Romer v. MHM Health Professionals, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CAMERON ROMER, : Civil No. 1:20-cv-1275

:

Plaintiff, :

:

v. :

:

MHM HEALTH PROFESSIONALS, :

:

Defendant. : Judge Sylvia H. Rambo

M E M O R A N D U M

Before the court is Defendant’s Motion to Dismiss Plaintiff’s Complaint.

(Doc. 5.) For the reasons outlined below, the court will deny the motion.

I. BACKGROUND

For the purpose of this motion, the court takes all well-pleaded facts as true

and makes all reasonable inferences in favor of Plaintiff Cameron Romer (“Plaintiff”

or “Cameron”). Defendant MHM Health Professionals (“Defendant” or “MHM”) is

a limited liability company that contracts with the Pennsylvania Department of

Corrections (“DOC”) to provide psychiatric services for mentally ill inmates.

Plaintiff was an employee of Defendant who served in an administrative role,

reviewing contracts and services provided by Defendant to ensure it was complying

with its obligations. She was not licensed to practice medicine.

Around January of 2019, the DOC informed Defendant that it would soon be

engaging in a new bidding process for additional contractual services. To increase

its odds of winning, Defendant instructed Plaintiff to acquire secret information

concerning the other entities that were bidding. Plaintiff informed Defendant

multiple times that she thought this was wrong and illegal, but Defendant

nonetheless insisted that she do it. Plaintiff eventually caved and agreed to acquire

the information, but she also shared this information with multiple people, angering

Defendant and causing it to shift blame for the bidding espionage to Plaintiff.

Around April of 2019, Plaintiff informed Defendant it was failing to comply

with some of its contractual obligations to the DOC. Specifically, Plaintiff informed

Defendant it acted wrongly in providing inadequate hours and quality of treatment,

understaffing medical providers, and overmedicating certain prisoners to such an

extent that one soiled himself and required hospitalization. Plaintiff went further to

inform Defendant that it was inaccurately recording the treatment being rendered.

While one of Plaintiff’s superiors investigated and ultimately agreed with Plaintiff’s

allegations, she chose to hide her findings and instructed Plaintiff to complete a

medical report without the presence or aid of any licensed physician. Defendant

went on to make certain company-wide mandates for drug provisions during the

treatment of patients and instructed Plaintiff to work with and monitor Defendant’s

psychiatrists to ensure they were providing proper care to DOC patients. Plaintiff

protested that Defendant was instructing her to engage in the unlicensed practice of

medicine for the purpose of hiding Defendant’s fraudulent representation of its

inadequately rendered care.

On October 1, 2019, Defendant terminated Plaintiff, allegedly due to, among

other things, her failure to properly engage in the acquisition of bidding secrets and

the practice of unlicensed medicine. On June 29, 2020, Plaintiff sued Defendant in

the Court of Common Pleas in Cumberland County, alleging three causes of action.

First, Plaintiff accused Defendant of violating the Pennsylvania Whistleblower Act

(“PWA”) by terminating her for reporting wrongdoing.1 Second, Plaintiff alleged

that Defendant wrongfully discharged her under the common law wrongful

discharge doctrine, accusing Defendant of terminating her for refusing to engage in

unlawful activity. Third, Plaintiff alleged Defendant violated the Medical Care

Availability and Reduction of Error (“MCARE”) Act.2 On July 24, 2020, Defendant

removed the case to federal court on diversity grounds. (Doc. 1.) On August 14,

2020, Defendant filed its Motion to Dismiss Plaintiff’s Complaint. (Doc. 5.)

Plaintiff filed a brief in opposition (Doc. 9), and Defendant replied (Doc. 10). The

motion is thus ripe before the court.

1 Plaintiff also includes an allegation of “waste” in the complaint, but this allegation is

conclusory and not explained in her brief. As such, the court will not evaluate the argument at this

time.

2 Plaintiff has agreed to dismiss Claim 3. It will thus, at this time, be dismissed.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege

“factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “When

reviewing a 12(b)(6) motion, we ‘accept as true all well-pled factual allegations in

the complaint and all reasonable inferences that can be drawn from them.’” Estate

of Ginzburg by Ermey v. Electrolux Home Prods., Inc., 783 F. App’x 159, 162 (3d

Cir. 2019) (quoting Taksir v. Vanguard Grp., 903 F.3d 95, 96-97 (3d Cir. 2018)).

