Al-Saleem, E. v. Health Network Lab. ( 2023 )

J-A24020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESSEL AL-SALEEM : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HEALTH NETWORK LABORATORIES, : No. 795 EDA 2022
L.P. :
Appeal from the Order Entered February 17, 2022
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2020-C-1255
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 3, 2023
Essel Al-Saleem, M.D., appeals from the trial court’s February 17, 2022
order entering summary judgment in favor of Health Network Laboratories,
L.P. (“HNL”), and against Dr. Al-Saleem. Additionally, Dr. Al-Saleem
challenges the February 2, 2022 order sustaining in part and overruling in part
HNL’s preliminary objections and dismissing Count II of Dr. Al-Saleem’s
second amended complaint, which was made final by the entry of summary
judgment. After careful review, we affirm.
Dr. Al-Saleem is a board-certified pathologist with a specialty in
hematopathology. HNL operates anatomical pathology labs. Dr. Al-Saleem
and HNL executed an employment agreement whereby HNL employed Dr. Al-
Saleem to provide anatomical and clinical pathology services beginning on July
15, 2019, and concluding on December 31, 2021. The employment agreement
J-A24020-22
permits HNL to terminate the agreement for cause without notice and without
further obligation to compensate Dr. Al-Saleem. The employment agreement
also allows HNL to terminate the agreement without cause, provided HNL
affords Dr. Al-Saleem 90 days’ written notice of termination. Termination
without cause entitles Dr. Al-Saleem to an additional three months’ salary.
HNL terminated Dr. Al-Saleem’s employment on December 2, 2019,
pursuant to the provision of the employment agreement governing
termination without cause. HNL instructed Dr. Al-Saleem to stop reporting to
work but continued to pay Dr. Al-Saleem’s salary through the 90-day notice
period. HNL also paid Dr. Al-Saleem an additional three months’ salary
following the conclusion of the notice period.
On May 28, 2020, Dr. Al-Saleem filed a complaint alleging wrongful
termination, violation of Pennsylvania’s Whistleblower Law,1 and breach of
contract. Dr. Al-Saleem alleged that she was terminated in retaliation for her
numerous reports about lab practices she believed were “unsafe, unethical,
illegal and/or out of compliance[.]” Complaint, 5/28/20, ¶ 31. Dr. Al-Saleem
raised concerns about, among others, “outdated” reporting values, which
resulted in unnecessary testing; lack of pathologist review before samples
were sent to the cytopathology section; and alterations made to her own
reports without her knowledge or approval. See id. at ¶¶ 36-39, 52-53. Dr.
____________________________________________
1 See 43 P.S. §§ 1421-1428.
-2-
J-A24020-22
Al-Saleem alleged that she spoke with several superiors about these concerns.
See id. at ¶¶ 43-47, 49.
Dr. Al-Saleem subsequently filed an amended complaint.2 HNL filed
preliminary objections asserting the complaint failed to allege facts sufficient
to constitute a cause of action. Dr. Al-Saleem filed a response. Following oral
argument, the trial court sustained HNL’s preliminary objections and granted
Dr. Al-Saleem permission to file a second amended complaint.
On July 16, 2021, Dr. Al-Saleem filed her second amended complaint.
Therein, Dr. Al-Saleem alleged that the use of “outdated” limits for normal
interval values in tests caused unnecessary additional testing, and in turn, “in
unwarranted billing to insurance companies, and governmental payors
including, without limitation, Medicare and Medicaid.” Second Amended
Complaint, 7/16/21, at ¶ 37; see also id. at ¶¶ 39, 54. Further, Dr. Al-Saleem
alleged that such unnecessary testing “would fall within the company’s internal
definition of ‘abuse’ which includes practices that may directly or indirectly
result in unnecessary cost to the Medicare program or other federal or state
programs.” Id. at ¶ 55; see also id. (stating the same definition of “abuse”
is used in HNL’s compliance investigations policy). Dr. Al-Saleem also
generally alleged that HNL engaged in self-referral, which constitutes fraud.
See id. at ¶¶ 57-58.
