PALAZZOLO v. DAMSKER et al

Filing 6

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 6/30/2011. 7/1/2011 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOANNE PALAZZOLO,
Plaintiff,
vs.

:
:
:
:
DAVID C. DAMSKER, BUCKS COUNTY, :
PENNSYLVANIA, BUCKS COUNTY,
:
PENNSYLVANIA HEALTH DEPARTMENT, :
JOHN DOE, RITA ROE, and all
:
others acting in concert with
:
them and/or on their behalf,
:
Defendants. :

:
CIVIL ACTION
NO. 10-CV-7430

MEMORANDUM AND ORDER
JOYNER, C.J.

June 30, 2011

Presently pending before this Court is the Motion for
Dismissal of the Plaintiff’s Complaint filed by the Defendants,
David C. Damsker (“Damsker”), Bucks County Pennsylvania (the
“County”), Bucks County Pennsylvania Health Department (the
“Health Department”), John Doe, Rita Roe, and all others acting
in concert with them and/or on their behalf (Doc. No. 3) pursuant
to Fed. R. Civ P. 12(b)(6). For the reasons outlined in the
following paragraphs, the Motion shall be granted.
Factual Background
According to the allegations in the Complaint,1 Plaintiff
1

Jurisdiction in this matter is predicated upon both federal
question pursuant to 28 U.S.C. §1331 as one of the claims is
based on the Age Discrimination in Employment Act, 29 U.S.C.
§621, and supplemental jurisdiction under 28 U.S.C. §1367 given
that the other claims are related to the original claim and they
form part of the same case or controversy under Article III of
the United States Constitution.

Joanne Palazzolo, was employed as the Business Manager in the
Health Department from January 2007 until August 18, 2010. The
Health Department is a department within Bucks County, financed
and operated by Bucks County.

The County is a political

subdivision of the Commonwealth of Pennsylvania. Defendant David
C. Damsker is the Director of the Health Department and is
responsible for the overall day-to-day operation and management
of the Health Department, and was Mrs. Palazzolo’s immediate
supervisor.

As the Health Department Business Manager, Plaintiff

served as an advisor to Defendant Damsker.

Plaintiff was

responsible for budget preparation, fiscal and grants management,
and participation in the development of both long and short term
plans relating to public health programs.

She was also

responsible for assisting Damsker in the maintenance of internal
fiscal controls and monitoring capital equipment purchases,
serving as a liaison on behalf of Damsker with other Bucks County
departments and row offices on fiscal matters, as well as with
federal and state grant and fiscal administrators, and for
developing and implementing departmental fiscal policies and
procedures for the Health Department in accordance with
government guidelines.
The current litigation arises out of Plaintiff’s termination
from the Health Department on August 18, 2010. Throughout her

2

employment, Plaintiff alleges that she observed incidents of
fraud and waste in connection with the time-keeping practices of
the Health Department which allowed employees to falsely report
their hours in order to obtain compensation.

Plaintiff

repeatedly reported the continuous theft of time in the Health
Department to Damsker and Damsker’s supervisors including Joseph
Funk, the Director of Human Services, and Brian Hessenthaler,
acting Chief Operating Officer, but Damsker and his supervisors
did not take any action in response to these reports.
On August 8th, 2010, Plaintiff reported to Mr. Hessenthaler
various instances of fraudulent time theft in the Health
Department; on August 9th she received a phone call from Mr. Funk
concerning her report from the previous day.

As a result of the

phone call, Funk visited the offices and met with Damsker.

That

same afternoon, Damsker sent an email to all the department
employees regarding the need for them to accurately sign-in and
sign-out of work for time record-keeping purposes.
On August 10th, Plaintiff received a call from the Assistant
County Controller, Kimberly Doran, requesting that Plaintiff meet
with her and the County Investigator, David Rouland, the next
day.

Plaintiff agreed to the meeting.

Before she left the

office on August 11th, Plaintiff signed out on the white board in
the Health Department office and stated she was on County
business.

At the meeting, Plaintiff answered questions about the

3

theft of time that she reported at the Health Department and
about an hourly employee in the Department who was permitted to
work from home, contrary to County policy.

At the end of the

meeting, Ms. Doran instructed Plaintiff not to disclose to anyone
the fact that they had met or the substance of their meeting.
Upon her return to the office, Damsker repeatedly questioned
Plaintiff about her whereabouts that afternoon; this questioning
continued the following day.

