J-A08039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CATHERINE GUARNIERI                                         IN THE SUPERIOR COURT OF
                                                                  PENNSYLVANIA
                            Appellant

                       v.

GUARDIAN WARRANTY CORPORATION
AND CIVIC PARTNERS, LP D/B/A
GUARDIAN WARRANTY CORP.

                            Appellees                          No. 1328 MDA 2014


                  Appeal from the Order Entered July 17, 2014
                In the Court of Common Pleas of Luzerne County
                         Civil Division at No.: 17752-08


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                                         FILED JUNE 02, 2015

       Catherine Guarnieri appeals from the order entered on July 17, 2014,

which granted the motion for summary judgment filed by Guardian Warranty

Corporation     and    Civic   Partners,       LP   d/b/a    Guardian   Warranty   Corp.

(collectively, “Guardian”). We affirm.

       The trial court set forth the facts of the case as follows:

       Upon commencement of her employment [at Guardian],
       [Guarnieri] was provided with a copy of [Guardian’s] employee
       handbook which sets forth the policies and procedures for
       terminating the employee-employer relationship.      [Guarnieri]
       signed an Employee Acknowledgment Form confirming that she
       received and reviewed the handbook. The acknowledgement
       states “either I or Guardian Warranty Corporation can terminate

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A08039-15


     the relationship at will, with or without cause, at any time, so
     long as there is no violation of applicable federal or state law.”

     [Guardian’s] employee handbook specifically set[s] forth the
     policy governing medical leaves of absence. It states:

                               *     *     *

        Eligible employees are normally granted leave for the
        period of disability, up to a maximum of 12 weeks within
        any 12 month period. . . .

                               *     *     *

        When a medical leave ends, the employee will be
        reinstated to the same position, if it is available, or to an
        equivalent position for which the employee is qualified.

        If an employee fails to return to work on the agreed upon
        return date, [Guardian] will assume that the employee has
        resigned. . . .

     On October 17, 2006[, Guardian] adopted a revised employee-
     employer handbook which reiterated that eligible employees are
     entitled to a maximum of 12 weeks for a medical leave of
     absence within any twelve month time period.

     The revised medical leave policy stated that if an employee fails
     to return to work on the agreed upon return date, [Guardian]
     will assume that the employee has resigned.

     On March 1, 2007, [Guarnieri] maintains that she sustained a
     work related injury.     [Guarnieri] alleged she was putting
     paperwork away when she felt a “pop” in her neck. On March 6,
     2007[, Guardian] reported the injury to its workman’s
     compensation carrier, indicating that [Guarnieri] was making a
     claim for workman’s compensation benefits. On April 23, 2007,
     a month and 22 days after [Guarnieri] filed her workmen’s
     compensation claim, [Guardian] promoted [Guarnieri] to the
     position of business analyst, with a pay raise accompanying the
     new job.

     . . . [Guarnieri] provided [Guardian] with a note from her family
     physician stating that she was unable to work until further notice
     (due to her work injury). On June 25, 2007[,] [Guarnieri] was
     approved for Family Medical Leave under the [Family Medical
     Leave Act (“FMLA”)]. On July 25, 2007, [Guardian] sent a letter

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     to [Guarnieri’s] home address, via certified mailing, that under
     the FMLA [Guarnieri’s] job was protected for up to 12 weeks and
     that she would be reinstated to the same or an equivalent
     position when she returned. This correspondence also advised
     [Guarnieri] that she was required to provide a fitness for duty
     certificate prior to being restored to employment. . . .

                               *     *    *

     [Guarnieri] did not respond to [Guardian] correspondence and
     accepted [Guardian’s] payment of her health insurance
     premiums while she was on approved medical leave.

     On October 2, 2007[,] [Guardian] sent [Guarnieri] a letter via
     certified mail stating in pertinent part the following:

        “We have not heard from you since you began your leave
        of absence under FMLA. Your 90 days have passed and
        your leave has expired. Since your medical leave has now
        expired, you need to contact me to make arrangements for
        your medical insurance. If I do not hear from you by
        Monday, October 8, 2007, [Guardian] will no longer pay
        for your medical insurance, however, you will become
        eligible for COBRA coverage. . . .”