The facts alleged must be “construed in the light most favorable to the plaintiff.” In

re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (internal

quotations, brackets, and ellipses omitted). The universe of facts upon which the

court may rely includes those facts alleged in the complaint, facts which the court

may take judicial notice of, and indisputably authentic documents referred to in the

plaintiff’s complaint. Hartig Drug Co., Inc. v. Senju Pharm Co., 836 F.3d 261, 268

(3d Cir. 2016).

The Third Circuit has detailed a three-step process to determine whether a

complaint meets the pleading standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014).

First, the court outlines the elements a plaintiff must plead to state a claim for relief.

Id. at 365. Second, the court must “peel away those allegations that are no more

than conclusions and thus not entitled to the assumption of truth.” Id. Third, the

court “look[s] for well-pled factual allegations, assume[s] their veracity, and then

‘determine[s] whether they plausibly give rise to an entitlement to relief.’” Id.

(quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.”

Id. In assessing the level of factual details required under Twombly, the Third Circuit

has held:

The Supreme Court reaffirmed that Fed. R. Civ. P. 8

requires only a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to

give the defendant fair notice of what the claim is and the

grounds upon which it rests, and that this standard does

not require detailed factual allegations.

Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations and

quotations omitted).

III. DISCUSSION

a. Plaintiff Has Properly Alleged a Claim Under the PWA Because

Defendant Is a Public Body Under the Statute.

Under 43 P.S. § 1423(a):

No employer may discharge, threaten or otherwise

discriminate or retaliate against an employee regarding the

employee’s compensation, terms, conditions, location or

privileges of employment because the employee or a

person acting on behalf of the employee makes a good

faith report or is about to report, verbally or in writing, to

the employer or appropriate authority an instance of

wrongdoing or waste by a public body or an instance of

waste by any other employer as defined in this act.

Here, Plaintiff has properly alleged that she was terminated by Defendant for

complaining of wrongdoing. Defendant argues this only renders it liable under §

1423(a) if it is a public body.3

43 P.S. § 1422 defines a public body as:

All of the following:

(1) A State officer, agency, department, division, bureau,

board, commission, council, authority or other body in the

executive branch of State government.

(1.1) The General Assembly and its agencies.

(2) A county, city, township, regional governing body,

council, school district, special district or municipal

corporation, or a board, department, commission, council

or agency.

(3) Any other body which is created by Commonwealth or

political subdivision authority or which is funded in any

amount by or through Commonwealth or political

subdivision authority or a member or employee of that

body.

3 Defendant’s argument in its original motion to dismiss Plaintiff’s first claim is solely that

it is not an employer under the statute. On reply, however, Defendant first raised the argument

that it did not qualify as a public body, therefore justifying dismissal on this alternative ground.

The line of case law and portion of the statute concerning the definition of public body are distinct

from those governing the definition of an employer. This renders Defendant’s argument new on

reply, giving Plaintiff no opportunity to address it and rendering it improperly before the court.

See Smithkline Beecham PLC v. Teva Pharm. USA, Inc., No. 04-cv-215, 2007 WL 1827208, at *1

(D.N.J. June 22, 2007); In re Katrina Canal Breaches Litig., 620 F.3d 455, 459 n.3 (5th Cir. 2010)

(“That argument is waived, because it was not made in the plaintiffs’ opening brief.”). Thus, even

if the substance of Defendant’s argument is correct, this part of the motion will be denied on

procedural grounds.

Plaintiff alleged that Defendant received payment from the DOC. Defendant does

not dispute that this constitutes money “by or through Commonwealth or political

subdivision authority.”4 Defendant, however, relies on federal district court

authority holding that this would not qualify as being “funded” by the DOC. Thus,

the operative question here is whether receiving money from a public entity

constitutes being “funded,” therefore rendering Defendant a public body.

In interpreting a Pennsylvania statute, the court must apply Pennsylvania rules

governing statutory interpretation. In re Trustees of Conneaut Lake Park, Inc., 855

F.3d 519, 523 (3d Cir. 2017). Under Pennsylvania law, the purpose of statutory

interpretation is to effectuate the intent of the legislature and give effect to every

provision. 1 Pa. C.S. § 1921(a). “In general, the best indication of legislative intent

is the plain language of a statute.” Sivick v. State Ethics Comm’n, --- A.3d ----, 2020

WL 5823822, at *6 (Pa. Oct. 1, 2020) (internal quotations omitted). Thus, “[w]hen

the words of the statute are clear and free from all ambiguity, the letter of it is not to

be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b); accord

Riggio v. Burns, 711 A.2d 497, 500 (Pa. Super. Ct. 1998) (en banc) (“Where the

language of a statute is unambiguous on its face, we are bound to give effect to that

language.”). “Only if the statute is ambiguous, and not explicit, do we resort to other

