HomeMy WebLinkAbout03-3568IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
311 Erford Road
Camp Hill, PA 17011
vs
Plaintiff
No. 03 - 3SOF
Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD,
1800 Center Street
Camp Hill, PA 17011
Defendant
Jury Trial Demanded
PRAECIPE FOR SUMMONS
TO THE PROTHONOTARY OF SAID COURT;
Issue summons in Civil Action - Law in the above case.
xx Writ of Summons shall be issued and forwarded to the undersigned.
(2IUtC / ?
MARKOWITZ & KREVSKY P.C.
By:
Esquire
208 E. Market St., P.O. Box 392
York, PA 17405-0392
(717) 843-2876
Supreme Ct. I.D. #72719
SUMMONS
To: HIGHMARK, INC., t/d/b/a PA. BLUE SHIELD
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS CO NCED AN
ACTION AGAINST YOU.
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Prothonotary
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Date: u-Ly a,Si -?4b3 n
Deputy
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No. 03-3568 Civil Term
vs Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD,
Jury Trial Demanded
Defendant
ACCEPTANCE OF SERVICE
I, Carl Shuman, Esquire, acknowledge that I am the attorney for Defendant, Highmark,
Inc., and as such, I hereby certify that I have this ? day of /?cc
"- 2003,
accepted service of the Summons in Civil Action, as filed in the above-captioned action.
Carl Shuman
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No. 03-3568 Civil Tenn
vs Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, Jury Trial Demanded
Defendant
PRAECIPE TO WITHDRAW APPEARANCE
Please withdraw the appearance of Markowitz & Krevsky P.C. on behalf of Plaintiff in
the above-captioned matter.
Respectfully submitted,
& KREVSKY P.C.
By.?)C:. 1, V?-
6010 on ' . Krevsk:y, Esquire
Atto y f plaintiff
208 E. Market St., P.O. Box 392
York, PA 17405-0392
(717) 843-2876
(717) 843-1821 fax
Supreme Ct. I.D. #72719
PRAECIPE TO ENTER APPEARANCE
Please enter the appearance of Solomon Z. Krevsky, Attorney at Law LLC on behalf of
Plaintiff in the above-captioned matter.
Respectfully submitted,
SOLOMON Z. KREVSKY, ATTORNEY AT LAW LLC
S for n A. Krevsky, Esquire
Supreme Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717-221-0800 fax
Attorney for Plaintiff
CERTIFICATE OF SERVICE
AND NOW, TO WIT, this 29th of September, 2003 I, Solomon Z. Krevsky, Esquire,
hereby certify that I have this date served a copy of the foregoing by depositing a copy of same in
the United States Mail, postage prepaid at
follows:
Carl H. Shuman, Esquire
Assistant General Counsel
Highmark, Inc.
1800 Center Street
P. O. Box 890089
Camp Hill, PA 17089-0089
York, Pennsylvania, addressed to counsel of record as
Respectfully submitted,
MARKOWITZ & KREVSKY P.C.
By: ?l ?
Krevsky, Esquire
Plaintiff
2M-E. Market St., P.O. Box 392
York, PA 17405-0392
(717) 843-2876
Supreme Ct. I.D. #72719
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No.03-3568 Civil Term
vs
Civil Action - Law
HIGHMARK, INC, t/d/b/a PA. BLUE
SHIELD, t/d/b/a HIGHMARK BLUE SHIELD
Jury Trial Demanded
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the followin
g pages,
must take action within twenty (20) days after this Complaint and Notice are served by entering a written appear
personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth a
you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered ,
you by the Court or for any other claim or relief requested by the Plaintiff. You may lose money or property or c
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH TO
OUT WHERE YOU CAN GET LEGAL HELP. BELOW
Cumberland County bar Association
2 Liberty Avenue
Carlisle, PA 17013
Phone: (717) 249-3166 or 1-800-990-9108
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desca defenderse de las quejas expuestas en
paginas siguientes, debe tomar accion dentro de veinte (20) dins a partir de la fecha en que recibio la demanda y el a?
Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensn,
sus objeciones a las demandas en su contra.
Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin :
aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensaction
reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS
IMPORTANTES PARR USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO
CONOCE UN ABOGADO, VAYO O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA
AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL.
Cumberland County bar Association
2 Liberty Avenue
Carlisle, PA 17013
Phone: (717) 249-3166 or I-800-990-9108
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No. 03-3568 Civil Term
vs Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, t/d/b/a HIGHMARK BLUE
SHIELD Jury Trial Demanded
Defendant
COMPLAINT
AND NOW, TO WIT, this ;7(7'?day of April, 2005, comes the Plaintiff, Linda L
and through her attorneys, Solomon Z. Krevsky, Esquire and Krevsky Law Office and makes t
following Complaint:
I • Plaintiff, Linda L. Fura, (hereinafter "Fura") is an adult individual residing at 3 1
Erford Road, Camp Hill, Pennsylvania.
2. Defendant, Highmark, Inc., t/d/b/a Pa. Blue Shield, t/d/b/a Highmark Blue Shiel
(hereinafter "Highmark") is a Pennsylvania nonstock, nonprofit corporation, which regularly
conducts business within the Commonwealth of Pennsylvania with offices and facilities located
1800 Center Street, Camp Hill, Cumberland County, Pennsylvania 17011.
3. At all relevant times hereto, Defendant Highmark operated a health
plan at 1800 Center Street, Camp Hill, Cumberland County, Pennsylvania.
4. At all relevant times hereto, Plaintiff Fura was employed by Defendant
Defendant's Center Street facilities.
by
at
5. Plaintiff Fura commenced employment with Defendant Highmark on or
February 3, 1999 as an Occupational Health Nurse. Said position was later changed by Defe dart
to Corporate Health Nurse.
6. At all relevant times hereto, Plaintiff Fura performed her job duties satisfacto ly and
consistent with Defendant's legitimate expectations.
7. As an Occupational Health Nurse/Corporate Health Nurse, Plaintiff Fura's dut es
included, among other things, providing nursing care to ill or injured employees of Defendant. In
connection thereto, Plaintiff Fura was charged with the duty to determine the nature and
illness/injury of her patients, and use independent clinical judgment to make appropriate
treatment decisions.
S. As an Occupational Health Nurse/Corporate Health Nurse, Defendant required
Plaintiff Fura to be qualified as a Registered Nurse from an accredited school of nursing and
licensed in the Commonwealth of Pennsylvania among other things.
9. In addition to the above, as an Occupational Health Nurse/Corporate Health Nur
Plaintiff Fura's principal accountabilities included, without limitation, assisting to administer an
employee health education program pertaining to disease prevention, health maintenance, menta
health, drug abuse and alcoholism.
10. As an Occupational Health Nurse/Corporate Health Nurse, Plaintiff Fura was
required to be an active participant on Defendant's Employee Safety Committee wherein Plaintif
was responsible to recommend additional programs for the benefit of the employee which stresse
disease prevention and health maintenance. In this capacity, Plaintiff also served on various
organizational committees and teams exploring corporate problems impacting the occupational
health area.
of
and
11. Accordingly, and at all relevant times hereto, Plaintiff Fura was a Registered
subject to the obligations and duties of the Professional Nurs' g Law, 6
63 P.S. §211, et seq. at
regulations promulgated thereunder at 49 Pa. Code §21.1 et seq.
12. As a Registered Nurse engaged in the practice of nursing, Plaintiff Fura was
mandated pursuant to the Professional Nursing Law to maintain a professional license wi
Commonwealth of Pennsylvania. with th
13. At all relevant times hereto, Plaintiff was a Registered Nurse licensed by the
Commonwealth of Pennsylvania
14. The regulations promulgated pursuant to the Professional Nursing Law state
pertinent part at 49 Pa. Code §21.11: (a) the registered nurse assesses human r in
espouses and ply
implements and evaluates nursing care for individuals or families for whom the nurse is respon;
In carrying out this responsibility, the nurse performs all of the following functions
. ...(4) carri
out nursing care actions which promote, maintain, and restore the well-being of individuals. -
involves individuals and their families in their health promotion maintenance and restoration.
.
evaluates the effectiveness of the quality of nursing care provided..."
15. Section 14 of the Professional Nursing Law (63 P.S. §224) states in
?? pertinent part:
(a) the Board may refuse, suspend or revoke any license in any case where the B
that...(3) the licensee has willfully or repeatedly violated any of the provisions of this Act or of the
regulations of the Board....(7) the licensee has acted in such a manner as to present a
and clear danger to the public health or safety." an immediate
16. In addition, any person, including Plaintiff, violating any of the provisions of Nursing Law or any rule or regulation of the State Board of f the
Nursing commits a
misdemeanor and, upon conviction thereof, shall be sentenced to pay a fine of not
more than $1,(
the
or undergo imprisonment for not more than 6 months for the first violation. Professional
Law, 63 Pa. §223(a).