Ultimately, Plaintiff told Damsker

that she was out of the office on County business and would have
the person with whom she had met contact him and confirm.
Plaintiff was very upset by Damsker’s persistent questioning.
On the way home from work that day, Plaintiff got in a car
accident.

She was examined by her physician and was told that

she should not return to work until August 18th.

In the

meantime, Ms. Doran sent Damsker an email confirming that she met
with Plaintiff on August 11th on County business.
While at home, Plaintiff emailed Ms. Doran and Mr.
Hessenthaler requesting their protection from retaliation by Dr.
Damsker under the Pennsylvania Whistleblower Law.

Plaintiff

sent another email to Ms. Doran to the same effect a few days
later.

However, when Plaintiff returned to work on August 18th,

she was fired by Ms. Doran, who explained the reason she was
being fired was because she lied to Dr. Damsker about her
whereabouts on August 11th, 2010.

4

On December 21, 2010, Plaintiff initiated this lawsuit
seeking to recover damages under the theories of common law
wrongful discharge (Count I), the Pennsylvania Whistleblower Law,
43 P.S. § 1421 et seq.(“PWL”) (Count II), and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et. seq.
(“ADEA”) (Count III).

Plaintiff filed her Amended Complaint,

which asserts the same counts, on February 8, 2011.

Defendants

move to dismiss the wrongful discharge complaint against them
(Count I) on the grounds that the County and Damsker are entitled
to immunity under the Pennsylvania Political Subdivision Tort
Claims Act, 42 Pa. C. S. §8541, et. seq., and on the grounds that
Plaintiff’s claim for wrongful discharge is preempted by the PWL.
Defendants also move to dismiss Plaintiff’s claim for age
discrimination under the ADEA (Count III) for failure to state a
claim.

Finally, Defendants move to dismiss Plaintiff’s claims

for punitive damages as to the County in Count I and as to the
County and Dr. Damsker in Count II on the grounds that punitive
damages are unavailable to the Plaintiff.
Standards for Ruling on 12(b)(6) Motions
Under Rule 8 of the Federal Rules of Civil Procedure, a
plaintiff’s complaint must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a).

Under this Rule, a pleading “does not

require ‘detailed factual allegations,’ but it demands more than

5

an unadorned, the-defendant-unlawfully-harmed-me accusation.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868, 883
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929, 940 (2007)).
Although detailed factual allegations are not required, a
complaint that “tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement”’ is not sufficient.

Id. (citing Twombly,

550 U.S. at 555).
Federal Rule of Civil Procedure 12(b)(6) states that a
complaint may be dismissed for “failure to state a claim upon
which relief can be granted.”

Fed. R. Civ. P. 12 (b)(6).

In

order to survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 570).

In Iqbal, the Supreme Court

outlined a two-part analysis that district courts must conduct
when reviewing a complaint challenged under 12(b)(6).

Flower v.

UPMC Shadyside, 578 F. 3d 203, 210-11 (3rd Cir. 2009).

The

district court must first separate the “factual and legal
elements of a claim” and “accept all of the complaint’s well
pleaded facts as true, but may disregard any legal conclusions.”
Id. (quoting Iqbal, 129 S. Ct. at 1949).

Second, the district

court must determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a “plausible claim

6

for relief.” Id. (quoting Iqbal, 129 S. Ct. at 1950).

A

complaint must do more than allege the plaintiff’s entitlement to
relief, but instead must “show” such entitlement with its facts
in order to survive a motion to dismiss. Id.

Therefore,

“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
court to draw on its judicial experience and common sense.”
McTernan v. City of York, 577 F. 3d 521, 530 (3d Cir. 2009)
(quoting Iqbal, 129 S. Ct. at 1950).

Furthermore, in Wilkerson

v. New Media Technology Charter School, Inc., 522 F.3d 315 (3d
Cir. 2008), the court made it clear that the paradigm announced
in Twombly

applies with equal force to analyzing the adequacy of

claims of employment discrimination.

Wilkerson, 522 F. 3d at

322.
Discussion
1. Plaintiff’s Claim for Wrongful Discharge - Count I
Count I of the Plaintiff’s complaint is for wrongful
discharge, claiming that the defendants violated the public
policy of the Commonwealth of Pennsylvania by terminating her
employment.