4 The court does not hold, as a matter of law, that money from the Pennsylvania DOC,

specifically, constitutes money through the Commonwealth or subdivision authority—it simply

finds such an allegation plausible at this stage of litigation.

means of discerning legislative intent,” Crown Castle NG East LLC v. Pa. Public

Util. Comm’n, 234 A.3d 665, 674 (Pa. 2020) (internal quotations omitted), such as

the “circumstances under which [the statute] was enacted,” the “consequences of a

particular interpretation,” the “contemporaneous legislative history,” or the

“[l]egislative and administrative interpretation of the statute,” 1 Pa.C.S. § 1921(c).

Turning to the statute itself, the word “fund” ordinarily means “to provide the

money to pay for an event, activity, or organization.” Fund, Cambridge Dictionaries

Online, https://dictionary.cambridge.org/us/dictionary/english/funded (last accessed

10/26/2020). This is the most basic definition of “fund,” with “funded” simply being

its past tense. Thus, the plain language of the statute renders any entity a public

body if it is paid either directly by the Commonwealth or indirectly by a public entity

with money that has passed “through” the Commonwealth. 43 P.S. § 1422. Plaintiff

has alleged Defendant was paid by a public entity for the contractual rendering of

services. This constitutes the provisions of money to pay for an activity, i.e. funding.

Defendant thus constitutes a public body under § 1422.

Multiple Pennsylvania Superior Court decisions have supported this reading

of the statute. They have repeatedly held that “the statutory definition of ‘public

body’ for purposes of the Whistleblower Law includes, inter alia, private entities

which receive funding ‘in any amount by or through [the] Commonwealth.’”

Harrison v. Health Network Labs. Ltd. P’ship, No. 365-EDA-2018, 2018 WL

6520982, at *6 n.4 (Pa. Super. Ct. Dec. 12, 2018). In Denton v. Silver Streaming

Nursing and Rehabilitation Center, the Pennsylvania Superior Court held that the

phrase “by or through Commonwealth,” in the Pennsylvania Whistleblower Statute,

made any private entities “that receive not only money appropriated by the

Commonwealth, but also public money that passes through the Commonwealth” a

public body. 739 A.2d 571, 576 (Pa. Super. Ct. 1999) (emphasis in original)

(quoting 43 P.S. § 1422); id. (“[A] recipient of Medicaid funding is a ‘public body’

for purposes of the Whistleblower Law.”).

Many federal district courts are skeptical of such an interpretation because the

ordinary meaning of the phrase “public body” would not include a private entity

receiving public funding. However, the PWA’s explicit definition of public body

supplants any other interpretation of the term:

Notwithstanding the everyday meaning of “public body,”

this term was expressly defined by our legislature for

purposes of the Whistleblower Law. . . . The statute plainly

and unequivocally makes any body “funded in any amount

by or through the Commonwealth … authority” a public

body for purposes of the Whistleblower Law. Where the

language of the statute is unambiguous on its face, we are

bound to give effect to that language.

Id. (quoting Riggio, 711 A.2d at 500); accord Hodges v. Rodriguez, 645 A.2d 1340,

1348 (Pa. Super. Ct. 1994) (“Where a statute provides internal definitions, we are

bound to construe the statute according to those definitions.”).

The Pennsylvania Superior Court has twice cited Denton favorably for its

interpretation of the Pennsylvania Whistleblower Statute, including after the statute

was amended in 2014. See Saltzman v. Thomas Jefferson Univ. Hosps., Inc., 166

A.3d 465, 475 n.8 (Pa. Super. Ct. 2017); Harrison v. 2018 WL 6520982, at *6 n.4.

Because Pennsylvania’s intermediate appellate court decisions are strong indicators

of how the Pennsylvania Supreme Court would rule—and because Denton is both

consistent with the plain language of the statute and has been favorably cited by later

Pennsylvania decisions—the court will follow Denton. Sheridan v. NGK Metals

Corp., 609 F.3d 239, 254 (3d Cir. 2010) (holding that courts interpreting state law

should generally follow that state’s intermediate appellate courts unless strong

evidence suggests they should not); Auto-Owners Ins. Co. v. Stevens & Ricci Inc.,

835 F.3d 388, 409-10 (3d Cir. 2016) (same).

The court recognizes that federal district courts are nonetheless split on this

issue, sometimes adopting Denton and other times rejecting it. Contrast Mayer v.

