Commonwealth Court won't award more damages to Capitol Police officer

By Nicholas Malfitano | Jan 19, 2016

Commonwealth Court Judge Patricia A. McCullough  

PHILADELPHIA – A decision to deny delay damages in a Capitol Police Department officer’s Pennsylvania Human Relations Act (PHRA) suit has been upheld by the Commonwealth Court of Pennsylvania.

Commonwealth Court judges Bonnie Brigance Leadbetter, Patricia A. McCullough and Rochelle S. Friedman chose to affirm the no-delay damages ruling from the Dauphin County Court of Common Pleas, in the case of plaintiff Keith S. Wagner. McCullough authored the Court's ruling.

Wagner began his employment with the Pennsylvania Capitol Police Department in 1998. In 2004, Wagner was seriously injured when a suspect attempted to run him over, and he subsequently developed a seizure disorder that prevented him from carrying a weapon, driving or directing traffic. 

Wagner’s doctor released him to return to light duty work on Oct. 17, 2005, but the Capitol Police did not reinstate him due to not having a position available within his restrictions. When one became available in January 2006, Wagner returned to work in January 2006.

In 2007, Wagner filed a complaint against the Capitol Police; the Department of General Services; Gregory A. Green, individually and in his official capacity as Director of the Bureau of Human Resources; Richard Shaffer, in his individual capacity and as acting Superintendent of the Capitol Police; and Robert J. Dillard, in his individual capacity and as acting Deputy Superintendent of the Capitol Police. 

Wagner filed his claims under federal law and the PHRA, charging the defendants “refused to allow him to return to work when his physician released him on Oct. 17, 2005, and denied him a pre-deprivation and a post-deprivation hearing.”

In August 2014 a jury awarded Wagner $14,000 in lost wages, and the trial court later granted requests for seniority reinstatement and partial attorney’s fees, but denied his request for delay damages.

Wagner then filed three post-trial motions, requesting: “(1) $125,420.87 in attorney fees and costs; (2) delay damages; and (3) reinstatement of his seniority.”

The trial court granted Wagner’s motion to reinstate his seniority; granted his request for attorney fees and costs in part, awarding $5,600.00 representing 40 percent of the jury’s award; and denied his request for delay damages – which led Wagner to eventually appeal to the Commonwealth Court for the remainder of attorneys fees and costs as a prevailing party and those same delay damages.

However, McCullough disagreed with Wagner’s logic, saying short of an abuse of discretion by the trial court, he was not entitled to the costs he was seeking.

“Because the Supreme Court [of Pennsylvania] expressly held in [Hoy v. Angelone] that the PHRA does not mandate an award of attorney fees and costs to a prevailing party, we reject Wagner’s contention that he is entitled to costs as a matter of course,” McCullough said.

“Because the court held in Hoy that there is no presumption of attorney fees and costs under the PHRA, we necessarily conclude that an award of full attorney fees is not mandatory under the statute.”

Wagner also averred the trial court erred under Rule 238 of the Pennsylvania Rules of Civil Procedure by not awarding him delay damages, but McCullough clarified the statute clearly states such damages are only permitted in cases where a plaintiff is seeking civil penalties for “bodily injury, death or property damage.”

“Contrary to Wagner’s assertion, Rule 238 neither compels nor authorizes an award of delay damages in an employment discrimination case brought under the PHRA,” McCullough said.

The plaintiff is represented by Cynthia L. Pollick of The Employment Law Firm, in Pittston.

The defendants are represented by Sarah C. Yerger, of the Pennsylvania Attorney General’s Office, in Harrisburg.

Commonwealth Court of Pennsylvania case 2247 C.D. 2014

Dauphin County Court of Common Pleas case 2009-CV-13915

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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