Palmiter, P. v. Commonwealth Health Systems, Inc.

J-A23024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAMELA PALMITER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COMMONWEALTH HEALTH SYSTEMS, : No. 1492 MDA 2020
INC. D/B/A COMMONWEALTH :
HEALTH PHYSICIANS ALLIANCE :
D/B/A COMMONWEALTH HEALTH :
AND MOSES TAYLOR HOSPITAL :
D/B/A COMMONWEALTH HEALTH :

Appeal from the Order Entered November 12, 2020
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2020-02544

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 8, 2022

Pamela Palmiter appeals from the Lackawanna County Court of Common

Pleas’ order sustaining the preliminary objections filed by Commonwealth

Health Systems, Inc. d/b/a Commonwealth Health, Physicians Health Alliance

d/b/a Commonwealth Health and Moses Taylor Hospital d/b/a Commonwealth

Health (collectively, “Employers”) and dismissing Palmiter’s complaint filed

against Employers. In her complaint, Palmiter alleged Employers violated the

Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-963, by denying

her employment after she tested positive for the medical marijuana she had

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* Former Justice specially assigned to the Superior Court.
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been prescribed under the Medical Marijuana Act (“MMA”), 35 P.S. §§

10231.101-10231.2110, for her chronic pain, migraines and fatigue. She

alleged in a single count that this constituted disability discrimination, failure

to provide reasonable accommodation and employment retaliation in

contravention of the PHRA.1

The trial court found Palmiter failed to make out any of these claims on

the basis of its determination that the use of medical marijuana is not a

disability as defined by the PHRA. Importantly, Palmiter does not challenge

that determination in her appellate brief. Instead, Palmiter claims for the first

time on appeal that she alleged in her complaint that her disability was her

underlying medical conditions and not, as the trial court found, the prescribed

use of medical marijuana for those conditions. Because there are no issues

which have been properly preserved for our review, we affirm the trial court’s

order sustaining Employers’ preliminary objections.

____________________________________________

1 Palmiter filed a separate action against Employers asserting claims for, inter
alia, wrongful discharge and violation of the MMA, which provides that an
employer may not discharge, or discriminate or retaliate against, an employee
on the basis of her status as a certified medical marijuana user. See 35 P.S.
§ 10231.2103(b)(1). Employers also filed preliminary objections in that
matter, and the trial court overruled Employers’ preliminary objections as to
the violation of the MMA claim and the wrongful discharge claim. Employers
appealed, and this Court affirmed the trial court’s order overruling those
preliminary objections. See Palmiter v. Commonwealth Health Systems,
Inc., 260 A.3d 967 (Pa. Super. 2021). In doing so, we held that Palmiter could
bring a claim under the MMA alleging Employers discriminated against her by
terminating her solely for her medical marijuana use, as the MMA contains an
implied right to bring such a private cause of action. See id. at 976.

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“This Court will reverse the trial court's decision regarding preliminary

objections only where there has been an error of law or abuse of discretion.”

Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208 (Pa. Super.

2012) (citation omitted). When faced with preliminary objections in the nature

of a demurrer, a trial court may only sustain such preliminary objections in

cases where it is clear and free from doubt that dismissal is appropriate. See

Burgoyne v. Pinecrest Community Association, 924 A.2d 675, 679 (Pa.

Super. 2007). “To be clear and free from doubt that dismissal is appropriate,

it must appear with certainty that the law would not permit recovery by the

plaintiff upon the facts averred.” Id. (citation omitted). As such, the only facts

at issue when ruling on preliminary objections are those averred in the

complaint, which must be accepted as true. See Weiley, 51 A.3d at 208.

Given this standard governing preliminary objections which requires

courts to look to the facts averred in the complaint, coupled with the fact that

there is a dispute as to what Palmiter actually averred in her complaint, it is

especially important to scrutinize the allegations set forth in Palmiter’s

complaint against Employers. Before recounting those allegations, we note at

the outset that there is no dispute that Palmiter was legally prescribed medical

marijuana pursuant to the MMA. Nor is there any dispute that the PHRA makes

it an unlawful discriminatory practice for an employer to refuse to hire or

employ a person on the basis of a non-job-related “handicap or disability.”