Plaintiff alleges that the Defendants terminated her

because she reported and opposed the practice of employees in the
Health Department failing to sign-in and sign-out of work in
accordance with County policy, which resulted in their being
compensated for hours they did not work and stealing time from

7

the County.

As well, the complaint alleges that Defendants

terminated Plaintiff’s employment because she participated in an
investigation of this practice by the Bucks County Auditor by
providing truthful information in that investigation and
complying with all instructions and requests of the County
Auditor.
A.

Governmental Immunity

In response to the court’s abrogation of government immunity
in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584
(1973), the Pennsylvania Legislature enacted the Political
Subdivision Tort Claims Act, 42 Pa. C.S. §§ 8541-8564.

See,

Mascaro v. Youth Study Center, 514 Pa. 351, 355, 523 A.2d 1118,
1120 (1987).

The Act “raises the shield of governmental immunity

against any damages on account of any injury to a person or
property caused by any act of a local agency or employee thereof
or any other person, except as otherwise provided in 42 Pa. C. S.
§ 8542.” Id.
Defendants first argue that the wrongful discharge claim in
Count I of the Amended Complaint should be dismissed because the
County and Defendant Damsker are entitled to immunity under the
Tort Claims Act,

Plaintiff rejoins that neither the County nor

Damsker is entitled to immunity because Plaintiff’s damages were
caused by the negligent acts of Bucks County by firing her for
reporting waste or wrongdoing regarding public funds and because

8

Plaintiff’s employment with Bucks County is personal property
which was in the control of Bucks County and thus fall under two
of the

exceptions to immunity granted under the Tort Claims Act.
1. Bucks County’s Immunity

Under the Tort Claims Act, local agencies are generally
exempt from damages for any injuries caused by the agency or its
employees. 42 Pa. Cons. Stat §8541.

An injured party may recover

in tort from a municipality only if: (1) damages would be
otherwise recoverable under common law or statute; (2) the injury
was caused by the negligent act of the local agency or an
employee acting within the scope of his official duties; and (3)
the negligent act of the local agency falls within one of eight
enumerated categories.

42 Pa. Const Stat § 8542.

The eight

exceptions for which liability may be imposed on a municipality
are: (1) vehicle liability; (2) care, custody or control of
personal property; (3) care, custody, or control of real
property; (4) trees, traffic controls, and street lighting; (5)
utility service facilities; (6) streets; (7) sidewalks; and (8)
care, custody, or control of animals.

Additionally, a

municipality will not be held liable for the willful or wanton
misconduct of its employees.

Ballas v. City of Reading, No. 00-

CV-2943, 2001 U.S. Dist LEXIS 637 at *32 (E.D. Pa Jan. 26,
2001)(citing Verde v. City of Philadelphia, 862 F. Supp. 1329,
1336 (E.D. Pa. 1994).

Since the Legislature’s intent was to

9

provide immunities, the Pennsylvania Supreme Court has held that
the exceptions to immunity should be narrowly construed. Finn v.
City of Philadelphia, 541 Pa. 596, 601, 664 A.2d 1342, 1344
(1995).

See Also, Kiley by Kiley v. City of Philadelphia, 537

Pa. 502, 506, 645 A.2d 184, 185-86 (1994)(“Because of the clear
intent to insulate government from exposure to tort liability for
any of its acts, exceptions carved out by the Legislature from
this general rule are strictly construed.”); Mascaro, 514 Pa. at
361 (explaining that exceptions to governmental immunity are to
be "narrowly interpreted . . . given the expressed legislative
intent to insulate political subdivisions from tort liability”).
Wrongful termination is a common law tort claim that does
not fall within the exceptions to immunity laid out in § 8542.
Haiden v. Greene, No. 08-1481, 2009 U.S. Dist. Lexis 64409
(W.D. Pa. July 27, 2009).

at *6

See Also, Snavely v. Arnold, No. 08-

2165, 2009 U.S. Dist LEXIS 51415 at *22 n.8 (M.D. Pa. June 18,
2009)(citing Lancine v. Giles, 572 A.2d 827, 830 (Pa. Commw. Ct.
1990) (explaining wrongful discharge is not one of the
articulated exceptions to 42 Pa. C. S. A. § 8541-8542); McNichols
v. Commonwealth, Dep’t. Of Transporation, 804 A.2d. 1264, 1267
(Pa. Commw. Ct. 2002) (explaining that wrongful discharge does
not fall within any of the exceptions outlined in § 8542);
Katzenmoyer v. City of Reading, 158 F. Supp 2d 491, 502-03 (E.D.
Pa. 2001) (granting motion to dismiss for wrongful discharge
10

claim as to the city employer because Tort Claims Act bars claims
for intentional torts).