     It is undisputed [Guarnieri] never responded to [Guardian’s]
     letter[s] sent on July 25, 2007[,] or October 1, 2007.

     Then, on October 11, 2007 [Guardian] sent another certified
     mailing to [Guarnieri] explaining that [Guarnieri’s] health
     insurance provided by [Guardian] would end on October 22,
     2007[,] due to the end of her employment.

Trial Court Opinion (“T.C.O.”), 10/7/2014, at 2-4 (citations and footnote

omitted).

     On December 22, 2008, Guarnieri filed a complaint against Guardian

for wrongful termination, alleging that Guardian fired her for pursuing a

worker’s compensation claim.       On February 24, 2009, Guardian filed

preliminary objections and an answer with new matter. After multiple cross-

claims and motions by both parties, on May 23, 2014, Guardian filed a

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motion for summary judgment, which the trial court granted on July 17,

2014.    Guarnieri timely appealed to the trial court.     On August 18, 2014,

Guarnieri timely filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and the trial court entered its opinion

pursuant to Pa.R.A.P. 1925(a) on October 7, 2014.

        Guarnieri raises four questions for our review:

        1.    Whether the trial court determined credibility and weighed
        the evidence against [Guarnieri,] who was the non-moving
        party?

        2.    Whether the trial court evaporated [sic] a claim for
        wrongful discharge based on the filing of a worker[’s]
        compensation claim since any plaintiff would be off work due to
        the work[-]related injury that caused the filing for worker[’s]
        compensation benefits; and therefore, the absence from work
        cannot itself allow an employer to terminate an employee who is
        receiving worker’s compensation benefits?

        3.   Whether the trial court confused a regular medical leave of
        absence with a leave due to a work related injury that does not
        have to follow the Family Medical Leave Act (FMLA) or any
        employer policy?

        4.     Whether the trial court erroneously held the evidence in
        the light most favorable to [Guardian] since [Guarnieri] showed
        [Guardian’s]    Human     Resource    person’s    open    hostility,
        [Guardian]      actively    fighting   [Guarnieri’s]    worker[’]s
        compensation claim, termination without cause just 5 months
        following the application for workers compensation benefits, and
        a judge’s ruling that [Guardian] contesting [Guarnieri’s] worker’s
        compensation claim was unreasonable, which all should have
        allowed the causation issue to be heard by a jury?




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J-A08039-15



Guarnieri’s Brief at 3-4.1

       Our review on an appeal from the grant of a motion for summary
       judgment is well-settled. A reviewing court may disturb the
       order of the trial court only where it is established that the court
       committed an error of law or abused its discretion. As with all
       questions of law, our review is plenary.

       In evaluating the trial court’s decision to enter summary
       judgment, we focus on the legal standard articulated in the
       summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
       where there is no genuine issue of material fact and the moving
       party is entitled to relief as a matter of law, summary judgment
       may be entered. Where the non-moving party bears the burden
       of proof on an issue, he may not merely rely on his pleadings or
       answers in order to survive summary judgment. Failure of a
       non-moving party to adduce sufficient evidence on an issue
       essential to his case and on which it bears the burden of proof
       . . . establishes the entitlement of the moving party to judgment
       as a matter of law. Lastly, we will view the record in the light
       most favorable to the non-moving party, and all doubts as to the
       existence of a genuine issue of material fact must be resolved
       against the moving party.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.

2001) (citations and internal quotation marks omitted). Furthermore,

       [W]e apply the same standard as the trial court, reviewing all
       the evidence of record to determine whether there exists a
       genuine issue of material fact. . . .


