           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Paul Zenak                                     :
                                               :
              v.                               :    No. 1194 C.D. 2014
                                               :
Police Athletic League of                      :
Philadelphia, City of Philadelphia             :
                                               :
Appeal of: City of Philadelphia                :

Officer Paul Zenak,                    :
                                       :
                         Appellant     :
                                       :
             v.                        :            No. 1801 C.D. 2014
                                       :
Police Athletic League of Philadelphia :            Argued: October 5, 2015


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
JUDGE COHN JUBELIRER                                         FILED: January 6, 2016

       Officer Paul Zenak, a Philadelphia police officer who previously worked at a
Police Athletic League1 (PAL) youth center, commenced an action in the Court of
Common Pleas of Philadelphia County (trial court) against PAL, the City of
Philadelphia (City), J. Bailey Builders, LLC (Bailey), and the Wissinoming United


       1
        The Philadelphia Athletic League is a unit of the Philadelphia Police Department, which
provides after-school activities to underprivileged youth in the Philadelphia area. (Trial Tr. at
125, 127, February 18, 2014, R.R. at 241a, 243a.)
Methodist Church (Church).2 Officer Zenak’s action asserted claims arising under,
inter alia, the Pennsylvania Whistleblower Law,3 the Philadelphia False Claims
Ordinance (False Claims Ordinance),4 and a negligence theory. Before trial, the
City filed a “Motion in Limine to Bifurcate the Trial and Deny Plaintiff a Jury
Trial on His Whistleblower and False Claims Counts” (Motion to Bifurcate).
(Motion to Bifurcate, R.R. at 2567a-68a.) The City’s Motion to Bifurcate was
denied without prejudice and the City was directed to raise it with the trial judge.
(Tr. Ct. Order, December 16, 2013, R.R. at 2574a.) Thereafter, the City filed a
Second Motion to Bifurcate with the trial court on January 24, 2014 requesting that
Officer Zenak be denied a jury trial on his whistleblower and false claims counts.
(Second Motion to Bifurcate, R.R. at 2575a-77a.)


       An eight day jury trial commenced on February 18, 2014.5 At the beginning
of the trial, the court disposed of several of the City’s pre-trial motions, including

       2
         Prior to trial, Officer Zenak filed praecipes to settle and discontinue any claim against
PAL and the Church. Moreover, Officer Zenak was unable to serve Bailey with the complaint
and did not proceed against that party at trial.

       3
           Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421-1428.

       4
           Phila. Code §§ 19-3601-19-3606.

       5
          Several witnesses testified at trial. Lieutenant Bryan Anthony testified on February 18,
2014 and February 19, 2014 and the transcript of his testimony is found at pages 240a-341a and
351a-433a of the reproduced record. Sergeant Eric Ervin testified on February 19, 2014 and the
transcript of his testimony is found at pages 434a-575a of the reproduced record. Police
Commissioner Charles H. Ramsey, Immediate Past Chair of PAL Sylvia Nisenbaum, Deputy
Police Commissioner Charlotte Council and Certified Industrial Hygienist Expert Richard Levin
testified on February 20, 2014. The transcript of their testimony is found at pages 584a-638a,
640a-729a, 730a-42a, and 742a-96a of the reproduced record, respectively. Richard Levin
continued his testimony on February 21, 2014 and the transcript of his testimony may be found
                                                                                 (Continued…)
                                                2
the Second Motion to Bifurcate, which the trial court summarily denied without
argument by the parties. (Trial Tr. at 5, February 18, 2014, R.R. at 121a.) At the
close of Officer Zenak’s case-in-chief, the trial court granted the City’s motion for
nonsuit with respect to the False Claims Ordinance and negligence counts, but
denied the City’s motion for nonsuit with respect to the whistleblower count.
Because the trial court believed that the City had not formally requested
bifurcation on the record before the trial commenced and the jury had already
heard Officer Zenak’s case-in-chief, the trial court rejected the City’s argument
that Officer Zenak’s whistleblower claim should not be submitted to the jury and
proceeded to allow the jury to hear the remainder of the case. (Trial Tr. at 6-17,
February 26, 2014, R.R. at 1514a-25a.)


       On February 27, 2014, the jury issued a verdict in Officer Zenak’s favor on
the whistleblower count. Thereafter, both Officer Zenak and the City filed post-
trial motions, which the trial court denied by three separate Orders dated June 24,
2014. In these consolidated appeals, the City and Officer Zenak now appeal from
the trial court’s Orders. On appeal, the City and Officer Zenak argue that the trial


at pages 837a-86a. Police Officer Tony D’Aulerio, PAL Administrative Assistant Laura Kelly,
and Former PAL employee Joanne Huczko also testified on February 21, 2014 and the transcript
of their testimony is found at pages 889a-915a, 916a-59a, and 960a-86a of the reproduced
record, respectively. Police Officer Steven Brennan and Officer Zenak’s wife, Theresa Zenak,
testified on February 24, 2014 and the transcript of their testimony is found at pages 1027a-80a
and 1081a-90a of the reproduced record, respectively. Officer Zenak testified on February 24
and 25, 2014 and the transcript of his testimony is found at pages 1093a-1246a and 1261a-1331a
of the reproduced record. Retired Police Captain Albert L. DiGiacomo and Police Expert Ronald
Traenkle testified on February 25, 2014 and the transcript of their testimony is found at pages
1335a-88a and 1397a-1432a of the reproduced record, respectively. Lieutenant Kevin Rice and
Sergeant Michael Faust testified on February 26, 2014 and the transcript of their testimony is
found at pages 1559a-1715a and 1716a-32a of the reproduced record, respectively.

                                               3
court erred for several reasons in denying the post-trial motions. Upon review, we
affirm in part, reverse in part, and remand this matter for further proceedings.


