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August 23, 2005.


The opinion of the court was delivered by: GARY LANCASTER, District Judge


This is an action under the Federal False Claims Act and in retaliatory discharge. Plaintiff, Cindy Lee Hartman, alleges that defendant, Allegheny General Hospital ("AGH"), double billed Medicare for diagnostic testing, in violation of the Federal False Claims Act. 31 U.S.C. § 3729. She also alleges that she was fired in violation of the anti-retaliation provisions of that Act and Pennsylvania's Whistleblower Statute. 31 U.S.C. § 3730(h); 43 Pa. Cons. Stat. § 1422. Plaintiff seeks damages, on behalf of the United States, for the false claims submitted to Medicare, as well as reinstatement, damages, costs, and fees for her wrongful discharge. Defendant has filed a counterclaim seeking recovery of charges that it alleges plaintiff improperly deleted from AGH's billing system, totaling more than $68,000. Before the court are two motions for summary judgment. Defendant has filed a motion for summary judgment on all counts of plaintiff's amended complaint arguing that plaintiff cannot present evidence sufficient to support her claims [doc. no. 31]. Plaintiff has filed a motion for summary judgment on defendant's counterclaim arguing that a defendant in an action commenced under the Federal False Claims Act cannot assert a counterclaim against the individual plaintiff [doc. no. 34].

For the following reasons, defendant's motion for summary judgment will be granted. Plaintiff's motion for summary judgment will be denied. As a result of these rulings, the only remaining cause of action in this case is defendant's state law counterclaim for recovery of the wrongfully deleted charges. This court no longer has federal question jurisdiction in this case. Nor does this court have diversity jurisdiction over the remaining state law cause of action. Therefore, we will exercise our discretion and dismiss the counterclaim.


  The following facts, unless otherwise indicated, are undisputed. Ms. Hartman was a cardiology billing clerk at AGH from July of 1997 until April 12, 2002, when she was discharged. Her job was to review hard copies of charge slips for cardiology services, identify and correct errors, and enter the appropriate information into the computerized billing system. The information was then used by other members of AGH's staff to create the bills that were sent to patients and third parties, including Medicare and private insurers.

  1. False Claims Act Claim

  Plaintiff alleges that AGH submitted false claims to Medicare for electrocardiogram (EKG) tests. Under Medicare rules, Medicare would pay for an EKG over-read only if it resulted in "added value" to the patient. An over-read occurred when a cardiology department doctor read a patient's EKG after an Emergency Room doctor had already read it. If the cardiology department doctor's reading of the EKG was the same as the Emergency Room doctor's, under the Medicare rule, no "value" had been "added" and Medicare would pay for only one reading. According to plaintiff, because AGH occasionally billed Medicare for both EKG readings in error, AGH violated the Federal False Claims Act. There is no dispute that AGH mistakenly billed Medicare for EKG over-reads.*fn1 In fact, in the summer of 2001, plaintiff was asked to take part in a series of meetings regarding this issue. The goal of these meetings was to establish procedures and safeguards to prevent Medicare from mistakenly being billed for EKG over-reads. After the meetings, human and computerized procedures were implemented to ensure that Medicare was not billed for the over-reads. Apparently the procedures were less than fool proof and in early 2002, plaintiff was again asked to take part in a meeting to address the issue. Plaintiff has stated that she had no independent knowledge that Medicare was being billed for EKG over-reads other than the information provided to her by other AGH staff members during and in connection with these meetings.*fn2 2. Retaliatory Discharge

  Around the time of the second meeting regarding EKG over-reads in early 2002, the cardiology department initiated an internal audit. The director of the billing department conducted the audit because the cardiology department's charges did not match the department's operational volume on the November 2001 financial statements. The audit was not conducted to review or investigate plaintiff's work, but rather to locate the source of the wide discrepancy between November's operational volume and billing charges. However, the audit revealed that the reason for this discrepancy was that plaintiff had deleted any reference to a backlog of cardiology charges that had accumulated while she was on sick leave when she returned to work in December of 2001.

  Plaintiff claims that the charges were deleted by mistake and that she immediately told her supervisor that she had made a billing error. Defendant claims that plaintiff purposefully deleted the charges upon returning from sick leave as a way to "catch up" on her billing backlog. Regardless, the dispute is not material to our resolution of the pending summary judgment motions because plaintiff is unable to show that she was engaged in protected conducted, or reported an instance of wrongdoing. Without satisfying these fundamental requirements plaintiff cannot successfully assert a claim for retaliatory discharge under either the Federal False Claims Act or the Pennsylvania Whistleblower Statute.


  Fed.R.Civ.P. 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

  The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. A dispute over those facts that might affect the outcome of the suit under the governing substantive law, i.e., the material facts, however, will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, summary judgment is improper so long as the dispute over the material facts is genuine. Id. In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248-49. Under these standards, the non-moving party must do more than show there is "some metaphysical doubt" as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

  Although inferences must be drawn in favor of the non-moving party, "an inference based upon speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex v. Catrett, 477 U.S. 317, 325 (1986)); Lujan v. National Wildlife Fed., 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint . . . with conclusory allegations of an affidavit"). The non-movant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which she bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec., 475 U.S. at 587 (citations omitted).

  In summary, the inquiry under a Rule 56 motion is whether the evidence of record presents a genuine dispute over material facts so as to require submission of the matter to a jury for resolution of that factual dispute or whether the evidence is so one-sided that the movant must prevail as a ...

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