____________________________________________


1
        Guarnieri’s brief addresses three issues that do not align precisely with
her statement of the questions involved. See Pa.R.A.P. 2116, 2119. We will
address her issues as set forth in the argument section of her brief, and will
not review any issues raised in her statement but later abandoned. See In
re Jacobs, 936 A.2d 1156, 1167 (Pa. Super. 2007) (holding that an issue is
waived for purposes of appellate review when an appellant does not develop
it in the brief).



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     Motions for summary judgment necessarily and directly implicate
     the plaintiff’s proof of the elements of [her] cause of action.
     Summary judgment is proper if, after the completion of
     discovery relevant to the motion, including the production of
     expert reports, an adverse party who will bear the burden of
     proof at trial has failed to produce evidence of facts essential to
     the cause of action or defense which in a jury trial would require
     the issues to be submitted to a jury. Pa.R.C.P. 1035.2. Thus, a
     record that supports summary judgment will either (1) show the
     material facts are undisputed or (2) contain insufficient evidence
     of facts to make out a prima facie cause of action or defense
     and, therefore, there is no issue to be submitted to the jury.
     Upon appellate review, we are not bound by the trial court’s
     conclusions of law, but may reach our own conclusions. The
     appellate [c]ourt may disturb the trial court’s order only upon an
     error of law or an abuse of discretion.

     Judicial discretion requires action in conformity with law on facts
     and circumstances before the trial court after hearing and
     consideration. Consequently, the court abuses its discretion if,
     in resolving the issue for decision, it misapplies the law or
     exercises its discretion in a manner lacking reason. Similarly,
     the trial court abuses its discretion if it does not follow legal
     procedure.

     Where the discretion exercised by the trial court is challenged on
     appeal, the party bringing the challenge bears a heavy burden.

     . . . [I]t is not sufficient to persuade the appellate court that it
     might have reached a different conclusion if . . . charged with
     the duty imposed on the court below; it is necessary to go
     further and show an abuse of the discretionary power. An abuse
     of discretion is not merely an error of judgment, but if in
     reaching a conclusion the law is overridden or misapplied, or the
     judgment exercised is manifestly unreasonable, or the result of
     partiality, prejudice, bias or ill will, as shown by the evidence or
     the record, discretion is abused.

Nat’l Cas. Co. v. Kinney, 90 A.3d 747, 752-53 (Pa. Super. 2014) (citations

and internal quotation marks omitted).




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      In her first issue as argued, Guarnieri asks us to determine whether it

was “for the trial court to determine issue of facts [sic] and weigh the

evidence?” Guarnieri’s Brief at 9. This issue is waived.

      Guarnieri has failed to develop this issue coherently.      See Pa.R.A.P.

2119(a)-(c). Guarnieri’s argument on this issue consists solely of quotations

from a United States Supreme Court case observing the general standard of

judicial review for summary judgment.        Guarnieri’s Brief at 9-10 (citing

Tolan v. Cotton, 134 S. Ct. 1861 (2014)). She fails to identify any facts

that the trial court allegedly determined or weighed, and her bald assertion

of the trial court’s duty is insufficient for us to review. See Ruspi v. Glatz,

69 A.3d 680, 689 (Pa. Super. 2013) (citing Pa.R.A.P. 2119).         Accordingly,

she has waived her first issue.

      Second, Guarnieri contends that “[c]ausation was an issue of fact since

[Guarnieri] established evidence of animus, a termination without reason,

and only five months transpired between the filing of the worker[’s]

compensation claim and [Guarnieri’s] firing[.]” Guarnieri’s Brief at 10. We

disagree.

      Pennsylvania courts utilize the analytical model adopted by the
      United States Supreme Court in McDonnell Douglas Corp. v.
      Green, 411 U.S. 792 (1973). Fairfield Twp. Vol. Fire Co. No.
      1 v. Commonwealth, Pennsylvania Human Relations
      Comm’n, 609 A.2d 804, 805 (Pa. 1992). Under that model, the
      plaintiff bears the burden of establishing a prima facie case of
      discrimination by a preponderance of the evidence. Bailey v.
      Storlazzi, 729 A.2d 1206, 1212 (Pa. Super. 1999). . . .

