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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAY C. CRESSMAN :

and :

NICOLE BRENNAN, :

Plaintiffs, : Civil Action No. 02-CV-2783

:

v. :

: JURY TRIAL DEMANDED

LINCARE INC. :

Defendant. :

:

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES

Defendant Lincare Inc. (“Lincare”), by its undersigned counsel, hereby files

its Answer and Affirmative Defenses to Plaintiffs’ First Amended Complaint

("Complaint"), in accordance with the numbered paragraphs thereof, as follows:

1. The allegations of this paragraph constitute conclusions of law to which

no response is required. To the extent a response is required, the allegations are denied.

2. The allegations of this paragraph constitute conclusions of law to which

no response is required. To the extent a response is required, the allegations are denied.

PARTIES, JURISDICTION AND VENUE

3. Defendant is without knowledge or information sufficient to form a belief

as to the truth of the allegations of this paragraph.

4. Admitted.

5. The allegations of this paragraph constitute conclusions of law to which

no response is required. To the extent a response is required, the allegations are denied.

6. Admitted that Lincare is authorized to do business within the

Commonwealth of Pennsylvania and maintains a place of business at 85 Tomlinson

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Road, Huntingdon Valley, Montgomery County, Pennsylvania. The remaining

allegations of this paragraph are denied.

7. Admitted that Plaintiffs were employed at Lincare's Huntingdon Valley

office. The remaining allegations of this paragraph are denied.

8. The allegations of this paragraph constitute conclusions of law to which

no response is required. To the extent a response is required, the allegations are denied.

9. The allegations of this paragraph constitute conclusions of law to which

no response is required.

STATEMENT OF MATERIAL FACTS

10. Admitted.

11. Admitted that some services provided by Lincare are paid through

insurance programs including Medicaid, Medicare and other state and federal funded

health care programs. The remaining allegations of this paragraph are denied.

12. Admitted that Medicaid, Medicare and other state and federal medical

insurance programs have billing and service guidelines for providers, including Lincare,

to follow when providing services and equipment to participants in these programs. The

remaining allegations of this paragraph are denied.

13. Admitted.

14. Admitted.

15. Denied.

16. Denied.

17. Denied.

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18. Admitted that Nicole Brennan made allegations of wrongful and/or

wasteful practices to Lincare. The remaining allegations of this paragraph are denied.

19. Admitted that Cressman made allegations of wrongful and/or wasteful

practices to Lincare. The remaining allegations of this paragraph are denied.

20. Exhibit A is a writing which speaks for itself, and to the extent that the

averments of paragraph 20 are inconsistent therewith, each and every such averment is

denied. The remaining allegations of this paragraph are denied.

21. Admitted that Plaintiffs were terminated from their employment on or

about January 4, 2002. The remaining allegations of this paragraph are denied.

22. Denied.

23. Denied.

24. Denied.

Answer to Count I

25. Defendant incorporates its responses to the allegations of paragraphs 1

through 24 of Plaintiffs' complaint as if repeated verbatim.

26. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

27. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied

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28. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

29. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

30. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

Answer to Count II

31. Defendant incorporates its responses to the allegations of paragraphs 1

through 30 of Plaintiffs' complaint as if repeated verbatim.

32. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

33. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

Answer to Count III

34. Defendant incorporates its responses to the allegations of paragraphs 1

through 33 of Plaintiffs' complaint as if repeated verbatim.

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35. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

36. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

37. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

38. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

39. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

Answer to Count IV

40. Defendants incorporates its responses to the allegations of paragraphs 1

through 39 of Plaintiffs’ complaint as if repeated verbatim.

41. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

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42. The allegations of this paragraph are denied as conclusions of law to

which no response is required. To the extent a response is required, the allegations are

denied.

Affirmative Defenses

1. Defendant incorporates each and every response in paragraphs 1 through

42 as though set forth at length here.

2. The Complaint fails to state claims upon which relief may be granted.

3. Plaintiffs have no claims against Lincare under the Whistleblower Law, 43

P.S. § 1422, because Lincare is not a public body.

4. Plaintiffs have no claims against Lincare under the Whistleblowers Law

because Plaintiffs' discharges were due to their own misconduct.

5. Plaintiffs have no claims against Lincare for wrongful discharge because

Plaintiffs were at-will employees.

6. Plaintiffs’ claims are barred by the doctrine of unclean hands.

7. Plaintiffs’ claims are barred by their fraudulent and improper conduct.

8. Plaintiffs’ claims are barred by the doctrines of estoppel, laches and

waiver.

9. Plaintiffs are not entitled to attorney's fees or witness fees.

10. Plaintiffs are not entitled to punitive damages.

11. Plaintiffs are not entitled to reinstatement of fringe benefits and seniority

rights.

12. Plaintiffs are not entitled to an award of back pay.

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13. Plaintiffs’ claims are subject to set-off and/or recoupment due to the

improper and fraudulent conduct of Plaintiffs.

 WHEREFORE, Defendant respectfully requests that judgment be entered

in its favor and against Plaintiffs on the allegations of the complaint and Defendant be

awarded its costs of this action, including reasonable attorneys’ fees, together with such

additional relief as the Court deems just and proper.

Dated: June 10, 2002 STEVENS & LEE, P.C.

By:_________________________________

Charles J. Bloom

Attorney I.D. No. 10086

One Glenhardie Corporate Center

1275 Drummers Lane, Suite 202

Wayne, PA 19087

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I, Charles J. Bloom, Esquire, certify that on this date, I served a

certified true and correct copy of the foregoing Answer and Affirmative

Defenses upon the following counsel of record, by United States Mail,

addressed as follows:

Gerald J. Williams, Esq.

William Cuker & Berezofsky

One Penn Center at Suburban Station Building

1617 JFK Blvd, Suite 800

Philadelphia, PA 19103

_________________________________

 Charles J. Bloom

Date: June ______, 2002

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