See 43 P.S. § 955(a). Under the PHRA, a “handicap or disability” is defined

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as: (1) a physical or mental impairment which substantially limits one or more

of a person’s major life activities; (2) a record of having such an impairment;

or (3) being regarded as having such an impairment, but such term does not

include current, illegal use of or addiction to a controlled substance, as defined

by the Controlled Substance Act (“CSA”), 21 U.S.C. § 802. See 43 P.S. §

954(p.1).

The sole count in Palmiter’s complaint against Employers alleged

Employers violated the PHRA because of “disability discrimination/failure to

provide a reasonable accommodation/retaliation.” Complaint, 6/30/20, 3.2 In

support of her claim, Palmiter stated she started to work for Medical Associates

of NEPA as a medical assistant in January 2017. See id. at ¶ 1. She asserted

she “has the medical conditions of chronic pain, chronic migraines and

persistent fatigue.” Id. at ¶ 12. She further averred these “medical conditions

affect her ability to work and sleep,” id. at ¶ 13, and that she was prescribed

medical marijuana for those medical conditions in December 2018, see id. at

¶ 16. According to Palmiter, “the use of medical marijuana off the job assists

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2 The trial court dissected this single claim into three distinct claims, even
though Palmiter did not. We note that to establish a prima facie claim for
either a discrimination claim or a failure to accommodate claim under the
PHRA, Palmiter must initially show that she had a disability within the meaning
of the PHRA. See Stultz v. Reese Brothers, 835 A.2d 754, 759-760 (Pa.
Super. 2003); Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002).
To establish a retaliation claim, Palmiter must initially show she was engaged
in activity protected by the PHRA. See Renna v. PPL Electric Utilities, Inc.
207 A.3d 355, 371 (Pa. Super. 2019).

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her in her ability to function normally.” Id. at ¶ 13. Palmiter further averred

she had informed Medical Associates of NEPA that her doctor had authorized

her to use medical marijuana to treat her medical conditions. See id. at ¶ 17.

Palmiter stated Employers took over Medical Associates of NEPA on

February 1, 2019. See id. at ¶ 20. She maintained that either in November

or December 2018, certain doctors [identified by name but not by affiliation]

told her “everything would be fine related to [her] approval for medical

marijuana and her continuing to work for [Employers].” Id. at ¶ 14. She

further maintained she applied for a position as a medical assistant with

Employers on or around January 11, 2019. See id. at ¶ 21. She averred she

was scheduled to undergo a drug test for her employment with Employers on

January 22, 2019, see id. at ¶ 23, and “at that time” she reported to the

drug-testing lab that she was on prescribed medical marijuana, id. at ¶ 24.

She further asserted “[o]n or about January 25, 2019, [she] faxed a copy of

her certification that [the doctor] approved her for medical marijuana to treat

her medical conditions.” Id. at ¶ 25. She alleged she received a call from

Employers on or around January 29, 2019, advising her she would not be

allowed to work for Employers. See id. at ¶ 27.

Palmiter’s final paragraphs of the complaint allege that “[b]y informing

[Employers] of her medical conditions that a physician prescribed medical

marijuana to use to treat her illnesses off the job, [she] requested a

reasonable accommodation,” id. at ¶ 28, that Employers failed to provide that

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reasonable accommodation, see id. at ¶ 29, and that by requesting a

reasonable accommodation of the use of medical marijuana off the job site,

Employers retaliated against her by firing her, see id. at ¶ 30.

Employers filed preliminary objections in the nature of a demurrer to

Palmiter's claims that they discriminated against her and denied her

employment based on her disability in violation of the PHRA. Specifically,

Employers argued Palmiter’s use of medical marijuana was not a disability as

that term is defined under the PHRA.

To that end, Employers pointed out that the PHRA’s definition of

“handicap or disability” specifically excludes the current, illegal use of a

controlled substance as defined in the CSA. See Defendants’ Preliminary

Objections to Plaintiff’s Complaint, 7/30/20, at ¶ 19. Employers then observed

that the CSA, in turn, specifically lists marijuana as an illegal controlled

substance. See id.3 Employers argued Palmiter’s admitted use of marijuana

therefore excluded her from the PHRA’s definition of an individual with a

“handicap or disability.” See id. at ¶ 23. Accordingly, Employers contended

the PHRA did not cover Palmiter’s medical marijuana use and she had no

“possible claim for disability discrimination … based on her illegal drug use”

under the CSA. Id.

____________________________________________

3To further explain, the CSA defines a “controlled substance” as a “drug or
other substance … included in schedule I, II, III, V. or V or part B” of the CSA.
21 U.S.C. § 802(6). The CSA then specifically lists marijuana as a schedule I
controlled substance. See 21 U.S.C. § 812 (Schedule I)(c)(10).