17. The mandatory licensure of all who engage in the practice of nursing, includi
relevant times hereto Plaintiff, as more fully described above, is necessary to insure minim
standards of competency and to provide the public safe nursing care.
18. The legislative scheme described herein, including the regulations adopted
thereunder, reflects the public policy of the Commonwealth of Pennsylvania to require of lice sed
nurses a measure of professional care so as to insure minimum standards of competency and t
provide the public safe nursing care. Y
19. The Professional Nursing Law and related regulations thus evidence a clear
policy for the Commonwealth of Pennsylvania to protect public safety and health by maintains
minimum standards of nursing care.
20. At all relevant times hereto, Plaintiff Fura discharged her professional duty of faithfully and acted at all times in compliance with the Professional Nursing Law and its
regulations.
21. For example, on January 29, 2000 Defendant completed its "Performance PI
and Appraisal form" characterizing Plaintiff's performance from January 1999 ann
rY 9 through January
2000 as wholly satisfactory. The appraisal form highlights that "Linda is receptive
to provide other staff with information on various medical and occupational health issues, uses
sound judgment regarding medical treatment of ill or injured employees and is committed
improving the efficiency and office appearance of the occupational to
health unit",
22• Similarly, Defendant's "Performance Planning and Appraisal form" completed
on
about F b e ruary 23, 2001 was wholly satisfactory and highlighted that "Linda worked well
independently, demonstrates sound nursing judgment and expresses a sincere desire to assist
with serious health conditions... ".
23• In or about May 2001, Plaintiff attended a Highmark Safety Committee meeti
which time concerns were raised about forced daily inhalation of "secondhand" smoke near
employee work entrances and exits. During said meeting, Plaintiff voiced medical concerns
regarding inhalation of "secondhand" smoke by nonsmoking employees and employees of
Defendant suffering from respiratory and related illnesses.
24. During her tenure of employment with Defendant, Plaintiff Fura observed
Defendant's practice of designating an outdoor smoking area in close proximity to
employees/patients using oxygen tanks for respiratory and related illnesses.
25. As a Registered Nurse, Plaintiff Fura lodged complaints on behalf of
patient/employees to Defendants' management and human resource officials including, without
limitation, Deborah Mackin, Jeanne Scott, Jill Briggs, Eric Goodling, and Defendant's Human
Resource Vice President William Grant, relating to health and safety hazards associated with
exposure to secondhand smoke.
26• In order to promote, maintain and restore the well-being of her patients and
employees of Defendant, Plaintiff Fura advocated on behalf of employees generally, and
specifically, an
individual who required the use of an oxygen tank as a result of his medical
condition.
27. Significantly, Defendant issued a medical/handicapped parking space to the
's
at
individual utilizing the oxygen tank which was proximate to Defendant's designated smoking
28,
On numerous occasions, the individual utilizing the oxygen tank approached
Plaintiff in her capacity as Occupational Health/Corporate Health Nurse and solicited Plai
nh
involvement in his medical care.
29• It has been widely recognized based on strong scientific evidence that ex osu,
secondhand smoke is a serious public health hazard. (See Environmental Protection Agency,
Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders. Washing
D.C. Office of Health and Environmental Assessment, 1992).
30. In 1986, reports by both the U. S. National Research Council and the U. S.
General concluded that secondhand smoke causes lung cancer in adult nonsmokers. Se
Environmental Tobacco Smoke: ( e
Research Council, Washington, D.C., National Academy Press,
Health, Education and Welfare: Smoking and Health.
Surgeon General of the Public Health Service.
1964).
1996; and U. S. Department of
Report of the Advisory Committee to
Washington, D.C., PHS Publication No. 1103,
31. In 2000, the National Institute for Environmental Health Sciences issued its bi-
annual report identifying secondhand tobacco smoke as a known carcinogen.
32• On August 1, 2001, Defendant's Human Resource Vice President, Mr. Grant
telephoned Plaintiff requesting that she cease advocating '
? patient/employee medical and safety
concerns regarding secondhand smoke.
33. Plaintiff reasonably believed that a true hazard to her patients and employees of
Defendant existed by way of exposure to secondhand smoke.
34. By virtue of her professional status as a Registered Nurse, and the statut
Measuring Exposure and Assessing Health Effects. National
the
to
ory
obligations imposed by the Professional Nursing Law and promulgations regulated thereunder,
Plaintiff was mandated to carry out nursing actions which promote, maintain and restore the
being of individuals and involve individuals and their families in their health promotion,
maintenance, and restoration. (49 Pa. Code §21.11(a)(4) and (5)).
35. In fact, had Plaintiff complied with Mr. Grant's order, her conduct would
constituted a disregard for the underlying philosophies, duties and obligations of a professior
nurse as promulgated by the State Board of Nursing Examiners and as set forth in the Profess
Nursing Law and the rules and regulations of the State Board of Nursing Examiners, as more
described above.
36. Accordingly, Plaintiff advised Mr. Grant that she could not ignore the medical
safety concerns of her patients, and reinforced the medical and safety concerns of the individu
utilizing an oxygen tank.
37. In response, Mr. Grant advised Plaintiff that he must obtain either her agreemen on
the matter or her resignation.
38. Plaintiff thereafter informed Mr. Grant that she could not agree to his request an
would not resign.
39. Immediately thereafter, Mr. Grant advised that Plaintiff is "terminated effective
immediately".
40. Mr. Grant's requests of Plaintiff, as more fully described above, were unreas(
41. Mr. Grant's requests of Plaintiff, as more fully described above, were inconsi
with any legitimate business purpose.
42. Plaintiff was terminated for complying with the obligations, duties and requiren
of the practice of professional nursing as established and mandated by the Professional Nursing
and regulations promulgated thereunder, and such termination therefore violated the public
the Commonwealth of Pennsylvania insuring the public a minimum level. of safe nursing cz
43. In fact, had Plaintiff Fura acceded to Mr. Grant's requests as more fully
above, she would have placed her patients and the public at potential risk of harm.
44. In fact, had Plaintiff acceded to Mr. Grant's requests as more fully described
she would have placed herself in jeopardy of criminal prosecution and/or license
revocation/suspension pursuant to the Pennsylvania statutory and regularly scheme identified
45. Defendant Highmark violated the public policy of the Commonwealth of
Pennsylvania, as reflected in the above-described Pennsylvania statutes and regulations, by
discharging Plaintiff Fura from employment for complying with a Pennsylvania statutory/regu
scheme to prevent unreasonable or unnecessary hazards to Plaintiff's patients, Defendant's
employees, or the public at large.
46. Defendant Highmark violated the public policy of the Commonwealth of
Pennsylvania, as reflected in the above-described Pennsylvania statutes and regulations, by
discharging Plaintiff Fura from employment for complying with a Pennsylvania statutory/reg
scheme favoring the administration of minimum standards of competency in order to provide
nursing care.
47. Defendant Highmark violated the public policy of the Commonwealth of
Pennsylvania, as reflected in the above-described Pennsylvania statutes and regulations, by
discharging Plaintiff Fura from employment for complying with a Pennsylvania statutory/regl
scheme favoring the promotion, maintenance, and restoration of the well-being of individuals.
Aicy of
48. As a direct and proximate result of Defendant Highmark's unlawful di
Plaintiff's employment, Plaintiff Fura has suffered in the past and will continue to suffer in
future lost wages and benefits, and claim is made therefore.
of
49. As a direct and proximate result of Defendant Highmark's unlawful discharge of
Plaintiff's employment, Plaintiff Fura has sustained an impairment of earning power and earn ng
capacity, and claim is made therefore.
50. As a direct and proximate result of Defendant Highmark's unlawful discharge
Plaintiff's employment, Plaintiff Fura has suffered a loss of life's pleasures and enjoyment, ar.
claim is made therefore.
51. As a direct and proximate result of Defendant Highmark's unlawful discharge
Plaintiff's employment, Plaintiff Fura has in the past and will in the future suffered emotional
distress, embarrassment, and humiliation, and claim is made therefore.
52. The acts and/or omissions of Defendant Highmark, as set forth above and
incorporated hereto by reference, constitute extreme and outrageous conduct that evidences a
wanton disregard for the well-being of Plaintiff's patients, its employees and the public, and w
undertaken willfully and maliciously in an effort to oppress Plaintiff Fura, thereby entitling her
punitive damages, and claim is made therefore.
53. The amount in controversy exceeds the applicable limits of arbitration, and a
trial is therefore demanded.
