            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Mason                                     :
                                                :
                 v.                             :    No. 1242 C.D. 2019
                                                :    Argued: June 9, 2020
Philadelphia Parking Authority,                 :
                        Appellant               :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                    FILED: August 12, 2020

               The Philadelphia Parking Authority (PPA) appeals from an order of the
Philadelphia County Court of Common Pleas (Trial Court) overruling its preliminary
objections and allowing the contract-related claims filed by Alice Mason (Employee)
to proceed. Employee challenges our jurisdiction, asserting the order appealed from
is not appealable under the collateral order doctrine. PPA maintains the legal issues
must be resolved at this stage or its statutory exemption premised on the statute known
as the Parking Authorities Law, 53 Pa. C.S. §§5501-5517, 5701-5745 (Law), will be
effectively lost. PPA contends its preliminary objections should have been sustained
because Section 5505(d)(8) of the Law, 53 Pa. C.S. §5505(d)(8), does not authorize
PPA to execute an employment contract so Employee’s claims fail as a matter of law.
PPA also argues the Wage Payment and Collection Law (WPCL)1 does not apply to it.
Because PPA’s statutory arguments are inseparable from the merits, the order is not
collateral to the claims, and we lack jurisdiction. Accordingly, the appeal is dismissed.

      1
          Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§260.1-.13, .45.
                                       I. Background
               Employee worked for PPA’s Taxi and Limousine Division (TLD) for
30 years. In January 2015, then Executive Director Vincent J. Fenerty, Jr. (Fenerty)
memorialized a conversation with Employee concerning her continued employment
in the TLD in a memorandum (Memorandum). See Compl., Ex. A; Reproduced
Record (R.R.) at 103a. He advised her contribution to the TLD “has been outstanding
[but] your pension requirements make your continued assignment there infeasible.”
Id. After noting her continued employment with PPA was not in jeopardy, Fenerty
confirmed his interest to retain Employee in the TLD. To that end, he made the
following offer:

               If you agree to enter the DROP [(Deferred Retirement Option
               Plans)][2] program, enabling [PPA] to eliminate the extraordinarily
               high pension payments, I will insure that you remain at the TLD
               for the remainder of your employment with the [PPA]. I am in no
               way insisting that you enroll in DROP at this time and if you elect
               not to do that I will offer you a position in another division.
               However, if you do wish to enter DROP, you will keep [your]
               current TLD position for the duration of your four[-][year] DROP
               period.

Id.


               Employee entered the DROP program on March 18, 2015.3 See Am.
Compl. ¶8. Notwithstanding the language in the Memorandum that she was to keep
her TLD position for the four-year DROP period, the PPA terminated her
employment within two years, effective July 1, 2017. Id. ¶10.

       2
        See the Municipal Pension Plan Funding Standard and Recovery Act, Act of December 18,
1984, P.L. 1005, as amended, 53 P.S. §§895.101-.1131.
       3
           The Philadelphia Board of Pensions and Retirement DROP letter is dated March 18, 2015,
but it states Employee’s “DROP start date is June 19, 2015.” Compl., Ex. B (emphasis in original).

                                                2
               Predicated on PPA’s alleged breach of the Memorandum, Employee
filed a complaint asserting federal civil rights claims, including discrimination, as
well as contractual claims against PPA in the Trial Court. PPA then removed the
case to federal court based on the civil rights claims. After Employee moved to
dismiss the federal claims, the matter was remanded to the Trial Court.


               Subsequently, Employee filed an amended complaint against PPA in
the Trial Court asserting the following claims:         breach of contract (Count I);
promissory estoppel (Count II); unjust enrichment (Count III); and a claim seeking
liquidated damages and attorney fees under the WPCL (Count IV). Employee’s
claims are based on her discharge from employment before the expiration of the
four-year DROP period referenced in the Memorandum, which she characterizes as
an employment contract.


               PPA filed preliminary objections, including demurrers, asserting each
claim depends on the existence of an employment contract and no such enforceable
contract exists. PPA focused on its lack of statutory authorization to execute an
employment contract under the Law, stating “that unless the legislature expressly
and explicitly provides for tenure for public employment, any employment contract
that abrogates the doctrine of at-will employment (such that plaintiff is attempting
to assert herein) is void and unenforceable as an ultra vires action as a matter of
law.” Prelim. Objs. ¶17. In addition, the PPA challenged the application of the
WPCL to governmental authorities generally as they do not fall within the statutory
definition of “employer” in Section 2.1 of the WPCL, 43 P.S. §260.2a.4 Id. ¶44.