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Employers further maintained that use of a controlled substance, which

is classified as illegal under the CSA, is not a reasonable accommodation under

the PHRA. See id. at ¶¶ 24-25. They also demurred to Palmiter’s retaliation

claim on the basis that her “report of her medical marijuana usage is not

PHRA-protected activity, since her usage falls outside the PHRA’s definition of

‘handicap or disability.’” Id. at ¶ 35.

Palmiter filed a brief in opposition to the Employers’ preliminary

objections. In that response, Palmiter claimed Employers mistakenly relied on

the CSA, or any federal law for that matter, to support their argument that

medical marijuana use is illegal and not a disability under the PHRA. See

Plaintiff's Brief in Opposition to Defendants’ Preliminary Objections, 8/3/20, at

6. Instead, Palmiter observed the MMA makes the prescribed use of medical

marijuana “perfectly legal in Pennsylvania.” Id. According to Palmiter, the

“CSA does not apply to this case since [she] has an actual disability and can

legally use medical marijuana” in Pennsylvania. Id. at 7. She maintained

legally-prescribed marijuana use off the work site is a valid form of reasonable

accommodation under the PHRA. See id. at 8.

Employers were granted leave to file a reply brief to Palmiter’s

opposition brief. In that reply brief, Employers argued “to the extent that

[Palmiter] argues that the [MMA] ‘legalizes’ the use of marijuana such that

her use of marijuana constitutes a disability under the PHRA, such an

argument ignores that the PHRA specifically” applies the CSA’s - and not state

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law’s - definition of “illegal use … of a controlled substance,” which includes

marijuana. Defendants’ Brief in Reply to Plaintiff's Opposition to Defendants’

Preliminary Objections to Plaintiff’s Complaint, 10/26/20, at 2 (unpaginated).

Employers asserted the Pennsylvania Legislature could have excluded medical

marijuana use from the PHRA’s definition of “illegal drug use” in the MMA if

that had been its intent, but it had not done so. See id. at 6 (unpaginated).

In fact, the MMA makes no mention of the PHRA at all.

The court heard oral argument on the preliminary objections on October

30, 2020, in which the parties basically underscored the positions they had

taken in their briefs on the preliminary objections. The focus of Employers’

argument remained on their contention that the use of medical marijuana was

not a disability under the PHRA because the statute’s definition of disability

excludes the illegal use of a controlled substance, as that term is defined by

the CSA. See N.T. Transcript of Proceedings Via Telephonically, 10/30/20, at

4-6, 8. In contrast, Palmiter continued to argue, in essence, that because

medical marijuana can legally be prescribed under the MMA, the use of

medical marijuana in Pennsylvania is not the illegal use of a controlled

substance and therefore not excluded from the PHRA’s definition of disability.

See N.T., 10/30/20, at 21-22, 24; see also id. at 26 (arguing “even if [the

court] would find that [Palmiter] wasn’t disabled under the statute … even if

[the court] rule[s] that medical marijuana cannot be, [that Palmiter does not

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meet] the definition of disability under the PHRA,” a retaliation claim could still

go forward).

Following argument, the court issued an order on November 10, 2021,

sustaining Employers’ preliminary objections and dismissing Palmiter’s

complaint due to legal insufficiency. In an accompanying and very well-

reasoned memorandum, the trial court explained its decision. The court first

examined the allegations presented by Palmiter in her complaint, and the

arguments made by Employers in their preliminary objections, in detail. It

then stated:

The viability of Palmiter’s claims for disability discrimination,
failure to provide a reasonable accommodation, and retaliation is
contingent upon her ability to demonstrate a ‘disability’ under the
PHRA. Palmiter does not contend that her ‘medical conditions of
chronic pain, chronic migraines and persistent fatigue’ constitute
disabilities. Instead, she asserts that her prescribed use of medical
marijuana qualifies as a protected ‘disability’ under the PHRA.

Trial Court Memorandum and Order, 11/10/20, at 8-9.

