IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT COURT OF PENNSYLVANIA

__________________________

:

JAY C. CRESSMAN CIVIL ACTION NO. 02-CV-2783

and NICOLE BRENNAN, :

Plaintiffs,

:

The Honorable Judge Katz

:

v.

:

LINCARE INC., :

Defendant.

_________________________ :

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION

FOR JUDGMENT ON THE PLEADINGS AND TO 

STRIKE PLAINTIFFS’ DEMAND FOR A JURY TRIAL

1. and 2. Denied. These paragraphs are conclusions of law to which no

response is required.

Wherefore, for the reasons set forth above and in the accompanying brief

in support of Plaintiffs’ response to Defendant’s motions, plaintiffs request that this

Court deny defendant’s Motions for Judgment on the Pleadings and to 
2

Strike Plaintiffs’ Demand for a Jury Trial.

Respectfully submitted,

_____________________________________

GERALD J. WILLIAMS, ESQUIRE

Attorney I.D. #36418

Williams, Cuker & Berezofsky

One Penn Center at Suburban Station Building

1617 JFK Boulevard, Suite 800

Philadelphia, PA 19103-1895

(215) 557-0099

Counsel for Plaintiffs

Dated:__________
 IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT COURT OF PENNSYLVANIA

__________________________

:

JAY C. CRESSMAN CIVIL ACTION NO. 02-CV-2783

and NICOLE BRENNAN, :

Plaintiffs,

:

The Honorable Judge Katz

:

v.

:

LINCARE INC., :

Defendant.

_________________________ :

PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANT’S MOTION

FOR JUDGMENT ON THE PLEADINGS AND MOTION

TO STRIKE PLAINTIFFS’ DEMAND FOR A JURY TRIAL

I. INTRODUCTION

Plaintiffs Jay Cressman and Nicole Brennan bring this action against Lincare

Inc. (“Lincare”), their former employer, after both were terminated from their

employment mere hours after raising concerns with Lincare’s management about

instances of illegality and waste. Lincare now files this motion arguing that plaintiffs’

wrongful discharge claim is barred under Pennsylvania law. For the reasons which

follow, its motion must be denied.
2

II. ARGUMENT

A. PLAINTIFFS’ RESPONSE TO DEFENDANT’S 

MOTION FOR JUDGMENT ON THE PLEADINGS.

Plaintiffs’ wrongful discharge claim is not barred under Pennsylvania

Law. Lincare’s argument that one may not pursue a common law wrongful discharge

claim where an “adequate statutory remedy” exists simply does not apply to a claim

brought under Pennsylvania’s Whistleblower Law. 

The only Pennsylvania case which analyzes both a Whistleblower Law

claim and a common law wrongful discharge claim is Denton v. Silver Stream

Nursing and Rehabilitation Ctr., 739 A.2d 571 (Pa. Super. 1999). In that case, plaintiff

was fired from her employment as defendant’s directress of nursing after reporting

abuses she had witnessed to state authorities. Id at 573. Her various claims were

initially dismissed by the trial court because she had failed to make allegations which

provided her with a legal basis of recovery. Id at 574. The Superior Court reversed.

It held that plaintiff had established a valid cause of action under the Whistleblower

Law in as much as her employer, though a private corporation was, like Lincare,

subject to the statute because a substantial part of its revenue was in government

funds. The court held further that a violation of the Whistleblower Law comprised a

violation of the explicit “public policy” of Pennsylvania, and could therefore form the

basis of a common law wrongful discharge claim. Id at 576-77. In direct
3

contradiction of Lincare’s argument, Denton affirmed that a common law claim for

wrongful discharge and a statutory claim under the Whistleblower Law may be

brought in the same action. Id at 576-77. 

Lincare admits in its brief that none of the Pennsylvania cases it cites

other than Denton involve a wrongful discharge claim based upon a violation of the

Whistleblower Law. The Pennsylvania cases cited by defendant are easily

distinguishable from the one at bar.

In Pittsburgh Coal Co. v. School Dist. Of Forward Township, 78 A.2d

253 (Pa. 1951), Thompson v. Morrison, 44 A.2d 55 (Pa. 1945), and White v. Old

York Road Country Club, 178 A.3 (Pa. 1935) the Pennsylvania Supreme Court held

that if a citizen elects not to pursue a particular statutory remedy, he cannot prevail

under a generic common law theory. See e.g., White 178 A.3 at 349-50. This

principle was followed by the Superior Court in Harcourt v. General Accident Ins.

