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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

––––––––––––––––––––––––––––––––

JAY C. CRESSMAN

and NICOLE BRENNAN,

Plaintiffs,

v.

LINCARE INC.,

Defendant.

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CIVIL ACTION NO. 02-CV-2783

The Honorable Judge Katz

DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS AND

TO STRIKE PLAINTIFFS' DEMAND FOR A JURY TRIAL

Pursuant to Rules 12(c) and 12(f) of the Federal Rules of Civil

Procedure, Defendant Lincare Inc. ("Lincare") hereby moves for Judgment on the

Pleadings and to Strike Plaintiffs' Demand for a Jury Trial, on the grounds that:

1. Plaintiffs cannot maintain a common law wrongful discharge

claim where an alternate statutory remedy - Pennsylvania's Whistleblower Law, 43

Pa. C.S.A. § 1422 ("Whistleblower Law") - is available.

2. Plaintiffs' demand for a jury trial should be stricken because as

noted above, the only cognizable claim for Plaintiffs is under the Whistleblower

Law, and the Whistleblower Law provides no right to a jury trial.

WHEREFORE, for the reasons set forth above and in the

accompanying Memorandum of Law in support of this motion, which is
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incorporated herein in its entirety, Defendant Lincare Inc. respectfully requests that

the Court grant their Motion for Judgment on the Pleadings and to Strike Plaintiffs'

Demand for a Jury Trial.

Dated: October ____, 2002

STEVENS & LEE

By ______________________________

Charles J. Bloom

Attorney I.D. No. 10086

One Glenhardie Corporate Center

Suite 202

1275 Drummers Lane

P.O. Box 236

Wayne, Pennsylvania 19087-0236

(610) 964-1480

Attorneys for Defendant Lincare Inc.
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

––––––––––––––––––––––––––––––––

JAY C. CRESSMAN

and NICOLE BRENNAN,

Plaintiffs,

v.

LINCARE INC.,

Defendant.

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CIVIL ACTION NO. 02-CV-2783

The Honorable Judge Katz

DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF ITS

MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO

STRIKE PLAINTIFFS' DEMAND FOR JURY TRIAL

I. Introduction

This action is an attempt by plaintiffs Jay C. Cressman ("Cressman")

and Nicole Brennan ("Brennan") (collectively, "Plaintiffs") to obtain payments

from Lincare Inc. ("Lincare"), their former employer, after each was terminated

from their employment. Plaintiffs claim they were terminated in response to

complaints each made about allegedly improper practices of Lincare allegedly in

violation of Pennsylvania's Whistleblower Law ("Whistleblower Law"), 43 Pa.

C.S.A. §§ 1421-1428. [Plaintiffs' First Amended Complaint, ("Complaint"), ¶¶ 29,

38]. Plaintiffs also bring common law wrongful discharge claims, alleging their

termination violated public policy as reflected in the Whistleblower Law.
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[Complaint ¶¶ 32, 41]. Plaintiffs' Complaint also includes a demand for a jury

trial.

Lincare files this motion for judgment on the pleadings because

Plaintiffs' wrongful discharge claim is barred under Pennsylvania law. As we

demonstrate below, because the Whistleblower Law provides a statutory remedy

for Plaintiffs' alleged harm, Plaintiffs cannot pursue a common law wrongful

discharge cause of action. In addition, Lincare moves to strike Plaintiffs' demand

for a jury trial because Plaintiffs are not entitled to a jury trial on their

Whistleblower Law claims.

II. Background

Accepting as true the allegations of Plaintiffs' Complaint for the

purposes of this Motion, and without waiving the right to dispute these allegations

at a later date, the relevant facts of this matter are as follows:

Lincare is a private corporation that provides respiratory care, infusion

therapy, and medical equipment to patients in their homes. [Complaint ¶ 10].

Some services provided by Lincare are paid through various insurance programs

including Medicaid, Medicare, and other federal and state funded health care

programs. [Complaint ¶ 11].

