J-S34013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN CARROZZA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHILDREN'S HOSPITAL OF PITTSBURGH
OF UNIVERSITY OF PITTSBURGH
MEDICAL CENTER
Appellee No. 1319 WDA 2013
Appeal from the Order July 8, 2013
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-013828
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 21, 2014
Kathleen Carrozza (Carrozza) appeals from the order entered July 8,
2013, in the Court of Common Pleas of Allegheny County, sustaining the
preliminary objections filed by Defendant, Children’s Hospital of Pittsburgh of
University of Pittsburgh Medical Center (Children’s Hospital), dismissing with
prejudice Carrozza’s Third Amended Complaint. In this appeal, Carrozza
argues: (1) the trial court improperly denied her preliminary objections to
Children’s Hospital’s preliminary objections, and (2) the trial court erred in
determining the complaint failed to set forth a cause of action upon which
relief could be granted. Following a thorough review of the submissions by
the parties, relevant law, and the certified record, we affirm.
Our standard of review for matters such as this is well settled.
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As a trial court's decision to grant or deny a demurrer
involves a matter of law, our standard for reviewing that
decision is plenary. Preliminary objections in the nature of
demurrers are proper when the law is clear that a plaintiff
is not entitled to recovery based on the facts alleged in the
complaint. Moreover, when considering a motion for a
demurrer, the trial court must accept as true all well-
pleaded material facts set forth in the complaint and all
inferences fairly deducible from those facts.
Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854
A.2d 425, 436 (2004) (citations and internal quotation marks
omitted). Accord, Friedman v. Corbett, --- Pa. ---, 72 A.3d
255, 257 n. 2 (2013). Furthermore,
Our standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error of
law. When considering the appropriateness of a ruling on
preliminary objections, the appellate court must apply the
same standard as the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint.... 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.
Joyce v. Erie Ins. Exch., 74 A.3d 157, 162 (Pa. Super. 2013)
(citation omitted).
Little Mountain Community Ass’n v. Southern Columbia Corp., 92 A.3d
1191, 1195 (Pa. Super. 2014).
By way of background, Carrozza claimed Children’s Hospital wrongfully
terminated her employment for: (1) refusing to commit criminal activity,
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see Third Amended Complaint, ¶ 149;1 (2) refusing to take action
inconsistent with statutory ethical standards, id. at ¶¶ 202-205, 207-209;
and (3) for protesting plainly and clearly illegal activity, id. at ¶¶ 214, 219-
220. Carrozza claimed that she was attempting to report child abuse and
Children’s Hospital prevented her from doing so and that she was fired for
her attempts.
Carrozza’s Third Amended Complaint was filed on March 12, 2013. It
did not contain a notice to defend. Children’s Hospital filed preliminary
objections to that complaint on May 6, 2013. On May 14, 2013, argument
was set for June 19, 2013. However, on May 15, 2013, Carrozza filed
preliminary objections to Children’s Hospital’s preliminary objections,
claiming Children’s Hospital’s filing was untimely. On June 11, 2013,
pursuant to Carrozza’s request, argument on Children’s Hospital’s
preliminary objections was continued to July 8, 2013. On July 2, 2013,
Children’s Hospital filed a brief in opposition to Carrozza’s preliminary
objections, arguing its preliminary objections were not untimely because no
notice to defend was attached to the third amended complaint. Argument
was held as scheduled on July 8, 2013 at which time the trial court granted
Children’s Hospital’s preliminary objections and dismissed the complaint with
prejudice. This appeal followed.
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1
All citations to paragraph numbers refer to the Third Amended Complaint.
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We will address Carrozza’s procedural issues first. Carrozza argues
that Children’s Hospital’s preliminary objections were untimely, should have
been overruled, and Children’s Hospital should have been required to file an
answer to the third amended complaint. She argues in the alternative, if
Children’s Hospital’s preliminary objections were timely, she should have
been granted time to substantively answer the preliminary objections. Both
of these arguments are unavailing.
Pennsylvania Rule of Civil Procedure 1018.1 requires every complaint
begin with a notice to defend.2 Pennsylvania Rule of Civil Procedure 1026
provides a party 20 days to respond to a pleading. However, “no pleading
need be filed unless the preceding pleading contains a notice to defend or is
endorsed with a notice to plead.” Pa.R.C.P. 1026(a). See Mother’s
Restaurant, Inc. v. Krystkeiwicz, 861 A.2d 327, 338 (Pa. Super. 2004)
([E]very complaint, including amended complaints, must include Notice to
Defend); Gerber v. Emes, 511 A.2d 193 (Pa. Super. 1986) (no responsive
pleading needed when no notice to defend is present); and Barber v. Com.,
City of Pittsburgh, 35 A.3d 826 (Pa. Cmwlth. 2012) (notice to defend
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2
Rule 1018.1(a) provides: “Every complaint filed by a plaintiff and every
complaint filed by a defendant against an additional defendant shall begin
with a notice to defend in substantially the form set forth in subdivision (b).
No other notice to plead to a complaint shall be required.”
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attached to original complaint does not serve as notice to defend for
subsequent complaint).
