The opinion of the court was delivered by: Lee, District Judge.
Plaintiff initiated this action by filing a Complaint in the
Court of Common Pleas of Blair County, Pennsylvania, on or
about September 9, 1986. Defendant, Beverly Enterprises, Inc.,
then removed the action to this Court.
Plaintiff, a licensed practical nurse, alleges in her Complaint
that she was wrongfully discharged by her employer, defendant,
in that her dismissal is in violation of public policy and was
done with the intent to harm her. Specifically, plaintiff
contends that her discharge was precipitated by (1) her
disclosure of defendant's alleged failure to timely obtain
medical care for one of its residents and (2) for her failure
to adhere to what she characterizes as an improper method of
Defendant has filed a Motion for Summary Judgement and
supporting Brief wherein it asserts that plaintiff's claims do
not give rise to a cause of action under the applicable law of
Pennsylvania. Defendant argues that plaintiff's claims do not
fall within the public policy exceptions to the
employment-at-will doctrine which permits an employer to
discharge an employee without cause.
Defendant's Motion for Summary Judgment was originally filed on
January 19, 1989, and denied by the Honorable Paul A. Simmons
in an Opinion and Order dated July 7, 1989. The Court held that
plaintiff's discharge, allegedly in retaliation for informing a
patient's family that proper health care allegedly had not been
given, would constitute a wrongful discharge in violation of
public policy under Pennsylvania law. The Court analogized
plaintiff's discharge to a situation involving a
"whistleblower" who the Court opined was deserving of
protection from termination.
On February 2, 1990, during a Status/Pretrial conference held
by Judge Simmons, the merits of defendant's Motion for Summary
Judgement were again discussed. At the close of that session,
Judge Simmons agreed to reconsider his decision and invited
defendant to renew or refile its Motion for Summary Judgment.
On or about March 6, 1990, defendant filed its renewed Motion
along with an accompanying memorandum of law. At the conclusion
of Argument on the Motion which was conducted on May 25, 1990,
Judge Simmons indicated that he felt the legal parameters of
the public policy exception to the employment-at-will doctrine
were unclear and unsettled and suggested that the issue should
be certified to the Third Circuit Court of Appeals pursuant to
28 U.S.C. § 1292(d). Before Judge Simmons could act on
counsels' proposed Opinion and Order, this case was transferred
to this member of the Court.
Plaintiff received her GED in 1982 and was graduated from the
Altoona Vocational Technical School with an LPN (Licensed
Practical Nurse) certificate. After a year of clinical training
at the Altoona Hospital, plaintiff passed her state board
examinations in 1984. Plaintiff also holds a Nurses Aid
certificate from a course she took at the Valley View Nursing
Home. Prior to her position with defendant, plaintiff's
work-related experiences included service as a nurse's aid at
the Indiana and Altoona Hospitals, Seton Hill College, where
she provided care for retired nuns, and the Valley View Nursing
Home in 1984 where she first worked as LPN.
On May 1, 1986, plaintiff, began working for defendant as a
part-time employee at the Hillview Chateau, a personal care
boarding facility. The Beverly complex consists of the Hillview
Convalescent Center, a facility providing intermediate and
skilled care, and the Hillview Chateau, which is essentially a
retirement facility. The complex has a resident physician whose
duty it is to certify which of the two places better suits the
needs of a resident.
On her first day of work, plaintiff was given Beverly's
"Employee Handbook" and was instructed to familiarize herself
with its provisions.*fn2 On May 19, 1986, plaintiff signed
an Acknowledgement that she received and read copies of the
facility personnel policies and understood them to be
conditions of her employment.
Arthur and Grace Calvert, husband and wife, were residents of
the Hillview Chateau Personal Care Boarding Home prior to the
time plaintiff came to be employed by defendant. One Doctor
Kaczor was Mrs. Calvert's designated treating physician.
In her deposition, Plaintiff indicates that on or about late
May, 1986, she observed that Mrs. Calvert was experiencing
breathing problems to such an extent that plaintiff felt
compelled to notify her supervisor, Linda Byers. Plaintiff
stated that Mrs. Calvert's condition did not appear to be
acute, but that she wanted to report Mrs. Calvert's condition
to her supervisor's attention and seek further instructions.
Plaintiff reported that Mrs. Calvert's feet were "edemous,
syonodic, and that the resident was breathing more heavily than
she had noticed in the past."
Plaintiff states she was told by Linda Byers that Mrs.
Calvert's condition "was all in her head." However, plaintiff
acknowledges that her conversation with Byers also revealed
that Mrs. Calvert's doctor prescribed certain medications,
namely three placebos to facilitate the resident's breathing
and minimize her discomfort.
Linda Byers' uncontroverted deposition testimony reveals the
following history of communications between herself and Mrs.
Calvert's treating physician. Between April 26, 1986 and the
date Mrs. Calvert was admitted to Mercy Hospital, Byers and/or
members of her staff spoke with Dr. Kaczor on six occasions.
On April 28, 1986, Dr. Kaczor was called by a member of
defendant's staff, other than plaintiff, concerning Mrs.
Calvert's apprehension about being in the home. In response to
the call, Dr. Kaczor prescribed certain medications. On May 2,
1986, Dr. Kaczor received three calls from Linda Byers, one of
which was precipitated by the findings of a visiting registered
nurse whom the family had retained. The nurse noted that Mrs.
Calvert had a productive cough and Dr. Kaczor ordered an x-ray
and prescribed 500 mg of Ampicillin to be administered every
six hours, and one teaspoon of Robitussin to be taken four
times daily. The medications were to have commenced
immediately. A member of defendant's staff, other than
plaintiff, contacted Dr. Kaczor on May 5, 1986, to report on
his patient's condition. It was not until June
10, 1986, that Dr. Kaczor was contacted again by Linda Byers.
Parenthetically, we note Linda Byers' unrefuted testimony which
indicates that Mrs. Calvert had a doctor's appointment sometime
between April 28, 1986 and prior to her admission to Mercy
Byers' deposition testimony revealed that on June 10, 1986,
Mrs. Calvert complained of shortness of breath and that she had
had a bad night. Byers observed that Mrs. Calvert's legs and
feet were edematous with pitting edema and that her condition
was measurably worse than the previous day. Byers contacted Dr.
Kaczor's office who, in turn, instructed Byers to take Mrs.
Calvert to the Emergency Room for an x-ray to be read
immediately. Byers transported Mrs. Calvert to Mercy Hospital
via her own car.
Linda Byers and Mrs. Calvert arrived at the hospital emergency
room where Mrs. Calvert underwent blood work, x-rays and an
electrocardiagram. Linda Byers departed the hospital without
Mrs. Calvert. Hospital personnel advised Byers they would
contact her regarding ...