inverse is not true. See 1
             Pa.C.S. § 1921(c)(5) (providing that when the words of the
             statute are not explicit, the General Assembly’s intent may
             be ascertained by considering, among other things, the
             former law).

Commonwealth v. Lynn, 114 A.3d 796, 827 (Pa. 2015) (emphasis added).
                                             5
              Here, TJU maintains that the General Assembly’s rejection of the Act’s
proposed amendments established the General Assembly’s intent not to include
former employees in the definition of employee.3 However, because “[w]e cannot
discern the legislative intent of the General Assembly that passed the relevant . . .
statute by examining the intent of the General Assembly that [subsequently failed to]
amend[] that statute[,]” this argument has no merit. Lynn, 114 A.3d at 827.
              Lastly, TJU argues that dicta is not law; thus, Beitman cannot control in
the instant case. We acknowledge that dicta is not binding precedent. City of Lower
Burrell v. City of Lower Burrell Wage & Policy Comm., 795 A.2d 432 (Pa. Cmwlth.
2002). However, Beitman offers more than dicta on this issue.
              The Beitman Court specifically held that because “Beitman made her
request almost two and one-half years after her termination[,] [c]learly, Beitman was
not an ‘employee,’ that is, ‘currently employed, laid off with reemployment rights or
on a leave of absence’ even under the broadest interpretation of currently employed.”
Id. at 1302. The Court prefaced this holding by expressly explaining that “this Court
does not interpret the phrase ‘currently employed’ in Section 1 of the Act so
stringently as to prohibit an individual from obtaining his or her personnel file
when such request is made contemporaneously with termination or within a
reasonable time immediately following termination.”                     Id. (emphasis added).
Moreover, the dissent in Beitman stated that it would hold that all former employees
should be included in the definition of employee regardless of any time issue,
thereby, explaining the majority’s specificity in its holding. To argue that the Court
concluded that Beitman was not an employee based solely on the fact that she was a

      3
        TJU cites Governor’s Office of Administration v. Purcell, 35 A.3d 811 (Pa. Cmwlth. 2011),
to support its position. However, the legislative history in that case consisted of three amendments
that did not pass, that were offered on the day the General Assembly unanimously passed the
statute at issue. Clearly, an amendment offered the same day a statute is passed is
contemporaneous, making it distinguishable from a subsequent amendment that was not passed.
                                                 6
former employee, is a disingenuous reading of this Court’s opinion. For all of the
above reasons, this Court holds that Haubrich is a TJU employee for purposes of the
Act.
              TJU next argues that the Department’s finding that Haubrich had no
notice of her employment termination is not supported by substantial evidence.4
Finding of Fact (FOF) 1 states: “[Haubrich] was employed by [TJU] until August 9,
2013, at which time she was discharged without advance notice.” Department
Dec. at 2 (emphasis added). “Substantial evidence is defined as relevant evidence
upon which a reasonable mind could base a conclusion.” Stage Rd. Poultry Catchers
v. Dep’t of Labor & Indus., Office of Unemployment Comp. Tax Servs., 34 A.3d 876,
885 (Pa. Cmwlth. 2011).

              In determining whether there is substantial evidence to
              support the [Department’s] findings, this Court must
              examine the [evidence] in the light most favorable to the
              prevailing party, giving that party the benefit of any
              inferences that can logically and reasonably be drawn from
              the evidence. A determination as to whether substantial
              evidence exists to support a finding of fact can only be
              made upon examination of the record as a whole.

Stage Rd. Poultry Catchers, 34 A.3d at 885-86. The Stipulation of Facts provides in
relevant part: “(1) [] Haubrich was terminated from employment on August 9, 2013.
The document attached hereto as Exhibit ‘1’ is admitted into the record without
objection.” Original Record (O.R.) Item No. 10 (emphasis added). Exhibit 1 is a
form entitled “EMPLOYEE DISCIPLINARY ACTION [(EDA).]” O.R. Item 10, Exh. 1.
According to the EDA, the “DATE OF INCIDENT” was “08/09/2013”. Id. Thus, the
date of incident and Haubrich’s employment termination were the same day.



       4
         We note that this finding was not a determining factor in either the Department’s decision
or this Court’s ruling on the first issue decided herein.
                                                7
            Viewing Stipulation of Fact 1 and Exhibit 1 in the light most favorable
to Haubrich, and giving Haubrich the benefit of any inferences that can logically and
reasonably be drawn therefrom, as we must, a reasonable mind could conclude that
Haubrich “was discharged without advance notice.”     Department Dec. at 2, FOF 1.
Thus, FOF 1 is supported by substantial evidence.
            Accordingly, the Department’s order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         8
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Jefferson University             :
Hospitals, Inc.,                        :
                       Petitioner       :
                                        :
               v.                       :
                                        :
Pennsylvania Department of              :
Labor and Industry, Bureau of           :
Labor Law Compliance,                   :   No. 2275 C.D. 2014
                        Respondent      :


                                     ORDER

               AND NOW, this 6th day of January, 2016, the Pennsylvania Department
of Labor and Industry, Bureau of Labor Law Compliance’s November 17, 2014 order
is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