   I. WHISTLEBLOWER LAW
      In his Second Amended Complaint, Officer Zenak alleged that the City
unlawfully retaliated against him, in violation of the Whistleblower Law, for
making a good faith report regarding the improper “handling of asbestos removal”
at his place of employment and “possible misuse of public and private funds.”
(Second Amended Complaint ¶¶ 1-3, R.R. at 2468a.) Pursuant to Section 2 of the
Whistleblower Law, a “Whistleblower” is defined as “[a] person who witnesses or
has evidence of wrongdoing or waste while employed and who makes a good faith
report of the wrongdoing or waste, verbally or in writing, to one of the person’s
superiors, to an agent of the employer or to an appropriate authority.” 43 P.S. §
1422 (emphasis added). Further, a “Good faith report” is defined as “[a] report of
conduct defined in this act as wrongdoing or waste which is made without malice
or consideration of personal benefit and which the person making the report has
reasonable cause to believe is true.” Id. Section 3 of the Whistleblower Law
provides, in relevant part, that:

      [n]o employer may discharge, threaten or otherwise discriminate or
      retaliate against an employee regarding the employee’s compensation,
      terms, conditions, location or privileges of employment because the
      employee or a person acting on behalf of the employee makes a good
      faith report or is about to report, verbally or in writing, to the
      employer or appropriate authority an instance of wrongdoing or waste
      by a public body or an instance of waste by any other employer as
      defined in this act.

43 P.S. § 1423(a).


                                          4
      Section 4(b) “sets forth the requirements that a petitioner must satisfy to
make out a prima facie case of a violation of the Whistleblower Law.” O’Rourke
v. Commonwealth, 778 A.2d 1194, 1199-1200 (Pa. 2001). Section 4(b) provides:

      (b) Necessary showing of evidence.--An employee alleging a
      violation of this act must show by a preponderance of the evidence
      that, prior to the alleged reprisal, the employee or a person acting on
      behalf of the employee had reported or was about to report in good
      faith, verbally or in writing, an instance of wrongdoing or waste to the
      employer or an appropriate authority.

43 P.S. § 1424(b). Thus, “a Whistleblower Law claimant must come forward with
some evidence of a connection between the report of wrongdoing and the alleged
retaliatory acts.” O’Rourke, 778 A.2d at 1200 (citing Golaschevsky v. Department
of Environmental Protection, 720 A.2d 757, 759 (Pa. 1998)). If the requirements
of Section 4(b) are satisfied, the burden shifts to the employer to prove “by a
preponderance of the evidence that the action by the employer occurred for
separate and legitimate reasons, which are not merely pretextual.” Section 4(c) of
the Whistleblower Law, 43 P.S. § 1424(c); O’Rourke, 778 A.2d at 1200.


   II. BACKGROUND

      A. RENOVATION WORK PERFORMED AT                              PAL     YOUTH
         CENTER/OFFICER ZENAK’S COMPLAINTS
      While employed as a Philadelphia police officer, Officer Zenak was
assigned in 2008 to direct PAL’s Wissinoming Center (Center). The Center was
located in the basement of the Church. In August 2011, the Commanding Officer
of PAL, Lieutenant Bryan Anthony (Lt. Anthony), contracted with Bailey to
renovate a storage room in the Church basement. In September 2011, during

                                         5
Bailey’s renovation of the storage room, Officer Zenak approached Bailey’s owner
and asked him to take a look at a pipe and insulation located in the room adjacent
to the storage room, known as the homework room. According to Officer Zenak,
Bailey’s owner “identified asbestos insulation in the homework room.” (Trial Ct.
Op. at 2.) Consequently, Officer Zenak shut down the Center and informed his
supervisor, Sergeant Eric Ervin (Sgt. Ervin).


      Thereafter, Lt. Anthony and Sgt. Ervin met with Bailey’s owner at the
Center to inspect the alleged asbestos.6 As a result of the inspection, Lt. Anthony
hired Bailey to remove the alleged asbestos. On September 30, 2011, Bailey
removed the alleged asbestos and billed the Center for removing and “discard[ing]
asbestos.” (Trial Tr. at 148, February 24, 2014, R.R. at 1139a; Bailey Invoice,
R.R. at 2225a.) The same day, the Philadelphia Asbestos Control Unit (Control
Unit) received an anonymous tip of illegal asbestos abatement and visited the
Center. The Control Unit issued a report that no asbestos was present in the
Center.


      On October 12, 2011, Officer Zenak observed a shop-vac, without a lid,
containing grey and white debris in the homework room. Officer Zenak was
concerned the debris was asbestos. Accordingly, Officer Zenak called Sgt. Ervin
and immediately shut down the Center. Sgt. Ervin called Bailey and was assured
that Bailey would take a look at the debris. On October 14, 2011, Officer Zenak
met with Sgt. Ervin at PAL headquarters and requested air testing at the Center to
determine whether the Center was safe, and also told Sgt. Ervin that he did not

      6
          At trial, the City disputed whether there was ever actually asbestos in the Center.

                                                  6
believe Bailey was a licensed contractor for asbestos removal. In addition, Officer
Zenak wrote a memo to Lt. Anthony on October 17, 2011, expressing his concern
that he had been exposed to asbestos at the Center and met with Lt. Anthony on
October 18, 2011, to inform him that he did not believe Bailey was licensed.
Subsequently, air testing was performed. The October 31, 2011 air testing detected
“[n]o suspect asbestos fibers.”       (Asbestos Testing Report, R.R. at 2227a.)
Following the air testing, the Center reopened on November 7, 2011. Although
Officer Zenak was informed that no asbestos was detected, he requested a copy of
the report from his supervisors, but did not receive it. On March 8 and March 22,
2012, Officer Zenak wrote memos to Lt. Anthony requesting the air testing report
and Bailey’s asbestos license. In March 2012, PAL’s Board President learned that
Officer Zenak was concerned that he may have been exposed to asbestos at the
Center.   Accordingly, the Board President arranged to have another testing
company test the homework room. That testing company determined that there
was no asbestos in the homework room and, in early April 2012, the Board
President shared both testing reports with Officer Zenak.

      B. ALLEGED RETALIATORY                    ACTIONS       TAKEN        AGAINST
         OFFICER ZENAK
      On October 13, 2011, the day after Officer Zenak informed his superiors that
he had found asbestos debris in the Center, Sgt. Ervin visited the Center to inspect
the debris. Officer Zenak testified that, during this visit, Sgt. Ervin berated Officer
Zenak about the general condition of the Center, specifically complaining about
the Center’s light fixtures and holes in the walls. (Trial Tr. at 153, February 24,
2014, R.R. at 1144a.) In response to Sgt. Ervin’s complaints, Officer Zenak
showed him copies of work slips that Officer Zenak submitted to have the light

                                          7
fixtures and the holes fixed, to which no action had been taken. (Trial Tr. at 154,
R.R. at 1145a.) When Officer Zenak met with Sgt. Ervin at PAL headquarters on
October 14, 2011, Sgt. Ervin again complained to Officer Zenak about the
condition of the Center. (Trial Tr. at 158, R.R. at 1149a.)


