J-S05018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHELLY AUMAN,                                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

FAMILY PLANNING PLUS,

                            Appellee                     No. 582 MDA 2015


                  Appeal from the Order Entered March 3, 2015
                 In the Court of Common Pleas of Union County
                         Civil Division at No(s): 13-0144



BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED FEBRUARY 22, 2016

        Appellant, Shelly Auman, appeals from the order granting Appellee,

Family Planning Plus (“FPP”), a nonprofit corporation providing reproductive

health services, summary judgment on March 3, 2015. We affirm.

        Appellant filed a complaint on March 15, 2013, raising a claim under

the Pennsylvania Whistleblower Law1 (“the Law”), in count one and alleging

wrongful discharge in count two.           Complaint, 3/15/13, at 6–7.   Appellant

worked at FPP from December 2007 until January 29, 2013. Id. at 3, ¶ 11.

In support of her claim under the Law in her complaint, Appellant asserted

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421–1428.
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that prior to her discharge, she “made a good faith report of waste and/or

fraud committed by [FPP] and was discharged in reprisal for that report.”

Id. at 6, ¶ 45.

      The Whistleblower Law provides a civil cause of action to employees

for violations of its provisions.    “It is chiefly a remedial measure” whose

purpose is to compel compliance with the law “by protecting those who

inform authorities of wrongdoing.” Bensinger v. University of Pittsburgh

Medical Center, 98 A.3d 672, 677 (Pa. Super. 2014).             The trial court

summarized Appellant’s Whistleblower claim as follows:

      The Whistleblower claim arises from allegations of separate
      instances of improper practices and events at Family Planning
      Plus “FPP”: 1) Listing Dr. Levine as the medical director in billing
      software when he was no longer licensed to practice medicine in
      Pennsylvania; 2) Improperly billing Medical Assistance and the
      Select Plan Program for office visits when patients/clients were
      actually coming into the center to pick up prescriptions; 3)
      Improperly billing for “free” samples of a contraceptive device
      (“NuvaRing”); 4) Improperly billing a private insurance carrier
      for a “free” sexually transmitted disease screening program; and
      5) Placing a charge on another patient’s account to cover the
      crediting of the account of another patient who had overpaid for
      services.

Trial Court Opinion, 3/3/15, at 4.

      Following the filing of the complaint, FPP filed an answer and new

matter on May 30, 2013, and Appellant filed her reply to new matter on June

7, 2013. After the close of pleadings and discovery, FPP filed a motion for

summary judgment on December 31, 2014, asserting that Appellant had not

produced reports of wrongdoing and could not establish a causal connection


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between any such reports and her termination.               Motion for Summary

Judgment, 12/31/14, at 8, ¶ 57. Appellant filed an answer to the motion on

February 5, 2015.          The trial court granted FPP’s motion for summary

judgment on March 3, 2015, and dismissed the case.               Appellant filed a

timely appeal to this Court on March 31, 2015. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

       Appellant raises the following issue on appeal:

       1. Did the lower [c]ourt err in granting [FPP’s] motion for
       summary judgment on [Appellant’s] Wrongful Discharge and
       Whistleblower Act claims?

Appellant’s Brief at 5.2

       We exercise plenary review in an appeal from an order granting

summary judgment. Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014)

(en banc).     Summary judgment is appropriate where there is no genuine

issue of material fact, and the moving party is entitled to relief as a matter

of law.   Id. (citing Pa.R.C.P. 1035.2).         An appellate court may reverse a

grant of summary judgment only if there has been an error of law or an

abuse of discretion. Kennedy v. Robert Morris Univ., ___ A.3d ___, 2016
____________________________________________


2
   “The statement of the questions involved must state concisely the issues
to be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail.” Pa.R.A.P. 2116(a). While the statement of the
issue lacked necessary detail and should have been divided into two
questions, the argument section of Appellant’s brief is compliant with our
appellate rules. Because our appellate review is not hampered, we shall
address Appellant’s issue as two separate questions involving the two
separate counts of the complaint, beginning with the Whistleblower count.



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PA Super 16 (Pa. Super. filed January 29, 2016). “[W]e will view the record

in the light most favorable to the non-moving party, and all doubts as to the

existence of a genuine issue of material fact must be resolved against the

moving party.” Matharu, 86 A.3d at 255.

       When a motion for summary judgment is premised on the contention

that the party bearing the burden of proof at trial cannot produce sufficient

facts to establish an aspect of her case necessary to carry her burden, as

here, the non-moving party must produce evidence sufficient to establish or

contest a material aspect of the case. Rohrer v. Pope, 918 A.2d 122, 127–

128 (Pa. Super. 2007).           Failure to do so entitles the moving party to

judgment as a matter of law. Id.