      4
          Added by the Act of July 14, 1977, P.L. 82.


                                                3
               Following briefing and argument, the Trial Court issued an order on
July 9, 2019, overruling PPA’s preliminary objections.5 PPA filed a notice of appeal
to this Court based on its status as a governmental body.


               Pursuant to Pa.R.A.P. 1925(a), the Trial Court subsequently issued a
perfunctory opinion determining that the appeal was improper under the collateral
order rule set forth in Pa.R.A.P. 313. It concluded that orders overruling preliminary
objections, and allowing a matter to proceed, are not appealable. See R.R. at 18a-19a.


               This Court directed the parties to address the appealability of the order
in their briefs.6 After briefing and argument, the matter is ready for disposition.


                                         II. Discussion
               PPA asserts our jurisdiction is proper because the protection afforded
to parking authorities in Section 5505(d)(8) of the Law, 53 Pa. C.S. §5505(d)(8),
would be effectively lost if the litigation was to proceed. Specifically, PPA relies
on Scott v. Philadelphia Parking Authority, 166 A.2d 278 (Pa. 1960), holding parking
authorities are constrained as employers “[t]o appoint officers, agents, employees and
servants, to prescribe their duties and to fix their compensation.” Id. at 282.

       5
        The Trial Court’s order used the term “denied” with respect to the preliminary objection;
however, the proper vernacular in this disposition is to state the preliminary objections are
overruled.
       6
          PPA initially petitioned this Court for permission to appeal the Trial Court’s order as an
interlocutory order pursuant to the Official Note to Pa.R.A.P. 1311. See Mason v. Phila. Parking
Auth. (Pa. Cmwlth., No. 1307 C.D. 2019, filed Sept. 19, 2019). However, this Court denied the
application by order dated October 23, 2019, stating the “failure of the [T]rial [C]ourt to certify
the interlocutory order for immediate appeal does not rise to the level of an egregious abuse of
discretion.” The day before, on October 22, 2019, this Court directed the parties to brief the
appealability of the Trial Court’s order in the instant appeal.

                                                 4
             At the outset, this Court must assess whether appellate jurisdiction is
proper. Generally, in determining appealability of orders, Pennsylvania courts
adhere to the rule that an appeal will lie only from a final order, disposing of all
parties or claims, unless otherwise permitted by statute or certified by a trial court or
reviewing body. Rae v. Pa. Funeral Dirs. Ass’n, 977 A.2d 1121 (Pa. 2009); see
Pa.R.A.P. 341(a). An order that qualifies as a collateral order under Pa.R.A.P. 313,
while not a final order under Pa.R.A.P. 341, is “immediately appealable as of right.”
In re Sheriff’s Excess Proceeds Litig., 98 A.3d 706, 718 (Pa. Cmwlth. 2014).


                            A. Collateral Order Doctrine
             Whether an order is appealable as a collateral order is a question of law;
as such, our standard of review is de novo and our scope of review is plenary. Id.
However, if a question of fact is presented, appellate jurisdiction does not exist. Yorty
v. PJM Interconnection, L.L.C., 79 A.3d 655 (Pa. Super. 2013). Rule 313 provides:

             (a) General Rule. An appeal may be taken as of right from a
             collateral order of an administrative agency or lower court.
             (b) Definition. A collateral order is an order separable from and
             collateral to the main cause of action where the right involved
             is too important to be denied review and the question presented
             is such that if review is postponed until final judgment in the
             case, the claim will be irreparably lost.

Pa.R.A.P. 313. Thus, for jurisdictional purposes, the order must meet three criteria:
(1) separability from the merits; (2) public importance of the right under review; and
(3) irreparable loss if review is delayed. MarkWest Liberty Midstream & Res., LLC
v. Clean Air Council, 71 A.3d 337 (Pa. Cmwlth. 2013) (en banc). “Each prong of the
collateral order doctrine must be met” for an order to qualify for review. Id. at 342.



                                           5
             As to separability, this Court explained:

             a claim is sufficiently separate from the underlying issues . . . if it
             is conceptually distinct from the merits of the plaintiff[’]s claim,
             that is, where even if practically intertwined with the merits, [the
             order] nonetheless raises a question that is significantly different
             from the questions underlying plaintiff’s claim on the merits.