What’s more, Plaintiff’s complaint

alleges that the wrongful discharge was an intentional tort
committed by the County’s employees.

Thus, insofar as wrongful

discharge is not one of the eight enumerated exceptions to
immunity and since a County cannot be held liable for the
intentional acts of its employees, Bucks County is entitled to
immunity from this suit.
We also find no merit to Plaintiff’s argument that her
wrongful discharge claim falls within the exception dealing with
the care, custody or control of personal property.

In

Pennsylvania, public employees are deemed to be at-will employees
and cannot be provided with tenure unless there is express
legislative authority to do so.
170 (3d Cir. 1986).

Brown v. Trench, 787 F. 2d 167,

Pennsylvania courts will find a property

right in public employment “only where the employee has an
enforceable expectation of continued employment which can exist
only if the employee, by statute or contract, has been granted
some form of guarantee.”

Hoffman v. Thome, No. 01-5622, 2002

U.S. Dist LEXIS 2695 at *5 (E.D. Pa. Feb 15, 2002) (quoting
Batson v. Montgomery County, 557 A.2d 65, 66 (Pa. Commw. Ct.
1989)).
In reviewing Count I, we discern no averments that Plaintiff
had any tenure rights or other reasonable expectation of

11

continued employment as the result of a contractual or statutory
guarantee.

Thus we find that Plaintiff is an at-will employee

with no property right in her employment.

Although the PWL

guarantees that “[t]he County will not retaliate against an
employee who (1) makes a good faith report verbally or in writing
to the director of human resources or appropriate authority about
an instance of waste or wrongdoing or (2) participates in the
investigation of a report of waste or wrongdoing, or in a
hearing, or court action,” 43 P.S. § 1421 et seq., the statute
does not create an expectation of continued employment.

Rather,

the PWL just ensures that no one will be retaliated against for
their acts.

Therefore, in light of the policy of the

Pennsylvania courts to narrowly construe the exceptions to the
Torts Claims Act, we find that Plaintiff’s claim does not fit
into the private property exception.
For all of these reasons, the motion to dismiss the County
of Bucks on grounds that it is shielded by the immunity conferred
on it by Pennsylvania’s Political Subdivision Tort Claims Act is
granted.
2. Defendant Damsker’s Immunity
The Defendants, in the motion to dismiss, further state that
Defendant Damsker is also entitled to immunity under the Tort
Claims Act.

In response, Plaintiff claims that Defendant Damsker

acted with willful misconduct and therefore should not be immune

12

under the Act.
The Tort Claims Act likewise extends immunity from liability
to officials acting within the scope of their duties to the same
extent as the local agency, except for acts constituting a crime,
actual fraud, actual malice or willful misconduct.
§§ 8545, 8550.

42 Pa. C. S.

The Pennsylvania Supreme Court has explained that

in order to qualify as willful misconduct the actor must have
desired to bring about the result that followed, or was at least
aware that the result was substantially certain to ensue.

Evans

v. Philadelphia Transp. Co., 418 Pa. 567, 574, 212 A. 2d 440, 443
(1965).

See Also, Associates in Obstetrics & Gynecology v. Upper

Merion Township,

270 F. Supp 2d 633, 663 (E.D. Pa. 2003)

(quoting Robbins v. Cumberland County Children & Youth Services,
802 A.2d 1239, 1253 (Pa. Commw. Ct. 2003). (“For purposes of tort
law, the state of Pennsylvania has defined willful misconduct as
conduct whereby ‘the actor desired to bring about the result that
followed or at least was aware that it was substantially certain
to follow, so that such desire can be implied’”).

Furthermore,

the accepted standard of review when considering a motion to
dismiss is one that considers all reasonable inferences in
plaintiff’s favor.
604 (3rd Cir. 1998).

Ford v. Schering-Plough Corp., 145 F.3d 601,
Therefore, plaintiff’s claim can only be

dismissed if plaintiff can prove no set of facts to support his
claim which would entitle him to relief. Id. at 604.

13

In reviewing the complaint for compliance with the standard
set forth above, we find that Plaintiff has averred sufficient
facts to prove that Defendant Damsker desired to bring about the
result that followed, i.e., having Plaintiff fired, or was
substantially certain that the result would occur.

