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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.


____________________________________________


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




____________________________________________


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


____________________________________________


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

____________________________________________


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.

____________________________________________


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

____________________________________________


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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