Riggio v. Burns

CIRILLO, President Judge Emeritus,

concurring:

Because I believe that the Medical College of Pennsylvania (“MCP”) was not “funded” by the Commonwealth, as intended under the Whistleblower Law (43 P.S. §§ 1421, et seq.), I must concur.

It is well settled that generally there is no common law action against an employer for termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). There are, however, exceptions to this rule; the exceptions are purposely and carefully limited to instances where discharging an at-will employee would threaten clear mandates of public policy. Id. See Field v. Philadelphia Elec. Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (employee recovered under public policy exception to at-will doctrine where employee was hired as expert in nuclear safety and was subsequently discharged for making statutorily required report to Nuclear Regulatory Commission); Hunter v. Port Auth., 277 Pa.Super. 4, 419 A.2d 631 (1980) (denying employment to individual who had been pardoned for assault conviction violated public policy of guaranteeing an individual’s state constitutional right to engage in common occupations); Reuther v. Fowler & Williams Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (interference with at-will employee’s statutory duty to serve on jury violated public policy). Additionally, our legislature has enacted the Whistleblower Law (“the Law”), 43 P.S. §§ 1421 et seq., a statutory remedy for at-will employees terminated from entities that receive funding from Commonwealth or political subdivision authority. This Law, however, does not protect employees who have been discharged from private entities; only public sector employees fall within the statute’s ambit and intent. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355 (1993). See Clark v. Modern Group Ltd., 9 F.3d 321 (3d Cir.1993); see also Wagner v. General Electric Co., 760 F.Supp. 1146 (E.D.Pa.1991) (by enacting 43 P.S. §§ 1421 et seq., the legislature clearly intended to exclude employees’ “whistleblowing” claims against private sector employers).

While recognizing the import of the Whis-tleblower Law and its value to employees discharged from the public sector for retaliatory purposes, I find the instant case an appropriate opportunity to express the need to limit the application of this statute. Presently MCP acknowledges that the hospital received appropriations from the Commonwealth. The receipt of such monies, however, should not subject MCP to potential statutory liability under this state’s whistleblower law. To hold otherwise would extend the application of the Law well beyond its intended purpose—a decision that I cannot sanction.

The Whistleblower Law was enacted to statutorily protect public employees from employer retaliation when those employees have made good-faith efforts to alert authorities to governmental waste and wrongdoing. Krajsa, supra; Rodgers v. PA Dept. of Corrections, 659 A.2d 63 (Pa.Commw.1995). See also 43 P.S. § 1421, Historical and Statutory Notes (the act provides for protection for employees who report a violation or suspected violation of State, local, or Federal law). The Law was not intended to fall within the narrow public policy exception to the at-will employment doctrine. Brown v. Hammond, 810 F.Supp. 644 (E.D.Pa.1993). The Law provides, in part, that:

*504No 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 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.

43 P.S. § 1423(a).

An employer is defined under the Law as “[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.” 43 P.S. § 1422. Furthermore, this statute defines an employee as “[a] person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, for a public body.” Id.

A “public body” is defined, in relevant part as:

Any other body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.

43 P.S. § 1422 (emphasis added).

The issue involved in this case is whether the Medical College of Pennsylvania constitutes a “public body” under the Pennsylvania Whistleblower Law due to the monies it received from the Commonwealth. Because there have been no state superior or supreme court decisions directly on point with this statutory issue, I am guided by the legislative interpretation of the Whistleblower Law as annunciated in Cohen v. Salick Health Care Inc., 112, F.Supp. 1521 (E.D.Pa.1991).

In Cohen, the plaintiff was an employee of Salick Health Care Inc., a publicly-traded, for-profit corporation that operated and managed out-patient cancer treatment centers throughout the nation. In September of 1988, Temple University contracted with Sal-ick to operate and manage a cancer center in North Philadelphia. In a management agreement signed by both parties, Salick and Temple contracted that it would be regarded as an independent contractor of Salick. During the course of her involvement with the Temple cancer center, plaintiff was forced to conceal figures that had been intentionally inflated by other Salick employees in an effort to mislead Temple with regard to the patient-load capacity of the projected center. After plaintiff disclosed this fraud to a Temple representative, plaintiff was discharged from her employment with Salick. In determining whether Salick was a “public body” under the Whistleblower Law, the Cohen court noted:

The language and legislative history of the Whistleblower Law demonstrate the legislature’s intent to limit application of the statute to bodies “funded in any amount by or through the Commonwealth or political subdivision authority or a member or employee of that body”, [sic] It is clear that the legislative intent was to make the law applicable to bodies that receive even one dollar of state funding. However, there is no mention in the legislative history as to what is meant by “funding.”

Id. at 1525-26 (emphasis added).

In ultimately determining that Salick’s receipt of reimbursements for services provided to individuals under the state Medicaid program did not bring it within the definition of a “public body,” the court elaborated on the statutory intent of the word “funding:”

The language “funded in any amount by or through the Commonwealth or political subdivision authority or a member or employee of that body” was intended by the legislature to be limited to monies which were appropriated by the legislature for the purpose of aiding “public bodies” in pursuit of their public goals. This language was obviously not intended to make an individual or corporation a “public body” solely on the basis that monies were received by it from the state as reimbursement for services rendered. [W]hen construed as a whole, “the Whistle-blower Law protects from retaliation public employees who make a good faith report about an instance of wrongdoing or waste to an employer or appropriate authority.” (citation omitted).