WHEREFORE, Plaintiff Fura demands judgment against Defendant Highmark, Inc. for:
A. past and future wage loss and benefits;
B. harm to Plaintiff's earning power and earning capacity;
C. prejudgment interest;
D. compensatory damages;
E. incidental damages and expenses;
F. punitive damages; and
G. any other relief that this Court deems just and equitable.
Respectfully submitted,
KREVSKY LAW OFFICE
By:
Solo Joyn . Krevsky, Esquire
Atto fo Plaintiff
Supreme-Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: solomon(cikrevskvlaw com
VERIFICATION
I, Linda L. Fura, the Plaintiff in the foregoing action do hereby affirm that the
statements made in this Complaint are true and correct to the best of my knowledge,
information and belief. I understand that this Verification is made subject to the penall
of 18 Pa. S.C.A., Section 4904, relating to unsworn falsification to authorities.
Linda LL Fura
Dated: 0 ' ??
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No. 03-3568 Civil Term
vs Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, Jury Trial Demanded
Defendant
CERTIFICATE OF SERVICE
AND NOW, TO WIT, this 4th of May, 2005 1, Solomon Z. Krevsky, Esquire, hereby certify
that 1 have this date served a copy of the Complaint by depositing a copy of same in the United
States Mail, postage prepaid at Harrisburg, Pennsylvania, addressed to counsel of record as follows:
Carl H. Shuman, Esquire
Assistant General Counsel
Highmark, Inc.
1800 Center Street
P. O. Box 890089
Camp Hill, PA 17089-0089
Respectfully submitted,
KREVSKY LAW OFFICE
By:
Krevsky, Esquire
Suprbme Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: solomon(ci)krcvskylaw.com
C) c ?3
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. Fi_1RA, ) CIVIL DIVISION
Plaintiff, ) No. 03-3568
V. )
HIGHMARK, INC., t/d/b/a PA BLUE )
SHIELD, t/d/b/a HIGHMARK BLUE SHIELD )
Defendant. )
PRELIMINARY OBJECTIONS
Defendant Highmark, Inc. ("Highmark"), by and through its counsel,
preliminarily objects to the Complaint of Linda L. Fura ("Plaintiff') as follows:
SUMMARY OF RELEVANT FACTS AS PLEADED BY PLAINTIFF
Plaintiff alleges that she was employed by Highmark as an Occupational
Health Nurse/Corporate Health Nurse at its Center Street location from February 3, 1999 through
August 1, 2001. Complaint ¶T 4, 5 & 32.
2. Plaintiff contends that Highmark required her to be qualified as a
Registered Nurse, from an accredited school of nursing and licensed in the Commonwealth of
Pennsylvania. Complaint $ 8.
3. Plaintiff alleges that as a Registered Nurse she was subject to the
obligations and duties of the Professional Nursing Law, 63 P.S. § 211, et seq., and the
regulations promulgated thereunder by the State Board of Nursing (Board") at 49 Pa. Code
§ 21.1, et seq. Complaint ¶ 11.
4. Plaintiff avers that the Board's regulations lay out the general duties of a
Registered Nurse and that such duties include taking nursing care actions which promote,
maintain and restore the well-being of individuals and involving individuals and their families in
their health promotion, maintenance and restoration. Complaint T¶ I 1 & 14 (citing 49 Pa. Code
§ 21.11).
Plaintiff alleges that the Board's regulations demonstrate that the public
policy of the Commonwealth of Pennsylvania is "to protect public safety and health by
maintaining minimum standards of nursing care." Complaint ¶ 19.
6. Plaintiff alleges that Highmark has designated areas outside employee
entrances to its facility as "smoking areas," which are also in close proximity to employees who
use oxygen tanks. Complaint ¶¶ 23-24.
7. Plaintiff maintains that she complained to Highmark's management and
human resources employees about the health and safety hazards associated with exposure to
secondhand smoke. Complaint ¶T 25-26.
8. Plaintiff contends that when she was asked by Highmark's Human
Resources Vice President to discontinue her complaints about the smoking areas, she refused to
do so; and, due to this refusal, Highmark terminated her employment. Complaint ¶¶ 32 & 36,
37-39.
9. Plaintiff asserts that the Board's regulations mandated that she lodge
complaints with Highmark about the locations of the smoking areas and employees' exposure to
second hand smoke. Complaint ¶ 35.
10. Plaintiff claims that if she had not lodged such complaints, she would have
been at risk of losing her nursing license and facing criminal liability.
-2-
11. Plaintiff maintains that Highmark violated the public policy of the
Commonwealth of Pennsylvania by terminating her for attempting to perform her allegedly
mandated duty of complaining to Highmark about the location of employee smoking areas.
PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER
FOR LEGAL INSUFFICIENCY OF A
PLEADING PURSUANT TO PA. R. Civ. P. 1028(A)(4)
12. Pennsylvania is an employment at-will state and, in the absence of a
contract providing otherwise, employment in Pennsylvania is presumed to be at-will.
13. Plaintiff has not alleged any facts to indicate that she was anything other
than an at-will employee.
14. Plaintiff was, therefore, an at-will employee of Highmark.
15. Pennsylvania has only recognized claims for wrongful termination of at-
will employment in the narrowest of circumstances - where termination would threaten a clear
mandate of public policy. McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287
(Pa. 2000).
16. Public policy can only be determined by reference to the Pennsylvania
Constitution, court decisions and statutes promulgated by the state legislature. Public policy
cannot be determined by simply looking to a supposed public interest. McLaughlin, 750 A.2d at
288.
17. Pennsylvania courts recognize only limited categories of public policy.
An employer cannot require an employee to commit a crime. An employer cannot prevent an
employee from complying with a statutorily imposed duty. An employer cannot discharge an
employee when specifically prohibited from doing so by statute. And, an employer cannot
discharge an employee in retaliation for exercising certain statutory rights. Hennessy v.
- 3 -
Santiago, 708 A.2d 1269,1273 (Pa. Super. 1998); Shick v. Shirey, 716 A.2d 1231, 1237 (Pa.
1998).
18. Plaintiff has only alleged that she was discharged for complying with a
statutorily imposed duty.
19. Plaintiff has not, however, cited any statutes which set out such duty,
20. Instead, Plaintiff points to a regulation which outlines a nurse's general
duties and statutes which provide for the consequences of willfully violating the Pennsylvania
Nursing Law and the Board's Regulations.
21. Plaintiff only asserts a general, supposed "public interest," which is
insufficient to form the basis for a claim of wrongful discharge in violation of public policy.
McLaughlin, 561 Pa. at 288.
22. For wrongful discharge in violation of public policy to apply, the statute or
law upon which the employee relies must very specifically mandate or prohibit the action at
issue. Spierling v. First American Home Health Services, Inc., 737 A.2d 1250, 1254 (Pa. Super.
1999); Hennessy, 708 A.2d at 1273
23. Plaintiff points to no statute or regulation which specifically requires her
to do any of the following: complain on behalf of her purported "patients" because of their
exposure to substances such as second-hand smoke, to prevent second-hand smoke exposure or
to report such exposure to his or her employer.
24. As such, Plaintiff has failed to identify any public policy which is
implicated by her actions.
-4-
25. Therefore, Plaintiffs claim for wrongful discharge fails as a matter of law
and the Complaint should be dismissed in its entirety with prejudice.
WHEREFORE, Defendant Highmark, Inc. respectfully requests that this
Honorable Court sustain its Preliminary Objections and dismiss the Complaint with prejudice.
qT7 "
Martha H. Munsch
Pa. ID No. 18176
Abigail D. Flynn-Kozara
Pa. ID No. 91449
REED SMITH LLe
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-4118/3846
Carl H. Shuman
Pa. ID No. 37506
Highmark Inc.
1800 Center Street
Camp Hill, PA 17089
Counsel for Defendant
Highmark, Inc.
-5-
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FU RA,
Plaintiff,
CIVIL DIVISION
No. 03-3568
V.
HIGHMARK, INC., t/d/b/a PA BLUE
SHIELD, t/d/b/a HIGHMARK BLUE SHIELD
Defendant.
ORDER OF COURT
AND NOW, this day of 2005, upon consideration of
Defendant's Preliminary Objections and Brief in Support thereof, it is ORDERED that said
Preliminary Objections are hereby SUSTAINED, and this action is hereby dismissed in its
entirety with prejudice.