In this

regard, the complaint references Defendant Damsker’s “nefarious
motives,” Defendant Damsker’s repeated interrogation of Mrs.
Palazzolo about her whereabouts the afternoon she met with Ms.
Doran, and Defendant Damsker’s instructions for Mrs. Palazzolo to
bring in a note from her physician upon her return to work after
her car accident, which was not mandated by County policy.
Additionally, Count I alleges that Defendants terminated Mrs.
Palazzolo’s employment because she opposed the time-keeping
practices of the employees in the Health Department and because
she participated in the investigation of the Bucks County
Auditor. In viewing all reasonable inferences in Plaintiff’s
favor, we can infer that Defendant Damsker desired or was
substantially certain that Mrs. Palazzolo would be fired.
Therefore the motion to dismiss on grounds that defendant Damsker
is shielded by Tort Claims Act immunity is denied.
B. Preemption
The Defendants next move for dismissal of Count I of the
Amended Complaint on the grounds that the wrongful discharge
claim is preempted by the Pennsylvania Whistleblower Law, 43 P.S.

14

§ 1421, et seq.

Plaintiff argues that both claims should be able

to go forward.
Pennsylvania law does not recognize a common law cause of
action for violating public policy when there is an existing
statutory remedy. Preobrazhenskaya v. Mercy Hall Infirmary, 71
Fed. Appx. 936, 2003 U.S. App. LEXIS 16347 at *12. (3rd Cir.
2003). See Also, Wolk v. Saks Fifth Avenue, Inc., 782 F.2d 223,
224 n.3 (3rd Cir. 1984) (“The availability of a [statutory] remedy
precludes other common law remedies even where the statute is not
invoked”); Bruffett v. Warner Communications, Inc., 692 F.2d 910,
918-19 (3d. Cir. 1982); Jacques v. AKZO International Salt.,
Inc., 619 A.2d 748,753 (Pa. Super Ct. 1993) (citing Clay v.
Advanced Computer Applications, 559 A.2d 917, 918 (Pa. 1989))
(“It is well-settled that the courts will not entertain a
separate common law action for wrongful discharge where specific
statutory remedies are available.”).

Furthermore, it is the

existence of a statutory claim, and not the success of one that
determines preemption.

DeMuro v. Philadelphia Housing Authority,

No. 98-3137, 1998 U.S. Dist LEXIS 20412 at *17 (E.D. Pa. Dec 21,
1998) (emphasis added and quoting Jacques, 619 A.2d at 753).

The

reason for this rule is to prevent a claimant from circumventing
the legislative procedures of the applicable statute.

Scholly v.

JMK Plastering, Inc., No. 07-4998, 2008 U.S. Dist LEXIS 49958 at
*13 (E.D. Pa. June 27, 2008) (quoting Bruffett, 692 F.2d at 919).

15

Moreover, courts in this district have dismissed wrongful
discharge claims when a plaintiff has also alleged a claim under
the PWL.

See, Rinehart v. Mt. Penn Borough Municipal Authority,

No. 01-5628, 2002 U.S. Dist. LEXIS 24724, at *35-36 (E.D. Pa.
Dec. 19, 2002) (dismissing wrongful discharge claim because
“[t]he Pennsylvania legislature appears to have enacted the
Whistleblower Law specifically to protect the interest of public
employees and the public at large in circumstances such as those
alleged, and [the plaintiff] had an appropriate statutory
remedy”); Katzenmoyer v. City of Reading, 158 F. Supp. 2d 491,
503 (E.D. Pa. 2001)(dismissing a wrongful discharge claim because
the claim might fall under the PWL); DeMuro, 1998 U.S. Dist LEXIS
20412 at *17 (granting a motion to dismiss a wrongful discharge
claim because the plaintiff had a statutory remedy under the
PWL); Freeman v. Mckellar, 795 F. Supp 733, 742 ( E.D. Pa Dec.
19, 2002) (granting a motion to dismiss for a wrongful discharge
claim because the plaintiff had a statutory remedy under the
PWL).
In the present case Plaintiff has alleged a PWL claim in the
amended complaint. Therefore, assuming that the allegations are
true, Plaintiff has an appropriate statutory remedy under the PWL
and thus may not also allege a wrongful discharge claim.
Accordingly, Count I of the amended complaint shall be dismissed
in its entirety.

16

2.

Plaintiff’s Age Discrimination Claim - Count III

Defendants next move for dismissal of Plaintiff’s claim for
age discrimination under the Age Discrimination in Employment
Act, 29 U.S.C. § 621, et. seq. (“ADEA”)(Count III) because
Plaintiff fails to state a claim.

Plaintiff believes she has

averred a short and plain statement of the case and the question
of whether the allegations are proven should be left to the
summary judgement and trial phases of the case.
The ADEA prohibits employers from discriminating against
individuals in the hiring, discharge, compensation, terms,
conditions, or privileges of employment on the basis of their
age.

29 U.S.C. § 621.

Congress enacted the ADEA because of

concern that older workers were being fired from their employment
because of “inaccurate and stigmatizing stereotypes.”

Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706,
123 L. Ed. 338, 347 (1993).

Therefore, the ADEA requires that

employers evaluate employees based on their merits and not based
on their age.

Id. at 611 (quoting Western Air Lines, Inc. v.

Criswell, 472 U.S. 400, 422, 105 S. Ct. 2743, 2756, 86 L. Ed. 2d
321, 338-39 (1985)).

The employer must focus directly on an

employee’s characteristics and not use age as a proxy for
determining the employee’s ability. Id.
According to the Third Circuit, to establish a prima facie
case of age discrimination a plaintiff must show he or she: (1)

17

was a member of the protected class, i.e., was over 40, (2) was
qualified for the position, (3) suffered an adverse employment
decision, and (4) ultimately was replaced by a person
sufficiently younger to permit an inference of age
discrimination.

Monaco v. Am. Gen. Assurance Co., 359 F.3d 269,

300 (3d Cir. 2004).

The complaint must give enough factual basis

to provide fair notice to the defendant of the allegedly unlawful
conduct and to push the claim "across the line from conceivable
to plausible."

Pekar v. U.S. Steel/Edgar Thomson Works, No. 09-

844, 2010 U.S. Dist. LEXIS 7481 at *26 (W.D. Pa. Jan 29, 2010).
See, Iqbal, 129 S. Ct. at 1951; Flower v. UPMC Shadyside, 578
F.3d at 213 (3rd Cir. 2009).

Following Iqbal, the United States

Court of Appeals for the Third Circuit has instructed that
district courts should first separate the factual and legal
elements of a claim and then, accepting the "well-pleaded facts
as true," "determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a 'plausible claim
for relief.'" Pekar, No. 09-844, 2010 U.S. Dist. LEXIS 7481 at
*26 (citing Fowler, 578 F.3d at 210-11).

Therefore, “a mere

allegation that an adverse employment action was motivated by
age, without more, is the type of conclusory allegation which the
Supreme Court has found insufficient.”

Pekar, 2010 U.S. Dist.

LEXIS 7481 at *27. See Also, Twombly, 550 U.S. at 555; Iqbal, 129
S.Ct. at 1950.

18

In reviewing the complaint in this case, we find that it
asserts factual allegations that: (1) Plaintiff filed a charge of
discrimination with the EEOC, (2) Plaintiff was 54 years old at
the time of her discharge, (3) Plaintiff’s age was a “motivating”
factor behind her discharge and (4) “Defendants” discrimination
against her because of her age was “willful.”

However, absent

from the pleaded facts is an allegation that the Plaintiff was
replaced by a sufficiently younger individual.

Therefore, the

court agrees that the allegations outlined in the complaint are
not sufficient to satisfy the Iqbal test and thus Count III of
the amended complaint is dismissed with leave to amend one final
time.
4.

Plaintiff’s Punitive Damages Claims – Counts I and II.

Defendants next move to dismiss Plaintiff’s claims for
punitive damages under the wrongful discharge claim as to the
County in Count I and under the PWL as to the County and
Defendant Damsker in Count II as punitive damages are unavailable
to Plaintiff. Plaintiff responds that although some courts have
held that punitive damages are unavailable under the PWL, the
Supreme Court of Pennsylvania has not ruled on the issue.
Therefore, Plaintiff asks that her claims for punitive damages
not be dismissed.
A. Punitive damages for wrongful discharge - Count I
Defendants claim regarding the punitive damages for wrongful

19

termination will not be addressed because, as previously
discussed, the claim has been dismissed in its entirety.
B. Punitive Damages under the PWL - Count II
Section 1425 of the PWL states:
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 (2010).
The statute also provides for the imposition of a civil fine
of no more than $500, if the court finds that the violation was
committed with the intent to prevent the disclosure of criminal
activity. 43 P.S. § 1426.
In O’Rourke v. Pennsylvania Department of Corrections, 778
A.2d. 1194, 1202-03 (Pa. 2001), the Pennsylvania Supreme Court
noted that punitive damages are unavailable under the PWL.

And,

in Romano v. Bucks County Water & Sewage Authority, No. 03-2296,
2004 U.S. Dist LEXIS 4919 at *3 (E.D. Pa. Mar. 25, 2004), our
colleague, Judge McLaughlin explained that the plain language of
the PWL strongly suggests punitive damages are unavailable under
the statute.

Judge Brody of this court has also ruled that the

PWL does not include an award of punitive damages.

Rankin v.

City of Philadelphia, 963 F. Supp 463, 480 (E.D. Pa. 1997).
20

Indeed, Judge Brody explained that the PWL does not mention
punitive damages and this omission does not seem to be an
oversight on the part of the General Assembly. Id. at 478.

The

law indicates a comprehensive list of available remedies and the
General Assembly provided this detailed list to provide the
remedies it thought necessary to achieve the statute’s purpose.
Id.

They did not include punitive damages but instead used the

phrase “actual damages” which, as the Rankin decision points out,
generally denotes compensatory damages.

Id.

The court goes on

to say it seems implausible that the General Assembly simply
overlooked punitive damages.

Id.

The court therefore found that

the General Assembly deliberately chose not to extend this remedy
to plaintiffs under the PWL and granted the defendant’s motion
for summary judgment on punitive damages. Id. at 480.

See Also,

Lawrence v. City of Bethlehem, No. 97-CV-1824, 1999 U.S. Dist.
LEXIS 2838 at *19 (E.D. Pa. Mar. 1, 1999)(granting defendants'
motion for summary judgment on punitive damage claims under the
Whistleblower Law); Freese v. Centennial School District, No. 981773, 1999 U.S. Dist. LEXIS 11710 at *4 (E.D. Pa. July 22, 1999)
(granting defendant’s motion to strike plaintiff’s claim for
punitive damages under the Whistleblower Law).
Moreover, under Pennsylvania law when a statute provides a
particular remedy, that remedy is exclusive.
at 1202-03(citing Pa. C.S. § 1504).

21

O’Roarke, 778 A.2d.

Therefore a finding that

punitive damages are allowed under the PWL would conflict with
the directions of the Pennsylvania Supreme Court. Rankin, 963 F.
Supp. at 478. See Also, Oteri Appeal, 372 Pa. 557, 561 (Pa.
1953)(quoting Derry Township School District v. Barnett Coal Co.,
332 Pa. 174, 2 A.2d 758, 760 (Pa. 1938))) ("When a statute
provides a remedy by which a right may be enforced, no other
remedy than that afforded by the statute can be used.").
In reviewing Count II in light of the foregoing, we are
constrained to agree with the Defendants that punitive damages
are unavailable to the Plaintiff and therefore Plaintiff’s claim
for punitive damages under Count II shall also be stricken.
It is for all of the foregoing reasons that the motion to
dismiss is granted pursuant to the attached order.

22

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOANNE PALAZZOLO,
Plaintiff,
vs.

:
:
:
:
DAVID C. DAMSKER, BUCKS COUNTY, :
PENNSYLVANIA, BUCKS COUNTY,
:
PENNSYLVANIA HEALTH DEPARTMENT, :
JOHN DOE, RITA ROE, and all
:
others acting in concert with
:
them and/or on their behalf,
:
Defendants. :

:
CIVIL ACTION
NO. 10 -CV-7430

ORDER

AND NOW, this

day of June, 2011, upon consideration

of Defendants’ Motion to Dismiss (Doc. No. 3), Defendants’ Brief
in support thereof, and Plaintiff’s Memorandum in opposition
thereto, it is hereby ORDERED that the Motion is GRANTED, Count I
of Plaintiff’s Complaint and Plaintiff’s claims for punitive
damages set forth in Counts I and II are DISMISSED with
PREJUDICE, and Plaintiff’s claim for violation of the ADEA set
forth in Count III is DISMISSED with leave to file re-plead
within ten (10) days of the entry date of this Order.
BY THE COURT:

J. CURTIS JOYNER,

C.J.