*505Cohen, 772 F.Supp. at 1527 (emphasis added).

Further recognizing the statutory intent to limit application of the Law, the Cohen court stated that to extend the term public body to encompass entities receiving Medicaid reimbursements would potentially bring “every hospital, nursing home, institution for the mentally retarded, institution for the mentally ill, home health care provider, physician, chiropractor, podiatrist, ambulance company, dentist, and optometrist” within the letter of the Law. Id. at 1526. Such a result would be absurd where these health care providers were not the intended beneficiaries of the Medicaid program. Id.

Presently, the majority of states have passed their own whistleblowing laws in order to encourage the reporting of wrongdoing by employers. See Joan Corbo, Kraus v. New Rochelle Hosp. Medical Ctr.: Are Whistleblowers Finally Getting the Protection They Need?, 12 Hofstra Lab.L.J. 141, 157 (1994). Each state, however, tailors its own statute to afford a differing level of employee protection. Some states have limited the application of whistleblower laws by restricting an employee’s report of an unlawful act to only those instances where there is an actual violation of a law or regulation. N.Y. C.L.S. Labor § 740(2) (1997). On the other hand, certain states have made it much easier for employees to state a viable claim where the employee’s report is based upon a reasonable good faith belief that a violation has occurred, Cal.Lab.Code § 1102.5 (1996); N.J.S.A. § 34:19-1; 84:19-3, or even a suspected belief that a law was violated. Conn. Gen.Stat.Ann. § 31-51m; 26 M.R.S.A. §§ 831-840. Currently, at least thirty-five state legislatures have passed whistleblower statutes; while most of these statutes protect employees of state government and more than one-half of the states have laws extending to local government employees, approximately sixteen of these states bestow whistleblowing protection upon private sector employees. Lois A. Lofgren, Whistle-blower Protection: Should Legislatures and the Courts Provide a Shelter to Public and Private Sector Employees Who Disclose the Wrongdoing of an Employer?, 38 S.DJLRev. 316, 321 (1993).

Consistent with the fact that legislatures have embodied differing whistleblowing policies and protections within their respective state laws, had our legislature intended to impede upon private employer-employee relations, it would have enacted a statute that would apply to whistleblowing in the private employment sector. In fact, this exact type of law presently exists in a number of our sister jurisdictions. See Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1-8 (New Jersey statute that specifically includes private as well as public employers from retaliating against employees for whistleblowing); N.Y. C.L.S. Labor § 740(2) (1997) (prohibits private employer from taking any retaliatory personnel action against a private employee for disclosing an employer’s actual violation of a law, rule or regulation; the violation must present a substantial and specific danger to the public health and safety); Ohio Rev.Code Ann. 4113.51 (private sector whistleblowers are protected when they report felonies or other criminal offenses which create a public safety or health hazard, or are likely to cause imminent risk of physical harm); Mieh.Comp. Laws Ann. § 15.362 (prohibits employers from retaliation against private sector employees who report a violation of a federal, state or local statute).

If we were to find that MCP is a public body, and, therefore, subject to the provisions of the Whistleblower Law, we would be setting a dangerous precedent in the area of employer-employee litigation—an area that has been carefully proscribed in both our Commonwealth’s jurisprudence and statutory law. As the Cohen court found it necessary to deny protection under the Law to an employee who asserted that her private employer committed a violation affecting public interest, I also recognize that we must apply the legislative limitations of the Law to the present case.

In its response to plaintiff’s second set of interrogatories, MCP answered:

Defendant objects to this interrogatory as vague and ambiguous to the extent it refers to the “Medical College Hospital of Pennsylvania,” and objects to the interrog*506atory as overbroad, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence to the extent it seeks information relating to federal or local financing or funding. Subject to the foregoing objections and the general objections, Defendant states that by the conclusion of each fiscal year, it received appropriations from the Commonwealth of Pennsylvania. It is impossible for the Defendant to trace that appropriation directly or indirectly to the Neurology Department or the Mid Atlantic Regional Epilepsy Center, and consequently Defendant does not believe they directly or indirectly receive any benefit from such financing or funding.

Unless an employee such as Dr. Riggio can show with clear and convincing evidence that his or her employer is funded by Commonwealth or political subdivision authority in order to specifically pursue public goals, Cohen, supra, I do not believe that employer is a “public body” under our state whistleblower law. Otherwise, virtually every organization, university, hospital, college, or similar entity that receives any type of non-reimbursement monies from the Commonwealth (whether termed appropriations, donations, grants, or even state income tax breaks) would be subject to potential liability under the statute. Reading the statute so literally, as appellant would have this court do, is to purposely advocate an absurd result in the law. 1 Pa.C.S. § 1922 (we assume the legislature never intended an absurd result).

It is Riggio’s burden, as the non-moving party, to adduce sufficient evidence on the issue of whether MCP is a “public body,” and therefore potentially subject to the whistle-blower law. See Watson v. City of Philadelphia, 162 Pa.Commw. 340, 638 A.2d 489 (1994) (it was employee’s initial burden to prove element of wrongdoing for action based on violation of Whistleblower Law; burden then shifted to employer to establish legitimate reason for adverse action). Based upon my interpretation of the statute and the record, this burden was not met.