BY THE COURT:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
Preliminary Objections was served this date upon counsel for Plaintiff by first class U.S. Mail,
postage prepaid at Pittsburgh, Pennsylvania, addressed as follows:
Solomon Z. Krevsky, Esquire
4409 North Front Street
Harrisburg, PA
Dated: May 23, 2005
r
LINDA L. FURA,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff No. 03-3568 Civil Term
vs Civil Action - Law
HIGHMARK, INC., Ud/b/a PA. BLUE
SHIELD, Jury Trial Demanded
Defendant
PLAINTIFF'S RESPONSE TO PRELIMINARY OBJECTIONS
Plaintiff, Linda L. Fura, ("Fura") by and through her counsel, Solomon Z. Krevsky, Esquire,
hereby responds to the Preliminary Objections of Defendant to Plaintiff's Complaint:
1-11. Denied. Plaintiff's Complaint is a document which speaks for itself.
12. Admitted.
13. Denied. Plaintiff's Complaint is a document which speaks for itself.
14. Admitted.
15. Denied as stated.
16. Denied. A public policy is one that strikes at the heart of a citizen's social right,
duties or responsibilities and will be found only where the policy has been reduced to a legislative
mandate reflected in constitution, court decision, statute, or regulatory provision. See Hunger v.
Grand Central Sanitation, 670 A.2d 173, 447 Pa. Super. 575 (1996). Defendant's reliance on
McLaughlin is misplaced. In McLau lin, the Pennsylvania Supreme Court held that Pennsylvania
Public Policy cannot be ascertained by reference to federal regulation. McLaughlin, 750 A.2d at
290.
17. Denied as stated.
18. Denied. Plaintiff's Complaint is a document which speaks for itself,
19. Denied. Plaintiff's Complaint is a document which speaks for itself. Moreover,
contrary to Defendant's assertion, Plaintiff has cited numerously to specific Pennsylvania statutes
which establish a statutorily imposed duty, specifically, Professional Nursing Law, 63 P.S. §211 et.
seq. (See Plaintiff's Complaint at Paragraphs 11, 15, 16, 18, 19, 20, 34, 35, 42, 45, 46, and 47).
20, Denied. See response at Paragraph 19 incorporated hereto by reference.
21. Denied. See Plaintiffs response to Paragraph 19 incorporated hereto by reference.
22. Denied as stated.
23. Denied. Plaintiff's Complaint is a document which speaks for itself. See also
Plaintiffs response at Paragraph 19 incorporated hereto by reference.
24. Denied.
25. Denied.
WHEREFORE, Plaintiff, Linda L. Fura, respectfully requests that this Honorable Court
dismiss Defendant's Preliminary Objections, and enter judgment for Plaintiff.
Respectfully submitted,
KREVSKY LAW OFFICE
i
By Sol men evsky, Esquire
Atto Plaintiff
Supreme Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: solomon(c?krevskylaw.com
CERTIFICATE OF SERVICE
AND NOW, TO WIT, this 'y/''"of oar 2005-1, Solomon Z. Krevsky, Esquire,
hereby certify that I have this date served a copy of the foregoing by depositing a copy of same in
the United States Mail, postage prepaid at Harrisburg, Pennsylvania, addressed to counsel of record
as follows:
Martha H. Munsch, Esquire
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219-1886
Carl H. Shuman, Esquire
Highmark, Inc.
1800 Center Street
Camp Hill, PA 17089
Respectfully submitted,
KREVSKY LAW OFFICE
By: .?`
Solo n . I vsky, Esquire
Attorn r Plaintiff
Supreme Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: solomonCy)krevskvlaw.com
;,
-?,
? '? ,, ?,
?. ?? ,
?'?_
_.
{.,
;',
.. u,
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
LINDA L. FURA
(Plaintiff)
VS.
HIGaAARK INC. t/d/b/a
PA BLUE SHIELD, t/d/b/a
HIGHMARK BATE SHIELD
(Defendant)
No. 3568 03 Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendant Highmark Inc.'s Preliminary Objections to
Plaintiff's Complaint
2. Identify counsel who will argue cases:
(a) for plaintiff:
Solomon Z. Krevsk
(Name and Address)
4409 North Front Street; Harrisburg, PA 17110
(b) for defendant:
Martha H. Munch, Esquire; Reed Smith LLP
(Name and Address)
435 Sixth Avenue; Pittsburgh, PA 15219-1886
3. I will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court Date:
Highmark Inc.
Date: June 17. 2005 Attorney for Defendant
Abigail D. Flynn-Kozara
Print your name
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
Defendant's Praecipe for Listing Case for Argument was served this date upon counsel for
Plaintiff by first class U.S. mail, postage prepaid, addressed as follows:
Solomon Z. Krevsky, Esquire
4409 North Front Street
Harrisburg, PA 17110
Dated: June 17, 2005
+ I?
C
n
LINDA L. FURA,
PLAINTIFF
V.
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, t/d/b/a HIGHMARK BLUE
SHIELD,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03-3568 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
TO PLAINTIFF'S COMPLAINT
ORDER OF COURT
AND NOW, this ?ZW- day of September, 2005, defendant's
demurrer to plaintiff's complaint, IS GRANTED. Plaintiff's complaint, IS/MISSED.
By the, Court
,
;.8olomon Z. Krevsky, Esquire
For Plaintiff
*4artha H. Munsch, Esquire
For Defendant
sal
Edgar B. Bayley, J.
J ¢Y,
c r
f3 N
i
btu LO .
C/)
.n '"J
LINDA L. FURA,
PLAINTIFF
V.
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, t/d/b/a HIGHMARK BLUE
SHIELD,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03-3568 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., September 21, 2005:--
Plaintiff, Linda L. Fura, was employed as a corporate health nurse by defendant,
Highmark, Inc., t/d/b/a PA. Blue Shield, t/d/b/a Highmark Blue Shield. She worked at a
headquarters facility in Cumberland County where defendant operates a health
insurance business. In her complaint, she alleges, inter alia, the following facts:
23. In or about May 2001, Plaintiff attended a Highmark Safety
Committee meeting at which time concerns were raised about forced daily
inhalation of "secondhand" smoke near employee work entrances and
exits. During said meeting, Plaintiff voiced medical concerns regarding
inhalation of "secondhand" smoke by nonsmoking employees and
employees of Defendant suffering from respiratory and related illnesses.
24. During her tenure of employment with Defendant, Plaintiff Fura
observed Defendant's practice of designating an outdoor smoking area in
close proximity to employees/patients using oxygen tanks for respiratory
and related illnesses.
25. As a Registered Nurse, Plaintiff Fura lodged complaints on
behalf of patient/employees to Defendant's management and human
resource officials including, without limitation, Deborah Mackin, Jeanne
Scott, Jill Briggs, Eric Goodling, and Defendant's Human Resource Vice
President William Grant, relating to health and safety hazards associated
with exposure to secondhand smoke.
26. In order to promote, maintain and restore the well-being of her
03-3568 CIVIL TERM
patients and employees of Defendant, Plaintiff Fura advocated on behalf
of employees generally, and specifically, an individual who required the
use of an oxygen tank as a result of his medical condition.
27. Significantly, Defendant issued a medical/handicapped parking
space to the individual utilizing the oxygen tank which was proximate to
Defendant's designated smoking area.
28. On numerous occasions, the individual utilizing the oxygen
tank approached the Plaintiff in her capacity as Occupational
Health/Corporate Health Nurse and solicited Plaintiffs involvement in his
medical care.
33. Plaintiff reasonably believed that a true hazard to her patients
and employees of Defendant existed by way of exposure to secondhand
smoke.
36. Accordingly, Plaintiff advised Mr. Grant that she could not
ignore the medical and safety concerns of her patients, and reinforced the
medical and safety concerns of the individual utilizing an oxygen tank.
37. In response, Mr. Grant advised Plaintiff that he must obtain
either her agreement on the matter or her resignation.
38. Plaintiff thereafter informed Mr. Grant that she could not agree
to his request and would not resign.
39. Immediately thereafter, Mr. Grant advised that Plaintiff is
"terminated effective immediately".
Plaintiff avers that it has been "widely recognized based on strong scientific
evidence that exposure to secondhand smoke is a serious public health hazard." She
alleges that she was "terminated for complying with the obligations, duties and
requirements of the practice of professional nursing as established and mandated by
The Professional Nursing Law and regulations promulgated thereunder, and such
termination therefore violated the public policy of the Commonwealth of Pennsylvania
ensuring the public a minimum level of safe nursing care." She alleges that if she had
"acceded to [her employer's] request ... she would have placed her patients and the
public at potential risk of harm." She seeks damages for wrongful discharge of
employment.
-2-
03-3568 CIVIL TERM
Defendant filed a preliminary objection to the complaint in the form of a demurrer
which was briefed and argued on August 24, 2005. The standard for ruling on a
demurrer is whether, accepting as true all well-pled allegations of material fact and the
inferences reasonably deducible therefrom, the law states with certainty that no
recovery is possible. Selfspot, Inc. v. Butler County Family YMCA, 818 A.2d 587
(Pa. Commw. 2003).
In McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000),
the Supreme Court of Pennsylvania stated that:
[t]he presumption of all non-contractual employment relations is that it is
at-will and that this presumption is an extremely strong one. An employee
will be entitled to bring a cause of action for a termination of that
relationship only in the most limited of circumstances where the
termination implicates a clear mandate of public policy in this
Commonwealth. (Emphasis added.)
Public policy exceptions to the at-will employment doctrine are narrow. An
employer cannot require an employee to commit a crime, cannot prevent an employee
from complying with a statutorily imposed duty, and cannot discharge an employee
when specifically prohibited from doing so by statute. Hennessy v. Santiago, 708 A.2d
1269, 1273 (Pa. Super. 1998). In the present case, plaintiff argues that the termination
of her employment:
[i]mplicated a clear mandate of public policy in the Professional Nursing
Law, 63 P.S. Section 211 et seq., and regulations at 49 Pa. Code. § 21.1
at seq., that establish a statutory and regulatory scheme for licensure of
nurses in order to ensure minimum standards of competency and to
provide the public safe nursing care... and placed an affirmative duty on
her as a Registered Nurse to ensure that she did not violate any provision
of the PNL or act in such a manner as to present an immediate and clear
danger to the public health or safety. PNL, 63 P.S. § 224(a). Plaintiff was
-3-
03-3568 CIVIL TERM
terminated for complying with a statutorily imposed duty. Plaintiff was
terminated for refusing to engage in criminal activity.
Plaintiff further maintains that this court should adopt the public policy reflected in the
provisions of The Professional Nursing Law and the Pa. Code. In Spierling v. First
American Home Health Services, Inc., 737 A.2d 1250 (Pa. Super. 1999), the Superior
Court of Pennsylvania stated:
It is only when a given policy is so obviously for or against the public
health, safety, morals or welfare that there is a virtual unanimity of opinion
in regard to it, that court may constitute itself the voice of the community in
so declaring. There must be a positive, well-defined, universal public
sentiment, deeply integrated in the customs and beliefs of the people and
in their conviction of what is just and right and in the interests of the public
weal. [W]e acknowledge[ ] the power of courts to pronounce public policy
[as] contrasted [to] the power of the legislature. Public policy, in the
administration of the law by the courts, is essentially different from what
may be public policy in the view of the legislature. With the legislature, it
may be, and often is, nothing more than expediency. The public policy
which dictates the enactment of a law is determined by the wisdom of the
legislature. Public policy ... with the legislature may be, and often is,
nothing more than expediency; but with the courts, it must, and may only,
be a reliance upon consistency with sound policy and good morals as to
the consideration or thing to be done. [T]he courts may in a proper case,
in the absence of a legislative pronouncement, determine what is against
public policy. Public policy is to be ascertained by reference to the laws
and legal precedents and not from general considerations of supposed
public interest. Where the legislature has spoken, however, we will not
interpret statutory provisions to advance matters of supposed public
interest. [Citations omitted.]
In Spierling, a nurse administrator in the office of a home health service
provider, alleged she was wrongfully terminated in violation of public policy for reporting
suspected Medicare fraud based on her review of old and discarded files. The Superior
Court affirmed the dismissal of her complaint on preliminary objections, stating that
neither The Professional Nursing Law nor the administrative regulations required the
-4-
03-3568 CIVIL TERM
nurse to review and report fraud discovered in old and discarded files. In Hennessy v.
Santiago, supra, an habilitative counselor working for a doctor who controlled a
corporation providing community living facilities alleged that she was wrongfully
terminated in violation of public policy for investigating and reporting to a district
attorney the rape of one of her employer's developmentally disabled residents after the
crime had been reported to the police. She alleged that the Mental Health Procedures
Act, 50 P.S. § 7101 et seq., which requires a "safe habilitative environment" for mental
healthcare patients, imposed an affirmative duty upon her to investigate and report
possible crimes involving her patients. The Superior Court, upholding the dismissal of
her complaint on preliminary objections, stated that it was not clear that the plaintiff was
"required to do anything at all" and, therefore, no public policy was implicated.
The regulations at 49 Pa. Code § 21.11(4), obligate nurses to "[carry] out nursing
care actions which promote, maintain and restore the well-being of individuals." Section
224(a) of The Professional Nursing Law sets forth circumstances whereby a nursing
license may be refused, suspended or revoked. They include:
(3) The licensee has willfully or repeatedly violated any of the
provisions of this act or of the regulations of the Board.
(7) The licensee has acted in such a manner as to present an
immediate and clear danger to the public health and safety.
In the case sub judice, plaintiff pled that she informed her employer of the
hazard of secondhand smoke at its outside smoking area to employees generally, and
to the employee utilizing oxygen. She thereby fulfilled her obligation to "promote,
maintain and restore the well-being of individuals" pursuant to 49 Pa. Code § 21.11(4).
-5-
03-3568 CIVIL TERM
The smoking area at Highmark is not illegal. Highmark did not accept plaintiff's
recommendations, but she persisted to the point she was terminated. It is
inconceivable to maintain that under 63 Pa.C.S. Section 224(a), a failure to continue to
advocate a change in the employer's outside smoking policy could have resulted in the
revocation of her nursing license. It is absurd to maintain that she could have been
charged, much less convicted, of a criminal offense. This court will not constitute itself
the voice of the community in declaring public policy on the minimum level of safe
nursing care as it relates to an employer providing an outside smoking area for its
employees. Plaintiffs principled resolve notwithstanding, as in Spierling and
Hennessy, there is no public policy implication applicable to the termination of plaintiff's
at-will employment. Therefore, the following order is entered.
ORDER OF COURT
AND NOW, this 2W day of September, 2005, defendant's
demurrer to plaintiffs complaint, IS GRANTED. Plaintiff's complaint,
By the Court,
Edgar B. Bayley, J.
Solomon Z. Krevsky, Esquire
For Plaintiff
Martha H. Munsch, Esquire
For Defendant
sal
IS D7ISSED.
-6-
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No. 03-3568 Civil Tenn
vs Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, Jury Trial Demanded
Defendant
NOTICE OF APPEAL
Notice is hereby given that the Plaintiff, Linda L. Fura, hereby appeals to the Superior Court
of Pennsylvania from the Order of Court entered in this matter on September 21, 2005. This Order
has been entered in the docket as evidenced by the attached copy of the docket entry.
Respectfully submitted,
KREVSKY LAW OFFICE
,
By.
vsky, Esquire
Supreme Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: solomonLykrevskylaw.com
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LINDA L. FURA,
Plaintiff No. 03-3568 Civil Term
vs Civil Action - Law
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, Jury Trial Demanded
Defendant
STATEMENT OF NO RECORD
I, Solomon Z. Krevsky, Esquire, hereby state that no verbatim record of the proceedings in
the above-captioned matter exists.
Respectfully submitted,
KREVSKY LAW OFFICE
By.
Solo on . Krevsky, Esquire
Atto ebr Plaintiff
Supreme Ct. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: solomonnkrevskylaw.com
08255810122005 Cumberland County Prothcnotary's Office Page 1
2YS510 Civil Case Print.
2003-03568 FURA LINDA L (vs) HIGHMARK INC ET AL
Reference Nc..: Filed........: 7/25/2003
Case Type.....: WRIT OF SUMMONS Time.........: 3:45
Judgment...... 00 Execution Date 0/00/0000
Judge Assigned: BAYLEY EDGAR B Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.:
Higher Crt 2.:
General Index Attorney Info
FURA LINDA L PLAINTIFF KREVSKY SOLOMON Z
311 ERFORD ROAD
CAMP HILL PA 17011
HIGHMARK INC DEFENDANT TXR Cori(Ft'OM P`coRu
1800 CENTER STREET in Tait mow wherwi, ! wr.. unto sot M.
CAMP HILL PA 17011
+'iDd tM Y" st SdW Cut. ?I-G C.10. ?