____________________________________________
2 HNL filed preliminary objections to the original complaint, but they were
dismissed as moot after Dr. Al-Saleem filed the amended complaint.
-3-
J-A24020-22
HNL again filed preliminary objections claiming the second amended
complaint had not remedied the defects of the first amended complaint. Dr.
Al-Saleem filed a response. The parties appeared for oral argument on the
preliminary objections in December 2021. On February 2, 2022, the trial court
entered an order sustaining in part and overruling in part HNL’s preliminary
objections and dismissing Count II (Whistleblower Law) of Dr. Al-Saleem’s
second amended complaint. In particular, the trial court concluded Dr. Al-
Saleem failed to allege she made a good faith report of waste or wrongdoing
by HNL. See Order, 2/2/22.
Prior to the final resolution of the preliminary objections, HNL also filed
a motion for summary judgment on all three counts.3 HNL argued that Dr. Al-
Saleem’s wrongful termination claim fails as a matter of law because she did
not establish that she was an at-will employee, where her position was
governed by an employment agreement. Additionally, HNL argued that Dr. Al-
Saleem failed to establish either that HNL breached the employment
agreement by barring her from working during the 90-day notice period or
that she suffered monetary damages as a result. Dr. Al-Saleem filed an
answer. The trial court conducted a hearing, and on February 17, 2022, the
court entered an order granting summary judgment in favor of HNL and
____________________________________________
3Because the trial court dismissed Count II in its February 2, 2022 order, the
court did not address the Whistleblower Law claim on summary judgment.
-4-
J-A24020-22
against Dr. Al-Saleem on the remaining wrongful termination and breach of
contract claims. The instant timely appeal followed.
On appeal, Dr. Al-Saleem raises the following questions for our review:
1. Did the trial court err in sustaining HNL’s preliminary objections
with respect to Dr. Al-Saleem’s claim under the Whistleblower Law
in holding that the operative complaint did not allege a good faith
report of wrongdoing or waste[,] where Dr. Al-Saleem sufficiently
pled that she made a good faith report of wrongdoing and waste,
that Dr. Al-Saleem’s report made clear how HNL was guilty of
wrongdoing and provided information sufficient to identify the
laws violated, and explained how HNL’s wrongful acts violated the
cited statutes?
2. Did the trial court err in granting HNL’s motion for summary
judgment with respect to Dr. Al-Saleem’s claim of wrongful
termination in holding that Dr. Al-Saleem was not an at-will
employee because she had a written contract of employment[,]
where Dr. Al-Saleem presented sufficient evidence that she was
an at-will employee, as Dr. Al-Saleem was terminated without
cause prior to the expiration of the purported term, and thus she
was entitled to the Pennsylvania common law exception to the at-
will employment doctrine requiring that employees not be
retaliated against for opposition to and refusal to engage in illegal
activity in violation of Pennsylvania public policy?
3. Did the trial court err in granting summary judgment with
respect to Dr. Al-Saleem’s claim for breach of contract where Dr.
Al-Saleem presented sufficient evidence that HNL terminated Dr.
Al-Saleem without allowing her [to] work during the 90[-]day
notice period?
4. Did the trial court err in granting summary judgment with
respect to Dr. Al-Saleem’s claim for breach of contract where Dr.
Al-Saleem presented sufficient evidence that HNL compelled Dr.
Al-Saleem to perform services for which she was not qualified in
direct contradiction of the terms of the agreement?
5. Did the trial court err in granting summary judgment with
respect to Dr. Al-Saleem’s claim for breach of contract where Dr.
Al-Saleem presented sufficient evidence that she suffered
damages as a result of HNL’s breaches of contract?
-5-
J-A24020-22
Appellant’s Brief at 5-6 (some capitalization omitted).
In her first issue, Dr. Al-Saleem claims the trial court erred in sustaining
HNL’s preliminary objections to her Whistleblower Law claim. See id. at 23-
27. Dr. Al-Saleem argues she made a good faith report of waste and informed
her supervisors of fraudulent conduct. See id. at 23-24.