Boys & Girls Clubs of Phila. Inc., No. 10-cv-7574, 2011 WL 4467669, at *4-5 (E.D.

Pa. Sept. 23, 2011) (holding, based on Denton, that a private entity contracting with

a school district was covered by the Pennsylvania Whistleblower Law) with Adams

v. HCF Mgmt., No. 18-cv-47, 2018 WL 3388404, at *3-5 (W.D. Pa. July 12, 2018)

(holding Denton was incorrectly decided). While the court is not bound by federal

district court opinions, the Adams court is thoroughly reasoned and includes a review

of several federal and state opinions. The court has thus carefully reviewed it and

will address its rationale, which can be divided into four arguments.

First, the Adams court states that the 2014 amendments to the statute rendered

Denton inapplicable. The court disagrees. Two Superior Court cases favorably

citing Denton post-date the 2014 amendment. Further, the key language relied upon

in Denton—“funded by any amount by or through Commonwealth or political

subdivision authority”—remains within the amended version of the statute. The

2014 amendment did alter the definition of “employer,” but the Adams court goes

too far in suggesting that the definitions of “employer” and “public body” are

antagonistic to one another. See Adams, 2018 WL 3388404 at *3 (“HCF . . . appears

to fall squarely within the current statute’s definition of an ‘employer’ rather than

a ‘public body.’”) (emphasis added).5 The problem with this rationale is that the

definition of “employer” includes a “public body.” 43 P.S. § 1422. Thus, the 2014

amendments do not change the court’s analysis of the statute’s unaltered definition

of “public body.”

Second, the Adams court finds that the legislative history and debate

concerning the 2014 amendments of the PWA support its interpretation of the

5 Even if those definitions were exclusive of one another, Plaintiff has alleged that Defendant

is an LLC—a type of business organization that is not included in the apparently exhaustive list of

business entities, other than public bodies, in the statute’s definition of “employer.” It thus does

not fall within the definition of employers outside of public bodies.

statute. Under Pennsylvania law, however, the court must begin with the

unambiguous language of the statute, only turning to the legislative history or

legislature’s interpretation of the statute if the court finds the language ambiguous.

That court never found the statute ambiguous. Turning to the legislative history was

thus incorrect. Riggio, 711 A.2d at 500.6 The court today also finds the statute’s

wording unambiguous. The operative phrase in § 1422’s definition of “public body”

plainly includes any entity receiving funds coming from or passing through the

Commonwealth. No reasonable people could disagree on this definition of public

body nor has the court located any authority holding as much.

Third, the Adams court finds that Denton relied upon a misreading of the

holding of Riggio, but another decision by the Western District of Pennsylvania held

otherwise. See Ellis v. Allegheny Specialty Practice Network, No. 2:12-cv-404, 2013

WL 411477, at *3-4 (W.D. Pa. Feb. 1, 2013) (“In Riggio[], the en banc court

determined that a private medical provider could be a ‘public body’ under the

6 The early bedrock case rejecting Denton commits this same error, overtly disregarding the

plain language of the statute in favor of its conjecture regarding legislative intent. See Cohen v.

Salick Health Care, Inc., 772 F. Supp. 1521, 1526-27 (E.D. Pa. 1991) (“Although there is no

question that many doctors and other health care providers receive ‘funds’ for services rendered

to Medicaid eligible patients, it was clearly not the intention of the Pennsylvania legislature to

include them as funded public bodies under the Whistleblower Law.”); see also Adams, 2018 WL

3388404 at *4 (including the same quote); Zorek v. CVS Caremark Corp., No. 1:13-cv-1949, 2014

WL 12487695, at *7 (M.D. Pa. Apr. 16, 2014) (same); Eaves-Voyles v. Almost Family, Inc., 198

F. Supp. 3d 403, 408-09 (M.D. Pa. 2016) (holding Cohen justifies rejecting Denton). The Cohen

court began with the legislative history because “no Pennsylvania appellate court has yet

interpreted the Pennsylvania Whistleblower Law”—a statement which is no longer true and, even

if it was, does not justify leaping over the statute’s plain language. 772 F. Supp. at 1525.

Whistleblower Statute based upon its receipt of public money.”). Moreover, while

Riggio is factually distinguishable, it still rejected the underlying rationale of many

of the cases rejecting Denton by holding that the plain language of the PWA must

be followed over the more circuitous route of determining the legislature’s intent

employed by those courts. See Riggio, 711 A.2d at 500. Riggio is thus both

consistent with Denton and inconsistent with the analysis of various federal district

courts.