From November 1999 to January 4, 2002, Cressman was employed by

Lincare as the Center Manager of its Huntingdon Valley facility. [Complaint ¶
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13]. From July 2001 to January 4, 2002, Brennan was employed by Lincare as a

Client Service Representative at its Huntingdon Valley facility. [Complaint ¶ 14].

Between August 2001 and December 31, 2001, Cressman and

Brennan allegedly made complaints to regional-level managers and the corporate

compliance officer of Lincare about its alleged "wrongful and/or wasteful

practices." [Complaint ¶¶ 18 - 20]. On or about January 4, 2002, both Plaintiffs

were terminated from their employment. [Complaint ¶ 21].

On May 31, 20021, Plaintiffs filed an action in the Eastern District of

Pennsylvania alleging that they were unlawfully terminated by Lincare. In Counts

I and III of their Complaint, Plaintiffs allege that Lincare discharged them in

violation of the Pennsylvania Whistleblower Law. [Complaint ¶¶ 29, 38]. In

Counts II and IV of their Complaint, Plaintiffs allege that Lincare wrongfully

discharged them in violation of the public policy of Pennsylvania, as set forth in

the Whistleblower Law. [Complaint ¶¶ 32, 41]. Plaintiffs provide no other basis

for their common law wrongful discharge claim than Lincare's alleged violation of

the Whistleblower Law.

III. Argument

A. Standard for Judgment on the Pleadings

A motion for judgment on the pleadings should be granted where,

viewing the facts presented in the pleadings and the inferences to be drawn
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therefrom in the light most favorable to the nonmoving party, the district court

determines that it is clearly established that no material issue of fact remains to be

resolved and the moving party is entitled to judgment as a matter of law. Hayes v.

Community General Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991), cert.

denied, 502 U.S. 1060 (1992).

B. Plaintiffs' Whistleblower Claims

The Pennsylvania Whistleblower Law prohibits a public body from

discharging an employee who has made a good faith report of wrongdoing or waste

to the employer or an appropriate authority. 43 Pa C.S.A. § 1423. "Wrongdoing"

is defined in the statute as any violation of any state, federal or local law,

regulation, ordinance, code of conduct or code of ethics designed to protect the

interest of the public or the employer. 43 Pa.C.S.A. §1422.

Here, Plaintiffs base their Whistleblower Law claims on reports each

allegedly made of Lincare's alleged wrongdoing to Lincare management and their

alleged terminations as a consequence of said reports. [Complaint ¶¶ 18-19]. As

described below, both Cressman's and Brennan's Whistleblower Law claims are

based on facts identical to Plaintiffs' common law wrongful discharge claims.

 

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Plaintiffs' first complaint was filed on May 9, 2002, and subsequently amended.
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C. Wrongful Discharge Claims

Under Pennsylvania law, the general rule regarding termination of

employment allows employers to terminate at-will employees for any reason or for

no reason at all. McLaughlin v. Gastrointestinal Specialists, Inc., 696 A.2d 173

(Pa Super. 1997), aff'd, 750 A.2d 283 (Pa. 2000), Freeman v. McKellar, 795 F.

Supp. 733, 741 (E.D. Pa. 1992). Common law principles do establish a narrow

exception to the generalrule when an employee has been terminated in violation of

a "significant, clearly mandated public policy." Brown v. St. Luke's Hospital, 816

F. Supp. 342, 344 (E.D. Pa. 1993); Freeman, 795 F. Supp. at 741. Under this

exception, an employee has a cause of action for wrongful discharge only "where

some recognized facet of public policy is threatened." Geary v. U.S., 456 Pa. 171,

319 A.2d 174, 180 (1974). The sources for such public policy include "legislation;

administrative rules, regulation, or decision; and judicial decision." Cisco v. UPS,

Inc., 476 A.2d 1340, 1343 (Pa. Super. 1980). Moreover, this exception applies

only where (1) an employer requires an employee to commit a crime; (2) an

employer prevents an employee from complying with a statutory duty, or (3) a

statute prohibits discharge. Shick v. Shirey, 691 A.2d 51, 513 (Pa. Super. 1997),

rev'd on other grounds, 716 A.2d 1231 (Pa. 1998).

