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RANKIN v. CITY OF PHILADELPHIA

March 31, 1997

WAYNE G. RANKIN, Plaintiff,
v.
CITY OF PHILADELPHIA, MICHAEL GORDON, JAMES COLEMAN, EPISCOPAL LONG TERM CARE, INC./PHILADELPHIA NURSING HOME, Defendants.



The opinion of the court was delivered by: BRODY

 Anita B. Brody, J.

 March 31, 1997

 Plaintiff Wayne G. Rankin ("Rankin") brought this action against defendants City of Philadelphia (the "City"), Michael Gordon ("Gordon"), James Coleman ("Coleman") and Episcopal Long Term Care, Inc./Philadelphia Nursing Home ("Episcopal") under 42 U.S.C.A. § 1983 (West 1994) and Pennsylvania's Whistleblower Law, 43 Pa. Stat. Ann. tit. 43, §§ 1421-1428 (West 1991). Rankin alleges that the defendants fired him because he refused to cover up health and safety violations he discovered in the course of his employment. He claims that this termination violated the First and Fourteenth Amendments of the United States Constitution and section 1423 of Pennsylvania's Whistleblower Law. Three of the defendants--the City, Gordon, and Coleman (collectively the "City defendants")--now move under Federal Rule of Civil Procedure 12(b)(6) to dismiss portions of Rankin's complaint against them for failure to state a claim upon which relief can be granted. Specifically, they seek to dismiss Rankin's claim under Pennsylvania's Whistleblower Law, his claim for punitive damages under the Whistleblower Law, and his claim for punitive damages under 42 U.S.C. § 1983 against the City and against Gordon and Coleman insofar as he seeks to recover punitive damages against them in their official capacities. For the reasons stated below, I will deny the City defendants' motion to dismiss the Whistleblower claim, but I will grant the City Defendants' motion to dismiss the claim for punitive damages under the Whistleblower Law and under 42 U.S.C. § 1983 against the City and against Gordon and Coleman insofar as such damages are sought against them in their official capacities.

 I. PENNSYLVANIA'S WHISTLEBLOWER LAW

 A. The Statute

 Section 1423 of Pennsylvania's Whistleblower Law provides in relevant part:

 
No employer may discharge . . . an employee . . . because 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.

 Pa. Stat. Ann. tit. 43, § 1423(a) (West 1991). Section 1422 of the Whistleblower Law defines the following terms:

 
An " employee " is a "person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied, for a public body."
 
An " employer " is a "person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body."
 
A " good faith report " is a "report of conduct defined in this act as wrongdoing or waste which is made without malice or consideration of personal benefit and which the person making the report has reasonable cause to believe is true."
 
" Wrongdoing " is a "violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer."

 Pa. Stat. Ann. tit. 43, § 1422 (West 1991). Crucial to the definition of "employee" and "employer" is the meaning of a " public body," which is defined as follows:

 
(1) A State officer, agency, department, division, bureau, board, commission, council, authority or other body in the executive branch of State government.
 
(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.

 Id.

 A person alleging a violation of the Whistleblower Act "may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation." *fn1" Pa. Stat. Ann. tit. 43, § 1424(a) (West 1991).

 The remedies available to a prevailing plaintiff under the Whistleblower Law are: "reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate." Pa. Stat. Ann. tit. 43, § 1425 (West 1991). Finally, a "person who, under color of an employer's authority, violates this act" may be liable for civil fines and, under certain circumstances, suspended from public service. See Pa. Stat. Ann. tit. 43, § 1426 (West 1991).

 B. The Complaint

 Rankin claims that he is entitled to relief under the Whistleblower Law based on the following allegations:

 
"At all times relevant to this action, Plaintiff was employed by Episcopal Long Term Care Inc./Philadelphia Nursing Home under a contract with the City of Philadelphia." (Compl. P 1)
 
Defendant City of Philadelphia is "responsible for the Philadelphia Nursing Home, its 500 patients and approximately 500 workers comprising the nursing, administrative, and maintenance staff." (Compl. P 2)
 
Defendant Michael Gordon "presently works for the City as maintenance director of all facilities under the City Health Department jurisdiction," and previously worked as director of the Philadelphia Nursing Home physical plant when the City operated the Home. (Compl. P 3)
 
Defendant James Coleman is a City employee who "acted as a liaison or coordinator between the City and Episcopal . . . in matters involving the PNH building." (Compl. P 4)
 
Episcopal is a "private," "non-profit corporation affiliated with Episcopal Hospital, Philadelphia, created to provide full administrative, operational and management services for the Philadelphia Nursing Home under a contract with the City of Philadelphia." (Compl. P 5)
 
"At all times relevant to this action, Defendant PNH [Episcopal] was an agent of the City of Philadelphia, and all PNH, officers, servants and employees, in particular PNH Executive Director Molly Hess, and PNH Financial Administrator James Scannapico, acted within the scope and course of their agency and in accordance with City directives, policies and practices." (Compl. P 6)
 
The City of Philadelphia leases the Philadelphia Nursing Home building from the Commonwealth of Pennsylvania for one dollar per year "to be used as a 500-bed nursing home for indigent City residents in need of care." (Compl. P 7)
 
The Lease between the City and Pennsylvania requires the City "to assume responsibility for all necessary repairs, renovations, sprinkler systems and other installations or improvements to fully comply with all building codes, fire, safety, health and licensing requirements." (Compl. P 9)
 
Rankin was hired in February 1995 as Director of Plant Operations at the Philadelphia Nursing Home "to manage, direct, and supervise repairs and improvements to the PNH structure, to bring it into compliance with fire and building codes and licensing regulations." (Compl. PP 11-12)
 
In the course of his employment, Rankin encountered various problems, including inoperable heating and cooling systems, defective sprinkler systems, corroding waste lines, unsanitary kitchen conditions, deficient fire code separations, and uncertain asbestos conditions. (Compl. PP 13-21)
 
When Rankin spoke to Episcopal Executive Director Molly Hess about various fire code violations and asbestos problems he had discovered in the course of his job, she told him, "'There isn't much we can do,' and put her index fingers to her lips, as though telling him to keep quiet. She said, 'They (City administrators) do not want to hear that. We won't see it (fixed) in our lifetime.'" (Compl. P 22)
 
Following a fire in August 1995, Rankin discovered the presence of asbestos in a room that reportedly did not contain asbestos according to records contained in an "asbestos book," a book prepared by Defendant Gordon. Rankin called Gordon and related the discrepancy between field tests and the "asbestos book." Rankin asked Gordon for help, but Gordon told him that "'you have to go by the book,'" and that "'That's what we go by, and that's what we're stuck with.'" When Rankin said that was "'Bullshit,'" Gordon said "'That's all I can do,' and hung up the phone." (Compl. PP 23-26)
 
Rankin then called Defendant Coleman to obtain newer asbestos records. Coleman sent Rankin records a week later that were identical to those in the "asbestos book." Despite the unchanged records, "since field tests confirmed asbestos, City employees including Plaintiff were scheduled for hospital testing." (Compl. P 27)
 
Subsequently, Rankin was told by Episcopal Financial Administrator James Scannapico that Rankin's proposed plan to rectify unsanitary kitchen conditions had not ...

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