In determining whether the use of medical marijuana was in fact a

disability under the PHRA, the trial court looked to the PHRA’s definition of a

“handicap or disability,” which, as noted above, explicitly excludes the current,

illegal use of a controlled substance, as defined by the CSA. See 43 P.S. §

954(p.1). The court then went on to examine the CSA’s definition of a

controlled substance, which includes marijuana, and the relevant provisions

of the MMA, and how they informed the decision of whether medical marijuana

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use was a disability within the meaning of the PHRA. The court condensed its

in-depth analysis into the following summary:

In defining a ‘disability’ for purposes of employment protection,
the PHRA specifically excludes illegal use of a controlled substance
and has long applied the federal [CSA]’s definition of marijuana
as an illegal, Schedule I controlled substance. Although the MMA
makes prescribed medical marijuana use lawful within the
Commonwealth, and in the process expressly amends several
statutes, including the Pennsylvania Controlled Substance, Drug,
Device and Cosmetic Act, [the MMA] does not reference, let alone
alter, the PHRA or its definition of ‘disability’ based upon federal
law. As presently worded, the PHRA excludes any use of marijuana
from its definition of a ‘disability,’ and absent legislative revision
of that statutory definition, courts are obligated to apply the
PHRA’s exclusion of marijuana use as a protected ‘disability.’

Trial Court Memorandum and Order, 11/10/20, at 2.

The trial court then went on to note that just one day before it held the

hearing on Employers’ preliminary objections, the Commonwealth Court filed

an opinion in Harrisburg Area Community College v. Pennsylvania

Human Relations Committee, 245 A.3d 283 (Pa. Cmwlth. Ct. October 29,

2020), which addressed the issue of whether the anti-discrimination

provisions of the PHRA required Harrisburg Area Community college (“HACC”)

to accommodate a nursing student’s (“Student”) lawful use of medical

marijuana under the MMA for her post-traumatic stress disorder and irritable

bowel syndrome. The trial court discussed the case at length, opining that it

lent further support to its conclusion that use of medical marijuana is not a

disability under the PHRA.

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There, HACC, much like Employers here, argued that because marijuana

use is considered illegal under the CSA, individuals who use marijuana are

excluded from the PHRA’s disability definition, regardless of whether such use

is lawful in Pennsylvania. Meanwhile, the Pennsylvania Human Relations

Committee (“PHRC”) argued, much like Palmiter did before the trial court, that

the PHRA’s disability definition only excludes current, illegal users of controlled

substances, and that does not apply to medical marijuana users because the

MMA makes medical marijuana lawful in Pennsylvania.

While acknowledging these arguments, the Commonwealth Court

emphasized the issue before it was not whether Student’s medical marijuana

use was a disability under the PHRA. See id. at 286-287, 291 n.8. The Court

noted Student had specifically asserted in her complaint that her disabilities

were her post-traumatic stress disorder and irritable bowel syndrome. See

id. at 285, 291 n.8. The Court also indicated the PHRA’s definition of disability

would necessarily preclude a finding that use of or addiction to any controlled

substance under the CSA constituted a disability pursuant to the PHRA. See

id. at 291 n.8. Instead, the Court made clear that the specific issue on which

it had granted permissive review was whether the PHRA required HACC to

accommodate Student’s use of medical marijuana under the MMA. See id. at

286, 291 n.8.

In holding no such accommodation was required, the Commonwealth

Court explained that in the PHRA, the Pennsylvania Legislature explicitly

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excluded the use of a controlled substance as a disability, and specifically

incorporated the CSA’s definition of controlled substance, which includes

marijuana, into the PHRA’s definition of disability. The Court noted that while

the MMA legalized marijuana, the MMA did not reference the PHRA or “amend

or otherwise alter [the PHRA’s] provisions that exclude users of medical

marijuana from [the PHRA’s] definition of disability.” Id. at 293. Accordingly,

the Court concluded “the General Assembly chose not to require employers to

accommodate an employee’s … usage of medical marijuana under the MMA

[or] PHRA.” Id. at 298.

Based on all of the above, the trial court found Palmiter’s use of medical

marijuana pursuant to the MMA was not a protected disability under the PHRA.

It therefore determined that, because Palmiter had not averred a disability

pursuant to the PHRA, it was free and clear from doubt that she could not

make out a disability discrimination claim under the PHRA and sustained the

demurrer as to that count. The court also sustained Employers’ demurrer to

Palmiter’s failure-to-accommodate claim, again relying on its conclusion that

Palmiter had not shown she was a qualified individual with a disability under

the PHRA. As for the retaliation claim, the court found Palmiter had not

engaged in protected activity, as protected activity must “relate to

employment discrimination forbidden by the statute,” and because Palmiter

had failed to allege a disability under the PHRA, she was unable to state a

claim for “employment discrimination forbidden by the [PHRA].” Memorandum

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and Order, 11/10/20, at 20 (citation omitted). As a result, the court’s rulings

on the preliminary objections were premised on its conclusion that, although

Palmiter alleged in her complaint that her medical marijuana use was a

disability under the PHRA, the PHRA explicitly excluded such medical

marijuana use from its definition of a disability.