PA BLUE SHIELD DEFENDANT 2' y { D? ?Lc
1800 CENTER STREET O 72tceL??.: ??
CARP HILL PA 17011 ?ULz f
* Date Entries
FIRST ENTRY - - - -
7/25/2003 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS
ISSUED - ATTY SOLOMON Z KREVSKY
-------------------------------------------------------------------
9/26/2003 ACCEPTANCE OF SERVICE FOR FOR SUMMONS - BY CARL SHUMAN
-------------------------------------------------------------------
10/02/2003 PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR PLFF - BY SOLOMON Z
KREVSKY ESQ FOR PLFF AND PRAECIPE TO ENTER APPEARANCE FOR PLFF -
BY SOLOMON Z KREVSKY ESQ FOR PLFF
-------------------------------------------------------------------
4/27/2005 COMPLAINT - BY SOLOMON Z KREVSKY ESQ FOR PLFF
-------------------------------------------------------------------
5/05/2005 CERTIFICATE OF SERVICE FOR COMPLAINT - BY SOLOMON Z KREVSKY ESQ
-------------------------------------------------------------------
5/24/2005 PRELIMINARY OBJECTIONS - BY MARTHA H MUNSCH ESQ FOR DEFT
-------------------------------------------------------------------
6/01/2005 PLAINTIFF'S RESPONSE TO PREL'I'MINARY OBJECTIONS - BY SOOMON Z
KREVSKY ESQ
-------------------------------------------------------------------
6/20/2005 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT HIGHMARK INC'S
PRELIMINARY OBJECTIONS TO PLFF'S COMPLAINT - BY ABIGAIL D
FLYNN-KOZARA ESQ FOR DEFT
-------------------------------------------------------------------
9/21/2005 OPINION AND ORDER - DATED, 9/21/05 - IN RE PRELIMINARY OBJECTIONS
OF DEFENDANT TO PLAINTIFF'S COMPLAINT - DEFENDANT'S DEMURRER TO
PLAINTIFF'S COMPLAINT IS GRANTED - PLAINTIFF'S COMPLAINT IS
DISMISSED - BY EDGAR B BAYLEY J - COPIES MAILED 9/21/05
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
* Escrow Information
* Fees & Debits Bea Bal Pymts/Ad End Dal
WRIT OF SUMMONS 35.00 35.00 .00
TAX ON WRIT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
AUTOMATION FEE 5.00 5.00 .00
COP FEE 10.00 10.00 .00
---------------
55.50 --------- ---
55.50 ---------
.00
* End of Case Information
LINDA L. FORA,
PLAINTIFF
V.
HIGHMARK, INC., t/dIb/a PA. BLUE
SHIELD, t/d/b/a HIGHMARK BLUE
SHIELD,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03-3568 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
TO PLAINTIFF'S COMPLAINT
ORDER OF COURT
AND NOW, this '2'1>y- day of September, 2005, defendant's
demurrer to plaintiffs complaint, IS GRANTED. Plaintiff's complaint, IS
By the.Court,
Edgar B. Bayley', J.
Solomon Z. Krevsky, Esquire
For Plaintiff
Martha H. Munsch, Esquire
For Defendant
SSED.
sal
LINDA L. FURA,
PLAINTIFF
V.
HIGHMARK, INC., t/d/b/a PA. BLUE
SHIELD, t/d/b/a HIGHMARK BLUE
SHIELD,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03-3568 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY. J. AND GUIDO. J.
OPINION AND ORDER OF COURT
Bayley, J., September 21, 2005:--
Plaintiff, Linda L. Fura, was employed as a corporate health nurse by defendant,
Highmark, Inc., t/d/b/a PA. Blue Shield, t/d/b/a Highmark Blue Shield. She worked at a
headquarters facility in Cumberland County where defendant operates a health
insurance business. In her complaint, she alleges, inter alia, the following facts:
23. In or about May 2001, Plaintiff attended a Highmark Safety
Committee meeting at which time concerns were raised about forced daily
inhalation of "secondhand" smoke near employee work entrances and
exits. During said meeting, Plaintiff voiced medical concerns regarding
inhalation of "secondhand" smoke by nonsmoking employees and
employees of Defendant suffering from respiratory and related illnesses.
24. During her tenure of employment with Defendant, Plaintiff Fura
observed Defendant's practice of designating an outdoor smoking area in
close proximity to employees/patients using oxygen tanks for respiratory
and related illnesses.
25. As a Registered Nurse, Plaintiff Fura lodged complaints on
behalf of patient/employees to Defendant's management and human
resource officials including, without limitation, Deborah Mackin, Jeanne
Scott, Jill Briggs, Eric Goodling, and Defendant's Human Resource Vice
President William Grant, relating to health and safety hazards associated
with exposure to secondhand smoke.
26. In order to promote, maintain and restore the well-being of her
03-3568 CIVIL TERM
patients and employees of Defendant, Plaintiff Fura advocated on behalf
of employees generally, and specifically, an individual who required the
use of an oxygen tank as a result of his medical condition.
27. Significantly, Defendant issued a medical/handicapped parking
space to the individual utilizing the oxygen tank which was proximate to
Defendant's designated smoking area.
28. On numerous occasions, the individual utilizing the oxygen
tank approached the Plaintiff in her capacity as Occupational
Health/Corporate Health Nurse and solicited Plaintiffs involvement in his
medical care.
33. Plaintiff reasonably believed that a true hazard to her patients
and employees of Defendant existed by way of exposure to secondhand
smoke.
36. Accordingly, Plaintiff advised Mr. Grant that she could not
ignore the medical and safety concerns of her patients, and reinforced the
medical and safety concerns of the individual utilizing an oxygen tank.
37. In response, Mr. Grant advised Plaintiff that he must obtain
either her agreement on the matter or her resignation.
38. Plaintiff thereafter informed Mr. Grant that she could not agree
to his request and would not resign.
39. Immediately thereafter, Mr. Grant advised that Plaintiff is
"terminated effective immediately".
Plaintiff avers that it has been "widely recognized based on strong scientific
evidence that exposure to secondhand smoke is a serious public health hazard." She
alleges that she was "terminated for complying with the obligations, duties and
requirements of the practice of professional nursing as established and mandated by
The Professional Nursing Law and regulations promulgated thereunder and such
termination therefore violated the public policy of the Commonwealth of Pennsylvania
ensuring the public a minimum level of safe nursing care." She alleges that if she had
"acceded to (her employer's; request ... she would have placed her patients and the
public at potential risk of harm.' She seeks damages for wrongful discharge of
employment.
-2-
03-3568 CIVIL TERM
Defendant filed a preliminary objection to the complaint in the form of a demurrer
which was briefed and argued on August 24, 2005. The standard for ruling on a
demurrer is whether, accepting as true all well-pled allegations of material fact and the
inferences reasonably deducible therefrom, the law states with certainty that no
recovery is possible. Selfspot, Inc. v. Butler County Family YMCA, 818 A.2d 587
(Pa. Commw. 2003).
In McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000),
the Supreme Court of Pennsylvania stated that:
[t]he presumption of all non-contractual employment relations is that it is
at-will and that this presumption is an extremely strong one. An employee
will be entitled to bring a cause of action for a termination of that
relationship only in the most limited of circumstances where the
termination implicates a clear mandate of public policy in this
Commonwealth. (Emphasis added.)
Public policy exceptions to the at-will employment doctrine are narrow. An
employer cannot require an employee to commit a crime, cannot prevent an employee
from complying with a statutorily imposed duty, and cannot discharge an employee
when specifically prohibited from doing so by statute. Hennessy v. Santiago, 708 A.2d
1269, 1273 (Pa. Super. 1998). In the present case, plaintiff argues that the termination
of her employment:
[i]mplicated a clear mandate of public policy in the Professional Nursing
Law, 63 P.S. Section 211 et seq., and regulations at 49 Pa. Code. § 21.1
et seq., that establish a statutory and regulatory scheme for hcensure of
nurses in order to ensure minimum standards of competency and to
provide the public safe nursing care... and placed an affirmative duty on
her as a Registered Nurse to ensure that she did not violate any provision
of the PNL or act in such a manner as to present an immediate and clear
danger to the public health or safety. PNL, 63 P.S. § 224(a). Plaintiff was
-3-
03-3568 CIVIL TERM
terminated for complying with a statutorily imposed duty. Plaintiff was
terminated for refusing to engage in criminal activity.
Plaintiff further maintains that this court should adopt the public policy reflected in the
provisions of The Professional Nursing Law and the Pa. Code. In Spierling v. First
American Home Health Services, Inc., 737 A.2d 1250 (Pa. Super. 1999), the Superior
Court of Pennsylvania stated:
It is only when a given policy is so obviously for or against the public
health, safety, morals or welfare that there is a virtual unanimity of opinion
in regard to it, that court may constitute itself the voice of the community in
so declaring. There must be a positive, well-defined, universal public
sentiment, deeply integrated in the customs and beliefs of the people and
in their conviction of what is just and right and in the interests of the public
weal. [W]e acknowledge[ ] the power of courts to pronounce public policy
[as] contrasted [to] the power of the legislature. Public policy, in the
administration of the law by the courts, is essentially different from what
may be public policy in the view of the legislature. With the legislature, it
may be, and often is, nothing more than expediency. The public policy
which dictates the enactment of a law is determined by the wisdom of the
legislature. Public policy ... with the legislature may be, and often is,
nothing more than expediency; but with the courts, it must, and may only,
be a reliance upon consistency with sound policy and good morals as to
the consideration or thing to be done. [T]he courts may in a proper case,
in the absence of a legislative pronouncement, determine what is against
public policy. Public policy is to be ascertained by reference to the laws
and legal precedents and not from general considerations of supposed
public interest. Where the legislature has spoken, however, we will not
interpret statutory provisions to advance matters of supposed public
interest. [Citations omitted.]