Here, Carrozza’s third amended complaint was filed on March 12, 2013
and Children’s Hospital’s preliminary objections were not filed until May 6,
2013, well past the 20 days allowed by Pa.R.C.P. 1026. However, Carrozza
failed to include a notice to defend with her third amended complaint, 3 and,
therefore, the 20-day response time pursuant to Rule 1026 did not apply.
Accordingly, Children’s Hospital’s preliminary objections were not untimely.
Carrozza has also argued that if Children’s Hospital’s preliminary
objections were timely, the trial court erred in failing to grant her time to
answer those preliminary objections. Pursuant to the docket, argument on
Children’s Hospital’s preliminary objections was initially scheduled for June
6, 2013. However, by letter dated May 10, 2013 Carrozza asked for, and
received a continuance to June 19, 2013. See Order, May 14, 2013. The
next day, Carrozza filed her preliminary objections to Children’s Hospital’s
preliminary objections. On June 11, 2013, Carrozza was granted another
continuance, from June 19, 2013 to July 8, 2013. Contrary to her
assertions, she was granted two continuances. Additionally, the hearing on
the preliminary objections was held, as scheduled, on July 8, 2013. If
Carrozza felt she had been disadvantaged by not filing a written response to
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3
In fact, none of the amended complaints had the required notice to defend.
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the preliminary objections, it was her responsibility to raise the issue before
the argument or by lodging a contemporaneous objection at the time of
argument. No such objection appears in the certified record. Therefore,
there is no indication of record that Carrozza sought permission to file a
written response, but was denied the opportunity by the trial court. Because
there is no indication that the issue was preserved by timely objection before
the trial court, the issue is waived. See Pa.R.A.P. 302(a) (issues not raised
before the trial court are waived and cannot be raised for the first time on
appeal).
In sum, Carrozza’s procedural arguments are without merit and she is
not entitled to relief on these issues.
Next, Carrozza claims the trial court erred in determining her
complaint was insufficient to set forth a cause of action. We disagree.
Initially, we note that:
“absent a contract, employees in Pennsylvania are considered to
be at-will. Therefore, they can be terminated at any time for any
reason. Stumpp v. Stroudsburg Mun. Auth., 540 Pa. 391,
396, 658 A.2d 333, 335 (1995).”
Haun v. Community Health Systems, Inc., 14 A.3d 120, 124 (Pa. Super.
2011).
Further,
[A]s a general rule, no common law cause of action exists
against an employer for termination of an at-will
employment relationship. Moreover, exceptions to this rule
have been recognized in only the most limited of
circumstances, where discharges of at-will employees
would threaten the clear mandates of public policy.
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Hunger v. Grand Cent. Sanitation, 447 Pa. Super. 575, 670
A.2d 173, 175 (1996), appeal denied, 545 Pa. 664, 681 A.2d
178 (1996) (internal citations and quotation marks omitted).
Guerra v. Redevelopment Authority of City of Philadelphia, 27 A.3d
1284, 1289 (Pa. Super. 2011).
Finally,
It is well established that Pennsylvania recognizes the at-will
employment doctrine. As this Court has noted, however, there
are a few, narrow public policy exceptions to the at-will
employment doctrine:
These exceptions fall into three categories: an employer (1)
cannot require an employee to commit a crime, (2) cannot
prevent an employee from complying with a statutorily imposed
duty, and (3) cannot discharge an employee when specifically
prohibited from doing so by statute. [Citation omitted.]
Spierling v. First American Home Health Services, Inc., 737 A.2d 1250,
1252 (Pa. Super. 1999).
Because Carrozza pled no facts that would remove her from being an
at will employee, her claims are based upon public policy exceptions and are
related to incidents she believed constituted child abuse. The trial court
characterized her allegations in its Pa.R.A.P. 1925(b) Opinion:
The allegations of the Third Amended Complaint involve two
children in the Epileptic Unit of the Defendant Hospital, referred
to as Patient BK and Patient X. Children in that unit are
videotaped, presumably so that the circumstances surrounding
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any seizure can be documented and reviewed by medical
personnel.[4]
As to BK, [Carrozza] asserts that she was told that a visitor had
kissed this patient for too long. [Carrozza] reported this 2-3
times and was then told to stop talking about this incident.
[Carrozza] does not claim to have had any actual knowledge of
this event at all.
As to X, [Carrozza] brought this up when she was told that she
might be discharged for having an altercation with another
employee. Apparently while X was being filmed he was
masturbating and [Carrozza] observed other employees viewing
the film of the child and mocking this conduct.
Trial Court Opinion, 12/27/2013, at 3.
Our review of the certified record supports the trial court’s
determination that none of the exceptions apply to Carrozza, and she has
failed to plead a valid cause of action.
Regarding BK, Carrozza admits in her third amended complaint that
the incident was reported to the social department by another technician.
See ¶ 13. As a result of that report, an investigation occurred. See ¶ 14.
Further, statements from multiple employees were collected. See ¶ 15.