      Sgt. Ervin testified that when he visited the Center on October 13, 2011, he
issued Officer Zenak a counseling form, which reprimanded Officer Zenak for
driving the PAL van and for failing to keep the Center clean. (Trial Tr. at 161-62,
213-14, February 19, 2014, R.R. at 507a-08a, 559a-60a; Ex. P-46, PAL Counseling
Form, R.R. at 2242a.) However, Officer Zenak claimed that he never received the
October 13, 2011 counseling form. (Trial Tr. at 161, February 24, 2014, R.R. at
1152a.)


      In early 2012, Lieutenant Rice (Lt. Rice) took over for Sgt. Ervin as Officer
Zenak’s supervisor.    Lt. Rice began visiting the Center frequently to inspect
Officer Zenak’s work: he visited the Center three times in January 2012 and
visited five times in March 2012, with each visit lasting 30 minutes to an hour.
Previously, when Sgt. Ervin was Officer Zenak’s supervisor, Sgt. Ervin would visit
the Center once per month for approximately 15 minutes per visit. When Lt. Rice
visited the Center he typically filled out “Center Inspection Reports.” (Trial Tr. at
62-63, February 26, 2014, R.R. at 1570a-71a.) The Center Inspection Reports
indicate that Lt. Rice was concerned over the lack of organized sports leagues at
the Center, the low number of youths at the Center, and that Lt. Rice warned
Officer Zenak to establish an organized program for the children. (Ex. P-46, PAL
Center Inspection Reports, R.R. at 2246a-52a.)


                                          8
      When Lt. Rice visited the Center on March 26, 2012, he issued Officer
Zenak two counseling forms. The first counseling form stated that the reason for
counseling was “not fulfilling your responsibility to [the Center]” and reprimanded
Officer Zenak for not starting any sports leagues for the children. (Ex. D41,
Philadelphia Police Department Counseling Form (3-26-12), R.R. at 2085a.) The
counseling form informed Officer Zenak that it was his responsibility to establish
sports leagues at the Center in order to increase the number of youths attending the
Center, that he was being issued “a direct order to establish a league in [the
Center], and that “failure to do so [would] lead to further disciplinary action.” (Ex.
D41, Philadelphia Police Department Counseling Form (3-26-12), R.R. at 2085a.)
The second counseling form stated that the reason for counseling was “failure to
follow orders” and reprimanded Officer Zenak for failing to submit required
paperwork. (Ex. D42, Philadelphia Police Department Counseling Form (3-26-
12), R.R. at 2086a.) Specifically, the counseling form stated that Officer Zenak
failed to follow orders by not turning in, inter alia, monthly calendars for the
months of November, December, and February. The counseling form also stated
that “any future violation of this nature will be met with corrective action.” (Ex.
D42, Philadelphia Police Department Counseling Form (3-26-12), R.R. at 2086a.)


      Following the counseling forms, Officer Zenak started a whiffle ball league.
At trial, Officer Zenak disputed the contents of the counseling forms, claiming that
it was “all a lie.” (Trial Tr. at 192, February 24, 2014, R.R. at 1183a.) In
particular, Officer Zenak claimed that he turned in the required paperwork, was
running several sports leagues, and challenged the number of children that Lt. Rice
reported seeing at the Center. (Trial Tr. at 186-92, R.R. at 1177a-83a.) Before


                                          9
receiving the counseling memos, Officer Zenak regularly submitted “weekly
activity logs” to Lt. Rice, which reported that a large number of youths were
regularly attending the Center and were participating in sports leagues. (Trial Tr.
at 160-63, February 26, 2014, R.R. at 1668a-71a.) Lt. Rice testified that he
believed the numbers reported by Officer Zenak were false and that he filed the
“weekly activity logs” with the intention of holding onto them in case he decided
to ask Lt. Anthony to pursue disciplinary action against Officer Zenak for
falsifying documents. (Trial Tr. at 166-67, R.R. at 1674a-75a.)


       At trial, the parties disputed whether the counseling forms were disciplinary
in nature. Philadelphia Police Commissioner Charles H. Ramsey testified that
counseling is not disciplinary and that counseling memoranda are not to be placed
in an employee’s central personnel file at police headquarters. (Trial Tr. at 27-28,
34, 36, February 20, 2014, R.R. at 604a-05a, 611a, 613a.) In contrast, Officer
Zenak’s expert, Albert DiGiacomo,7 testified that counseling forms can be used for
“informal or formal discipline” and that counseling forms can be used to transfer a
police officer from a special unit to a district. (Trial Tr. at 111-12, 132, February
25, 2014, R.R. at 1367a-68a, 1388a.) He also testified that, in his opinion, the
March 2012 counseling forms that were issued to Officer Zenak were the “first
stage of a formal discipline.” (Trial Tr. at 111-12, R.R. at 1366a-67a.)




       7
         The City filed a motion in limine before trial to preclude DiGiacomo’s testimony and
objected to his testimony at trial on the grounds that DiGiacomo had not been employed by the
Police Department since 1999, which was before the Police Department’s directive on
counseling was adopted; however, the trial court denied the motion and overruled the objections.

                                              10
      Officer Zenak testified at trial that the March 2012 counseling memos were
extremely threatening and that, until then, he had never received counseling
memos in his career as a police officer. (Trial Tr. at 200, February 24, 2014, R.R.
at 1191a.)   Officer Zenak believed that the counseling memos indicated that
“something bad was coming” and that he might be fired. (Trial Tr. at 200-01, R.R.
at 1191a-92a.) Officer Zenak testified further that he believed the counseling
forms were retaliation for requesting the asbestos testing reports and for requesting
to see Bailey’s license. (Trial Tr. at 204, R.R. at 1195a.) However, Officer Zenak
also acknowledged that after he received the counseling forms he remained at the
Center, his salary remained the same, and that he was not suspended or fired.
(Trial Tr. at 32, 34, February 25, 2014, R.R. at 1288a, 1290a.) Officer Zenak
became extremely stressed due to the counseling forms and his belief in his
imminent firing, and began experiencing anxiety and panic attacks, trouble
sleeping, and even believed he was having a heart attack at one point. (Trial Tr. at
209-10, February 24, 2014, R.R. at 1200a-01a.) Accordingly, Officer Zenak went
on medical leave at the end of April 2012. (Trial Tr. at 213, R.R. at 1204a.)