We review a trial court’s order sustaining preliminary objections for an
error of law:
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the dismissal of a
cause of action should be sustained only in cases in which it is
clear and free from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained, it should be
resolved in favor of overruling the preliminary objections.
Feingold v. Hendrzak, 15 A.3d 937 (Pa. Super. 2011) (citation omitted). A
court addressing preliminary objections in the nature of a demurrer is limited
to review only of the pleadings. See Morley v. Gory, 814 A.2d 762, 764 (Pa.
Super. 2002). When demurring to a complaint, “no testimony or other
evidence outside of the complaint may be considered to dispose of the legal
issues presented[.]” Id. (citations and quotation marks omitted).
Importantly, a plaintiff under the Whistleblower Law must identify
concrete actions or omissions of the employer, and explicitly identify the law
that the conduct or omission violated. See Greco v. Myers Coach Lines,
-6-
J-A24020-22
Inc., 199 A.3d 426, 433 (Pa. Super. 2018). “[R]eports of vague or
subjectively wrong conduct are not considered wrongdoing under the
Whistleblower Law.” Id. (citation omitted).
Here, the trial court concluded, among other reasons, that dismissal of
the Whistleblower Law claim was appropriate because Dr. Al-Saleem failed to
establish how any of HNL’s alleged actions violated any of the cited statutes.
See Trial Court Order, 2/1/22, n.1. We agree.
In her complaint, Dr. Al-Saleem identifies at least 13 separate statutes
the HNL allegedly violated. See Second Amended Complaint, 7/16/21, at ¶
108. However, the complaint does not make any attempt to apply the terms
of these statutes to her allegations. For example, 18 U.S.C. § 1035 prohibits
a person involved in a health care benefit program from knowingly and willfully
making misleading statements about material facts. While Dr. Al-Saleem
alleged that HNL used reporting ranges that differed significantly from other
providers in the industry, she did not allege that these reporting ranges are
materially false or misleading. Nor did she allege that HNL or its employees
knowingly and willfully used misleading reporting ranges.
As a result, we conclude Dr. Al-Saleem has not established the trial court
erred in sustaining the demurrer to her Whistleblower Law claim. Her first
argument on appeal merits no relief.
Dr. Al-Saleem’s remaining issues challenge the trial court’s entry of
summary judgment in favor of HNL. Our review of an order granting summary
-7-
J-A24020-22
judgment entails reviewing the record to determine whether there is a triable
issue of fact:
Summary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. … When considering a motion for summary
judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the
non-moving party. In so doing, the trial court must resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free from
all doubt. On appellate review, then, an appellate court may
reverse a grant of summary judgment if there has been an error
of law or an abuse of discretion. But the issue as to whether there
are no genuine issues as to any material facts presents a question
of law, and therefore, on that question our standard of review is
de novo. …
Burlington Coat Factory of Pa., LLC v. Grace Const. Mgmt. Co., LLC, 126
A.3d 1010, 1017 (Pa. Super. 2015) (citation and internal brackets omitted).
Dr. Al-Saleem asserts the trial court erred by concluding she was not an
at-will employee and therefore could not maintain a wrongful termination
claim. See Appellant’s Brief at 28. According to Dr. Al-Saleem, the
employment agreement did not alter her at-will employee status because it
permitted termination without cause. See id. at 28-29.
In an at-will employment relationship, either party may terminate the
relationship at any time and for any or no reason. See Mikhail v. Org. for
Women in Early Recovery, 63 A.3d 313, 316 (Pa. Super. 2013).
“[E]mployment is presumed to be at-will unless it is shown that the parties
contracted to restrict the right to terminate employment.” Deal v. Children’s
-8-
J-A24020-22
Hosp. of Phila., 223 A.3d 705, 711 (Pa. Super. 2019); see also Grose v.