After all of this occurred, Carrozza reported the alleged incident to the
clinical leader and to the social department, and was told the incident had
already been reported and had been investigated. See ¶¶ 51, 58. After
reporting the incident, Carrozza’s supervisor told her not to discuss the
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4
In fact, Carrozza, admits the original purpose of videotaping the children
may have been for legitimate medical purposes. See ¶ 163.
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matter further with her co-workers, including the clinical leader. See ¶ 66.
We note Carrozza’s complaint does not allege she either saw the allegedly
inappropriate kiss or saw the tape of it. The trial court refers to Carrozza’s
knowledge of the incident as “hearsay.” See Trial Court Opinion, supra, at
1.
As to X, Carrozza reported the alleged improper behavior of viewers of
the tape to her supervisor. See ¶¶ 94-98. She claimed not only that
hospital personnel should not have viewed the video tape, but also should
have reminded X that his actions were being recorded. See ¶ 99.
In the first count of her third amended complaint claiming wrongful
discharge, Carrozza alleged she was fired for refusing to commit a crime.
Specifically, in regards to BK, she alleges she was ordered by her supervisor
not to talk about the incident with her co-workers or with her Clinical Leader.
However, her own pleadings indicate that prior to this alleged direction, she
had already reported the incident to both the social department and her
clinical leader. See ¶ 51. Therefore, the instruction not to discuss the
incident further could not constitute an order to commit a crime because
Carrozza had already reported the incident.
Regarding the incident involving X, Carrozza has presented no
allegations that she was directed in any way to commit any illegal act.
Therefore, the current allegation that she was fired for refusal to commit an
illegal act as to patient X must fail.
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In her second count for wrongful discharge, Carrozza claims she was
fired for refusing to take action that would have been in violation of the
ethical rules of ABRET,5 the certifying board for electroencephalographic
technicians. See ¶ 209. However, Carrozza has not set forth any allegation
that she was instructed to take any action in violation of the standards.
Further, the law prevents an employer from preventing a person from
complying with a statutory requirement. See Spierling, supra. The
ABRET standards are not statutory requirements. Finally, Carrozza admits in
her complaint that she was not a member of ABRET. See ¶ 196. For these
reasons, this aspect of the complaint fails.
Count II also contains an allegation that Carrozza was fired in
retaliation for complying with her statutory duty to report what she believed
was child abuse. Carrozza argues that pursuant to 23 Pa.C.S. § 6311, she
was required to report the BK and X incidents to the proper person at the
hospital.6 She claims that she was fired for complying with her statutory
duty.
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5
Per Carrozza’s complaint, ABRET is an acronym for American Board of
Registration of Electroencephalographic and Evoked Potential Technologists.
See ¶ 191.
6
The complaint never provides the identity of the proper person at the
hospital to whom such complaints should be made. See 23 Pa.C.S. §
6311(c). The complaint infers that it would be either the clinical leader or
the social department.
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As to BK, Carrozza did not report the incident until after she knew, for
a fact, that the incident had already been reported and was under
investigation. See ¶¶ 13, 14, 15, 51, 52, 58. We do not believe that the
relevant statutes, enacted for the critical purpose of the protection of
children, require a person to report to the authorities that which the person
knows has already been reported. Regarding X, our review of the relevant
statutes and allegations of the complaint lead us to agree with the Honorable
Judith L. A. Friedman, who opined, “The immature mockery of a video of a
masturbating child, out of the presence of the child, also does not give rise
to a duty in [Carrozza] to report that incident as child abuse.”7 Trial Court
Opinion, 12/27/2013, at 4. Because Carrozza was under no statutory duty
regarding the incidents she complains of, her claim of retaliatory discharge
for complying with her statutory duty fails.8
Finally, Carrozza alleged she was fired for protesting “plainly illegal
activity.” See Count III, ¶ 219. However, as we have noted throughout this
decision, Carrozza has not demonstrated the existence of any plainly illegal
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7
See 23 Pa.C.S. § 6303 for definitions of “child abuse” and “sexual abuse or
exploitation.”
8
The trial judge opined that Carrozza’s “allegations in [her] Third Amended
Complaint demonstrate that she is more an officious intermeddler than a
wronged defender of children, however sincerely her beliefs are held.” See
Trial Court Opinion, 12/27/2013, at 4. Exceptions to the at-will doctrine are
strictly limited and Carrozza’s subjective good intentions do not meet any of
the exceptions.
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activity. Carrozza heard about activity regarding BK, and witnessed what
the trial court regarded as “immature mockery” regarding a videotape of X.
Nothing Carrozza alleges in her complaint, either that she witnessed, heard
about or was instructed to do, rises to the level of plainly illegal activity to
support her wrongful discharge claim or exempt her from at-will employee
status. In sum, Carrozza has failed to convince us that the trial court’s
determination in this matter was an abuse of discretion or error of law.
Because we agree with the trial court that based upon Carrozza’s third
amended complaint, it is clear and free from doubt that she has not pled
facts legally sufficient to remove her from the at-will employment doctrine
and establish a cause of action for wrongful discharge, we affirm the order
granting Children’s Hospital’s preliminary objections and dismissing, with
prejudice, Carrozza’s Third Amended Complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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