      Two days before Officer Zenak went on medical leave, the PAL Committee
conducted a meeting where the participants discussed the asbestos issue at the
Center. Lt. Anthony stated at this meeting that the asbestos issue started “because
we had an officer who wasn’t performing. He wasn’t doing the things he needed
to do as a PAL officer. So he tried to deflect that issue into saying that there was
something wrong with [t]his center in terms of asbestos.” (Ex. P-129, Audio
Transcription at 19, R.R. at 2435a.) Lt. Anthony also explained that the air was
tested, the testing companies “certified that there was never any asbestos in the


                                         11
building,” and that the testing was “kind of a waste of time.” (Ex. P-129, Audio
Transcription at 21, R.R. at 2435a.) Following this discussion, one of the PAL
Committee members asked, “I guess it’s really not the business of this committee
to discuss . . . why the guy wasn’t fired or now you have grounds to fire him,
because it all started with him not doing his duties; right?” (Ex. P-129, Audio
Transcription at 26, R.R. at 2437a.) Another PAL Committee member pointed out
that was a police and personnel issue and Lt. Anthony responded, “[w]e’re
dealing—we’re dealing with that. We’re working through that.” (Ex. P-129,
Audio Transcription at 27, R.R. at 2437a.) There was no evidence presented at
trial that Officer Zenak was aware of the PAL Committee meeting before he went
on medical leave.


      While he was out on medical leave, Officer Zenak earned his full salary and
medical benefits. Officer Zenak did not return from leave until August 2013, at
which time he was placed on restricted duty status based solely on a physician’s
evaluation of his then existing condition. Based on that assessment, Officer Zenak
was assigned to court attendance duty.


      C. JURY VERDICT/POST TRIAL MOTIONS
      The jury found in favor of Officer Zenak on February 27, 2014 on the
whistleblower claim and granted him the following relief: (1) reinstatement to his
position at PAL; (2) reimbursement of accrued leave; (3) reimbursement of
medical costs; and (4) award of reasonable attorney’s fees and costs. The trial
court granted the City’s motion for judgment notwithstanding the verdict (JNOV)
on Officer Zenak’s reinstatement to PAL, based on the terms of Officer Zenak’s


                                         12
earlier settlement with PAL. On March 13, 2014, the trial court held an assessment
of damages hearing in order to mold the verdict. During this hearing, Officer
Zenak submitted a request for attorney’s fees in the amount of $212,140.00 and a
request for litigation costs in the amount of $36,197.05. (Trial Tr. at 33, March 13,
2014, R.R. at 1977a.) The City objected to the amount of attorney’s fees requested
as unreasonable and argued that a more fair amount would be $105,227.02. (Trial
Tr. at 40, R.R. at 1984a.) The trial court awarded $159,183.51 in attorney’s fees
and $36,000 in costs to Officer Zenak. (Trial Ct. Order, March 13, 2014.)


      The City filed a post-trial motion on March 7, 2014 and a supplemental post-
trial motion on March 21, 2014. In its post-trial motions, the City requested that
the trial court enter JNOV in favor of the City on Officer Zenak’s whistleblower
claim because Officer Zenak did not meet his burden or order a new trial on
liability because the trial court erroneously submitted the whistleblower claim to
the jury. The City also requested that the trial court mold the verdict and grant
JNOV in favor of the City on the issue of damages and attorney’s fees and costs.


      Officer Zenak filed a post-trial motion on March 21, 2014. In his post-trial
motion, Officer Zenak sought a new trial on the basis that the trial court erred in
entering a nonsuit in favor of the City on the False Claims Ordinance and
negligence claims, and because the trial court erred in barring Officer Zenak from
seeking compensatory damages under the Whistleblower Law.




                                         13
      The trial court denied the post-trial motions in three separate Orders dated
June 24, 2014.8        In an opinion in support of its Orders, the trial court first
determined that Officer Zenak’s “testimony at trial was sufficient to support the
verdict finding that [he] made a good faith report of either wrongdoing or waste.”
(Trial Ct. Op. at 8.) Next, the trial court determined that circumstantial evidence
demonstrated that Officer Zenak’s supervisors retaliated or took adverse action
against him by issuing the counseling forms. The trial court concluded that Officer
Zenak “established that he had been a Philadelphia police officer for more than
twenty years and had never received a single negative performance evaluation
prior to complaining about the renovations at the . . . Center.” (Trial Ct. Op. at 11.)
The trial court also found critical Lt. Anthony’s recorded statements at the PAL
Committee meeting that occurred two days before Officer Zenak went out on sick
leave. Through this evidence the trial court opined that Officer Zenak “presented a
circumstantial case that his supervisors, and specifically Lt. Anthony, retaliated
against him and that he suffered an adverse employment action for reporting what
he believed was an improper asbestos abatement project.” (Trial Ct. Op. at 11.)
The trial court stated that “[t]he [j]ury was free to believe or disbelieve this
evidence as it saw fit.”         (Trial Ct. Op. at 11.)        Accordingly, the trial court
concluded that it did not err in not setting aside the verdict and that the jury verdict
was not against the weight of the evidence.


      The trial court also stated that it permitted a jury trial for the whistleblower
claim due to the peculiar nature of the litigation. After granting nonsuit for the
negligence and False Claims Ordinance claims, the trial court, which had not acted

      8
          Judgment on the verdict was entered in the trial court on September 4, 2014.

                                                14
as a factfinder up to that point, believed it was faced with the difficult choice of
declaring a mistrial or allowing the jury to resolve the whistleblower claim.
Determining that “[d]eclaring a mistrial would not have been in the best interest of
judicial economy,” and “[t]he least complicated method for resolution . . . was to
allow the [j]ury to resolve the whistleblower aspects of the case,” the trial court
allowed the jury to hear the whistleblower claim. (Trial Ct. Op. at 14.) The trial
court stated that it “held a post-trial hearing to mold the verdict accordingly.”
(Trial Ct. Op. at 14.)


