J-A14033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KAREN HARRISON                                :      IN THE SUPERIOR COURT OF
                                                  :           PENNSYLVANIA
                       Appellant                  :
                                                  :
                v.                                :
                                                  :
    HEALTH NETWORK LABORATORIES                   :
    LIMITED PARTNERSHIPS, AND                     :
    LEHIGH VALLEY HEALTH NETWORK,                 :
    INC.                                          :
                                                  :
                       Appellees                  :         No. 365 EDA 2018


                    Appeal from the Order December 19, 2017
                 in the Court of Common Pleas of Lehigh County
                      Civil Division at No.: No. 2016-C-1469


BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED DECEMBER 12, 2018

        Appellant,   Karen     Harrison,       appeals    from   the   order   sustaining

preliminary objections to her amended complaint. She claimed retaliation in

violation of the Pennsylvania Whistleblower Law (PWL).1 The trial court agreed

with Appellees, Health Network Laboratories Limited Partnerships (HNL), and

Lehigh Valley Health Network (LVHN), that Appellant’s whistleblower claim is

pre-empted by the Pennsylvania Human Relations Act (PHRA).2                    The court

sustained Appellees’ preliminary objections, and dismissed the amended

____________________________________________


1   43 P.S. §§ 1421–28.

2   43 P.S. §§ 951–63.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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complaint, reasoning that Appellant’s whistleblower claim was pre-empted by

the PHRA, and she had not exhausted (or pursued) her PHRA administrative

remedy. On independent review, we are constrained to conclude that the trial

court erred in its reasoning that the PHRA pre-empts the PWL for Appellant’s

claim. Moreover, in reviewing preliminary objections we are bound to regard

all well-pleaded facts as true, together with all reasonable inferences. In cases

of doubt, a demurrer must be overruled. We conclude that the trial court

could have properly determined that Appellant waived any claim she may have

had for retaliation under the PHRA. However, under our standard of review,

we also conclude that Appellant states a claim for violation of the

Whistleblower Law, which could provide legal relief.       Accordingly, we are

constrained to affirm in part, and vacate in part, the order of the trial court

sustaining Appellees’ preliminary objections. We remand to the trial court for

further proceedings consistent with this decision.

      We derive the facts of the case from the memorandum opinion of the

trial court and our independent review of the record before us. (See Trial

Court Opinion, 2/09/18, at 1-5).        As explained below, in reviewing a

challenged pleading, we (as well as the trial court) must accept as true all

well-pleaded, material, and relevant facts alleged in the complaint and every

inference that is fairly deducible from those facts.

      In March of 2015, Appellant was employed by HNL as “Manager,

Quality.”   At that time, another employee, Elizabeth Corkery, informed


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Appellant that she (Corkery) was being subjected to a hostile work

environment by Arun Bhaskar, her supervisor in the IT department.

      The core of Ms. Corkery’s complaint was that Mr. Bhaskar, apparently

of Indian heritage, regarded all non-Indians as inferior workers, openly

disparaged them, her in particular, and mistreated them accordingly. Corkery

further asserted that Bhaskar’s immediate supervisor, Harvey Guindi, HNL’s

Chief Information Officer, knew about Bhaskar’s mistreatment of non-Indian

subordinates, but did nothing about it. Appellant asserts that she passed on

Ms. Corkery’s complaints to the HNL officer in charge of human resources, and

other key personnel, requesting the appointment of an ombudsman, but

nothing happened.

      Corkery resigned on October 1, 2015. Shortly after (around October

15), she sent a letter to Appellant and others memorializing her complaints

against Mr. Bhaskar. Appellant avers that she passed on this letter, too, to

appropriate HNL personnel. Again, nothing happened.

      About a month later, on November 19, 2015, HNL terminated

Appellant’s employment, ostensibly for her use of foul language at an offsite

corporate banquet function.      Appellant contends this explanation was

pretextual, and that, in actuality, she was terminated for calling attention to

Ms. Corkery’s claims of discrimination.

      On May 12, 2016, Appellant commenced this action by filing a complaint

in the Court of Common Pleas of Lehigh County. The case was removed to


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the United States District Court for the Eastern District of Pennsylvania. The

federal court granted Appellant leave to amend her complaint. On March 16,

2017, Appellant filed an amended complaint in federal court. On March 21,

2017, the federal court remanded the case back to the Court of Common

Pleas.