Procter & Gamble Paper Prods., 866 A.2d 437, 441 (Pa. Super. 2005) (“A
clear and definite intention to overcome the presumption must be expressed
in the contract.” (citation and quotation marks omitted)). The presumption
can only be overcome if it is clearly established that the parties contracted for
a definite period. See DiBonaventura v. Consol. Rail Corp., 539 A.2d 865,
867 (Pa. Super. 1988). If an employment agreement sets forth a definite
period, the tort of wrongful discharge is unavailable to the employee. See H
& R Block Eastern Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 252 (Pa. Super.
2013)
The trial court here concluded that the employment agreement was for
a definite period. See Trial Court Memorandum, 2/17/22, at 2. Once again,
we agree.
As Dr. Al-Saleem concedes in her brief, the employment agreement
contains an explicit term of 29 months. See Appellant’s Brief, at 29 (“despite
the fact that the Employment Agreement contained a definite term for
employment…”); Employment Agreement, 5/15/19, at ¶ 2.4 Nevertheless, Dr.
____________________________________________
4 We note that the employment agreement is entirely absent from the certified
record on appeal. Ordinarily “matters which are not of record cannot be
considered on appeal.” See Commonwealth v. Holston, 211 A.3d 1264,
1275 (Pa. Super. 2019) (en banc). “[T]he ultimate responsibility of ensuring
that the transmitted record is complete rests squarely upon the appellant[.]”
Id. at 1276. Here, we decline to quash the appeal on the basis of the missing
agreement – which is central to all of Dr. Al-Saleem’s claims – as there is no
(Footnote Continued Next Page)
-9-
J-A24020-22
Al-Saleem argues that because the agreement provides for termination prior
to 29 months without cause, it is not, as a matter of law, a contract for a
definite term.
Dr. Al-Saleem’s argument on appeal fails to recognize that the trial court
did not conclude the employment agreement had a definite term of 29 months.
Rather, the trial court concluded the employment agreement set forth a
definite term of 90 days. To understand why, we must look at the “Termination
Without Cause” provision of the agreement.
There, the employment agreement limits HNL’s power to discharge Dr.
Al-Saleem without cause by requiring HNL to provide 90 days’ prior written
notice of the discharge to Dr. Al-Saleem. See Employment Agreement,
5/15/19, at ¶ 8(D). The paragraph details that HNL is obligated to pay Dr. Al-
Saleem her salary and benefits for the 90 days so long as the termination was
without cause. See id. Under these circumstances, we agree with the trial
court’s conclusion that the employment agreement creates a “rolling” definite
term of 90 days for Dr. Al-Saleem’s employment. As such, we conclude Dr.
Al-Saleem is due no relief on her challenge to the trial court’s grant of
summary judgment to HNL on her common law wrongful discharge claim.
____________________________________________
dispute as to the terms of the agreement and the Reproduced Record contains
a full copy. However, we caution counsel that we are not required to ignore
this misstep under these circumstances.
- 10 -
J-A24020-22
Even if she were an at-will employee, Dr. Saleem would be due no relief,
as she has failed to identify an established mandate of public policy that HNL
violated by terminating her employment. There is generally “no common law
cause of action against an employer for termination of an at-will employment
relationship.” McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d
283, 287 (Pa. Super. 2000) (citation omitted). However, there is an exception
“only in the most limited circumstances, where the termination implicates a
clear mandate of public policy.” Weaver v. Harpster, 975 A.2d 555, 563 (Pa.
2009); see also Deal, 223 A.3d at 712. Wrongful discharge claims have only
been allowed where the discharge infringes on statutory or constitutional
rights. See Weaver, 975 A.2d at 563.
Dr. Al-Saleem maintains that she was an at-will employee and
sufficiently stated a claim for wrongful termination. However, even as an at-
will employee, Dr. Al-Saleem would have to establish her termination
implicates a mandate of public policy in order to bring a wrongful termination
claim. See Weaver, 975 A.2d at 563. Dr. Al-Saleem does not identify an
applicable public policy consideration that would allow her to advance a
wrongful termination cause of action. Because Dr. Al-Saleem did not allege or
prove her discharge by HNL falls within the limited public policy exception to
the employer’s right to discharge an at-will employee for any or no reason,
Dr. Al-Saleem could not maintain a cause of action for wrongful termination.