      The trial court further determined that, because Officer Zenak prevailed on
his whistleblower claim, he was entitled to damages under the Whistleblower Law
and that the evidence presented at trial supported the damage award. With respect
to the City’s challenge to the amount of attorney’s fees and costs awarded, the trial
court pointed out that it “held an assessment of damages hearing” and awarded
damages accordingly. (Trial Ct. Op. at 20.)


      With respect to Officer Zenak’s post-trial motion, the trial court concluded
that Officer Zenak’s negligence claim was completely devoid of merit and that it
correctly granted nonsuit. Specifically, the trial court concluded that Officer Zenak
never established that there was asbestos in the building, that he was exposed to
asbestos, or that he suffered injury based on the alleged exposure. (Trial Ct. Op. at
21.) In addition, the trial court determined that Officer Zenak’s negligence claim
against his employer, the City, was barred by Section 303(a) of the Pennsylvania




                                         15
Workers’ Compensation Act9 (WC Act). Finally, the trial court concluded that it
correctly entered nonsuit on Officer Zenak’s False Claims Ordinance claim
because he did not show compliance with the requirements for bringing a claim
under the Ordinance and that the City was immune from suit under the ordinance.


   III. CONSOLIDATED APPEALS TO THIS COURT
       The City raises the following issues in its appeal:

       1. Whether the trial court erred in denying the City’s motion for a
          new trial on the whistleblower claim, when the trial court
          committed clear error in submitting the whistleblower claim to the
          jury, there was no right to a jury trial for the whistleblower claim,
          and the trial court had no discretion in submitting the claim to a
          jury;

       2. Whether the trial court erred in denying the City’s motion for
          JNOV on Officer Zenak’s whistleblower claim when, as a matter
          of law, Officer Zenak did not suffer an adverse employment action
          necessary to sustain such a claim;

       3. Alternatively, whether the trial court erred in denying the City’s
          motion for a new trial because the verdict is against the weight of
          the evidence; and

       4. Whether the trial court abused its discretion in awarding attorney’s
          fees and costs to Officer Zenak when the record demonstrates that
          the trial court did not analyze the fees and costs to determine
          whether they were reasonable.

       Officer Zenak raises the following issues in his appeal:


       9
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 481(a). Section 303(a) provides
that “[t]he liability of an employer under this act shall be exclusive and in place of any and all
other liability to such employes . . . entitled to damages in any action at law or otherwise on
account of any injury or death.” Id.

                                               16
      1. Whether the trial court erred in granting the City’s motion for
         nonsuit on Officer Zenak’s negligence claim; and

      2. Whether the trial court erred in granting the City’s motion for
         nonsuit on Officer Zenak’s False Claims Ordinance claim.


      In the interest of clarity, we shall first address the issues raised by Officer
Zenak.


      A. OFFICER ZENAK’S APPEAL

      1. Whether the trial court erred in granting the City’s motion for
         nonsuit on Officer Zenak’s negligence claim.
      Officer Zenak argues that the trial court did not apply the correct standard in
entering nonsuit on the negligence claim. Officer Zenak asserts that his asbestos
expert testified that the City assumed a duty to legally and safely remove the
asbestos from the Center and that the City breached its duty by hiring Bailey, who
was not licensed to remove asbestos, and by informing Officer Zenak that the air
testing demonstrated that the air in the Center was safe to breathe. At trial, Officer
Zenak’s asbestos expert testified that the methodology used by the testing
companies was incorrect and that, therefore, the air was unsafe to breathe. Officer
Zenak contends that, although he did not demonstrate that he was physically
injured by the asbestos, he testified about the emotional and physical stress caused
by his exposure to asbestos. Officer Zenak argues that there is more than sufficient
evidence to submit Officer Zenak’s negligence claim to the jury.


      Officer Zenak argues further that the trial court erred in concluding that his
negligence claim was barred by the WC Act. In Shick v. Shirey, 716 A.2d 1231

                                         17
(Pa. 1998), the Supreme Court recognized that an employee may sue an employer
for wrongful discharge if the claim stems from the employee’s filing of a workers’
compensation claim. Officer Zenak contends that his negligence claim is premised
on the City’s retaliatory actions and is, accordingly, not barred by the WC Act.
Officer Zenak asserts that, under the trial court’s reasoning, the WC Act would
swallow up the entirety of employment law.


      The trial court correctly found that Officer Zenak did not demonstrate that
there was asbestos in the Center or that he was exposed to asbestos. Specifically,
there was no evidence of asbestos in the air, and Officer Zenak testified that he has
never been diagnosed with any asbestos related disease such as pleural plaque,
lung cancer, and mesothelioma, and the chest x-ray taken in May 2012 showed that
his lungs were normal. (Trial Tr. at 36-37, February 25, 2014, R.R. at 1292a-93a.)
Our Supreme Court has held that in asbestos related litigation, where the plaintiff
is unable to demonstrate a sufficient physical injury warranting damages, “[any]
resultant emotional distress damages are likewise not recoverable.” Simmons v.
Pacor, Inc., 674 A.2d 232, 238 (Pa. 1996). Thus, because Officer Zenak did not
demonstrate any physical injury resulting from asbestos exposure, any damages for
emotional distress are not recoverable.


      The trial court was also correct that Officer Zenak’s negligence action was
barred by the WC Act. Section 303(a) of the WC Act states that:

      The liability of an employer under this act shall be exclusive and in
      place of any and all other liability to such employes, his legal
      representative, husband or wife, parents, dependents, next of kin or
      anyone otherwise entitled to damages in any action at law or

                                          18
      otherwise on account of any injury or death . . . or occupational
      disease . . .

