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HomeMy WebLinkAbout2003-3568 Civil LINDA L. FURA, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HIGHMARK, INC., tld/b/a PA. BLUE SHIELD, tld/b/a HIGHMARK BLUE SHIELD, DEFENDANT 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., tld/b/a PA. Blue Shield, tld/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 employeeslpatients using oxygen tanks for respiratory and related illnesses. 25. As a Registered Nurse, Plaintiff Fura lodged complaints on behalf of patientlemployees 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. 03-3568 CIVIL TERM 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 medicallhandicapped 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 HealthlCorporate Health Nurse and solicited Plaintiff's 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 -2- 03-3568 CIVIL TERM employment. 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. S 21.1 et 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 -3- 03-3568 CIVIL TERM 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. S 224(a). Plaintiff was 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. -4- 03-3568 CIVIL TERM 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 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. 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 S 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 -5- 03-3568 CIVIL TERM 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 S 21.11 (4). 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. Plaintiff's 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 day of September, 2005, defendant's demurrer to plaintiff's complaint, IS GRANTED. Plaintiff's complaint, IS DISMISSED. By the Court, Edgar B. Bayley, J. Solomon Z. Krevsky, Esquire For Plaintiff -6- 03-3568 CIVIL TERM Martha H. Munsch, Esquire F or Defendant :sal -7- LINDA L. FURA, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HIGHMARK, INC., tld/b/a PA. BLUE SHIELD, tld/b/a HIGHMARK BLUE SHIELD, DEFENDANT 03-3568 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF'S COMPLAINT ORDER OF COURT AND NOW, this day of September, 2005, defendant's demurrer to plaintiff's complaint, IS GRANTED. Plaintiff's complaint, IS DISMISSED. By the Court, Edgar B. Bayley, J. Solomon Z. Krevsky, Esquire For Plaintiff Martha H. Munsch, Esquire F or Defendant :sal