         In pertinent part, the amended complaint pleads one count: “Retaliation

in Violation of 43 P.S. § 1423(a).”3 (See Amended Complaint, 3/16/17, at 6).

The most relevant allegations of Count I are:

               37. The conduct described herein, committed by Bhaskar
         and sanctioned by Guindi, constitutes illegal activity and is
         “wrongdoing,” as defined by the Pennsylvania Whistleblower Law,
         43 P.S. § 1423(a), which includes any violations of state statutes
         or regulations that are not de minimis in nature.

               38. The conduct described herein, committed by Bhaskar
         and sanctioned by Guindi, violates the Pennsylvania Human
         Relations Act, 43 P.S. §[§] 951[-963,] and various other state
         laws.

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3   Section 1423(a) provides:

               (a) Persons not to be discharged.−No 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 or a person acting on behalf of 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 by a public body or an instance of waste by any other
         employer as defined in this act.

43 P.S. § 1423 (emphases added).




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(Id., 3/16/17, at 5) (unnecessary capitalization omitted).

        On June 5, 2017, Appellees filed preliminary objections to the amended

complaint pursuant to Pa.R.C.P. 1028(a)(2)-(4).4 On December 19, 2017, the

trial court sustained Appellees’ preliminary objections pursuant to Pa.R.C.P.

1028(a)(4), granted demurrer, and dismissed Appellant’s amended complaint.

(See Order, 12/19/17, at unnumbered page 3 n.1; (see also Trial Ct. Op., at

1).

        The trial court explained its dismissal of the complaint as follows:

               Before filing a complaint under the PHRA, an aggrieved
        individual must first “file a complaint with the Pennsylvania
        Human Relations Commission (PHRC) and exhaust all
        administrative remedies before seeking redress in court.”
        Carlson v. Community Ambulance Services, Inc., 824 A.2d
        1228, 1231 (Pa. Super. 2003). . . . [Appellant] attempted to
        circumvent the remedial systems set up by the PHRA by filing her
        claim under the PWL while claiming in her Amended Complaint
        that [Appellees’] conduct violated the PHRA.



____________________________________________


4.   In pertinent part, Rule 1028 provides:

              (a) Preliminary objections may be filed by any party to any
        pleading and are limited to the following grounds:

                                      *   *    *
           (2) failure of a pleading to conform to law or rule of court or
           inclusion of scandalous or impertinent matter;

           (3) insufficient specificity in a pleading;

           (4) legal insufficiency of a pleading (demurrer)[.]

Pa.R.C.P. 1028(a)(2)-(4).




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(Trial Ct. Op., at 3-4).

       Appellant timely filed this appeal on January 16, 2018.5 She raises one

question for our review:

             Whether a civil action brought under the Pennsylvania
       Whistleblower Law, 43 P.S. § 1424, is subject to the exhaustion
       requirements of the PHRA, 43 P.S. §§ 951-963?

(Appellant’s Brief, at 5).

       Preliminarily, we observe that counsel for Appellant has framed the

question for review as an abstract inquiry into the exhaustion of remedies.

This Court does not sit to consider hypothetical, abstract, or moot questions.

In such a case, an opinion of this Court is rendered advisory in nature. See

In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An issue before a court

is moot if in ruling upon the issue the court cannot enter an order that has

any legal force or effect.”). (citation omitted).

       However, while the question posed is somewhat inartful, in context its

necessary implication is that the trial court erred in sustaining Appellees’

preliminary objections, and dismissing the complaint.       Therefore, in the

interest of justice and judicial economy we will address the implicit question

underlying Appellant’s question as framed, and review the trial court’s order.

       In considering an appeal from an order granting preliminary objections

in the nature of a demurrer, which is a question of law, an appellate court’s


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5 Appellant filed a court ordered statement of errors on February 6, 2018. The
trial court filed an opinion on February 9, 2018. See Pa.R.A.P. 1925.

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standard of review is de novo and our scope of review is plenary. See Doe

v. Franklin Cty., 174 A.3d 593, 602 (Pa. 2017).

      The trial court may sustain preliminary objections only when, based on

the facts pleaded, it is clear and free from doubt that the complainant will be

unable to prove facts legally sufficient to establish a right to relief.         For

evaluating the legal sufficiency of the challenged pleading, the court must

accept as true all well-pleaded, material, and relevant facts alleged in the

complaint and every inference that is fairly deducible from those facts. See

Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641 (Pa. Super.