Here, the basis for both Cressman's and Brennan's common law

wrongful discharge claim is "the public policy exception of Pennsylvania, as

reflected in the Whistleblower Law." [Complaint ¶¶ 32, 41].
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D. Plaintiffs Cannot Maintain a Wrongful Discharge Claim

Where An Alternate Statutory Remedy Is Available.

In this matter, the statute that Plaintiffs cite as the foundation of their

wrongful discharge action provides its own set of remedies. Specifically,

theWhistleblower Law provides:

A court, in rendering a judgment in an action brought

under this act, shall order, as the court considers

appropriate, reinstatement of the employee, the payment

of back wages, full reinstatement of fringe benefits and

seniority rights, actual damages or any combination of

these remedies. A court may also award the complainant

all or a portion of the costs of litigation, including

reasonable attorney fees and witness fees, if the court

determines that the award is appropriate.

43 Pa. C.S.A. § 1425. Although Lincare does not challenge Plaintiffs' assertions

that this statute expresses a public policy of Pennsylvania, by both Pennsylvania

decisional law and statute, Plaintiffs cannot maintain a common law wrongful

discharge claim where an independent statutory remedy exists.

The United States Court of Appeals for the Third Circuit has flatly

stated that "where the public policy allegedly implicated by the employee

discharge is derived entirely from a statute that also provides a legal remedy,

Pennsylvania courts will not recognize a common law cause of action." Murray v.

Commercial Union Ins. Co., 782 F.2d 432, 436-37 (3d Cir. 1986). In Murray, the

court held that the plaintiff could not pursue an action for wrongful discharge
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based on age discrimination, in light of the state statutory remedy available under

the Pennsylvania Human Relations Act ("PHRA"). Id. at 436-37. The court cited

two previous decisions in support of this proposition, both of which prevented the

pursuit of a wrongful discharge action because of the remedies provided by the

PHRA even where the plaintiff had not invoked the statute by advancing a claim

under the statute. Wolk v. Saks Fifth Ave., Inc., 728 F.2d 221, 223-24 (3d Cir.

1984) (availability of a PHRA remedy precludes other common law remedies even

where the statute has not been invoked); Bruffett v. Warner Communications, Inc.,

692 F.2d 910, 919 (3d Cir. 1982) (same); cf. Perks v. Firestone Tire and Rubber

Co., 611 F.2d 1363, 1365-66 (3d Cir. 1979) (wrongful discharge action permitted

where state statute provided for only criminal penalties).

Similarly, in Hicks v. Arthur, 843 F. Supp. 949 (E.D. Pa. 1994), this

Court stated that "a [wrongful discharge] cause of action may be maintained when

there is no available statutory remedy for an aggrieved employee." Id. at 956-57.

The court commented that, "where the legislature has enacted laws which precisely

protect the interests of employees that the plaintiff alleges have been violated, then

the plaintiff's cause of action cannot be maintained." Id. at 957. Addressing the

plaintiffs' claims for wrongful discharge based on racial discrimination, the court

found that "claims of racial discrimination in the workplace cannot be heard as

claims of wrongful discharge through the public policy exception where there are

statutory remedies available which Plaintiffs may pursue, namely under the
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Pennsylvania Human Relations Act, Section 1981 and Title VII of the Civil Rights

Act." Id. at 957.

That reasoning has been applied to Whistleblower Law cases. In

Katzenmoyer v. City of Reading, 158 F. Supp.2d 491 (E.D. Pa. 2001) this court

held that a wrongful discharge cause of action was maintainable only when an

employer's alleged wrongful actions are completely independent from

Whistleblower Law violations. Similarly, in Freeman, 795 F.Supp. 733, this court

dismissed the plaintiff's wrongful discharge claim because a statutory remedy was

available under Whistleblower Law.

The facts in Freeman are nearly identical to those in the instant case.

In Freeman, the plaintiff-employee brought state law claims against the defendantemployer alleging that the defendant had violated the Whistleblower Law.

