                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                   _____________

                                    No. 09-3797
                                   _____________

                             MAUREEN A. COPPOLA,
                                         Appellant

                                         v.

                      JNESO-POCONO MEDICAL CENTER,
                     DISTRICT COUNCIL 1, IUOE-AFL-CIO;
                         POCONO HEALTH SYSTEM;
                         POCONO MEDICAL CENTER
                                   _____________

                    Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                           (D.C. Civil No. 3-08-cv-00798)
                    District Judge: Honorable A. Richard Caputo
                                   _____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                November 4, 2010

              Before: SCIRICA, RENDELL and ROTH, Circuit Judges

                          (Opinion Filed: November 5, 2010)
                                   _____________

                             OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

      Maureen Coppola was a union employee covered by a collective bargaining

agreement between the union and her former employer, Pocono Medical Center. The
District Court held that Pennsylvania law, as articulated by the Superior Court, precludes

Coppola from maintaining a claim for wrongful discharge in violation of public policy

against Pocono Medical Center. The sole issue on appeal is whether we predict the

Pennsylvania Supreme Court would hold, contrary to the Superior Court‟s longstanding

precedent, that union employees covered by collective bargaining agreements may sue

their former employers for wrongful discharge. Because we are unable to make such a

prediction, we will affirm.1

                                                 I.

       Maureen Coppola was terminated from her job as a nurse at Pocono Medical

Center for failing to follow a doctor‟s orders to intubate a patient. As a member of

JNESO, a professional health care union, Coppola was subject to a collective bargaining

agreement that provided that the hospital could only discharge union members for “just

cause.” The union investigated Coppola‟s termination, determined that it was justified,

and declined to pursue a grievance on her behalf.

       Coppola then sued Pocono Medical Center and the union. As relevant here, she

alleged that she was wrongfully terminated in violation of public policy, as embodied in

the Pennsylvania Administrative Code‟s standards of nursing conduct. See 49 Pa. Code

§ 21.18. The District Court granted summary judgment to Pocono Medical Center on the

wrongful discharge claim, holding Coppola was not entitled to maintain her claim as a

   1
      The District Court had jurisdiction over Coppola‟s original complaint based on the
Labor Management Relations Act, 29 U.S.C. § 185. After Coppola‟s LMRA claims were
dismissed by stipulation of the parties, the District Court exercised supplemental
jurisdiction over Coppola‟s remaining state-law wrongful discharge claim. See 28 U.S.C.
§ 1367. Our jurisdiction over her appeal arises under 28 U.S.C. § 1291.
                                             2
matter of Pennsylvania law. Coppola v. JNESO-Pocono Medical Center, No. 08-0789,

2009 WL 2707573, at *3 (M.D. Pa. Aug. 25, 2009). Relying in particular on Phillips v.

Babcock & Wilcox, 503 A.2d 36 (Pa. Super. Ct. 1986), the Court observed that that

“Pennsylvania appellate courts have been clear” that union employees covered by a

collective bargaining agreement may not pursue such claims. Id. at *2-3.

                                                  II.

       On appeal, Coppola does not quarrel with the District Court‟s application of the

Pennsylvania Superior Court‟s Phillips decision. Instead, she asks us to predict that the

Pennsylvania Supreme Court would abrogate Phillips and hold that union employees

subject to collective bargaining agreements may pursue wrongful discharge claims.

       Our review of the District Court‟s application of state law is plenary. Polselli v.

Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 528 n.3 (3d Cir. 1997) (citation omitted).

“In the absence of any precedent of the Pennsylvania Supreme Court, we must predict

how that court would decide this issue.” Id. (citation omitted). At the same time,

however, we must accord significant weight to decisions of the Pennsylvania Superior

Court. The decision of an “„intermediate appellate state court . . . is datum for

ascertaining state law which is not to be disregarded by a federal court unless it is

convinced by other persuasive data that the highest court of the state would decide

otherwise.‟” Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir. 1991) (quoting West

v. AT&T Co., 311 U.S. 223, 237 (1940)).

       Applying this standard, we are constrained to hold that Phillips accurately reflects

Pennsylvania law. For one thing, Phillips is grounded in the relevant Pennsylvania

                                              3
Supreme Court precedent. The Superior Court in Phillips relied heavily on the

Pennsylvania Supreme Court‟s decision in Geary v. U.S. Steel Corp., 319 A.2d 174 (Pa.

1974), which established at-will employees‟ rights to sue former employers for wrongful

discharge in violation of public policy. Phillips explained that the Supreme Court‟s

purpose in Geary was “to provide a remedy for employees with no other recourse against

wrongful discharge.” 503 A.2d at 37. Because union employees enjoy contractual

protection against discharge without “proper cause” as part of their collective bargaining

agreements, the Superior Court reasoned, the Supreme Court‟s justification for allowing

at-will employees to sue former employers for wrongful discharge does not extend to

union employees. Id. at 37-38.

