Harrison, K. v. Health Network Laboratories ( 2018 )

J-A14033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAREN HARRISON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
HEALTH NETWORK LABORATORIES :
LIMITED PARTNERSHIPS, AND :
LEHIGH VALLEY HEALTH NETWORK, :
INC. :
:
Appellees : No. 365 EDA 2018
Appeal from the Order December 19, 2017
in the Court of Common Pleas of Lehigh County
Civil Division at No.: No. 2016-C-1469
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED DECEMBER 12, 2018
Appellant, Karen Harrison, appeals from the order sustaining
preliminary objections to her amended complaint. She claimed retaliation in
violation of the Pennsylvania Whistleblower Law (PWL).1 The trial court agreed
with Appellees, Health Network Laboratories Limited Partnerships (HNL), and
Lehigh Valley Health Network (LVHN), that Appellant’s whistleblower claim is
pre-empted by the Pennsylvania Human Relations Act (PHRA).2 The court
sustained Appellees’ preliminary objections, and dismissed the amended
____________________________________________
1 43 P.S. §§ 1421–28.
2 43 P.S. §§ 951–63.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14033-18
complaint, reasoning that Appellant’s whistleblower claim was pre-empted by
the PHRA, and she had not exhausted (or pursued) her PHRA administrative
remedy. On independent review, we are constrained to conclude that the trial
court erred in its reasoning that the PHRA pre-empts the PWL for Appellant’s
claim. Moreover, in reviewing preliminary objections we are bound to regard
all well-pleaded facts as true, together with all reasonable inferences. In cases
of doubt, a demurrer must be overruled. We conclude that the trial court
could have properly determined that Appellant waived any claim she may have
had for retaliation under the PHRA. However, under our standard of review,
we also conclude that Appellant states a claim for violation of the
Whistleblower Law, which could provide legal relief. Accordingly, we are
constrained to affirm in part, and vacate in part, the order of the trial court
sustaining Appellees’ preliminary objections. We remand to the trial court for
further proceedings consistent with this decision.
We derive the facts of the case from the memorandum opinion of the
trial court and our independent review of the record before us. (See Trial
Court Opinion, 2/09/18, at 1-5). As explained below, in reviewing a
challenged pleading, we (as well as the trial court) must accept as true all
well-pleaded, material, and relevant facts alleged in the complaint and every
inference that is fairly deducible from those facts.
In March of 2015, Appellant was employed by HNL as “Manager,
Quality.” At that time, another employee, Elizabeth Corkery, informed
-2-
J-A14033-18
Appellant that she (Corkery) was being subjected to a hostile work
environment by Arun Bhaskar, her supervisor in the IT department.
The core of Ms. Corkery’s complaint was that Mr. Bhaskar, apparently
of Indian heritage, regarded all non-Indians as inferior workers, openly
disparaged them, her in particular, and mistreated them accordingly. Corkery
further asserted that Bhaskar’s immediate supervisor, Harvey Guindi, HNL’s
Chief Information Officer, knew about Bhaskar’s mistreatment of non-Indian
subordinates, but did nothing about it. Appellant asserts that she passed on
Ms. Corkery’s complaints to the HNL officer in charge of human resources, and
other key personnel, requesting the appointment of an ombudsman, but
nothing happened.
Corkery resigned on October 1, 2015. Shortly after (around October
15), she sent a letter to Appellant and others memorializing her complaints
against Mr. Bhaskar. Appellant avers that she passed on this letter, too, to
appropriate HNL personnel. Again, nothing happened.
About a month later, on November 19, 2015, HNL terminated
Appellant’s employment, ostensibly for her use of foul language at an offsite
corporate banquet function. Appellant contends this explanation was
pretextual, and that, in actuality, she was terminated for calling attention to
Ms. Corkery’s claims of discrimination.
On May 12, 2016, Appellant commenced this action by filing a complaint
in the Court of Common Pleas of Lehigh County. The case was removed to
-3-
J-A14033-18
the United States District Court for the Eastern District of Pennsylvania. The
federal court granted Appellant leave to amend her complaint. On March 16,
2017, Appellant filed an amended complaint in federal court. On March 21,
2017, the federal court remanded the case back to the Court of Common
Pleas.
In pertinent part, the amended complaint pleads one count: “Retaliation
in Violation of 43 P.S. § 1423(a).”3 (See Amended Complaint, 3/16/17, at 6).