Township of Worchester v. Office of Open Records, 129 A.3d 44, 55 (Pa. Cmwlth.
2016) (quoting Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006)).
The legal issues in the order must be distinct from the underlying claims. We follow a
practical approach, “recognizing that some potential interrelationship between merits
issues and the question sought to be raised in the interlocutory appeal is tolerable.” Id.


             As to public importance, “it is not sufficient that the issue under review
is important to a particular party; it ‘must involve rights deeply rooted in public
policy going beyond the particular litigation at hand.’” Id. “[B]efore concluding an
issue . . . implicates a right too important to be denied review[,] we consider whether
the right is important compared to the costs of piecemeal litigation and the efficiency
interests sought to be advanced by adherence to the final judgment rule.” Rae, 977
A.2d at 1129.


             As to irreparable loss, we examine “whether a right is ‘adequately
vindicable’ or ‘effectively reviewable’” absent our review. Twp. of Worchester, 129
A.3d at 55 (citation omitted). This question “cannot be answered without a judgment
about the value interests that would be lost through rigorous application of a final
judgment requirement.” Id. While generally construed as a loss of a claim or
defense, or a metaphorical bell that cannot be unrung (e.g., a discovery order



                                            6
compelling production), irreparable loss may also be the loss of time, resources and
effort to litigate a matter that is statutorily exempt from litigation. See Pridgen.


                      B. Applying the Collateral Order Rule
             Appellate courts are directed to apply the rule’s three-pronged test
“independently to each distinct legal issue over which an appellate court is asked to
assert jurisdiction pursuant to Rule 313.” Rae, 977 A.2d at 1130. As a result, even
if the rule “is satisfied with respect to one issue” or claim, that does not mean that
we have “jurisdiction to consider every issue within the ambit of the appealed order.”
Id. at 1123. Moreover, the collateral order doctrine is to be construed narrowly. Id.


             Mindful of these considerations, we apply the rule to the Trial Court’s
order that rejected PPA’s statutory exclusion arguments, overruled the demurrers,
and permitted Employee’s claims to proceed through the pleadings stage.


                               1. Contractual Claims
             At their core, Employee’s claims are premised on the Memorandum
constituting an employment agreement for a four-year period, and the termination of
her employment before the end of that term. She asserts a breach of contract claim
(Count I) and two quasi-contract claims, promissory estoppel (Count II) and unjust
enrichment (Count III) predicated on the Memorandum constituting a promise of
continued employment, in exchange for which she altered certain pension benefits.
Additionally, because the WPCL provides a mechanism to enforce an already existing
right to compensation from an employer, the viability of Employee’s WPCL claim
(Count IV) also depends upon an enforceable contract right.



                                           7
               Premised on its status as a local authority,7 PPA contends that because
the power to execute an employment contract is not statutorily conferred, there is no
basis for a breach of contract claim or claims implying a contract to prevent injustice
(i.e., promissory estoppel and unjust enrichment). PPA also maintains it is exempt
from the WPCL because the definition of “employer” does not include municipal
authorities. See Section 2.1 of the WPCL, 43 P.S. §260.2a.


               PPA argues it lacks the statutory authorization to enter employment
contracts that abrogate the at-will employment doctrine. In support, it cites Scott v.
Philadelphia Parking Authority, and more recent decisions applying its rationale.
See Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333 (Pa. 1995) (construing
identical language in Section 5607(d)(8) of the Municipality Authorities Act, 53 Pa.
C.S. §5607(d)(8)); see also Knox v. Bd. of Sch. Dirs., 888 A.2d 640 (Pa. 2005). Thus,
regardless of whether the Memorandum constitutes a contract, PPA contends it is
unenforceable because it was ultra vires.


               To qualify as collateral, an order must not be of such interlocutory
nature as to affect, or be affected by, the merits of the main cause of action. Chase
Manhattan Mortg. Corp. v. Hodes, 784 A.2d 144 (Pa. Super. 2001). Generally, “an
order overruling preliminary objections and directing the filing of an answer is
interlocutory and unappealable.” Id. at 145. The Trial Court’s order overruling
PPA’s demurrers is likewise not a collateral order.



       7
          Our Supreme Court has held that PPA is a Commonwealth agency in matters involving
its regulatory authority, over which this Court exercises original jurisdiction. See Blount v. Phila.
Parking Auth., 965 A.2d 226 (Pa. 2009).