       Phillips‟s holding that union employees subject to collective bargaining

agreements may not pursue wrongful discharge claims against former employers also is

well established in Pennsylvania law: numerous state and federal courts applying

Pennsylvania law have cited Phillips to dismiss wrongful discharge claims brought by

union employees. See, e.g., Pekar v. U.S. Steel/Edgar Thomson Works, No. 09-844, 2010

WL 419421, at *9-10 (W.D. Pa. Jan. 29, 2010); Lohman v. Duryea Borough, No. 05-

1423, 2007 WL 4260943, at *14-15 (M.D. Pa. Nov. 29, 2007); Ferrell v. Harvard Indus.,

No. 00-2707, 2001 WL 1301461, at *10 (E.D. Pa. Oct. 23, 2001); Harper v. Am. Red

Cross Blood Servs., 153 F. Supp. 2d 719, 721 (E.D. Pa. 2001); Durette v. UGI Corp., 674

F. Supp. 1139, 1143 (M.D. Pa. 1987); Cairns v. SEPTA, 538 A.2d 659, 660-61 (Pa.

Commw. Ct. 1988); Ross v. Montour R.R. Co., 516 A.2d 29, 32-33 (Pa. Super. Ct. 1986).



                                             4
       Coppola has not presented any persuasive data that undermines the above or

otherwise establishes that the Pennsylvania Supreme Court would reach a different result.

Coppola does not challenge the Phillips court‟s reasoning or cite any Pennsylvania

Supreme Court case that suggests that the Court would be inclined to expand wrongful

discharge claims to cover union employees. Instead, she relies on cases from other state

courts and the U.S. Supreme Court to argue that (1) union employees‟ rights to vindicate

public policy are “inalienable” and independent of their rights to sue under their

collective bargaining agreements; (2) federal law precludes states from denying union

employees tort remedies that it allows to non-union employees; and (3) the distinction

between at-will and union employees for wrongful discharge claims violates the Equal

Protection Clause of the Constitution. All of these arguments are unavailing.

       First, the notion that union employees‟ public policy rights are “inalienable” and

must be protected through wrongful discharge claims comes from other states that

authorize private wrongful discharge lawsuits as a means of enforcing public policy. See,

e.g., General Dynamics Corp. v. Super. Ct., 876 P.2d 487, 497 (Cal. 1994) (“An

employee who states a wrongful discharge claim for violation of public policy is

provided a remedy in tort not only to compensate the individual plaintiff for the loss of

employment but as an indirect means of vindicating fundamental public policy itself.”).

But wrongful discharge suits do not perform that function in Pennsylvania. As Phillips

explained, in Pennsylvania, “the wrongful discharge cause of action was never intended

to provide a forum to vindicate public policy and punish those who deviate from it.” 503

A.2d at 37.

                                             5
       Second, federal law allows states to extend wrongful discharge claims to union

employees, but does not require them to do so. The United States Supreme Court cases

in this area have held only that federal labor laws do not pre-empt “independent

remedies,” including wrongful discharge claims, available to union members “under state

law.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994); see also Lingle v.

Magic Chef, Inc., 486 U.S. 399 (1988). As the District Court correctly pointed out, those

cases do not speak to union members‟ ability to pursue such claims in states, like

Pennsylvania, where no state-law remedy exists. Coppola, 2009 WL 2707573, at *4.2

       Coppola‟s third and final argument, concerning the Equal Protection Clause, was

not raised in the parties‟ summary judgment briefs or addressed by the District Court.

The issue also is not well developed in the briefs on appeal. Thus, consistent with our

practice, we decline to “address the merits of a constitutional argument for the first time

on appeal.” C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 73 (3d Cir. 2010).

                                                 III.

       For the foregoing reasons, we will affirm the judgment of the District Court.



   2
     The other line of United States Supreme Court cases on which Coppola relies,
beginning with Lodge 76, International Ass’n of Machinists v. Wisconsin Employment
Relations Commission, 427 U.S. 132 (1976), does not apply here. Those cases hold that
federal labor laws prohibit states from regulating “the free play of economic forces,” and
specifically forbid states from “imposing additional restrictions on economic weapons of
self-help, such as strikes or lockouts.” Golden State Transit Corp. v. City of Los Angeles,
475 U.S. 608, 614-15 (1986) (internal quotation marks and citations omitted). This case
does not concern any restraint that has been imposed on unions‟ or employers‟ bargaining
practices. Moreover, as a practical matter, Coppola fails to explain how we would apply
Machinists pre-emption, which typically invalidates state regulations, to create a new
Pennsylvania common-law remedy for union employees.
                                             6