The most relevant allegations of Count I are:
37. The conduct described herein, committed by Bhaskar
and sanctioned by Guindi, constitutes illegal activity and is
“wrongdoing,” as defined by the Pennsylvania Whistleblower Law,
43 P.S. § 1423(a), which includes any violations of state statutes
or regulations that are not de minimis in nature.
38. The conduct described herein, committed by Bhaskar
and sanctioned by Guindi, violates the Pennsylvania Human
Relations Act, 43 P.S. §[§] 951[-963,] and various other state
laws.
____________________________________________
3 Section 1423(a) provides:
(a) Persons not to be discharged.−No employer may
discharge, threaten or otherwise discriminate or retaliate
against an employee regarding the employee’s compensation,
terms, conditions, location or privileges of employment because
the employee or a person acting on behalf of the employee makes
a good faith report or is about to report, verbally or in writing, to
the employer or appropriate authority an instance of wrongdoing
or waste by a public body or an instance of waste by any other
employer as defined in this act.
43 P.S. § 1423 (emphases added).
-4-
J-A14033-18
(Id., 3/16/17, at 5) (unnecessary capitalization omitted).
On June 5, 2017, Appellees filed preliminary objections to the amended
complaint pursuant to Pa.R.C.P. 1028(a)(2)-(4).4 On December 19, 2017, the
trial court sustained Appellees’ preliminary objections pursuant to Pa.R.C.P.
1028(a)(4), granted demurrer, and dismissed Appellant’s amended complaint.
(See Order, 12/19/17, at unnumbered page 3 n.1; (see also Trial Ct. Op., at
1).
The trial court explained its dismissal of the complaint as follows:
Before filing a complaint under the PHRA, an aggrieved
individual must first “file a complaint with the Pennsylvania
Human Relations Commission (PHRC) and exhaust all
administrative remedies before seeking redress in court.”
Carlson v. Community Ambulance Services, Inc., 824 A.2d
1228, 1231 (Pa. Super. 2003). . . . [Appellant] attempted to
circumvent the remedial systems set up by the PHRA by filing her
claim under the PWL while claiming in her Amended Complaint
that [Appellees’] conduct violated the PHRA.
____________________________________________
4. In pertinent part, Rule 1028 provides:
(a) Preliminary objections may be filed by any party to any
pleading and are limited to the following grounds:
* * *
(2) failure of a pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter;
(3) insufficient specificity in a pleading;
(4) legal insufficiency of a pleading (demurrer)[.]
Pa.R.C.P. 1028(a)(2)-(4).
-5-
J-A14033-18
(Trial Ct. Op., at 3-4).
Appellant timely filed this appeal on January 16, 2018.5 She raises one
question for our review:
Whether a civil action brought under the Pennsylvania
Whistleblower Law, 43 P.S. § 1424, is subject to the exhaustion
requirements of the PHRA, 43 P.S. §§ 951-963?
(Appellant’s Brief, at 5).
Preliminarily, we observe that counsel for Appellant has framed the
question for review as an abstract inquiry into the exhaustion of remedies.
This Court does not sit to consider hypothetical, abstract, or moot questions.
In such a case, an opinion of this Court is rendered advisory in nature. See
In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An issue before a court
is moot if in ruling upon the issue the court cannot enter an order that has
any legal force or effect.”). (citation omitted).
However, while the question posed is somewhat inartful, in context its
necessary implication is that the trial court erred in sustaining Appellees’
preliminary objections, and dismissing the complaint. Therefore, in the
interest of justice and judicial economy we will address the implicit question
underlying Appellant’s question as framed, and review the trial court’s order.
In considering an appeal from an order granting preliminary objections
in the nature of a demurrer, which is a question of law, an appellate court’s
____________________________________________
5 Appellant filed a court ordered statement of errors on February 6, 2018. The
trial court filed an opinion on February 9, 2018. See Pa.R.A.P. 1925.
-6-
J-A14033-18
standard of review is de novo and our scope of review is plenary. See Doe
v. Franklin Cty., 174 A.3d 593, 602 (Pa. 2017).
The trial court may sustain preliminary objections only when, based on
the facts pleaded, it is clear and free from doubt that the complainant will be
unable to prove facts legally sufficient to establish a right to relief. For
evaluating the legal sufficiency of the challenged pleading, the court must
accept as true all well-pleaded, material, and relevant facts alleged in the
complaint and every inference that is fairly deducible from those facts. See
Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641 (Pa. Super.