2016). “[P]reliminary objections in the nature of a demurrer . . . should be

sustained only if, assuming the averments of the complaint to be true, the

plaintiff has failed to assert a legally cognizable cause of action.” Langella v.

Cercone, 34 A.3d 835, 838 (Pa. Super. 2011), appeal denied, 38 A.3d 826

(Pa. 2012) (citation omitted).

      Here, on independent review, we are constrained to conclude that the

learned trial court acknowledged, but failed to follow, the pertinent standard

of review, and misapplied the applicable legal principles.

      Specifically, without presenting support from pertinent controlling

authority,   the   trial   court   accepted   Appellees’   claim   that   Appellant’s

whistleblower claim is pre-empted by the previously enacted Pennsylvania

Human Relations Act.         We recognize that a later enacted statute might

conceivably pre-empt a previously enacted statute. But neither the trial court


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nor Appellees explain why a statute enacted in 1955 could (or should) pre-

empt another statute enacted over thirty years later.

       To the contrary, under well-settled rules of statutory interpretation,

each statute shall be construed to give effect to all of its provisions. See

1 Pa.C.S.A. § 1921. We also presume that the General Assembly does not

intend a result that is absurd, impossible of execution or unreasonable, and

that the General Assembly intends the entire statute to be effective and

certain. See 1 Pa.C.S.A. § 1922(1), (2).

       Furthermore, the trial court’s conclusion that Appellant “has failed to

state a claim upon which relief can be granted under the PWL[,]” (Trial Ct.

Op., at 4), is simply at stark variance with the plain meaning of the PWL

statute.

       As already noted, the Whistleblower Law prohibits discharge, threats,

discrimination or retaliation against an employee for a good faith report of

“wrongdoing” by a public body or an instance of waste by any other employer

as defined in the act. 43 P.S. § 1423(a).6 Contrary to the conclusion of the



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6 This Court has decided that the statutory definition of “public body” for
purposes of the Whistleblower Law includes, inter alia, private entities which
receive funding “in any amount by or through Commonwealth[.] 43 P.S.
§ 1422; see also Denton v. Silver Stream Nursing & Rehab. Ctr., 739
A.2d 571, 576-77 (Pa. Super. 1999) (finding recipient of Medicaid funding is
“public body” for purposes of Whistleblower Law; appellant alleging discharge
for good-faith reports of wrongdoing and waste stated valid cause of action;
complaint erroneously dismissed).


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trial court, Appellant was not required to invoke the PHRL to pursue a

retaliation claim under the PWL. Appellant plainly asserts the violation of the

PHRL against Ms. Corkery, as the underlying wrongdoing, not as the act

perpetrated against her (Ms. Harrison).

      Here, the trial court’s reasoning appears to conflate a claim for violation

of the PHRA, which requires the pursuit of administrative remedies, with a

Whistleblower claim, which does not.

      The trial court may sustain preliminary objections only when, based on

the facts pleaded, it is clear and free from doubt that the complainant will be

unable to prove facts legally sufficient to establish a right to relief.    See

Heldring, supra at 641; Langella, supra at 838.

      On independent review, accepting as true all well-pleaded, material, and

relevant facts alleged in the complaint and every inference that is fairly

deducible from those facts we conclude that Appellant asserted a legally

cognizable cause of action under the Whistleblower Law.

      We read Appellant’s complaint as raising a whistleblower claim only.

Nevertheless, we recognize that by inartful and overly generalized drafting

counsel for Appellant left open the interpretation adopted by the trial court

that she could have been asserting a PHRA claim as well as a whistleblower

claim. To the extent that the trial court correctly discerned that Appellant

sought to raise a PHRA claim, we agree that that remedy is foreclosed by the

administrative complaint requirement.       However, Appellant unequivocally


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raised a valid Whistleblower complaint. (See Amended Complaint, ¶ 1). That

claim survives.

      Accordingly, we are constrained to conclude that the learned trial court

erred in dismissing Appellant’s complaint. Therefore, we affirm in part (as to

any assertion of a PHRA claim on behalf of Appellant), and vacate in part (as

to the PWL claim), the order of the trial court sustaining Appellees’ preliminary

objections. We remand to the trial court for further proceedings consistent

with this decision.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this decision. Panel jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/18




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