Plaintiff also alleged he was wrongfully discharged. The defendant moved to

dismiss the plaintiff's wrongful discharge cause of action. The Court held that "(a)

cause of action for wrongful discharge ... may be maintained only in the absence

of a statutory remedy for an aggrieved employee (citations omitted)" and, because

plaintiff had an appropriate statutory remedy under the Whistleblower Law,

granted defendant's motion to dismiss. Id.

Moreover, the Pennsylvania legislature has specifically addressed the

issue of alternate common law remedies where a statutory remedy is provided. 18

P.S. § 1504 provides as follows:
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§ 1504. Statutory remedy preferred over common law

In all cases where a remedy is provided or a duty is

enjoined or anything is directed to be done by any statute,

the directions of the statute shall be strictly pursued, and

no penalty shall be inflicted, or anything done agreeably

to the common law, in such cases, further than shall be

necessary for carrying such statute into effect.

18 P.S. § 1504.

Consistent with this statute, the courts of Pennsylvania have generally

held that a plaintiff cannot pursue a common law remedy where a constitutionally

adequate statutory scheme exists. See, e.g., Pittsburgh Coal Co. v. School Dist. of

Forward Township, 78 A.2d 253 (Pa. 1951) (plaintiff not allowed to pursue

separate common law action where statutory scheme for challenging tax

assessment had been invoked); Thompson v. Morrison, 44 A.2d 55 (Pa. 1945)

(where statutory remedy is provided, it is exclusive and no resort to a common law

remedy may be made); White v. Old York Road Country Club, 178 A.3d (Pa.

1935) (where statutory remedy provided, it must be followed to the exclusion of

common law remedies); Hardcourt v. General Accident Ins. Co., 615 A.2d 71 (Pa.

Super. 1992) (where there is a clear and adequate statutory remedy, that remedy is

exclusive). The only case found allowing both a wrongful discharge claim based

on a Whistleblower Law violation, and a claim for an alleged Whistleblower Law
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violation, Denton v. Silver Stream Nursing and Rehabilitation Ctr., 739 A.2d 571

(Pa. Super. 1999), is distinguishable because the Denton court held only that an

alleged Whistleblower Law violation fell within the public policy wrongful

discharge exception. The Denton court did not address, or indeed discuss,

Pennsylvania precedent barring simultaneous Whistleblower Law claims and

wrongful discharge claims based solely on Whistleblower Law violations.

Thus, notwithstanding the general availability of a wrongful discharge

cause of action based on a violation of public policy, such a claim is not available

when there is an alternate statutory remedy available to an aggrieved employee.

As set forth above, the Pennsylvania legislature has clearly addressed the alleged

wrongs set forth in Counts II and IV of Plaintiff's Complaint in the provisions of

the Whistleblower Law. See 42 Pa. C.S.A. § 1425. Allowing recovery under a

common law tort theory of wrongful discharge would not only violate the case law

and statute discussed above, but would also circumvent the clearly expressed

intention of the Pennsylvania legislature to provide a statutory basis for recovery

and to limit damages under these circumstances. See 42 Pa C.S.A. § 1425

(comprehensive list includes phrase "actual damages," not punitive damages).

Because the Whistleblower Law clearly provides a remedy for

Plaintiffs' claims2, no separate wrongful discharge action may be maintained by

 

2 Lincare does not concede that it is a public body as defined in the Whistleblower Law, and

will raise that legal position at the appropriated time.
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Plaintiffs pursuant to the public policy set forth in the Whistleblower Law. Counts

II and IV of Plaintiffs' Complaint, Plaintiffs' common law wrongful discharge

claims, are as follows:

(For Jay C. Cressman)

¶ 31. Plaintiff incorporates herein by reference

paragraphs 1 through 30 of this complaint, as though

each were set forth in their entirety.

¶ 32. Lincare's discharge of plaintiff from his

employment was in violation of the public policy of

Pennsylvania, as reflected in the Whistleblower Law, of

preventing fraud, waste and wrongdoing by a "public

body" such as Lincare.

¶ 33. As a result of his wrongful discharge, plaintiff

suffered the harms and damages alleged herein.

