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Rebecca Stoneback v. Artsquest

October 17, 2012

REBECCA STONEBACK,
PLAINTIFF,
v.
ARTSQUEST, ET AL., DEFENDANTS.



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

MEMORANDUM RE: MOTIONS TO STRIKE PLAINTIFF'S JURY DEMAND AND FOR A MORE DEFINITE STATEMENT OF PLAINTIFF'S CLAIMS

I. Introduction

Plaintiff Rebecca Stoneback ("Plaintiff") brought this action against Defendants ArtsQuest, Jeffrey Parks ("Parks"), Walter Keiper ("Keiper"), Tanya Doddy ("Doddy"), and Cindy Karchner ("Karchner") (collectively, "Defendants") claiming wrongful termination in violation of:

1. The Pennsylvania Whistleblower Law, 43 P.S. § 1421 et seq., alleging that she was terminated because she reported wrongdoing to her superiors, and

2. The public policy of Pennsylvania, alleging that she was terminated after refusing to commit a crime at ArtsQuest's behest.

(Compl. ¶¶ 42, 46.)

Defendants filed two motions, one to Strike Plaintiff's Jury Demand for her Whistleblower Claim (the "Motion to Strike") and another pursuant to Fed. R. Civ. P. 12(e) for a More Definite Statement of Plaintiff's Claims (the "Motion for a More Definite Statement"). For the reasons below, the Court denies the Motion to Strike without prejudice and denies in part and grants in part the Motion for a More Definite Statement, requiring Plaintiff to provide a more definite statement of only her Public Policy Claim.

II. Background and Summary of Facts

Plaintiff is a former employee of Defendant ArtsQuest, a non-profit organization located in Bethlehem Pennsylvania, best known for its Banana Factory -- which houses, among other things, more than twenty-five studios for resident artists, a digital imaging center, a glass blowing studio, galleries, and classrooms -- and hosting Musikfest, a large, multiday music festival.

Plaintiff worked for ArtsQuest as both an instructor and a store clerk for approximately three years. As a store employee, she was responsible for stocking and selling sundry merchandise, including certain beer steins that commemorate Musikfest (the "Muisikfest Steins"). Plaintiff alleges that ArtsQuest advertised the Musikfest Steins as made in Germany by a company called Gerz, when the steins are, in fact, made in China. Her belief is based on the alleged Chinese origin of the Musikfest Steins' shipping containers. According to Plaintiff, the German origin of the Musikfest Steins is important to their marketability as Musikfest memorabilia, because Musikfest is, at least in part, a celebration of the Bethlehem area's rich German and Dutch history.

Upon discovering the Musikfest Steins' Chinese shipping containers, Plaintiff determined not to sell them until ArtsQuest ceased marketing them as German-made, believing this to be fraud. (Compl. ¶¶ 23, 26.) Plaintiff alleges that she first reported her concerns about the origin of the Musikfest Steins to her immediate supervisor, Defendant Doddy, and when Doddy brushed them aside, she approached Doddy's immediate supervisor, Defendant Keiper. Keiper also dismissed Plaintiff's concerns, prompting Plaintiff to raise them with Defendant Karchner, who works in ArtsQuest's human resources department. Doddy, Keiper and Karchner then allegedly made a collective decision to fire Plaintiff.

Plaintiff claims that her termination violated both:

1. The Pennsylvania Whistleblower Law, because she was terminated in retaliation for reporting her concerns about misrepresenting the origin of the Musikfest Steins (the "Whistleblower Claim"), and

2. The public policy of Pennsylvania, because she was terminated for refusing to commit a crime, specifically, selling Chinese-made beer steins as German-made (the "Public Policy Claim").

(Compl. ¶¶ 23, 32, 41-43, 45-46.)

Currently before the Court are two separate motions, Defendants' Motion to Strike and Motion for a More Definite Statement.

III. Elements of Plaintiff's Claims

Because dispositions of both of Defendants' motions are aided by familiarity with the elements of and pleading requirements for Plaintiff's claims, the Court sets them forth below.