2016). “[P]reliminary objections in the nature of a demurrer . . . should be
sustained only if, assuming the averments of the complaint to be true, the
plaintiff has failed to assert a legally cognizable cause of action.” Langella v.
Cercone, 34 A.3d 835, 838 (Pa. Super. 2011), appeal denied, 38 A.3d 826(Pa. 2012) (citation omitted).
Here, on independent review, we are constrained to conclude that the
learned trial court acknowledged, but failed to follow, the pertinent standard
of review, and misapplied the applicable legal principles.
Specifically, without presenting support from pertinent controlling
authority, the trial court accepted Appellees’ claim that Appellant’s
whistleblower claim is pre-empted by the previously enacted Pennsylvania
Human Relations Act. We recognize that a later enacted statute might
conceivably pre-empt a previously enacted statute. But neither the trial court
-7-
J-A14033-18
nor Appellees explain why a statute enacted in 1955 could (or should) pre-
empt another statute enacted over thirty years later.
To the contrary, under well-settled rules of statutory interpretation,
each statute shall be construed to give effect to all of its provisions. See
1 Pa.C.S.A. § 1921. We also presume that the General Assembly does not
intend a result that is absurd, impossible of execution or unreasonable, and
that the General Assembly intends the entire statute to be effective and
certain. See 1 Pa.C.S.A. § 1922(1), (2).
Furthermore, the trial court’s conclusion that Appellant “has failed to
state a claim upon which relief can be granted under the PWL[,]” (Trial Ct.
Op., at 4), is simply at stark variance with the plain meaning of the PWL
statute.
As already noted, the Whistleblower Law prohibits discharge, threats,
discrimination or retaliation against an employee for a good faith report of
“wrongdoing” by a public body or an instance of waste by any other employer
as defined in the act. 43 P.S. § 1423(a).6 Contrary to the conclusion of the
____________________________________________
6 This Court has decided that the statutory definition of “public body” for
purposes of the Whistleblower Law includes, inter alia, private entities which
receive funding “in any amount by or through Commonwealth[.] 43 P.S.
§ 1422; see also Denton v. Silver Stream Nursing & Rehab. Ctr., 739
A.2d 571, 576-77 (Pa. Super. 1999) (finding recipient of Medicaid funding is
“public body” for purposes of Whistleblower Law; appellant alleging discharge
for good-faith reports of wrongdoing and waste stated valid cause of action;
complaint erroneously dismissed).
-8-
J-A14033-18
trial court, Appellant was not required to invoke the PHRL to pursue a
retaliation claim under the PWL. Appellant plainly asserts the violation of the
PHRL against Ms. Corkery, as the underlying wrongdoing, not as the act
perpetrated against her (Ms. Harrison).
Here, the trial court’s reasoning appears to conflate a claim for violation
of the PHRA, which requires the pursuit of administrative remedies, with a
Whistleblower claim, which does not.
The trial court may sustain preliminary objections only when, based on
the facts pleaded, it is clear and free from doubt that the complainant will be
unable to prove facts legally sufficient to establish a right to relief. See
Heldring, supra at 641; Langella, supra at 838.
On independent review, accepting as true all well-pleaded, material, and
relevant facts alleged in the complaint and every inference that is fairly
deducible from those facts we conclude that Appellant asserted a legally
cognizable cause of action under the Whistleblower Law.
We read Appellant’s complaint as raising a whistleblower claim only.
Nevertheless, we recognize that by inartful and overly generalized drafting
counsel for Appellant left open the interpretation adopted by the trial court
that she could have been asserting a PHRA claim as well as a whistleblower
claim. To the extent that the trial court correctly discerned that Appellant
sought to raise a PHRA claim, we agree that that remedy is foreclosed by the
administrative complaint requirement. However, Appellant unequivocally
-9-
J-A14033-18
raised a valid Whistleblower complaint. (See Amended Complaint, ¶ 1). That
claim survives.
Accordingly, we are constrained to conclude that the learned trial court
erred in dismissing Appellant’s complaint. Therefore, we affirm in part (as to
any assertion of a PHRA claim on behalf of Appellant), and vacate in part (as
to the PWL claim), the order of the trial court sustaining Appellees’ preliminary
objections. We remand to the trial court for further proceedings consistent
with this decision.
Order affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this decision. Panel jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/18
- 10 -