77 P.S. § 481. In Shick, relied upon by Officer Zenak to argue that his negligence
claim is permitted in spite of the WC Act, our Supreme Court held that “a cause of
action exists under Pennsylvania law for wrongful discharge of an employee who
files a claim for workers’ compensation benefits.” Shick, 716 A.2d at 1238.
However, in that same opinion, our Supreme Court also stated that the WC “Act is
the exclusive means for obtaining compensation for injuries which has been
substituted for common law tort actions between employees and employers” and
that the WC “Act restricts the remedies available to an employee for injuries
sustained in the course of employment and closes to the employee any recourse
against the employer at common law for negligence.” Id. at 1237 (emphasis
added). Thus, the trial court did not err by determining that Officer Zenak’s
negligence claim to recover for injuries is barred by the WC Act.


      Accordingly, the trial court did not err by granting the City’s motion for
nonsuit on Officer Zenak’s negligence claim.

      2. Whether the trial court erred in granting the City’s motion for
         nonsuit on Officer Zenak’s False Claims Ordinance claim.
      Officer Zenak argues that the trial court erred in granting nonsuit on the
False Claims Ordinance claim because he suffered damages as a result of his
attempts to report the misuse of City funds. Officer Zenak contends that, in order
to initiate a retaliation suit under the False Claims Ordinance, a plaintiff is not
required to actually initiate a suit under the False Claims Ordinance, but need only
have taken some act in furtherance of a False Claims Ordinance action such as an


                                        19
investigation, testimony, or other assistance. Here, because Officer Zenak believed
City funds were being misspent, he made a good faith report regarding the waste
and mismanagement of City funds to his superiors, and there was evidence at trial
that he was retaliated against for providing the report, Officer Zenak has made out
a prima facie case of retaliation under the False Claims Ordinance. Therefore,
Officer Zenak asserts, the trial court erred in granting the nonsuit and not allowing
the jury to decide the False Claims Ordinance claim.


      Under Chapter 19-3600 of the False Claims Ordinance, false or fraudulent
requests or demands for money made to the City, where the City provides any
portion of that money, are considered false claims and are, accordingly, illegal.
Sections 19-3601 and 19-3602 of the Philadelphia Code, Phila. Code §§ 19-3601-
3602. Pursuant to Section 19-3603, civil actions may be brought by the City
solicitor or a private person to remedy violations of the False Claims Ordinance.
Phila. Code § 19-3603. However, a private person wishing to bring an action must
submit to the City solicitor a proposed civil complaint setting forth the alleged
violations of the False Claims Ordinance. Section 19-3603(2) of the Philadelphia
Code, Phila. Code § 19-3603(2). The City solicitor is authorized to investigate the
allegations of the proposed civil complaint and once the investigation is completed,
the City solicitor may bring a civil action or enter into an agreement with the
private person who submitted the complaint “to file a civil action for the person
and the City, in the name of the City.” Id. The City solicitor may also “[d]ecline
to commence a civil action and decline to designate the person who submitted the
proposed complaint to commence a civil action.” Section 19-3603(2)(b)(.3) of the
Philadelphia Code, Phila. Code § 19-3603(2)(b)(.3). As determined by the trial


                                         20
court, Officer Zenak did not present any evidence that the foregoing requirements
of the False Claims Ordinance were satisfied. (Trial Ct. Op. at 23.) Moreover,
Section 19-3603(3)(e) of the False Claims Ordinance provides, in relevant part,
that “[t]his Chapter shall not apply to claims . . . nor to any proposed civil
complaints . . . [a]gainst the federal government, the Commonwealth of
Pennsylvania, the City or any officer or employee of those governmental entities
acting within the scope of his or her employment.” Phila. Code § 19-3603(3)(e).
Under Section 19-3603(3) “this Chapter” refers to the entire False Claims
Ordinance. Section 19-3603(3) specifically states that the False Claims Ordinance
does not apply to any claims brought against the City.


      Accordingly, the trial court did not err by granting the City’s motion for
nonsuit on Officer Zenak’s False Claims Ordinance claim.


      B. CITY’S APPEAL

      1. Whether the trial court erred in denying the City’s motion for a new
         trial on the whistleblower claim.
      The City argues that because Officer Zenak was not entitled to a jury trial on
his whistleblower claim, the trial court had no discretion to try the case before a
jury. The City contends that the trial court acknowledged that the whistleblower
claim should never have been submitted to a jury when it granted the nonsuit for
the False Claims Ordinance and negligence claims. Moreover, the City asserts that
submitting the whistleblower claim to a jury was not harmless error and, had the
whistleblower claim been tried by the trial court, the evidence would have
supported a verdict in the City’s favor. Because Officer Zenak had no right to a

                                        21
jury trial, the City contends that the jury’s verdict was merely advisory and the trial
court erred by abrogating its duty to make independent findings of fact and
conclusions of law.


       A party requesting a new trial “must demonstrate in what way trial error
caused an incorrect result.” Department of General Services v. United States
Mineral Products Company, 927 A.2d 717, 723 (Pa. Cmwlth. 2007), aff’d, 956
A.2d 967 (Pa. 2008). Determining whether the moving party is entitled to a new
trial involves a two-step process. Id. “First, we must decide whether one or more
mistakes occurred at trial” and, if so, “whether the mistake is a sufficient basis for
granting a new trial.” Id. The moving party must demonstrate more than harmless
error; the mistake will be a sufficient basis for granting a new trial where the party
demonstrates prejudice resulting from the mistake. Id.


       Recently, our Superior Court, in a well-reasoned opinion, determined that
there is no right to a jury trial under the Whistleblower Law.                 Bensinger v.
University of Pittsburgh Medical Center, 98 A.3d 672, 677-79 (Pa. Super. 2014).10
In reaching this holding the Superior Court first thoroughly reviewed the statutory
language of Section 5 the Whistleblower Law,11 governing enforcement of the law.
At the time the Superior Court filed its decision in Bensinger, Section 5 provided
as follows:


       10
          Although Bensinger was decided after the trial court denied the City’s post-trial
motions, in its post-trial motions the City advanced many of the same arguments and cited many
of the same cases relied upon by the Superior Court in Bensinger.

       11
            43 P.S. § 1425.

                                             22
       A court, in rendering a judgment in an action brought under this act,
       shall order, as the court considers appropriate, reinstatement of the
       employee, the payment of back wages, full reinstatement of fringe
       benefits and seniority rights, actual damages or any combination of
       these remedies. A court may also award the complainant all or a
       portion of the costs of litigation, including reasonable attorney fees
       and witness fees, if the court determines that the award is appropriate.