       The Whistleblower Law affords a remedy for victims of retaliatory

actions by employers.          43 P.S. § 1423, Protection of employees.3    In

pertinent part, the Law provides as follows:

____________________________________________


3
    The Law, however, only protects “employees” who render services for a
“public body.” 43 P.S. § 1422. The term “public body” is defined, in
relevant part, as “[a]ny other body which is created by Commonwealth or
political subdivision authority or which is funded in any amount by or
through Commonwealth or political subdivision authority or a member or
employee of that body.” Id. (emphasis added). We note that while the
complaint asserted that FPP is a public body within the meaning of the
statute because it receives public funding through the Commonwealth of
Pennsylvania or a political subdivision thereof, Complaint, 3/15/13, at 6, ¶
44, as evidenced by statements on FPP’s website, id. at ¶ 10, the
substantiating documentation, Exhibit A, is not attached to the complaint as
is represented therein. Id. Because there is no issue raised concerning the
Law’s applicability, we merely note this insufficiency of the certified record.
(Footnote Continued Next Page)


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      (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(a). Appellant maintains that she has an action against FPP

pursuant to 43 P.S. § 1424, Remedies, which provides as follows:

      (a) Civil action.--A person who alleges a violation of this act
      may bring a civil action in a court of competent jurisdiction for
      appropriate injunctive relief or damages, or both, within 180
      days after the occurrence of the alleged violation.

43 P.S. § 1424(a).

      “To prove a cause of action for wrongful discharge under the

Whistleblower Law, the plaintiff must show both a protected report of

wrongdoing or waste and a causal connection between that report and the

discharge.” Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1064 (Pa.

Cmwlth. 2013) (citing O’Rourke II v. Commonwealth, 778 A.2d 1194,

1200 (Pa. 2001)).

             The causal connection that the Whistleblower Law requires
      must be demonstrated “by concrete facts or surrounding
      circumstances that the report of wrongdoing or waste led to the
      plaintiff's dismissal, such as that there was specific direction or
                       _______________________
(Footnote Continued)

We note, as well, that we have rejected an attempt to extend the
Whistleblower Law to cover private employees. Krajsa v. Keypunch, Inc.,
622 A.2d 355, 360 (Pa. Super. 1993) (“We are not prepared to expand the
coverage of the [Whistleblower Law] into the private arena.”).



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     information received not to file the report or that there would be
     adverse consequences because the report was filed.”
     [Golaschevsky v. Department of Environmental Protection,
     720 A.2d 757, 759 (1998)] (quoting [Gray v. Hafer, 651 A.2d
     221, 225 (Pa. Cmwlth. 1994]); see also Sea v. Seif, 831 A.2d
     1288, 1293 n.5 (Pa. Cmwlth. 2003). . . . The burden shifts to the
     defendant to show a separate and legitimate reason for its
     actions only where plaintiff has satisfied the threshold showing of
     a causal connection. O’Rourke, 566 Pa. at 171–72, 778 A.2d at
     1200.     “Vague and inconclusive circumstantial evidence” is
     insufficient to satisfy that threshold burden to show a causal
     connection and shift the burden to the defendant to justify its
     actions. Golaschevsky, 554 Pa. at 163, 720 A.2d at 759; Sea,
     831 A.2d at 1293 n.5.

Evans, 81 A.3d at 1070.     Here, the evidence is insufficient to prove the

essential elements of a Whistleblower Law cause of action.

     The trial court summarized Appellant’s observations and basis for her

Whistleblower claim as follows:

     Dr. Mickey Levine had served as the medical director for FPP.
     Dr. Levine had planned to retire effective December 31, 2012
     and would no longer maintain an active medical license. Dr.
     Glenn Sherman assumed the duties of medical director effective
     November 1, 2012. See, Exhibit “B” attached to [FPP’s] Motion
     for Summary Judgment. While performing her clerical duties in
     January 2013, [Appellant] observed that Dr. Levine’s name
     appeared as medical director of the center on billing software
     notwithstanding the fact that he was no longer serving in this
     capacity and supposedly no longer held an active license to
     practice medicine. Upon seeing Dr. Levine’s name, [Appellant]
     asked a co-worker “is this legal?” See, Deposition of Shelly
     Auman, [Appellant’s] Response to Summary Judgment Motion,
     Appendix, Exhibit “A” page 16.

                                    * * *

            [Appellant’s] second allegation of improprieties at FPP
     which forms the basis of her Whistleblower claim stems from
     supposed improper billings of Medical Assistance and Select Plan
     for office visits.

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                                   * * *

           [Appellant’s] third allegation of wrongdoing which forms
     the basis of her Whistleblower claim concerns billing Medical
     Assistance and Select Plan for free samples of NuvaRing—a
     contraceptive device.

                                   * * *

           [Appellant’s] fourth allegation of wrongdoing and improper
     practices at FPP involve billing private insurance carriers—Blue
     Cross and Blue Shield—for a “free” STD program.