Palmiter filed a notice of appeal from the court’s order, followed by a

court-directed Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

In her brief, Palmiter raises two issues:

I. Whether the trial court erred when it dismissed [Palmiter’s]
complaint since she alleged she was disabled due to the
medical conditions of chronic pain, chronic migraines and
persistent fatigue and not the medical condition of medical
marijuana?

II. Whether seeking a reasonable accommodation of using
medical marijuana off the job and being denied the same
and ultimately fired seven days later was sufficient to state
a claim for retaliation under the PCRA?

Appellant’s Brief at 4.

As these issues make clear, Palmiter does not in any way challenge the

trial court’s finding that her medical marijuana use is not a disability under

the PHRA’s definition of that term. Instead, she avers in her first issue that

she has contended all along that her disability is her underlying medical

conditions, that is, her chronic pain, migraines and fatigue. She contends her

complaint specifically noted her medical conditions were her disabilities in

paragraphs 12 and 13, where she listed her medical conditions and averred

the medical conditions affected her ability to work and sleep but off-the-job

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medical marijuana use helped her to function normally. She alleges, in

essence, the trial court misconstrued her complaint as alleging that her

medical marijuana use was her disability.

The trial court flatly rejected this claim in its Pa.R.A.P. 1925(a) opinion.

The court stated in no uncertain terms that Palmiter “never alleged in her

complaint that her medical conditions [of chronic pain, chronic migraines or

persistent fatigue] constituted a ‘disability’ under the PHRA.” Order Pursuant

to Pa.R.A.P. 1925(a), 3/24/21, at 2. Rather, after once again outlining the

allegations in Palmiter’s complaint, the court reiterated that Palmiter had

alleged that her disability was her medical marijuana use.

The trial court also pointed out Palmiter had not made any argument

that her medical marijuana use was not her alleged disability in either her

brief or her arguments opposing Employers’ preliminary objections, in which

Employers specifically challenged the legal sufficiency of Palmiter’s complaint

on the basis that medical marijuana use does not qualify as a disability under

the PHRA. See id. Given the fact that Palmiter had not raised this issue before

the trial court at any point, the trial court urged this Court to find the issue

waived.4

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4 While remaining adamant Palmiter had not alleged and argued that she
suffered a disability under the PHRA due to her chronic pain, migraines and
fatigue, the trial court noted that, even if she had, its ruling on the preliminary
objections would have remained the same based on the clear holding of
Harrisburg Area Community College, 245 A.3d at 298.

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Employers urge the same thing. They contend that, as the trial court

found, Palmiter did not argue to the trial court the argument she now presents

for the first time on appeal: that her complaint, by listing her medical

conditions and averring they affected her work and sleep, actually alleged

those medical conditions were her disability.5 Employers emphasize Palmiter

never disputed Employers’ reading of the complaint as alleging a disability of

medical use of marijuana, even though Employers’ preliminary objections and

briefs made that evident. As such, Employers argue Palmiter has waived this

issue by never presenting it to the trial court despite the opportunity to do so.

They cite to Pa.R.A.P. 302(a) and a long list of cases to support this

contention. See Pa.R.A.P. 302(a)(providing that issues that are not raised in

the trial court are waived); Appellees’ Brief at 5, 7 (citing cases finding that

claims that were raised on appeal but not presented to the trial court were

waived).

We agree with the trial court and Employers that Palmiter has waived

this issue. Palmiter’s complaint is sparse and less than clear. However, the

trial court, after reviewing the complaint and hearing arguments which

necessarily touched upon what was alleged in that complaint, specifically

concluded that Palmiter’s complaint alleged her medical marijuana use was a

disability under the PHRA. At the same time, the court specifically concluded

____________________________________________

5Employers also contend that these two assertions, by themselves, are not
sufficient to state a viable claim of disability discrimination under the PHRA.