      If plaintiff proves his or her prima facie case, the burden shifts to
      the defendant to articulate a legitimate, non-discriminatory

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J-A08039-15


     reason for the employment action. Bailey, 729 A.2d at 1212. If
     defendant meets this burden, then plaintiff has the opportunity
     to prove by a preponderance of the evidence that the legitimate
     reasons offered by the employer were not its true reasons, but,
     rather, a pretext for discrimination. Id. See also Texas Dep’t
     of Community Affairs v. Burdine, 450 U.S. 248 (1981). The
     ultimate burden of proving intentional discrimination returns to
     the plaintiff even after the employer offers its legitimate,
     nondiscriminatory reasons for the employment action. Bailey,
     729 A.2d at 1212. In other words, the ultimate burden of proof
     remains with the plaintiff throughout the entire case.

Campanaro v. Penn. Elec. Co., 738 A.2d 472, 476-77 (Pa. Super. 1999).

     Guarnieri contends that causation was at issue and that she

established a prima facie case for wrongful discharge because “she was fired

because she filed a workers’ compensation claim . . . [and] there was

animosity towards her from Ms. Nilon and [Guardian] since they were

veraciously [sic] fighting her workers compensation claim.” Guarnieri’s Brief

at 13. In response, Guardian articulated a legitimate reason for terminating

Guarnieri’s at-will employment:   upon the expiration of Guarnieri’s twelve-

week medical leave, Guarnieri received but failed to respond to Guardian’s

warnings that her medical insurance would expire and its queries as to

whether she would return to work. T.C.O. at 4-5. Thus, the burden shifted

back to Guarnieri “to prove by a preponderance of the evidence that the

legitimate reasons offered by the employer were not its true reasons, but,

rather, a pretext . . . .” Campanaro, 738 A.2d at 476-77.

     Guarnieri argues that Guardian’s legitimate reason for her dismissal

(that she failed to respond or return to work) was a mere pretext retaliating



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against her for her pursuing worker’s compensation after Guardian initially

denied her claim.

      For a plaintiff to demonstrate pretext, the Supreme Court has

articulated the following test: “She may succeed in this either directly by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation

is unworthy of credence.” Burdine, 450 U.S. at 256. Guarnieri has failed to

demonstrate a genuine issue of material fact indicating, either directly or

indirectly, that Guardian’s reason for her dismissal was pretextual.

      First, Guarnieri herself admits that she did not contact Guardian upon

notice of the pending termination of her health benefits. Nor did she seek

clarification of the reasons for which she was dismissed.        See Guarnieri

Deposition, 3/31/2014, at 115-16.        Thus, Guarnieri cannot show that

Guardian’s proffered reason for her dismissal was unworthy of credence.

      Second, Guarnieri’s purported evidence of retaliation fails to overcome

Guardian’s stated reason for dismissal. Guarnieri claims she did not know

that she could be terminated “without warning or notice that [her] job was

in jeopardy.” Guarnieri’s Brief at 13. However, the record establishes that

Guarnieri acknowledged receiving her employee handbook on March 31,

2005, which stated, “I have entered into my employment relationship with

[Guardian] voluntarily and acknowledge that there is no specified length of

employment.      Accordingly, either I or [Guardian] can terminate the

relationship at will, with or without cause, at any time, so long as there is no

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J-A08039-15



violation of applicable federal or state law.”   Employee Acknowledgement

Form, 3/21/2005. The form further states: “I acknowledge that revisions to

the handbook may occur, except to [Guardian’s] policy of employment-at-

will. . . . I understand that revised information may supersede, modify, or

eliminate existing policies.”   Id.     Thus, Guarnieri was responsible for

knowing the information in the employee handbook and subsequent

revisions.