43 P.S. § 1425.12 Because Section 5 “refers to the court” and “never refers to the
jury,” the Superior Court concluded that the Whistleblower Law did not provide a
right to a jury trial. Bensinger, 98 A.3d at 677. The Superior Court determined
that this conclusion was consistent with our Supreme Court’s decisions Mishoe v.
Erie Insurance Co., 824 A.2d 1153, 1154 (Pa. 2003) (bad faith insurance claim
brought under Section 8371 of the Judicial Code, 42 Pa. C.S. § 8371), and Wertz v.
Chapman Township, 741 A.2d 1272 (Pa. 1999) (action brought pursuant to the
Pennsylvania Human Relations Act13), and its decision in Fazio v. Guardian Life
Insurance Co. of America, 62 A.3d 396, 399 (Pa. Super. 2012) (action brought
under Unfair Trade Practices and Consumer Protection Law14). In all three of these

       12
         Section 5 was amended, effective September 2, 2014, by Section 3 of the Act of July 2,
2014, P.L. 824, and currently reads as follows:

       A court, in rendering a judgment in an action brought under this act, shall order,
       as the court considers appropriate, reinstatement of the employee, the payment of
       back wages, full reinstatement of fringe benefits and seniority rights, actual
       damages or any combination of these remedies. A court shall also award the
       complainant all or a portion of the costs of litigation, including reasonable
       attorney fees and witness fees, if the complainant prevails in the civil action.

Id. (emphasis added).

       13
            Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.

       14
            Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 - 201-9.3.

                                                23
cases, the conclusion was “that a statutory right to a jury trial does not exist under
statutes with similar language to the Whistleblower Law.” Bensinger, 98 A.3d at
678.


       Having determined that there was no statutory right to a jury trial pursuant to
the Whistleblower Law, the Superior Court next addressed whether a right to a jury
trial existed under the Pennsylvania Constitution. The Superior Court determined
that for a jury trial to be guaranteed under Article 1, Section 6 of the Pennsylvania
Constitution,15 it must be established that (1) “a right to jury trial would have been
required in 1790, when the Pennsylvania Constitution was adopted,” and (2) “the
action must have a common law basis, not a statutory basis.” Id. at 679 (internal
quotation marks omitted).


       The Superior Court initially noted that “[w]histleblower protections are
relatively new in this Commonwealth” and that the first time any Pennsylvania
Court “recognized that a wrongful discharge action may be cognizable was in
Geary v. U.S. Steel Corp., . . . 319 A.2d 174 ([Pa.] 1974)).” Bensinger, 98 A.3d at
679. The Superior Court pointed out further that “a wrongful discharge action may
not be brought solely because the employer had a specific intent to harm the
employee,” that, generally, common law wrongful discharge actions are only
available to private sector employees because it was “accepted that the
Commonwealth possessed sovereign immunity,” and that “[t]he Commonwealth
had not waived this sovereign immunity with respect to whistleblower claims until

       15
          Article 1, Section 6 provides that: “[t]rial by jury shall be as heretofore, and the right
thereof shall remain inviolate.” Pa. Const. art. 1, § 6.

                                                24
passage of the Whistleblower Law.” Id. at 680-81. Thus, the Superior Court
concluded that “it is evident that a common law cause of action equivalent to a
claim under the Whistleblower Law did not exist in 1790.” Id. at 681. As further
support, the Superior Court recognized that the Supreme Court of New Jersey,
several Pennsylvania Courts of Common Pleas, and the United States District
Court for the Eastern District of Pennsylvania have reached the same conclusion.
Id. at 681-82 (citing Ballinger v. Delaware River Port Authority, 800 A.2d 97, 105
(N.J. 2002); Miller Northern Tier Career Center, 49 Pa. D. & C. 4th 413, 417
(2000); Wilhelm v. Borough of Braddock, 28 Pa. D. & C. 4th 211, 212-13 (1996);
Clark v. Lancaster City Housing Authority, 14 Pa. D. & C. 4th 411, 412-13 (1992);
Zerbe v. City of Sunbury, 7 Pa. D. & C. 4th 483, 499-501 (1990); and Stoneback v.
ArtsQuest (E.D. Pa., Civil Action No. 12-3286, filed October 17, 2012)).


      Based on the foregoing, the Superior Court “conclude[d] that there was no
common law analogue to a whistleblower claim that encompassed a right to jury
trial in 1790.” Bensinger, 98 A.3d at 682. Finally, the Superior Court recognized
that “a whistleblower claim is statutorily based, not common law based.” Id.
Accordingly, the Superior Court held there is no right to a jury trial under the
Whistleblower Law. Id.


      Although Bensinger is not binding on this Court, the Superior Court’s
reasoning is very persuasive for determining that Officer Zenak did not have the
right to a jury trial for the whistleblower claim. However, this fact, standing alone,
does not require that we grant a new trial. In order to reverse the trial court’s order
denying the City’s post-trial motion, we must find that the trial court’s error in


                                          25
permitting Officer Zenak’s whistleblower claim to be heard by the jury was
prejudicial to the City rather than harmless error. Department of General Services,
927 A.2d at 723. The City argues that had the whistleblower claim been tried by
the trial court, the evidence could have supported a verdict in the City’s favor;
therefore, the trial court’s error in permitting the jury to decide the whistleblower
claim was inherently prejudicial and cannot be characterized as harmless.


       Although there is no precedent by Pennsylvania Courts addressing the exact
situation this Court is faced with here, federal courts have recognized that in
situations where a plaintiff was mistakenly provided a jury trial, “[r]eversal of the
jury’s verdict is not required . . . if it is clear from the record that the [trial] court
would have reached the same conclusion as the jury.” Dombeck v. Milwaukee
Valve Company, 40 F.3d 230, 237 (7th Cir. 1994).16 Moreover, a new trial is not
always required; the matter may be remanded for the trial court to make
independent findings of fact and enter judgment accordingly or the trial court, in its
discretion, may conduct a new bench trial if necessary. Id.