                                                 8
               Assessing an order overruling a demurrer entails review of whether the
pleadings set forth the prerequisites for a cause of action. A breach of contract claim
requires: (1) existence of a contract; (2) breach of a contractual duty; and (3) damages
resulting from the breach. See Allegheny Intermed. Unit v. E. Allegheny Sch. Dist.,
203 A.3d 371 (Pa. Cmwlth. 2019). Also, “to rebut the presumption of at-will
employment, [an] [employee] must establish the existence of additional consideration”
beyond services performed, an agreement for a definite term or allowing discharge only
for just cause. Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 942 (Pa. Super. 2011).


               Here, PPA’s statutory authority argument challenges the existence of a
contract, which is a prerequisite to establishing a breach of contract claim. PPA
emphasizes it lacks authority to execute an employment contract pursuant to its
limited statutory powers as construed in Scott. The power the legislature granted to
PPA under its original enabling legislation8 was “to appoint officers, employees and
agents and to fix their compensation.” 166 A.2d at 282. In Scott, our Supreme Court
construed this language as precluding PPA from executing an employment contract.
Scott. That language is identical to the current language that limits PPA’s authority
in the employment context to that stated in Section 5505(d)(8) of the Law.9

       8
         See Act of June 5, 1947, P.L. 458, as amended, formerly 53 P.S. §§341-356, repealed by
the Act of June 19, 2001, P.L. 287. Until recodification of the statute in 2001, parking authorities
throughout the Commonwealth had similar organizational structures, powers, and duties. At that
time, the General Assembly significantly amended the law, establishing different powers and
organizational standards for PPA, whereas other municipal parking authorities retained the same
administrative structures and powers.
       9
         The language in the predecessor act regarding appointment of employees is substantially
similar to the current language such that the prior construction of the same language by the
Supreme Court 60 years ago in Scott stands. 1 Pa. C.S. §1922(4) (“when a court of last resort has
construed the language used in a statute, the General Assembly in subsequent statutes on the same
subject matter intends the same construction to be placed upon such language”).



                                                 9
               Regardless of the legal merit in PPA’s statutory argument,10 its authority
to contract is not separable from Employee’s contract claim. Indeed, our review of
this issue implicates the existence of a contract, which goes to the merits. As a result,
the Trial Court’s order overruling the preliminary objections to the breach of contract
claim does not meet the collateral order test.


               Likewise, the demurrers to the implied contract claims (promissory
estoppel and unjust enrichment)11 are inextricably intertwined with the merits such
that the Trial Court’s order is inseparable from them. “A demurrer will not be
sustained unless the face of the complaint shows that the law will not permit recovery
and any doubts should be resolved against sustaining the demurrer.” Travers v.
Cameron Cty. Sch. Dist., 544 A.2d 547, 549 (Pa. Cmwlth. 1988). Thus, we cannot

       10
            We observe Scott v. Philadelphia Parking Authority, 166 A.2d 278 (Pa. 1960), retains
vitality for the proposition that agreements with public employees are beyond a municipal authority’s
power and void ab initio. See Terrick v. Munhall Sanitary Sewer Mun. Auth. (Pa. Cmwlth., Nos.
151 C.D. 2018, 526 C.D. 2018, filed Dec. 18, 2018), 2018 WL 6613749 (unreported) (construing
identical language in Section 5607(d)(8) of the Municipality Authorities Act, 53 Pa. C.S. §5607(d)(8));
see also Bolduc v. Bd. of Sup’vrs of L. Paxton Twp., 618 A.2d 1188 (Pa. Cmwlth. 1992) (employment
contract void as township lacked authority to abrogate at-will employment of public employees).
         Although we do not reach the merits, to the extent the breach of contract is predicated on a
guarantee of employment for the four-year DROP period, it bears emphasis that Section 1104 of the
Municipal Pension Plan Funding Standard and Recovery Act explicitly states: “Participation in a
DROP does not guarantee the DROP participant’s employment by the local government during the
specified period of the DROP.” Section 1104 of the Act, added by the Act of September 18, 2009,
P.L. 396, 53 P.S. §895.1104. Based on this provision, this Court greets with skepticism the merits
of Employee’s breach of contract claim.
       11
          To state a claim for promissory estoppel, there must be a promise by one party to another,
and detrimental reliance by the other party on that promise. See RESTATEMENT (SECOND)
CONTRACTS §90 (Am. Law Inst. 1979); Travers v. Cameron Cty. Sch. Dist., 544 A.2d 547, 550
(Pa. Cmwlth. 1988) (promissory estoppel is “a vehicle by which a promise may be enforced in
order to remedy an injustice”). To state an unjust enrichment claim, there must be: “(1) benefits
conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3)
acceptance and retention of such benefits under such circumstances that it would be inequitable
for defendant to retain the benefit without payment of value.” Limbach Co., LLC v. City of
Philadelphia, 905 A.2d 567, 575 (Pa. Cmwlth. 2006) (citation omitted).