      As of October 18, 2006, Guardian revised the manual to include the

following:

      Eligible employees are normally granted leave for the period of
      disability, up to a maximum of 12 weeks within any 12 month
      period. Any combination of medical leave and family leave may
      not exceed this maximum limit. . . .

      Employees who sustain work-related injuries are eligible for a
      medical leave of absence for the period of disability in
      accordance with all applicable laws covering occupational
      disabilities.

Medical Leave, Employee Manual, Effective 10/18/2006.

      Critically, the manual provides as follows: “[A]n employee on medical

leave is requested to provide [Guardian] with at least two weeks advance

notice of the date the employee intends to return to work.      .. .    If an

employee fails to return to work on the agreed upon return date, [Guardian]

will assume that the employee has resigned.” Id.

      Guarneri concedes that she was not terminated until five months after

she filed her worker’s compensation claim, well beyond the twelve weeks



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J-A08039-15



promised to her by Guardian. Due to Guarnieri’s failure to correspond with

Guardian, it was reasonable for Guardian to assume that Guarnieri had

resigned. See id. Guarnieri’s unsupported assertion that Gena Nilon had a

negative attitude2 does not overcome Guarnieri’s admitted failure to respond

to Guardian.       Thus, Guarnieri cannot show directly or indirectly that

Guardian’s reason for terminating her was pretextual.       See Burdine, 450

U.S. at 256.     The trial court did not err in granting Guardian’s motion for

summary judgment, and because Guarnieri failed to establish a question of

fact regarding causation.        Accordingly, Guarnieri’s second issue does not

merit relief.

       In her third issue, Guarnieri asks, “Is it error of law to hold that an

employee can only state a wrongful discharge in violation of public policy for

filing a workers compensation claim if she is currently working?” Guarnieri’s

Brief at 19. This issue is waived and would not merit relief.


____________________________________________


2
       Specifically, Guarnieri stated in her deposition:

       Gena gave me a hard time from the day I went to file my
       accident report. . . . Her attitude towards me was completely
       changed. She didn’t understand why I wanted to file an accident
       claim. She didn’t know how to do it and she had to get help.
       And she was just—her attitude towards me was just very
       negative.

Guarnieri Deposition, 3/31/2014, at 76-77. We agree with the trial court
that this illustrates, at best, a single instance of animus between Nilon and
Guarnieri, and not a pattern that established that the reasons for Guarnieri’s
dismissal were pretextual. See T.C.O. at 6-7.



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J-A08039-15



        Preliminarily, we observe that Guarnieri has failed to support her

allegation with any citations to the record or relevant case law.            See

Pa.R.A.P. 2119(a)-(c). Furthermore, her entire argument on this issue is as

follows:

        It defies common sense to require an employee to be on the job
        working to state a wrongful termination claim for having filed a
        worker[’s] compensation claim since by its own name that
        employee would be off work for having filed a worker[’s]
        compensation claim. Surprisingly, the trial court made such a
        requirement, which clearly devours a claim for wrongful
        discharge for filing a worker[’s] compensation claim.          The
        employee who files for worker[’s] compensation by essence
        would not be working. Therefore, the trial court erred when it
        made the legal finding that because [Guarnieri] was not actively
        working at the time of her discharge, she could not state a claim.

Guarnieri’s Brief at 19.

        Upon careful examination, we can find no conclusion by the trial court

that Guarnieri was required “to be on the job working to state a wrongful

termination claim for having filed a workers compensation claim[.]” Id.; cf.

T.C.O. at 5-8. Instead, the trial court correctly concluded that Guarnieri “did

not establish causation because she was terminated seven months after the

alleged protected activity. Nor does [Guarnieri] rely on any evidence of a

pattern of animus between the protected activity and the adverse action or

on any circumstantial evidence concerning [Guardian’s] motivation.” T.C.O.

at 7.    Accordingly, even if Guarnieri had properly developed her claim, it

would be contradicted immediately by the record before us.           This issue

would not merit relief.


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     Order affirmed. Jurisdiction relinquished.

     Judge Shogan joins the memorandum.

     Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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