       16
           In Dombeck, the plaintiff filed a sexual harassment action on July 28, 1992, against her
employer under Title VII of the Civil Rights Act of 1964. The district court applied the Civil
Rights Act of 1991 retroactively to the plaintiff’s claims and determined that plaintiff was
entitled to a jury trial. Dombeck, 40 F.3d at 233. The jury returned a verdict in the plaintiff’s
favor. Id. However, during the pendency of the various appeals, the United States Supreme
Court determined that the Civil Rights Act of 1991 did not apply retroactively; thus, there was no
right to a jury trial. Id. at 232. Accordingly, on appeal the Seventh Circuit was faced with the
issue of whether, in light of the fact that the plaintiff had no right to a jury trial, the relief
awarded was proper. Id. Upon review, the Seventh Circuit held that the submission of the
plaintiff’s claims to the jury was not harmless error and remanded for the district court to enter
independent findings of fact and conclusions of law and to enter judgment accordingly. Id. at
237.

                                               26
      Here, the record shows that there was lengthy discussion between the trial
court and the parties regarding the possible consequences if the whistleblower
claim was submitted to the jury rather than being heard in a bench trial. (Trial Tr.
at 6-17, February 26, 2014, R.R. at 1514a-25a.) The trial court believed that the
City’s Second Motion to Bifurcate to preclude the jury from deciding the
whistleblower claim was not formally brought to the trial court’s attention on the
record when the trial commenced. (Trial Tr. at 6-7, R.R. at 1514a-15a.) The trial
court stated further that it believed that Officer Zenak was never entitled to a jury
trial on the whistleblower claim; however, Officer Zenak “maneuver[ed] the case
in such a way to get it before a jury.” (Trial Tr. at 15, R.R. at 1523a.) The trial
court believed that this maneuvering and the City’s failure to make its point clear
that Officer Zenak was not entitled to a jury put the trial court in an untenable
position. (Trial Tr. at 18, R.R. at 1526a.) The trial court explained that if it “were
to take over the case now and dismiss the jury . . . it could later be claimed that this
Court had not been sitting as a finder of fact from the start” resulting in the trial
court being accused of bias. (Trial Tr. at 12, R.R. at 1520a.) Thus, the trial court
concluded that the fairest and least problematic course of action was to allow the
jury to hear the whistleblower claim and “simply give them appropriate
instructions on what to consider.” (Trial Tr. at 11-12, R.R. at 1519a-20a.)


      We recognize that the submission of the whistleblower claim to the jury in
this matter was not actually a mistake because the trial court was aware that
Officer Zenak was not entitled to a jury trial. However, under the circumstances of
this case, the trial court’s belief that submitting the whistleblower claim to the jury
was the fairest and least problematic course of action was not harmless error, but


                                          27
instead was prejudicial to the City. It was due to Officer Zenak’s “maneuvering”
and the trial court’s misunderstanding the nature of the City’s Second Motion to
Bifurcate that the trial court conceded its fact finding function to the jury. If the
trial court had understood from the beginning that the City had moved to bifurcate
before the trial commenced and would not have summarily dismissed the Second
Motion to Bifurcate when trial began, the trial court would not have been placed in
an untenable position.     It could have functioned as the fact finder on the
whistleblower claim from the very beginning of the trial and avoided the resulting
problems. Moreover, given the evidence presented by the parties, we cannot state
with certainty that the trial court would have reached the same conclusion as the
jury on the whistleblower claim. See Dombeck, 40 F.3d at 237 (Court of Appeals
was “hesitat[ant] to say that only one reasonable conclusion was possible from the
evidence or that the [trial] judge would not have been justified in disregarding the
jury’s verdict”). While the trial court stated that “[t]he jury was free to believe or
disbelieve this evidence as it saw fit,” there is no indication what result the trial
court would have reached. (Trial Ct. Op. at 11.) It is, therefore, possible that the
evidence the trial court would have believed or disbelieved could have supported a
judgment for the City. Thus, we cannot also state with certainty that the trial
court’s decision to submit the whistleblower claim to the jury was harmless and not
prejudicial to the City.


      We now turn to the question of whether the City is entitled to an entirely
new trial. As recognized by the Seventh Circuit, “an appellate court reviewing a
cold record” is “unable to make credibility determinations and to resolve existing
factual disparities,” but the trial court here “would not operate under the same


                                         28
disability” because the “court heard the evidence along with the jury.” Id. As
such, the error here in submitting Officer Zenak’s whistleblower claim to the jury
could be cured by the trial court making independent findings of fact and
conclusions of law. Id. Moreover, if the trial court believes that it must conduct
further proceedings to resolve Officer Zenak’s whistleblower claim, including a
new bench trial, that decision is within the trial court’s discretion. Id.


       Accordingly, the City has demonstrated that the trial court’s decision to
submit the whistleblower claim to the jury was prejudicial and, therefore,
constitutes error. As such, we will remand this matter for further proceedings on
the whistleblower claim in accordance with this opinion.17


   IV. CONCLUSION
       For the foregoing reasons, we affirm the trial court’s Order denying Officer
Zenak’s post-trial motion and reverse the trial court’s Orders denying the City’s
post-trial motions. This matter is remanded to the trial court to make independent
findings of fact and conclusions of law on Officer Zenak’s whistleblower claim or,
in its discretion, hold a new bench trial.



                                                ________________________________
                                                RENÉE COHN JUBELIRER, Judge




       17
           Due to our disposition of this issue, we need not address the other issues raised by the
City in its appeal to this Court.

                                                29
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Paul Zenak                             :
                                       :
             v.                        :   No. 1194 C.D. 2014
                                       :
Police Athletic League of              :
Philadelphia, City of Philadelphia     :
                                       :
Appeal of: City of Philadelphia        :

Officer Paul Zenak,                    :
                                       :
                         Appellant     :
                                       :
             v.                        :   No. 1801 C.D. 2014
                                       :
Police Athletic League of Philadelphia :


                                     ORDER

      NOW, January 6, 2016, the June 24, 2014 Order of the Court of Common
Pleas of Philadelphia County (trial court) denying “Plaintiff’s Motion for Post-
Trial Relief” is AFFIRMED; the June 24, 2014 Orders of the trial court denying
“Defendant City of Philadelphia’s Motion for Post-Trial Relief” and the
“Defendant City of Philadelphia’s Supplemental Motion for Post-Trial Relief” are
REVERSED. This matter is REMANDED for further proceedings in accordance
with the foregoing opinion.
      Jurisdiction relinquished.


                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge
