IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred J. Russo, :

Petitioner :

:

v. : No. 185 M.D. 2015

: Submitted: June 12, 2015

Allegheny County, :

and the Court of Common Pleas :

of Allegheny County, Pennsylvania, :

Criminal Division, :

Respondents :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: October 7, 2015 

Before the Court are the preliminary objections filed by the Court of 

Common Pleas of Allegheny County, Criminal Division (CCP) to the complaint

filed by Alfred J. Russo, following his termination from employment with CCP in 

2009. This matter was initially filed in the Court of Common Pleas of Allegheny 

County1(Trial Court) against CCP and Allegheny County as dual employers. The 

Trial Court transferred the action against CCP to this Court based on the Trial 

Court’s lack of jurisdiction over claims asserted against Commonwealth parties, 

 

1

In order to avoid confusion regarding the dual role of the Court of Common Pleas of Allegheny 

County as both a Respondent and the trial court in this matter, we exclusively refer to the court 

as “CCP” with respect to its role as the Respondent in this action and as the “Trial Court” with 

respect to its role as the trial court. 
2

but retained the case against Allegheny County. For the reasons stated below, we 

sustain the preliminary objections filed by CCP and dismiss the complaint.

In his complaint, Russo alleges that he was hired by CCP as a minute 

clerk in 1974 and he was eventually promoted to the position of Manager of the 

Criminal Division of CCP in charge of all minute clerks, tip staff and arraignment 

clerks. (Compl. ¶¶7, 8 & n.1.) Throughout his entire term as an employee of CCP

until his discharge in 2009, Russo alleges that he worked under an employment 

contract and enjoyed tenure in his position as long as he did not commit a crime or 

“bring[] disrespect upon the Court.” (Id. ¶¶8, 9.) Russo alleges that this 

employment contract is evidenced through various oral representations, 

memoranda, administrative orders, regulations and other documents. (Id. ¶9.) 

Russo alleges that he continually received high marks on his performance 

evaluations but he was forced to resign on February 20, 2009 after being 

threatened with either a demotion to the lowest minute clerk position with a 

substantial reduction in salary or termination without the possibility of an early 

retirement. (Id. ¶¶7, 12, 16, 17.) Russo alleges that this constructive discharge

was in part a reprisal for his cooperation with federal and state authorities who 

were investigating CCP and also allowed CCP to clear the way for a patronage hire 

with no relevant work experience. (Id. ¶¶11, 15, 18.)

Russo filed his complaint against CCP and Allegheny County2in the 

Trial Court on February 9, 2011 asserting five causes of action: (i) wrongful 

discharge based upon the violation of his employment contract; (ii) failure to pay 

for accrued sick days in violation of his employment contract; (iii) a common-law 

 

2 Russo named Allegheny County as a defendant on the basis that it was a joint employer with 

CCP. (Compl. ¶6.)
3

wrongful discharge claim; (iv) a whistleblower claim based upon his employment 

contract; and (v) a statutory whistleblower claim. (Compl. ¶¶23-34.) Russo seeks 

reinstatement to his position and damages to compensate him for a loss of 

earnings, his lost sick days, reimbursement for medical coverage and emotional 

distress. (Compl. ¶¶19-22, Relief Requested.)

CCP and Allegheny County each filed preliminary objections to the 

complaint. On February 12, 2015, the Trial Court issued an order transferring the 

action against CCP to this Court on the basis that original jurisdiction over claims 

relating to Commonwealth entities lies exclusively with this Court. See 42 Pa. C.S. 

§ 761(a)(1) (“The Commonwealth Court shall have original jurisdiction of all civil 

actions or proceedings...[a]gainst the Commonwealth government....”). On that 

same date, the Trial Court issued an order granting Allegheny County’s 

preliminary objections and dismissing the complaint against Allegheny County.3

CCP argues in its preliminary objections that the common law claims 

asserted by Russo are barred by sovereign immunity because the claims are not 

encompassed in the General Assembly’s waivers of sovereign immunity for tort or 

contract claims against Commonwealth parties. CCP further argues that the claim 

under the Whistleblower Law4 must be dismissed because the Whistleblower Law 

does not apply to CCP, Russo did not allege that he reported wrongdoing to an 

appropriate authority and the claim was untimely filed outside the six-month 

statute of limitations. Finally, CCP argues that his claims are precluded by the 

 

3 Although the February 12, 2015 order was not included in the record transferred to this Court, 

we take judicial notice of this development in a related proceeding. Grever v. Unemployment 

Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010); C.J. v. Department of 

Public Welfare, 960 A.2d 494, 497 n.8 (Pa. Cmwlth. 2008).

4 Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.
4

doctrine of res judicata because Russo had the opportunity to assert these claims in 

a previous lawsuit in federal court, which involved the same parties, concerned the 

same alleged wrongful discharge and was decided against Russo.5 See Russo v. 

Allegheny County, (W.D. Pa., No. 10CV00711, filed Oct. 28, 2010), 2010 WL 

4366288.

We first address counts I, II and IV of the complaint which are 

premised on an alleged employment contract between Russo and CCP. CCP

argues that as a court of the unified judicial system it is a part of the 

Commonwealth government and entitled to sovereign immunity as a 

Commonwealth entity. The Pennsylvania Constitution provides that the 

Commonwealth and its officers and employees may only be sued where the 

General Assembly has authorized the suit. Pa. Const. art. 1 § 11. The General 

Assembly has specified that “the Commonwealth, and its officials and employees 

acting within the scope of their duties, shall continue to enjoy sovereign immunity 

and official immunity and remain immune from suit except as the General 

Assembly shall specifically waive the immunity.” 1 Pa. C.S. § 2310. 

Under Article 5, Section 1 of the Pennsylvania Constitution, the 

“judicial power of the Commonwealth shall be vested in a unified judicial system.” 

Pa. Const. art. 5, § 1. The courts of common pleas are included in the unified 

 

5 When reviewing preliminary objections to a complaint in our original jurisdiction, this Court 

must treat as true all well-pleaded, material and relevant facts together with any reasonable 

inference that can be drawn from those facts. Township of Derry v. Department of Labor and 

Industry, 940 A.2d 1265, 1268 (Pa. Cmwlth. 2008); Diess v. Department of Transportation, 935 

A.2d 895, 903 (Pa. Cmwlth. 2007). Where a preliminary objection presents a question of law, 

such as objections related to issues of sovereign immunity and statutory interpretation, our 

standard of review is de novo and our scope of review is plenary. Feldman v. Hoffman, 107 A.3d 

821, 826 n.7 (Pa. Cmwlth. 2014); Bender v. Pennsylvania Insurance Department, 893 A.2d 161, 

162 (Pa. Cmwlth. 2006).
5

judicial system. Id.; 42 Pa. C.S. § 301(4) (“The judicial power of the 

Commonwealth shall be vested in a unified judicial system consisting of 

the...[c]ourts of common pleas”). The Pennsylvania Constitution further provides 

that the Supreme Court has the sole authority to administer, supervise and 

prescribe rules of practice, procedure and conduct for the courts of the unified 

judicial system. Pa. Const. art. 5, § 10(a), (c); see also 42 Pa. C.S. § 501. 

Moreover, the General Assembly has defined the “Commonwealth government” in 

the Judicial Code to include “the courts and other officers or agencies of the 

unified judicial system,” 42 Pa. C.S. § 102, and our appellate courts have relied on 

this definition in determining that original jurisdiction lies in this Court for civil 

actions filed against judges and officers of the courts of common pleas pursuant to 

Section 761(a)(1) of the Judicial Code.6 See, e.g., Richardson v. Peters, 19 A.3d 

1047, 1047-48 (Pa. 2011) (per curiam) (Clerk of Courts of the Court of Common 

Pleas of Chester County); In re Domestic Relations Hearing Room, 796 A.2d 407, 

409-10 (Pa. Cmwlth. 2002) (en banc) (President Judge of the Court of Common 

Pleas of Northumberland County).

While the precise issue of whether courts of common pleas retain 

sovereign immunity has not been addressed, this Court has ruled that Magisterial 

District Judges are officers of the Commonwealth, rather than the counties in 

which they sit, and therefore enjoy sovereign immunity except where abrogated by 

the state. Cimino v. DiPaolo, 786 A.2d 309, 311 (Pa. Cmwlth. 2001); Heicklen v. 

Hoffman, 761 A.2d 207, 209 (Pa. Cmwlth. 2000). Our Supreme Court has also 

held that judges of the courts of common pleas are officers of statewide 

 

6 As noted above, the Trial Court here transferred Russo’s suit against CCP to this Court on this 

basis.
6

jurisdiction, allowing the Supreme Court to hear a quo warranto action to remove 

a court of common pleas judge in its original jurisdiction. Commonwealth ex rel. 

Judicial Conduct Board v. Griffin, 918 A.2d 87, 92-93 (Pa. 2007). Furthermore, 

the federal courts have consistently held that Pennsylvania courts, including the 

courts of common pleas, are immune from suit in federal court under the Eleventh 

Amendment of the U.S. Constitution. See, e.g., Benn v. First Judicial District of 

Pennsylvania, 426 F.3d 233, 238-41 (3d Cir. 2005); Callahan v. City of 

Philadelphia, 207 F.3d 668, 672-73 (3d Cir. 2000). Accordingly, we hold that 

CCP, as a court of the unified judicial system, is entitled to the sovereign immunity 

of the Commonwealth. 

Having concluded that CCP is immune from suit except where 

authorized by the General Assembly, we must determine whether immunity has 

been waived with respect to the contract-based claims that Russo asserts in counts 

I, II and IV of the complaint. In Section 1702 of the Procurement Code, the 

General Assembly has waived sovereign immunity with respect to contract claims

against the Commonwealth and its employees and officials acting within the scope 

of their duties in cases relating to protests of solicitations and awards, pre-litigation 

resolution of procurement contract disputes and claims in the Board of Claims

related to certain classes of contracts. 62 Pa. C.S. § 1702(b); see also 62 Pa. C.S. 

§§ 1711.1, 1712.1, 1721-1726. However, Section 1702 further provides that 

Commonwealth parties retain sovereign immunity except for those limited 

waivers. 62 Pa. C.S. § 1702(a); see also 1 Pa. C.S. § 2310. As our Supreme Court 

explained in Scientific Games International v. Commonwealth, 66 A.3d 740 (Pa. 

2013), by structuring the Procurement Code “to accord immunity, subject only to 

specific and limited exceptions,” the General Assembly erected a jurisdictional bar 
7

to any claim against a Commonwealth party arising from contracts that fall outside 

one of the specific waivers of the Procurement Code. Id. at 753-56; see also

Dubaskas v. Department of Corrections, 81 A.3d 167, 175-76 (Pa. Cmwlth. 2013) 

(en banc). 

The waiver of sovereign immunity in Section 1702 applies only to 

claims against “Commonwealth agencies.” 62 Pa. C.S. § 1702(b). A

“Commonwealth agency” is defined in the Procurement Code as “[a]n executive 

agency, an independent agency or a State-affiliated entity,” and each of these in 

turn is specifically defined to exclude “any court or other officer or agency of the 

unified judicial system.” 62 Pa. C.S. § 103. The Procurement Code further directs 

that to the extent the judiciary wishes to avail itself of the procedure and 

protections outlined in the Procurement Code, it “may use the [Department of 

General Services] as its purchasing agency for the purchase of supplies under this 

part and may use the department to dispose of surplus supplies.” 62 Pa. C.S. § 

102(c). Thus, in light of the limited waiver of sovereign immunity of Section 1702

as to actions brought pursuant to the Procurement Code and the exclusion of the 

courts as a contracting party against which such remedies may be sought, we 

conclude that the General Assembly has not waived sovereign immunity with 

respect to contract claims against the courts of the unified judicial system. 

Accordingly, CCP retains its sovereign immunity over counts I, II and IV of 

Russo’s complaint.

Moreover, even if we were to determine that CCP could be a party to 

a claim under the Procurement Code, we would conclude that Russo’s claims 

would be barred because they are premised on an alleged employment agreement. 

(See, e.g., Compl. ¶25 (“Plaintiff’s termination and constructive discharge, to make 
8

room for a patronage hire, comprised a violation of the express terms and 

conditions of his employment contract....”).) As we have explained, because the 

Procurement Code “explicitly and unambiguously excludes ‘employment 

agreements’ from what constitutes ‘services’ under the Code, it follows that 

‘employment agreements’ are not ‘services’ that can be the subject of a ‘contract’ 

that falls within the...scope of the” Procurement Code. See Dubaskas, 81 A.3d at 

176-77 (quoting 62 Pa. C.S. § 103) (emphasis in original); see also Armenti v. 

Pennsylvania State System of Higher Education, 100 A.3d 772, 777 (Pa. Cmwlth. 

2014).

Turning to count III of the complaint, which asserts a common law 

claim for wrongful discharge, we conclude that CCP is also immune from that 

claim. A tort claim for wrongful discharge may be brought only in the limited 

circumstance where an employer terminates an at-will employee in violation of a 

clear mandate of public policy. Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 

2009); Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 

1989). The General Assembly has waived sovereign immunity with respect to tort 

claims in the portion of the Judicial Code commonly known as the Sovereign 

Immunity Act. 42 Pa. C.S. §§ 8521–8528. However, this waiver applies only to 

actions for damages arising out of certain negligent acts committed by 

“Commonwealth parties.” 42 Pa. C.S. § 8522(a), (b). A “Commonwealth party” is 

defined in the Sovereign Immunity Act as a “Commonwealth agency and any 

employee thereof, but only with respect to an act within the scope of his office or 

employment.” 42 Pa. C.S. § 8501. To determine what is or is not a 

Commonwealth agency, we must look to Section 102 of the Judicial Code, which 

provides general definitions for the entirety of the Judicial Code, including the 
9

Sovereign Immunity Act, and defines a Commonwealth agency as “[a]ny executive 

agency or independent agency.” 42 Pa. C.S. § 102. The definitions of “executive 

agency” and “independent agency” in turn specifically exclude “any court or other 

officer or agency of the unified judicial system.” Id. 

Accordingly, it is clear that the courts of the unified judicial system 

are not “Commonwealth parties” within the meaning of the Sovereign Immunity 

Act. Because sovereign immunity has not been waived with respect to the courts 

of the unified judicial system, we must conclude that the courts of the unified 

judicial system retain their sovereign immunity as related to tort claims. See 1 Pa. 

C.S. § 2310; see also Tork-Hiis v. Commonwealth, 735 A.2d 1256, 1258 (Pa. 

1999) (holding that the waiver of sovereign immunity for tort claims in the 

Sovereign Immunity Act is not applicable to a complaint naming only the 

Commonwealth as a party because the Commonwealth, as distinct from its 

agencies, is not included within the definition of a “Commonwealth party”).

Furthermore, even if we were to conclude that the General Assembly 

intended to waive sovereign immunity for the courts of the unified judicial system 

for tort claims, the Sovereign Immunity Act provides for only nine categories of 

claims as to which immunity is waived.7 42 Pa. C.S. § 8522(b). The wrongful 

discharge claim asserted by Russo does not implicate any of the specifically 

enumerated exceptions to sovereign immunity and therefore the claim would be

barred on that basis as well. Kull v. Guisse, 81 A.3d 148, 157 (Pa. Cmwlth. 2013); 

LaChance v. Michael Baker Corp., 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005).

 

7

The nine statutory exceptions to sovereign immunity are: (1) vehicle liability; (2) medicalprofessional liability; (3) care, custody or control of personal property; (4) Commonwealth real 

estate, highways and sidewalks; (5) potholes and other dangerous road conditions; (6) care, 

custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) 

toxoids and vaccines. 42 Pa. C.S. § 8522(b).
10

Finally, we address count V of the complaint which asserts a claim 

under the Whistleblower Law. The Whistleblower Law provides protection to 

employees of public employers who report violations of state, local or federal law 

or participate in investigations, legislative inquiries or court actions. Section 1 of 

the Whistleblower Law, 43 P.S. § 1421 (historical note); Bailets v. Pennsylvania 

Turnpike Commission, ___ A.3d ___ (Pa., No. 12 MAP 2014, filed Aug. 31, 2015), 

slip op. at 12, 2015 WL 5104623 at *7. To make a claim under the Whistleblower 

Law, the employee must show by a preponderance of the evidence that he made or 

was about to make a good faith report of an instance of wrongdoing or waste to the 

employer or an appropriate authority and that the employer took an adverse 

employment action against him as a result of the report. Sections 3(a) and 4(b) of 

the Whistleblower Law, 43 P.S. §§ 1423(a), 1424(b); Bailets, slip op. at 13, 2015 

WL 5104623 at *7. An employee may seek either injunctive relief or damages 

under the Whistleblower Law and if successfully proved, the court may order 

reinstatement of the employee, payment of back wages, reinstatement of fringe 

benefits and seniority rights and actual damages. Sections 4(a) and 5 of the 

Whistleblower Law, 43 P.S. §§ 1424(a), 1425.

CCP argues that the General Assembly did not intend to include the 

courts of the unified judicial system as an employer within the meaning of the 

Whistleblower Law because doing so would violate separation of powers and 

unconstitutionally infringe on the authority of the judiciary in employment matters 

over its own employees. Under the principle of separation of powers inherent in 

the Pennsylvania Constitution, the legislature, executive and judiciary are 

independent, co-equal branches of government and no branch may exercise the 

functions specifically committed to another branch. Pennsylvania State 
11

Association of Jury Commissioners v. Commonwealth, 78 A.3d 1020, 1032 (Pa. 

2013); Beckert v. Warren, 439 A.2d 638, 642 (Pa. 1981). Among the powers 

granted to the judiciary is the responsibility of the Supreme Court to “exercise 

general supervisory and administrative authority” and “prescribe general rules 

governing practice, procedure and the conduct” for the courts of the unified 

judicial system. Pa. Const. art. 5, § 10(a), (c); see also 42 Pa. C.S. § 1724(a) 

(providing that the Supreme Court and delegated authority “shall exercise general 

supervisory and administrative authority over the personnel of the system”). Our 

Supreme Court has held that in order to carry out these powers, courts must have 

exclusive authority to select, discharge and supervise court employees. First 

Judicial District of Pennsylvania v. Pennsylvania Human Relations Commission, 

727 A.2d 1110, 1112 (Pa. 1999); Court of Common Pleas of Erie County (6th 

Judicial District), Juvenile Probation Department v. Pennsylvania Human 

Relations Commission, 682 A.2d 1246, 1247 (Pa. 1996); Beckert, 439 A.2d at 649. 

No appellate court of the Commonwealth has addressed whether the 

Whistleblower Law may be constitutionally enforced against the judiciary. 

However, in Jakomas v. McFalls, 229 F. Supp. 2d 412 (W.D. Pa. 2002), the U.S. 

District Court for the Western District of Pennsylvania addressed this issue and 

held that the General Assembly did not intend to apply the Whistleblower Law to 

employment decisions by the courts, and that in any event applying the 

Whistleblower Law to the judiciary would violate separation of powers principles 

in the Pennsylvania Constitution. Id. at 422-24. In that case, several former staff 

members of a judge of the court of common pleas brought an action under the 

Whistleblower Law in which they alleged that they were fired after reporting 

wrongdoing by the judge to other judges and court employees. Id. at 417-19. The 
12

District Court observed that even if a court found that a judicial employer violated 

the Whistleblower Law, there would be no means of enforcing the provision 

because courts retain exclusive authority over hiring and firing decisions of their 

employees. Id. at 423-24. The District Court concluded that the General 

Assembly could not have intended the absurd result that the Whistleblower Law 

would be enforceable against some, but not all, violators. Id. at 424.

A review of the text of the Whistleblower Law does not conclusively 

resolve the issue of whether the legislature intended it to apply to judicial 

employers.8 An “employer” under the Whistleblower Law is defined as a “public 

body” or an individual, partnership, association or corporation that receives money 

from a public body to perform work or provide services to a public body. Section 

2 of the Whistleblower Law, 43 P.S. § 1422. A “public body” is defined as:

(1) A State officer, agency, department, division, bureau, 

board, commission, council, authority or other body in 

the executive branch of State government.

(1.1) The General Assembly and its agencies.

(2) A county, city, township, regional governing body, 

council, school district, special district or municipal 

corporation, or a board, department, commission, council 

or agency.

 

8

In all matters involving statutory interpretation, we apply the Statutory Construction Act of 

1972, 1 Pa. C.S. §§ 1501–1991, which provides that the “object of all interpretation and 

construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 

Pa. C.S. § 1921(a); Department of Transportation, Bureau of Driver Licensing v. Weaver, 912 

A.2d 259, 264 (Pa. 2006). The clearest indication of legislative intent is generally the plain 

language of the statute. Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). “When the words of a 

statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the 

pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b); Weaver, 912 A.2d at 264. It is only when 

the text of a statutory provision is ambiguous that we will consider general principles of statutory 

construction in order to determine legislative intent. 1 Pa. C.S. § 1921(c); Commonwealth v. 

McCoy, 962 A.2d 1160, 1166 (Pa. 2009).
13

(3) Any other body which is created by Commonwealth 

or political subdivision authority or which is funded in 

any amount by or through Commonwealth or political 

subdivision authority or a member or employee of that 

body.

Id. 

The statutory definition of a “public body” could be read broadly to 

apply to the judiciary under part (3) of the definition as a “body which is created 

by Commonwealth...authority...or funded in any amount by or through 

Commonwealth or political subdivision authority.” 43 P.S. § 1422; cf. Denton v. 

Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571, 576 (Pa. Super. 

1999) (holding that this provision applies to any agency or body that receives 

public money under the administration of or appropriated by the Commonwealth). 

However, we find it significant that, while parts (1), (1.1) and (2) of this definition 

specifically reference the executive branch, the legislative branch and local 

governments, respectively, the judicial branch was omitted from the definition of a 

“public body.” Indeed, the General Assembly amended the Whistleblower Law in 

2014 to make it applicable to the legislative employees by adding part (1.1) of the 

definition of a “public body,” but did not also avail itself of the opportunity to also 

make the Whistleblower Law applicable to the judiciary. Act of July 2, 2014, P.L. 

826, § 1.

Furthermore, we agree with the analysis in Jakomas that the 

enforcement mechanisms prescribed in the Whistleblower Law could not be 

constitutionally enforced against a judicial employer. Our appellate courts have 

been steadfast in safeguarding the judiciary’s right to hire, fire and supervise its 

own employees and have struck down any legislation that interferes with that 

authority. See First Judicial District, 727 A.2d at 1112 (holding that the 
14

Pennsylvania Human Relations Commission does not have jurisdiction to 

adjudicate complaints made by court employees against their employers); Kremer 

v. State Ethics Commission, 469 A.2d 593, 595-96 (Pa. 1983) (holding that the 

State Ethics Commission could not subject judges to a financial disclosure 

requirement because it would infringe on the Supreme Court’s authority to 

supervise judges); Eshelman v. Commissioners of the County of Berks, 436 A.2d 

710, 713 (Pa. Cmwlth. 1981), aff’d 466 A.2d 1029 (Pa. 1983) (holding that an 

arbitrator’s award pursuant to the Public Employe Relations Act concerning the 

hiring, supervision and discharge of court-appointed employees usurped the 

exclusive role of the courts over employment decisions). The remedies set forth in 

the Whistleblower Law requiring the reinstatement of a fired employee or the 

reinstatement of seniority rights would interfere with the exclusive right of courts

to supervise their employees and therefore would be unconstitutional as applied 

against court employers. The rules of statutory construction require that we 

presume that the General Assembly does not intend “a result that is absurd, 

impossible of execution or unreasonable” or that would “violate the Constitution 

of...this Commonwealth.” 1 Pa. C.S. § 1922(1), (3). Because the Whistleblower 

Law would infringe on separation of powers and would only be partly enforceable 

against judicial employers, we conclude that the General Assembly did not intend 

the judiciary to be included within the definition of an employer subject to the 

Whistleblower Law. Accordingly, we grant CCP’s preliminary objection seeking 

dismissal of Russo’s claim under the Whistleblower Law.9 

 

9 Because we determine that the General Assembly did not intend court employers to be subject 

to the Whistleblower Law, we do not reach CCP’s arguments that the whistleblower claim was 

not filed within the six-month statute of limitations and that Russo did not allege in the complaint 

that he had reported wrongdoing to CCP or an appropriate authority. We also do not reach 

CCP’s final preliminary objection in which it argues that the claims asserted in this litigation 
15

The complaint is dismissed.

____________________________________

JAMES GARDNER COLINS, Senior Judge

Judge McCullough did not participate in the decision in this case.

 

were barred by res judicata as a result of the dismissal of an earlier federal action. Statute of 

limitations and res judicata are affirmative defenses that must be pleaded in an answer as new 

matter, and thus are not properly before us on preliminary objections. Pa. R.C.P. No. 1030(a). 

This rule does not preclude our review of CCP’s preliminary objections on the basis of sovereign 

immunity because this Court has recognized that the affirmative defense of sovereign immunity 

may be decided on preliminary objections where the defense is clearly applicable from the face 

of the complaint. See Feldman, 107 A.3d at 829, 835-36.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred J. Russo, :

Petitioner :

:

v. : No. 185 M.D. 2015

: 

Allegheny County, :

and the Court of Common Pleas :

of Allegheny County, Pennsylvania, :

Criminal Division, :

Respondents :

O R D E R

AND NOW, this 7

th day of October, 2015, the preliminary objections

filed by the Court of Common Pleas of Allegheny County, Criminal Division in 

the above matter are SUSTAINED and Petitioner’s complaint is hereby 

DISMISSED.

____________________________________

JAMES GARDNER COLINS, Senior Judge