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Roy Tanay v. Encore Healthcare

August 26, 2011


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Defendants' Amended Motion to Dismiss Plaintiff's Amended Complaint. (ECF No. 6.) For the following reasons, Defendants' Amended Motion will be granted in part and denied in part.


Defendant Encore Healthcare, a Maryland corporation, provides healthcare services to nursing homes, assisted-living facilities, and hospitals. Encore provides management services to Andorra Woods Healthcare Center, a nursing home in Whitemarsh, Pennsylvania. Defendant Rest Haven Nursing Center Whitemarsh, a Pennsylvania corporation, owns and operates Andorra Woods. Defendants receive Medicaid funds from the Commonwealth of Pennsylvania.

Plaintiff Roy Tanay, a Pennsylvania resident, began working for Defendants on July 10, 2006, as the administrator of Andorra Woods. As the nursing home administrator, Plaintiff was responsible for the overall management of the facility and ensuring the health care and safety of the residents. On October 19, 2009, Plaintiff wrote a letter to Matthew Auman, Encore's Chief Operating Officer, reporting an incident at Andorra Woods. The letter states as follows:

Dear Mr. Auman,

I am writing to request your help in response to a serious incident that occurred this past Friday at Andorra Woods Healthcare Center. As the Administrator, I believe I have the responsibility to ensure that the highest officer in our company is fully aware of the circumstances, events and decisions that led up to the incident. The intent of this letter is not to jeopardize anyone's employment with Encore. Rather, it is to prevent similar events from ever recurring.

On Friday around 7:10 AM, one of our maintenance employees entered the boiler room to turn on the heating system as we do around this time every year. When entering the room, he immediately noticed a strong smell of gas. As required, he called 9-1-1 and the local authorities arrived. To their surprise, they noticed obvious signs of intentional sabotage to the two boilers. The control panels were destroyed, wires were ripped, and a gas pipe was disconnected.

Unfortunately, this is not the first time something like this has happened at Andorra Woods. Previous theft and vandalism and at least two documented incidents of employee violence have occurred since I became the administrator in 2006.

Since November, 2007 I have repeatedly reported these events to my superior and have asked for his assistance and advice on how to best stop or minimize the issues since (I can share that documentation upon request if necessary). The only response I received was that a "culture change" and better hiring practices would resolve these incidents. Although this general advice may help curtail issues with new hires, I did not believe it will help our current situation.

As a result, in March, 2009, I requested that ADT (security company) propose and bid on a security system for AW that would address the issues of controlled access to the facility and allow surveillance cameras in non-residential areas. The proposals were presented to my superiors at Encore on 3/20/09. However, the proposals were rejected on financial and legal grounds.

The repair of the two boilers will cost more than $25k, over $20k more than the cost of the proposed security system. Additionally, the gas leak could have very easily caused an explosion that could have caused collateral property damage and seriously injured or killed many employees and residents. I cannot even fathom the financial and personal devastation it could have caused Encore Healthcare.

Work-place theft, vandalism and violence have had a tremendous negative impact on employee performance and morale. Residents and their families feel insecure and helpless and the facility's reputation is damaged.

A security system may not have prevented all of these prior incidents. However, I strongly believe that it would have proven to our customers (residents, families and employees) that we are taking these instances very seriously and that we are willing to invest in their safety. Moreover, it will allow the authorities to investigate these incidents thoroughly with a chance of finding the criminals.

The event on Friday has escalated the need to address and resolve our concerns to the highest priority. As the person responsible for the safety of Andorra Woods' residents and employees, I am asking you to consider a more proactive approach to our day-today operational needs, especially when it comes to the safety of our residents and employees.

I remain optimistic that my concerns can be resolved in a timely manner and I look forward to working on potential solutions with you. (Am. Compl. Ex. A, ECF No. 4.)

On November 2, 2009, Defendants terminated Plaintiff's employment. Plaintiff, who is Jewish, alleges that Defendants offered no legitimate business reason for his termination. On March 18, 2010, Plaintiff filed an Amended Complaint, which includes claims for Wrongful Discharge (Count One), violation of the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. § 1421 et seq. (Count Two), and violation of 42 U.S.C. § 1981 (Count Three). On April 23, 2010, Defendants filed an Amended Motion to Dismiss.


Rule 8 of the Federal Rules of Civil Procedure provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).This "'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).


A. Wrongful Discharge

Plaintiff argues that he was wrongfully discharged from his employment, in violation of public policy. Generally, an employer may terminate an at-will employee for any reason, with or without cause. Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998). An exception to this rule exists where the termination violates public policy. McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000). To state a cause of action under the public policy exception to the at-will employment doctrine, a plaintiff must point to a "clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision." Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 175 (Pa. Super. Ct. 1996). Pennsylvania courts have not explicitly defined the boundaries of the public policy exception, however, its application has been limited 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. See, e.g., Spierling v. First Am. ...

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