                                   * * *

           The final allegation of wrongdoing at FPP averred in
     support of [Appellant’s] Whistleblower claim involves an
     overcharge to a patient at the Selinsgrove clinic.2 From what we
     glean from the depositions submitted, a patient was overcharged
     for services. This overcharge was discovered and [as] a result
     FPP refunded the overcharge to the patient per the patient’s
     instruction by crediting her credit card. The allegation is that
     FPP’s Executive Director, Peggy Moser, instructed the staff to put
     the same charge on some other account—the inference being
     that by overcharging another patient, FPP would recover the
     dollar amount it had credited to the initial patient who had been
     overcharged originally.
           2
              [Appellant] has averred that the overcharge
           involved amounted to $69.00. The FPP employees
           deposed testified consistently that the correct dollar
           amount involved is $65.00.

Trial Court Opinion, 3/3/15, at 4–11.

     Appellant maintains that she made out a prima facie case for

retaliatory discharge under the Law.    Appellant’s Brief at 13.    She argues

that prior to her discharge, she made a good-faith report of wrongdoing and

“was discharged in reprisal for that report.” Complaint, 3/15/13, at 6, ¶ 45.


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The evidence in support of her claim was that she discussed all of her

concerns about her observations at FPP with a co-worker, Jean Flournoy, but

no one else at FPP. Appellant’s Deposition, 8/13/14, at 15, 18, 20, 22, 24.

Moreover, Appellant testified that she had no knowledge that Ms. Flournoy

discussed any of these issues with anyone else at FPP. Id. at 19, 20. While

Appellant contends that Ms. Flournoy “was, for all intents and purposes, a

‘supervisor’ despite [FPP’s] pleas to the contrary,” Appellant’s Brief at 13,

this assertion is belied by the record. Appellant herself acknowledged and

admitted that Ms. Flournoy did not have “supervisory duties over [her].”

Appellant’s Deposition, 8/13/14, at 16.     At her deposition, Ms. Flournoy

testified that she did not recall Appellant mention any of the alleged acts of

wrongdoing and did not recall telling anyone else about those issues.

Flournoy Deposition, 9/22/14, at 26–27. Appellant also admitted that she

never made any written inquiry or complaint regarding the alleged issues of

wrongdoing. Appellant’s Deposition, 8/13/14, at 20, 22.

      Our review of the record convinces us that the trial court correctly

determined that Appellant could not prove the essential elements of her

Whistleblower Law claim.     There is no evidence that Appellant reported

wrongdoings by FPP, either verbally or in writing. There is clear evidence,

however, that FPP terminated Appellant for issues regarding slamming

doors, taking excessive smoking breaks, using her mobile telephone during

work hours, displaying a negative attitude, and failing to accept constructive


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criticism. Motion for Summary Judgment, 12/31/14, at 6 ¶ 42; Exhibit G.

Moreover, FPP disciplined Appellant on three prior occasions for refusing to

follow directions and displaying an inability to work with co-workers. Id. at

6 ¶ 43; Exhibits H, I, and J. We rely on the trial court’s explanation in its

opinion granting summary judgment, as explained infra.

      Appellant also urges us to find that the public policy exception to the

general principles of at-will employment applies to her. Complaint, 3/15/13,

at 7, ¶ 49; Appellant’s Brief at 18.     Pennsylvania does not recognize a

common law action for wrongful termination of at-will employment.

Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009).               As an at-will

employee, Appellant “may be terminated at any time, for any reason or for

no reason.” Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa.

1995). An employee may bring a cause of action for a termination of that

relationship only in the most limited circumstances, “where the termination

violates a clear mandate of public policy.” Roman v. McGuire Memorial,

127   A.3d    26,   32   (Pa.   Super.   2015)     (quoting   McLaughlin   v.

Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000)).

Appellant claims she was wrongfully discharged in retaliation for reporting

alleged fraud in billing practices by FPP; thus, she argues that the public

policy exception to the employment at-will doctrine applies.       Complaint,

3/15/13, at 7, ¶ 49; Appellant’s Brief at 18–19.

      The trial court determined:


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              We will also grant [FPP] the same relief and grant
       summary judgment in favor of [FPP] as to Count II, as well,
       sounding in Wrongful Discharge. Count II of the Complaint
       incorporates by reference the allegations averred in Count I.
       Count II does not aver any factual allegations exclusive of the
       allegations pleaded in the “Whistleblower” count of the
       Complaint. Paragraphs 50 and 51 of the Complaint simply recite
       language from case authority stating the exceptions to the “at
       will” employment doctrine. Clearly, Count II of the Complaint is
       based solely on the allegations averred in Count I. Since we
       have concluded that [Appellant] has not met her evidentiary
       burden to survive summary judgment as to Count I, it follows
       that we must reach the same conclusion regarding Count II of
       the Complaint. Therefore, we will grant summary judgment as
       to Count II as well.

Trial Court Opinion, 3/3/15, at 19.            We agree that Appellant cannot avail

herself of the public policy exception.

       Because the trial court correctly concluded that Appellant could not

prove the essential elements of her Whistleblower Law claim or cause of

action for wrongful discharge, we affirm the order granting summary

judgment, and we do so in reliance on the thorough opinion of the Honorable

Michael H. Sholley, filed March 3, 2015.4




____________________________________________


4
  The parties are directed to attach a copy of the trial court’s opinion of
March 3, 2015, to any future filings in this matter.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2016




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