Fourth, the Adams court says “Denton appears to have been rejected by the

majority of the courts that considered it,” 2018 WL 3388404 at *4, but that court

appears to have only reviewed federal district court decisions in coming to this

conclusion. Because the Pennsylvania Superior Court itself has twice cited Denton

favorably after the statute was amended, the court finds this argument unpersuasive.

See Am. Equip. Leasing v. McGee’s Crane Rental, Inc., No. 01-CV-4783, 2002 WL

32341794, at *3 n.3 (E.D. Pa. Dec. 11, 2002) (“[F]ederal district court opinions are

not to be given greater weight than state court decisions [when interpreting state

law].”); Pennell v. Wells Fargo Bank, N.A., 507 F. App’x 335, 338 (5th Cir. 2013)

(“Federal district court cases are not authoritative statements of state law.”).

Finally, outside of Adams, the court has identified one more argument raised

by federal district courts rejecting Denton. Some courts have held that there must

be a “difference between an entity that ‘receives’ public funds and one that is

‘funded’ by political subdivision authority.” Grim v. May Grant Assocs., No. 18-

cv-2231, 2019 WL 35820, at *4 (E.D. Pa. Jan. 29, 2019); accord Tanay v. Encore

Healthcare, LLC, 810 F. Supp. 2d 734, 742-43 (E.D. Pa. 2011) (same). The court

disagrees. It is true that the definition of employer includes “[a] public body or any

of the following which receives money from a public body. . . ,” 43 P.S. § 1422, but

there is nothing linguistically wrong with just reading this as a broad definition of

employer including many entities, even if it overlaps with the definition of public

body. This is consistent with the plain language of the statute and does not yield an

absurd reading, even if the court found its consequences strange. See Riggio, 711

A.2d at 500; 1 Pa.C.S. § 1921(b) (“[T]he letter is not to be disregarded under the

pretext of pursuing its spirit.”). Moreover, to create the distinction these courts

demand—confining “funding” to situations where the legislature directly allocates

money to these entities—would render the words “or through” the Commonwealth

meaningless. See Denton, 739 A.2d at 576 (emphasis in original); 1 Pa.C.S. §

1921(a) (“Every statute shall be construed, if possible, to give effect to all its

provisions.”). Thus, this final argument also lacks sufficient merit to permit the court

to disregard the plain language of the statute.

In short, Plaintiff has alleged a plausible claim under the PWA by alleging

that she was terminated by a public body for reporting wrongdoing. Thus, at this

time, the court will allow that claim to go forward.

b. Plaintiff Has Alleged a Common Law Wrongful Discharge Claim

Because Defendant Allegedly Terminated Her for Refusing to

Commit a Crime.

Plaintiff alleges she was wrongfully discharged because Defendant terminated

her in a manner that violates public policy. Pennsylvania is an at-will employment

state. Generally, an employer can terminate an employee for any reason. There is,

however, a common law restriction on an employer terminating an employee for a

reason that violates public policy. As explained by the Third Circuit:

Although the parameters of the public policy exception are

not explicitly defined, the Pennsylvania courts generally

have limited its application to situations in which an

employer: (1) requires an employee to commit a crime; (2)

prevents an employee from complying with a statutorily

imposed duty; and (3) discharges an employee when

specifically prohibited from doing so by statute.

Brennan v. Cephalon, Inc., 298 F. App’x 147, 150 (3d Cir. 2008) (citing Hennessy

v. Santiago, 708 A.2d 1269, 1273 (Pa. Super. Ct. 1998); Fraser v. Nationwide Mut.

Ins. Co., 352 F.3d 107, 111-12 (3d Cir. 2003)). Here, Plaintiff alleges that: (1)

Defendant instructed her to engage in the practice of medicine despite lacking a

medical license; and (2) that she was terminated in part due to her refusal to do so.

Engaging in the unlicensed practice of medicine is a crime. See Commonwealth v.

Paolino, 837 A.2d 1216, 1221 (Pa. Super. Ct. 2003) (affirming the criminal

prosecution of a doctor in part for practicing medicine without a license). Defendant

does not address this theory in its motion to dismiss or reply brief. It is a sufficient

basis for Plaintiff’s count moving forward at this stage.

IV. CONCLUSION

For the reasons outlined above, the court will deny the motion. An appropriate

order will follow.

s/Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge

Dated: November 17, 2020