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that, despite what Palmiter now argues on appeal, her complaint did not allege

her underlying medical conditions were her disability. Moreover, as the trial

court noted, when Palmiter opposed Employers’ preliminary objections

seeking dismissal of Palmiter’s complaint on the basis that medical marijuana

use is not a disability under the PHRA, she did not argue that she had not

identified medical marijuana use as her disability. Rather, she argued medical

marijuana use was, in fact, a disability. Given all of these circumstances, we

agree with the trial court that the issue Palmiter now wishes to argue to this

Court is waived. See Pa.R.A.P. 302(a).

In turn, as Employers observe, Palmiter has also waived any issue that

the trial court improperly granted Employers’ preliminary objections based on

its determination that medical marijuana use is not a disability as that term is

defined by the PHRA. Palmiter abandons her claim on appeal that medical

marijuana use is a disability under the PHRA, and makes no argument that

the trial court erred by concluding otherwise. See Commonwealth v. McGill,

832 A.2d 1014, 1018 n.6 (Pa. 2003) (finding that when an appellant abandons

a claim on appeal, it is waived).

Palmiter does claim in the second issue in her appellate brief, however,

that the trial court erred by dismissing her retaliation claim. She seems to

assert she does not need to establish she has a disability under the PHRA in

order to make out a prima facie retaliation claim, contrary to what the trial

court found. Rather, she appears to contend that, in order to make out such

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a claim, she must only show she was engaged in a PHRA-protected activity.6

This claim is also waived.

In the first instance, in her 1925(b) statement, Palmiter only alleged

general error on the trial court’s part in dismissing her retaliation claim. She

did not forward the specific claim in her 1925(b) statement that she need not

establish a disability for purposes of a retaliation claim, and the trial court

therefore did not address such a claim in its 1925(a) opinion. The claim is

arguably waived for that reason alone. See Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998) (holding issues not raised in a 1925(b) statement

are waived).

However, we also note Palmiter’s argument in her brief is sorely

undeveloped and we find it waived for that reason as well. Palmiter seems to

allege the protected activity she engaged in was seeking the “reasonable

accommodation of medical marijuana use off the job,” Appellant’s Brief at 14,

but yet, she does not make any argument supporting her assertion that

medical marijuana is a reasonable accommodation under the PHRA. She does

cite to, and for that matter rely entirely on, the Eastern District Court’s

decision in Hudnell v. Thomas Jefferson Hospital University, 2020 WL

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6 As noted in one of only three paragraphs Palmiter devotes to this argument,
to establish a retaliation claim under the PHRA, she must allege: (1) she was
engaged in protected activity; (2) Employers were aware of the protected
activity; (3) she was subjected to an adverse employment action; and (4)
there is a causal connection between participation in the protected activity
and the adverse employment action. See Renna, 207 A.3d at 371.

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5749924 (E.D. Pa. 2020), in support of her claim. However, besides not being

binding authority, Hudnell actually undermines the purported claim made by

Palmiter given the following discussion:

Hudnell does not claim that her report of medical marijuana
usage was protected activity. Instead, she claims her request for
reasonable accommodations for her disability [which included
spinal injuries], such as her request to split time between working
in Jefferson’s office and her home, qualify as protected activity.
That claim satisfies her burden at this [motion to dismiss] stage
of the litigation because ‘requesting an accommodation is a
protected employee activity under the [PHRA].’

Id. at *3.

Palmiter’s only analysis of Hudnell as it relates to her claim - really, her

only analysis at all - is one sentence. She claims that “just as Hudnell, [she]

established a claim for retaliation under the PHRA since she sought a

reasonable accommodation of medical marijuana use off the job and was

denied the same and ultimately fired.” Appellant’s Brief at 14. Given her failure

to develop her claim in any meaningful way, it is waived. See

Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating

that arguments that are not sufficiently developed are waived).

In sum, the trial court sustained Employers’ preliminary objections on

the basis that the use of medical marijuana pursuant to the MMA is not a

disability under the PHRA. Palmiter does not challenge that determination. Her

argument that the trial court erred by sustaining the preliminary objections

because her complaint actually averred her disability was her underlying

medical conditions is waived, as she did not argue that to the trial court. Her

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claim that the trial court erred by sustaining Employers’ demurrer to her

retaliation claim is also waived, as she did not raise the basis for that claim in

her 1925(b) statement and failed to properly develop the claim. As such, we

must affirm the order of the trial court sustaining Employers’ preliminary

objections and dismissing Palmiter’s complaint.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/8/2022

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