In Spierling, a nurse administrator in the office of a home health service
provider, alleged she was wrongfully terminated in violation of public policy for reporting
suspected Medicare fraud based on her review of old and discarded files. The Superior
Court affirmed the dismissal of her compiaint on preliminary objections, stating that
neither The Professional Nursing Law nor the administrative regulations required the
03-3568 CIVIL TERM
nurse to review and report fraud discovered in old and discarded files. In Hennessy v.
Santiago, supra, an habilitative counselor working for a doctor who controlled a
corporation providing community living facilities alleged that she was wrongfully
terminated in violation of public policy for investigating and reporting to a district
attorney the rape of one of her employer's developmentally disabled residents after the
crime had been reported to the police. She alleged that the Mental Health Procedures
Act, 50 P.S. § 7101 et seq., which requires a "safe habilitative environment" for mental
healthcare patients, imposed an affirmative duty upon her to investigate and report
possible crimes involving her patients. The Superior Court, upholding the dismissal of
her complaint on preliminary objections, stated that it was not clear that the plaintiff was
"required to do anything at all" and, therefore, no public policy was implicated.
The regulations at 49 Pa. Code § 21.11 (4), obligate nurses to "[carry] out nursing
care actions which promote, maintain and restore the well-being of individuals." Section
224(a) of The Professional Nursing Law sets forth circumstances whereby a nursing
license may be refused, suspended or revoked. They include:
(3) The licensee has willfully or repeatedly violated any of the
provisions of this act or of the regulations of the Board.
(7) The licensee has acted in such a mariner as to present an
immediate and clear danger to the public health and safety.
In the case sub judice, plaintiff pled that she informed her employer of the
hazard of secondhand smoke at its outside smoking area to employees generally, and
to the employee utilizing oxygen. She thereby fulfilled her obligation to "promote.
maintain and restore the well-being of individuals" pursuant to 49 Pa. Code § 21.11(4).
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03-3568 CIVIL TERM
The smoking area at Highmark is not illegal. Highmark did not accept plaintiff's
recommendations, but she persisted to the point she was terminated. It is
inconceivable to maintain that under 63 Pa.C.S. Section 224(a), a failure to continue to
advocate a change in the employer's outside smoking policy could have resulted in the
revocation of her nursing license. It is absurd to maintain that she could have been
charged, much less convicted, of a criminal offense. This court will not constitute itself
the voice of the community in declaring public policy on the minimum level of safe
nursing care as it relates to an employer providing an outside smoking area for its
employees. Plaintiffs principled resolve notwithstanding, as in Spierling and
Hennessy, there is no public policy implication applicable to the termination of plaintiff's
at-will employment. Therefore, the following order is entered.
ORDER OF COURT
AND NOW, this 'LR- day of September, 2005, defendants
demurrer to plaintiffs complaint, IS GRANTED. Plaintiff's complaint, IS DISMISSED.
By the Court'
i
Edgar B. Bayley, J.
Solomon Z. Krevsky, Esquire
For Plaintiff
Martha H. Munsch, Esquire
For Defendant
sal
-6-
CERTIFICATE OF SERVICE
AND NOW, TO WIT, this /y of > 2005, I, Solomon Z. Krevsky,
Esquire, hereby certify that I have this date served a copy of the foregoing by depositing a copy of
same in the United States Mail, postage prepaid at Harrisburg, Pennsylvania, addressed to counsel
of record as follows:
Martha H. Munch, Esquire
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219-1886
The Honorable Edgar B. Bayley
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Taryn N. Dixon, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Respectfully submitted,
KREVSKY LAW OFFICE
By:
Solomdny.Krevsky, Esquire
Attom r Plaintiff
Supreme t. I.D. #72719
4409 North Front Street
Harrisburg, PA 17110
(717) 221-8338
(717) 221-0800 fax
e-mail: Solomon a)krevskylaw.com
JV 77-
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11:2CrAAAR.• a
Appeal Docket Sheet
Docket Number:
Page 1 of 2
October 21, 2005
1761 MDA 2005
Z%L
Linda L. Fura, Appellant
V.
Highmark, Inc, t/d/b/a Pennsylvania Blue Shield
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: October 21, 2005
Awaiting Original Record
Journal Number:
Case Category: Civil CaseType: Civil Action Law
Consolidated Docket Nos.: Related Docket Nos.:
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement
Next Event Type: Original Record Received
Next Event Due Date: November 4, 2005
Next Event Due Date: November 30, 2005
COUNSEL INFORMATION
Appellant
Pro Se:
IFP Status:
Appellee
Pro Se:
IFP Status:
Fura, Linda L.
Appoint Counsel Status:
No
Appellant Attorney Information:
Attorney: Krevsky, Solomon
Bar No.: 72719
Address: 4409 N Front Street
Harrisburg, PA 17110
Phone No.: (717)221-8338
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Law Firm:
Fax No.: (717)221-0800
Highmark, Inc. t/d/b/a Pennsylvania Blue Shield
Appoint Counsel Status:
Appellee Attorney Information:
Attorney: Munsch, Martha Hartle
Bar No.: 18176 Law Firm: Reed Smith LLP
Address: 435 6th Avenue
Pittsburgh, PA 15219
Phone No.: (412)288-4118 Fax No.: (412)288-3063
Receive Mail: Yes
E-Mail Address: mmunsch@reedsmith.com
Receive E-Mail: No
Superior Court of Pennsylvania
10/2112005 3023
11:24 A.M. 4
Appeal Docket Sheet
Docket Number: 1761 MDA 2005
Paqe 2 of 2
October 21, 2005
Superior Court of Pennsylvania
Aft
FEE INFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Receipt Number
10/19/05 Notice of Appeal 60.00 60.00 2005SPRMD000904
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: September 21, 2005 Judicial District: 9
Date Documents Received: October 20, 2005 Date Notice of Appeal Filed: October 19, 2005
Order Type: Order Entered OTN:
Judge: Bayley, Edgar B. Lower Court Docket No.: 03-3568
Judge
ORIGINAL RECORD CONTENTS
Original Record Item
Filed Date
Content/Description
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Party Type Filed By
October 21, 2005 Notice of Appeal Filed
Appellant Fura, Linda L.
October 21, 2005 Docketing Statement Exited (Civil)
Middle District Filing Office
10/21/2005 3023
.
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Irene M. Bizzoso
Deputy Prothonotary
Norina K. Blynn
Chief Clerk
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Supreme Court of Pennsylvania
Middle District
May 10, 2007
Mr. Curtis R. Long
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
RE: Linda L. Fura, Petitioner
V.
Highmark, Inc. t/d/b/a Pennsylvania Blue Shield, Respondent
Superior Docket Number - 1761 MDA 2005
Trial Court/Agency Dkt. Number: 03-3568
No. 962 MAL 2006
Appeal Docket No.:
Date Petition for Allowance of Appeal Filed: November 14, 2006
Disposition: Order Denying Petition for Allowance of Appeal
Date: May 10, 2007
Reargument/Reconsideration Disposition:
Reargument/Reconsideration
Disposition Date:
P.O. Box 624
Harrisbure. PA 17108
717-787-6181
www.aopc.org
/esh
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LINDA L. FORA, No. 962 MAL 2006
Petitioner
Petition for Allowance of Appeal from the
Order of the Superior Court
V.
HIGHMARK, INC. T/D/B/A
PENNSYLVANIA BLUE SHIELD,
Respondent
ORDER
PER CURIAM
AND NOW, this 10th day of May, 2007, the Petition for Allowance of Appeal is hereby
DENIED.
TRUE & CORRECT COPY
A;EpLITY AY 10 2007
E M. SIZZOSO,
PROTHONOTARY
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Karen Reid Bramblett, Esq.
Prothonotary
James D. McCullough, Esq.
Deputy Prothonotary
TO: Mr. Curtis R. Long
Prothonotary
.
Superior Court of Pennsylvania
Middle District
October 16, 2006
Certificate of Remittal/Remand of Record
RE: Fura, L. v. Highmark, Inc., et al
No. 1761 MDA 2005
Trial Court/Agency Dkt. Number: 03-3568
Trial Court/Agency Name: Cumberland County Court of Common
Pleas
Intermediate Appellate Court Number:
100 Pine Street. Suite 400
Harrisburg, PA 17101
717-772-1294
www. superior.court.state.pa. us
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572
is the entire record for the above matter.