- 11 -
J-A24020-22
Therefore, the trial court did not err in granting summary judgment in favor
of HNL on this issue.
Next, Dr. Al-Saleem claims that the trial court incorrectly concluded HNL
did not breach the employment agreement.5 See Appellant’s Brief at 32-37.
“To successfully maintain a cause of action for breach of contract the plaintiff
must establish: (1) the existence of a contract, including its essential terms,
(2) a breach of a duty imposed by the contract, and (3) resultant damages.”
Hart v. Arnold, 884 A.2d 316, 332 (Pa. Super. 2005).
The parties do not dispute that the employment agreement constitutes
a contract. Rather, the parties disagree about certain provisions in the
agreement. Dr. Al-Saleem first asserts that the employment agreement
requires HNL to permit Dr. Al-Saleem to continue working during the 90-day
period following notice of termination. HNL terminated Dr. Al-Saleem’s
employment under the “without cause” provision of the agreement, which
provides as follows:
D. Termination Without Cause: HNL may terminate this
Agreement without cause at any time upon ninety (90) days
written notice to Physician. In the event that HNL terminates this
Agreement without cause pursuant to this provision, Physician
shall be entitled to three (3) months of salary continuation (i.e.,
severance) following the end of the notice period. In the event
that Physician obtains subsequent employment before or during
____________________________________________
5 Despite raising her breach of contract claims as three distinct issues in her
statement of questions involved, Dr. Al-Saleem combines her discussion of all
three issues in her argument. See Pa.R.A.P. 2119(a) (providing that the
argument section of an appellant’s brief “shall be divided into as many parts
as there are questions to be argued”).
- 12 -
J-A24020-22
the salary continuation period, HNL’s salary continuation
obligation shall be offset by any compensation received by
Physician from the subsequent employment. Physician shall have
a duty to use reasonable efforts to mitigate Physician’s damages
in this regard.
Physician may terminate this Agreement at any time upon
(90) days written notice to HNL. At the time of notification, HNL
reserves the right to release the Physician from this agreement at
any time thereafter. If the Physician is requested to leave early
and without cause, Physician shall be entitled to salary and
benefits continuance for the duration of the ninety (90) day
notification period.
Employment Agreement, 5/15/19 at ¶ 8(D).
The trial court concluded Dr. Al-Saleem failed to establish a prima facie
claim of breach of contract. See Trial Court Opinion, 2/17/22, at 3. Here, the
employment agreement explicitly required HNL to provide Dr. Al-Saleem with
90 days’ notice of termination, after which time she would remain entitled to
an additional 3 months’ severance pay. However, the terms of the agreement
did not require HNL to allow Dr. Al-Saleem to continue working in its facilities
after making the decision to terminate her employment. In fact, the last
sentence of ¶ 8(D) explicitly allows for HNL to end Dr. Al-Saleem’s
employment before the end of the 90-day notice period so long as it continues
to pay her salary and benefits. Dr. Al-Saleem continued to receive her salary
through both the notice and severance periods in accordance with the terms
of the agreement. Under these circumstances, Dr. Al-Saleem failed to
establish that HNL breached the employment agreement by ending her
- 13 -
J-A24020-22
employment prior to the end of the 90-day notice period. Accordingly, the trial
court properly granted summary judgment in favor of HNL on this basis.
Dr. Al-Saleem also argues that HNL breached the employment
agreement by requiring her to perform tests despite her lack of qualifications
to do so. See Appellant’s Brief at 34. However, Dr. Al-Saleem’s argument on
this matter contains no more than bald allegations. She completely fails to
argue that either her performance or refusal to perform these tests led to her
termination without cause. This claim is therefore waived. See Bombar v.
West Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007) (“This Court will not
act as counsel and will not develop arguments on behalf of an appellant.”).
Based upon the foregoing, we affirm the trial court’s order granting
HNL’s preliminary objections in part and dismissing Dr. Al-Saleem’s
Whistleblower Law claim, and the order entering summary judgment in favor
of HNL as to Dr. Al-Saleem’s remaining claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2023
- 14 -