A. The Pennsylvania Whistleblower Law

In order for Plaintiff to state a claim under the Pennsylvania Whistleblower Law for retaliatory termination, she must allege:

1. Discharge, and

2. Because she made or is going to make "a good faith report . . . to [her] employer or appropriate authority an instance of wrongdoing . . . ."

43 P.S. § 1423(a). A "good faith report" is a "report of conduct defined in this act as wrongdoing . . . 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 defined as 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." Id. § 1422.

With respect to pleading wrongdoing properly, Plaintiff need only plead facts sufficient to permit a reasonable inference that Defendants violated some statute, etc., she need not specifically identify it. Bielewicz v. Penn-Trafford Sch. Dist., Civil Action No. 10--1176, 2011 WL 1486017, at *5 (W.D. Pa. Feb. 9, 2011) ("Although [Plaintiff] does not specifically identify the policy or provision of the ethical code she alleges have been breached, the facts alleged certainly suggest that Defendants' actions were violative of 'a code of conduct or ethics' for school officials and, thus, constitute a 'wrongdoing' under the [Whistleblower] statute. Because [Plaintiff] is only required at this stage of the litigation to state enough facts to raise a right to relief above the speculative level, she has met that burden and Defendants' motion in this regard should be denied."); Keefer v. Durkos, 371 F. Supp. 2d 686, 692 (W.D. Pa. 2005) ("the Court finds no reason for the Plaintiff to enumerate specific laws within her Complaint to withstand the Defendants' Motion to Dismiss. This conclusion is also consistent with the 'notice pleading' of the Federal Rules of Civil Procedure" (citing Podgurski v. Pennsylvania State Univ., 722 A.2d 730 (Pa. Super 1998)).

B. Wrongful Termination in Violation of Public Policy

In order to state a claim for wrongful termination in violation of public policy, Plaintiff must allege that her termination violates a "'clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision.'" Tanay v. Encore Healthcare, LLC, 810 F. Supp. 2d 734, 737 (E.D. Pa. 2011) (quoting Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 175 (Pa. Super. Ct. 1996)). Although "Pennsylvania courts have not explicitly defined the boundaries of" this cause of action, they have limited its application to "situations in which an employer":

1. "[R]equires an employee to commit a crime";

2. "[P]revents an employee from complying with a statutorily imposed duty"; and

3. "[D]ischarges an employee when specifically prohibited from doing so by statute."

Id. at 737-38 (citing Spierling v. First Am. Home Health Servs., Inc., 737 A.2d 1250, 1252 (Pa. Super. Ct. 1999); Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa. Super. Ct.1998)).

Plaintiff's submissions clearly indicate that Plaintiff alleges only the first scenario, that she was improperly terminated for refusing to engage in criminal conduct at ArtsQuest's behest: "[i]t is against the public policy of this Commonwealth to terminate an employee for refusing to violate criminal law"; "Plaintiff was terminated for refusing to violate criminal law." (Compl. ΒΆΒΆ 45-46.) In order for Plaintiff to properly plead her claim, she must identify the specific criminal statute(s) that would have been violated by the conduct in which she refused to engage. See Zoe v. Impact Sys, Inc., No. 08--cv--1483, 2009 WL 275181, at *4 (M.D. Pa. Feb. 4, 2009) (dismissing claim for discharge in violation of public policy where plaintiff alleged discharge for refusal to violate a statutorily imposed duty, but "neglect[ed] to identify any specific regulation imposing a duty" (citing Spierling, 737 A.2d at 1252 ("Since [the plaintiff] did not plead and has not cited to any legal authority which imposed a statutory duty upon her . . . we can afford her no relief on public policy considerations and are constrained to affirm the trial court order . . . dismissing the complaint.")); McCabe v. Women's Resources of Monroe County, No. 6374 Civil 2004, 2006 WL 6049499 (Pa. Com. Pl. Aug. 24, 2006) ("plaintiff's complaint fails to set forth a cause of action for wrongful discharge for a clear violation of public policy" where plaintiff failed to "point to any statutory or public policy to substantiate her cause of action"). Conclusory allegations of criminality are patently insufficient. See Zoe, 2009 WL 275181, at *4 (holding, with respect to properly pleading discharge in violation of public policy under the ...


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