Contents of Original Record:
Original Record Item Filed Date Description
Part December 5, 2005 1
Date of Remand of Record: JUN 0 6 2007
ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and
returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need
not acknowledge receipt.
C 40-?
Signature
Date
Printed Name
/alv
!+
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LINDA L. FURA,
Petitioner
V.
HIGHMARK, INC. T/D/B/A
PENNSYLVANIA BLUE SHIELD,
Respondent
PER CURIAM
No. 962 MAL 2006
Petition for Allowance of Appeal from the
Order of the Superior Court
7W rn 1311- 0200 5
ORDER
AND NOW, this 10th day of May, 2007, the Petition for Allowance of Appeal is hereby
DENIED.
TRUE & CORRECT Copy
ATIFEPUTY AY 1 0 2007
r-3
?, f ? i
J-A25014-06
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37
LINDA L. FURA, IN THE SUPERIOR COURT OF
Appellant PENNSYLVANIA
V. .
HIGHMARK, INC. t/d/b/a .
PENNSYLVANIA BLUE SHIELD,
Appellee No. 1761 MDA 2005
Appeal from the Order Entered September 21, 2005
In the Court of Common Pleas, Civil Division
Cumberland County, No. 03-3568
BEFORE: LALLY-GREEN, TODD, and POPOVICH, JJ.
MEMORANDUM:
FILED: October 16, 2006
Linda L. Fura appeals the order granting the preliminary objections of
Highmark, Inc. t/d/b/a Pennsylvania Blue Shield ("Highmark") and
dismissing her complaint for wrongful discharge. We affirm.
As alleged in her complaint, Fura, a registered nurse, was employed as
a occupational health nurse/corporate nurse by Highmark, and, inter alia,
provided nursing care to ill or injured employees of Highmark at Highmark's
facility in Cumberland County. She further alleges:
23. In or about May 2001, [Furs] attended a Highmark
Safety Committee meeting at which time concerns were raised
about forced daily inhalation of "secondhand" smoke near
employee work entrances and exits. During said meeting, [Furs]
voiced medical concerns regarding inhalation of "secondhand"
smoke by nonsmoking employees and employees of [Highmark]
suffering from respiratory and related illnesses.
24. During her tenure of employment with [Highmark],
[Fura] observed [Highmark's] practice of designating an outdoor
smoking area in close proximity to employees/patients using
oxygen tanks for respiratory and related illnesses.
J-A25014-06
25. As a Registered Nurse, [Fura] lodged complaints on
behalf of patient/employees to [Highmark's] management and
human resource officials including, without limitation, Deborah
Mackin, Jeanne Scott, Jill Briggs, Eric Goodling, and [Highmark's]
Human Resource Vice President William Grant, relating to health
and safety hazards associated with exposure to secondhand
smoke.
26. In order to promote, maintain and restore the well-
being of her patients and employees of [Highmark], [Fura]
advocated on behalf of employees generally, and specifically, an
individual who required the use of an oxygen tank as a result of
his medical condition.
27. Significantly, [Highmark] issued a medical/
handicapped parking space to the individual utilizing the oxygen
tank which was proximate to [Highmark's] designated smoking
area.
28. On numerous occasions, the individual utilizing the
oxygen tank approached [Fura] in her capacity as Occupational
Health/Corporate Health Nurse and solicited [Fura's]
involvement in his medical care.
29. It has been widely recognized based on strong
scientific evidence that exposure to secondhand smoke is a
serious public health hazard.
30. In 1986, reports by both the U.S. National Research
Council and the U.S. Surgeon General concluded that
secondhand smoke causes lung cancer in adult nonsmokers.
31. In 2000, the National Institute for Environmental
Health Sciences issued its bi-annual report identifying
secondhand tobacco smoke as a known carcinogen.
32. On August 1, 2001, [Highmark's] Human Resource
Vice President, Mr. Grant, telephoned [Fura] requesting that she
cease advocating patient/employee medical and safety concerns
regarding secondhand smoke.
33. [Fura] reasonably believed that a true hazard to her
patients and employees of [Highmark] existed by way of
exposure to secondhand smoke.
34. By virtue of her professional status as a Registered
Nurse, and the statutory obligations imposed by the Professional
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J-A25014-06
Nursing Law[11 and promulgations regulated thereunder., (2] [Fura]
was mandated to carry out nursing actions which promote,
maintain and restore the well-being of individuals and involve
individuals and their families in their health promotion,
maintenance, and restoration.
35. In fact, had [Fura] complied with Mr. Grant's order,
her conduct would have constituted a disregard for the
underlying philosophies, duties and obligations of a professional
nurse as promulgated by the State Board of Nursing Examiners
and as set forth in the Professional Nursing Law and the rules
and regulations of the State Board of Nursing Examiners, as
more fully described above.
36. Accordingly, [Fura] advised Mr. Grant that she could
not ignore the medical and safety concerns of her patients, and
reinforced the medical and safety concerns of the individual
utilizing an oxygen tank.
37. In response, Mr. Grant advised [Fura] that he must
obtain either her agreement on the matter or her resignation.
38. [Fura] thereafter informed Mr. Grant that she could
not agree to his request and would not resign.
39. Immediately thereafter, Mr. Grant advised that
[Fura] is "terminated effective immediately".
(Complaint, 4/27/05, at 5-7 (citations omitted).)
Fura alleges that she "was terminated for complying with the
obligations, duties and requirements of the practice of professional nursing
as established and mandated by the Professional Nursing Law and
regulations promulgated thereunder, and such termination therefore violated
the public policy of the Commonwealth of Pennsylvania insuring the public a
minimum level of safe nursing care." (Id. at 7-8.) She adds that, if she had
1 63 P.S. §§ 211-225.5.
z See 49 Pa. Code. §§ 21.1-21.125.
-3-
]-A25014-06
"acceded to [Highmark's] requests . . . she would have placed her patients
and the public at potential risk of harm." (Id, at 8.)
Fura filed her complaint alleging wrongful discharge on April 27, 2005.
In response, Highmark filed preliminary objections in the form of a
demurrer. Following briefs and argument, the trial court granted the
preliminary objections on September 21, 2005, finding that, as an at-will
employee, Fura had failed to allege a cause of action for wrongful discharge.
This appealed followed.
On appeal, Fura asks:
1. Whether the Trial Court erred when it granted
[Highmark's] Preliminary Objections in the nature of a
demurrer where [Fura's] Complaint sufficiently pleads
material facts supporting a cause of action for wrongful
discharge in violation of a clear mandate of public policy in
the Commonwealth of Pennsylvania.
2. Whether the Trial Court erred [in] granting [Highmark's]
Preliminary Objections in the nature of a demurrer where
[Fuca], a corporate health nurse, alleged she was
terminated for complying with the obligations, duties, and
requirements of the practice of professional nursing as
established and mandated by the Professional Nursing Law
and regulations promulgated thereunder by advancing the
health and safety concerns of her patient, an employee of
[Highmark], who suffered with a respiratory ailment and
was subjected to the hazards of secondhand smoke.
3. Whether the Professional Nursing Law and related
regulations establishes a clear mandate of Pennsylvania
Public Policy to ensure minimum levels of safe nursing care
such that an at-will employee who alleges a discharge from
employment for complying with same states a cause of
action for which relief may be granted under Pennsylvania
law.
(Appellant's Brief at 3.)
-4-
J-A25014-06
In cases such as this, where an appellant challenges the trial court's
grant of preliminary objections in the nature of a demurrer, our scope of
review is well settled. We are obligated to accept all material facts set forth
in the complaint, and all inferences reasonably drawn therefrom, as
admitted and true and determine whether, based on the averments in the
complaint, recovery is impossible as a matter of law. MacElree v.
Philadelphia Newspapers, Inc., 674 A.2d 1050, 1053-54 (Pa. 1996). If
any doubt exists as to whether a demurrer should be sustained, we must
reverse the decision of the trial court. County of Allegheny v.
Commonwealth, 490 A.2d 402,408 (Pa. 1985).
Following our review of the record, the parties' briefs, and the
applicable caselaw, we conclude that the Honorable Edgar B. Bayley, in his
opinion of September 21, 2005, has thoroughly and properly addressed the
issues Fura raises on appeal, and cogently rejected Fura's contention that
her complaint states a cause of action for wrongful discharge. Accordingly,
for the reasons set forth in Judge Bayley's opinion (see Trial Court Opinion,
9/21/05, at 3-6), a copy of which is attached hereto, we affirm the order
granting Highmark's preliminary objections and dismissing Fura's complaint
for wrongful discharge.
Order AFFIRMED.
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J-A25014-06
Judgment Entered:
C 6"
rtl Prothonotary
October 16, 2006
Date:
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