                                                 10
discern a difference between the merits of these claims and an order recognizing their
legal merit. Accordingly, the Trial Court’s order denying PPA’s demurrer as to the
equitable claims is not collateral to, i.e., inseparable from, a decision on the merits.


             Because a party must satisfy all three prongs of the collateral order
doctrine, see Rae, and, here, the separability prong is not met, we lack jurisdiction
to review the Trial Court’s order as to the contract claims. Nonetheless, in the
interest of completeness, we briefly address the other prongs.


             As to public importance, the statutorily constrained powers of PPA
have wide ramifications beyond the parties before us. There is a need to uphold
parameters of statutory authority and to protect public employers from employment
litigation that compromises the public fisc. See Section 5502 of the Law, 53 Pa. C.S.
§5502 (“Such purposes [of parking authorities] are declared to be public uses for
which public money may be spent . . . .”). This Court also recognizes pension rights
are significant sources of financial remuneration and the enforceability of those rights,
whether at law or equity, are important to public employees. See generally Wiggins
v. Phila. Bd. of Pensions & Retirement, 114 A.3d 66 (Pa. Cmwlth. 2015) (en banc).
Thus, PPA’s statutory authority argument meets the public importance prong.


             As to the third prong, the lack of statutory authority defense PPA asserts
here is not irreparably lost if not reviewed at this early stage. Although subjecting
PPA to litigation costs when there is a statutory basis for saving it from that expense
may constitute an irreparable loss, see Pridgen, PPA may raise these statutory
defenses in the pleadings and in subsequent dispositive motions.



                                           11
             Because the Trial Court’s order overruling the preliminary objections
to the contractual claims in Counts I, II and III of the Amended Complaint does not
qualify as a collateral order, we lack jurisdiction over those claims.


                                      2. WPCL
             Next, we assess the appealability of the order as to the WPCL claim.
Here, PPA contests the application of the WPCL, arguing it is excluded from the
statutory definition of “employer.” It also challenges the existence of a contract.


             To state a WPCL claim, an employee must aver a contractual
entitlement to compensation and an employer’s failure to pay that compensation.
See Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710 (Pa. Super. 2005).
Importantly, the WPCL only “establishes an employee’s right to enforce payment of
wages and compensation to which an employee is otherwise entitled by the terms of
an agreement.” Hartman v. Baker, 766 A.2d 347, 352 (Pa. Super. 2000) (emphasis
added).


             Section 2.1 of the WPCL, defines “employer” as “every person, firm,
partnership, association, corporation, receiver or other officer of a court of this
Commonwealth and any agent or officer of any of the above-mentioned classes
employing any person in this Commonwealth.” 43 P.S. §260.2a (emphasis added).
PPA emphasizes this Court’s exclusion of municipal corporations like authorities
from that definition. See Huffman v. Borough of Millvale, 591 A.2d 1137, 1139 (Pa.
Cmwlth. 1991) (upholding order sustaining demurrer to WPCL claim because
“[m]unicipal corporations . . . are not included within the definition of ‘employer’”).



                                          12
             PPA’s proffered exclusion from claims under the WPCL is inextricably
intertwined with the merits of Employee’s WPCL claim. This Court cannot assess
the application of the WPCL without assessing the merits of that claim. As such,
the Trial Court’s order as to the WPCL claim in Count IV of the Amended Complaint
does not qualify as a collateral order within our jurisdiction.


                                   III. Conclusion
             Because PPA did not establish that the Trial Court’s order qualified as
a collateral order with regard to each of Employee’s claims, we lack jurisdiction to
address the matter. Accordingly, PPA’s appeal is dismissed.



                                               ______________________________
                                               J. ANDREW CROMPTON, Judge




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alice Mason                             :
                                        :
              v.                        :   No. 1242 C.D. 2019
                                        :
Philadelphia Parking Authority,         :
                        Appellant       :


                                    ORDER

              AND NOW, this 12th day of August 2020, because the order entered by
the Philadelphia County Court of Common Pleas, disposing of the Philadelphia
Parking Authority’s preliminary objections, is not collateral to the claims under
Pa.R.A.P. 313(b), we lack jurisdiction over the matter. Therefore, the appeal is
DISMISSED.



                                            ______________________________
                                            J. ANDREW CROMPTON, Judge