(For Nicole Brennan)

¶ 40. Plaintiff incorporates herein by reference

paragraphs 1 through 39 of this complaint, as though

each were set forth in their entirety.

¶ 41. Lincare's discharge of plaintiff from her

employment was in violation of the public policy of

Pennsylvania, as reflected in the Whistleblower Law, of

preventing fraud, waste and wrongdoing by a "public

body" such as Lincare.

¶ 42. As a result of her wrongful discharge, plaintiff

suffered the harms and damages alleged herein.

See Complaint.

As documented above, Plaintiffs have no basis for their wrongful

discharge claims other than policy violations based solely on Lincare's alleged

violation of the Whistleblower Law. As held in Katzenmoyer and Freeman, supra,
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Plaintiffs may not maintain a common law wrongful discharge based solely on an

alleged Whistleblower Law violation, and those Counts should be dismissed.

B. Plaintiffs' Demand for a Jury Trial should be Stricken

Because the Whistleblower Law does not provide the Right

to a Jury Trial

On its face, the Whistleblower Law is silent on the issue of the right to

a jury trial. This Court, however, has held that the Whistleblower Law does not

provide the right to a jury trial. Freese v. Centennial S.D., 1999 U.S. Dist. LEXIS

11710, No. 98-1773 (E.D. Pa. July 22, 1999)

In Freese, the employee brought an action alleging that this employer

had terminated him in violation of the Whistleblower Law, and requested a jury

trial. This Court granted defendant's motion to strike plaintiff's demand for a jury

trial, noting that the two Pennsylvania courts that "considered the (jury trial) issue

have determined there is no right to a jury trial under the Whistleblower Law" and

predicting that "the Pennsylvania Supreme Court would reach the same

conclusion." Id. at *3.

Here, Plaintiffs have asserted causes of action under the

Whistleblower Law and common law wrongful discharge. As detailed above,

Plaintiffs' common law wrongful discharge claim is barred because of Plaintiffs'

statutory remedy under the Whistleblower Law. Thus, Plaintiffs' only remaining

claim is the alleged violation of the Whistleblower Law. As held in Freese,
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Plaintiffs have no right to a jury trial under the Whistleblower Law, and the jury

demand should be stricken.

III. Conclusion

For the foregoing reasons Defendant Lincare Inc. requests that

Plaintiffs' wrongful discharge claim be dismissed and Plaintiffs' demand for jury

trial be stricken.

 Dated: October ___, 2002

STEVENS & LEE

By ______________________________

Charles J. Bloom

Attorney I.D. No. 10086

One Glenhardie Corporate Center

Suite 202

1275 Drummers Lane

P.O. Box 236

Wayne, Pennsylvania 19087-0236

(610) 964-1480

Attorneys for Defendant Lincare Inc.
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

––––––––––––––––––––––––––––––––

JAY C. CRESSMAN

and NICOLE BRENNAN,

Plaintiffs,

v.

LINCARE INC.,

Defendant.

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––––––––––––––––––––––––––––––––

CIVIL ACTION NO. 02-CV-2783

The Honorable Judge Katz

ORDER

AND NOW, this ____ day of ______, 2002 upon consideration of

Defendant's Motion for Judgment on the Pleadings and Defendant's Motion to

Strike Plaintiffs' Demand for a Jury Trial, the brief in support thereof, and

Plaintiffs response thereto, it is hereby ordered that said motion is GRANTED.

Judgment is entered in favor of the Defendant and against Plaintiffs.

 

Marvin Katz, J.
SL1 278242v1/30438.001

CERTIFICATE OF SERVICE

The undersigned, counsel for Lincare Inc., certifies that a true and

correct copy of the foregoing motion and accompanying memorandum of law was

served upon the following counsel of record by facsimile and first class mail:

Gerald J. Williams, Esq.

William Cuker & Berezofsky

One Penn Center at Suburban Station Building

1617 JFK Blvd, Suite 800

Philadelphia, PA 19103-1895

_________________________________

Date: October ___, 2002
SL1 278242v1/30438.001

"WORD"

Long Document Name: MOTION

System Document Number: 278242 (SL1) MBES

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