Harrisburg skyline. Credit: Sean Pavone/Shutterstock.com

During its upcoming oral argument session, the Pennsylvania Supreme Court is set to hear debate about whether whistleblowers should be compensated for emotional damages, as well as whether companies can be subject to continuous penalties for their pollution.

A full complement of the Supreme Court is set to hear arguments in a total of 14 cases during its two-day oral argument session starting Nov. 28 in Harrisburg. According to the schedule, the justices are expected to hear six arguments on the first day, and eight on Nov. 29.

Along with the two aforementioned cases, the court is also set to hear arguments on liability waivers for athletic events and whether Gov. Tom Wolf has the power to organize home health care workers.

Health Care Workers

The session on Nov. 28 is set to begin with arguments in Markham v. Wolf about whether Wolf exceeded his powers when he issued an executive order in February 2015 establishing an advisory group to manage the quality of long-term personal care services and creating a process by which a representative of direct-care workers would be selected to meet with state officials to negotiate payment procedures and other working conditions.

In September 2016, the Commonwealth Court struck down portions of that order, saying they contradicted existing Pennsylvania laws by requiring direct-care workers to meet with a representative regarding terms of employment. The group of direct-care workers who petitioned the court had alleged Wolf attempted to unionize them through the order.

Pollution

The last case to be argued on Nov. 28 is EQT Production  v. Department of Environmental Protection, which deals with whether Pennsylvania’s Clean Streams Law authorizes the Department of Environmental Protection to issue ongoing penalties against companies for the continued presence of pollutants in state waters.

The Commonwealth Court in January determined that the law did not allow for the continuous penalties. That decision let EQT Production Co., a natural gas producer, off the hook for potentially millions of dollars in ongoing penalties related to pollution caused by fracking leaks.

The Commonwealth Court’s precedential ruling came on remand from the state Supreme Court, so the arguments Tuesday mark the second time the case has come before the high court. The justices ruled 3-1 in January 2016 that EQT Production could challenge the DEP’s interpretation of the Clean Streams Law before the Commonwealth Court, rather than proceeding before the Environmental Hearing Board.

In its Jan. 11 ruling, a unanimous three-judge panel of the Commonwealth Court said Section 301 of the Clean Streams Law “prohibits acts or omissions resulting in the initial active discharge or entry of industrial waste into waters of the commonwealth and is not a provision that authorizes the imposition of ongoing penalties for the continuing presence of an industrial waste in a waterway of the commonwealth following its initial entry into the waterways of the commonwealth.”

Whistleblowers

In the middle of the Nov. 29 session the justices are set to hear arguments about whether Pennsylvania’s whistleblower law allows plaintiffs to recover noneconomic damages, such as for humiliation and emotional distress, in the case Bailets v. Pennsylvania Turnpike Commission.

In August, the justices agreed to hear arguments about whether the whistleblower law allows for noneconomic damages, and whether the $1.6 million that the Commonwealth Court awarded plaintiff Ralph Bailets last year for his alleged humiliation was arbitrary and excessive.

In October, the Commonwealth Court awarded Bailets, a former employee of the Pennsylvania Turnpike Commission, $3.2 million for retaliation he faced after reporting alleged instances of wrongdoing and waste to turnpike supervisors.

As it stands, Pennsylvania case law outlining what a plaintiff can recover on whistleblower retaliation claims says awards should ensure that plaintiffs are “in no worse a position for having exposed the wrongdoing.” The question of exactly what that means has been hotly disputed, with defendants arguing that noneconomic damages are a clear expansion of the statute.

Commonwealth Court Judge Rochelle Friedman, however, said that “actual damages” in whistleblower cases “must include compensation for the mental anguish, humiliation and reputation damage.”

Liability Waivers

The justices are also set to hear argument Nov. 29 in Valentino v. Philadelphia Triathlon over whether the widow of a man who drowned during the Philadelphia Triathlon can sue the event organizers, despite the decedent having signed a waiver assuming all the risks of participating in the event.

The justices agreed to specifically hear arguments on the question of whether “a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action.”