Co., 615 A.2d 71,75 (Pa. Super. 1992) (recognizing that where statutory remedy is

clearly available, it is preferable to that available at common law). In each instance,

the legislature had set out an exclusive remedy for the conduct complained of. This

is in contrast to the law of wrongful discharge, where the legislature has not limited

a plaintiff’s remedies. These cases do not stand for a rule absolutely prohibiting a

common law claim where a statutory remedy exists. To the contrary, they apply only
4

where an exclusive statutory remedy has been legislatively mandated, and no common

law remedy exists. Thus, they are inapplicable to the situation before this Court. 

The federal cases cited by Lincare are not controlling on this Court. They

are, nonetheless, distinguishable. In Murray v. Commercial Union Ins. Co., 782 F.2d

432 (3d Cir. 1986), and Hicks v. Arthur, 843 F. Supp. 949 (E.D. Pa. 1994), the

remedies sought under statutory federal civil rights claims and the common law

wrongful discharge claims were identical. See e.g., Hicks 843 F. Supp. at 957. That

is not true with respect to remedies under the Whistleblower Law and the tort of

wrongful discharge, however. For example, under their common law claims, plaintiffs

here would be entitled to recover emotional distress damages [unavailable under the

Whistleblower Law], but would not be eligible for reinstatement or an award of

attorney fees [available under the Whistleblower Law].

There is an additional reason why Lincare should not be permitted to

benefit from any remedial limitations of the Whistleblower Law. While the affirmative

obligations and prohibitions of that statute are properly imposed on Lincare because

of its control and handling of public funds, it remains a for-profit, private corporation.

The more expansive remedies of the common law are more appropriate in a case

against an entity like Lincare than they might be against a “purely” public body -

against whom claims did not exist at common law.
5

Finally, the two federal cases that Lincare cites for an analysis of both

types of claims do not control the court’s analysis here. As Lincare points out, and the

courts in Katzenmoyer v. City of Reading, 158 F. Supp. 2d 491 (E.D.Pa. 2001) and

Freeman v. McKellar, 795 F.Supp. 733 (E.D. Pa. 1992) recognize, this case is

controlled by Pennsylvania law. See e.g., Freeman 795 F. Supp. at 741 (applying

Pennsylvania law to determine if employment terminated in violation of public

policy). In construing that law, of course, this court must predict what the

Pennsylvania Supreme Court would hold in a similar situation. There is nothing in

Lincare’s brief which would compel a conclusion other than that asserted by plaintiffs

in this case, and no prediction of what the Pennsylvania high court would hold is

better than the decision of the Commonwealth’s intermediate appellate court.

B. PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION

TO STRIKE PLAINTIFFS’ DEMAND FOR A JURY TRIAL

Because plaintiffs may maintain a common law claim for wrongful discharge,

they have a right to a jury trial and Defendant’s motion must be denied.
6

III. CONCLUSION

For the foregoing reasons plaintiffs request that Lincare’s Motion for Judgment

on the Pleadings and to strike their demand for jury trial be denied.

Respectfully submitted,

___________________________________

GERALD J. WILLIAMS, ESQUIRE

Attorney I.D. #36418

Williams, Cuker & Berezofsky

One Penn Center at Suburban Station Building

1617 JFK Boulevard, Suite 800

Philadelphia, PA 19103-1895

(215) 557-0099

Counsel for Plaintiffs

Dated:__________
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT COURT OF PENNSYLVANIA

__________________________

:

JAY C. CRESSMAN CIVIL ACTION NO. 02-CV-2783

and NICOLE BRENNAN, :

Plaintiffs,

:

The Honorable Judge Katz

:

v.

:

LINCARE INC., :

Defendant.

_________________________ :

ORDER

AND NOW, this day of , 2002 upon consideration of Plaintiffs’

Response to Defendants Motion for Judgment on the Pleadings and Defendant’s

Motion to Strike Plaintiffs’ Demand for a Jury Trial, the brief in support thereof, it is

hereby ordered that Defendant’s motions are DENIED.

________________________

Marvin Katz, J.
CERTIFICATE OF SERVICE

I, GERALD J. WILLIAMS, hereby certify that on this date I served a true

and correct copy of the foregoing Plaintiffs’ Response to Defendant’s Motion to Strike

Plaintiffs’ Demand for a Jury Trial, with supporting brief and proposed order by U.S.

first class mail, postage prepaid upon the following counsel:

Charles J. Bloom, Esquire

Marianne Bessey, Esquire

Stevens & Lee

One Glenhardie Corporate Center

Suite 202

1275 Drummers Lane

P.O. Box 236

Wayne, PA 19087-0236

 

GERALD J. WILLIAMS, ESQUIRE

Date: November 20, 2002