Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
` Civil No. 1:20-cv-1275
`:
`CAMERON ROMER,
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`:
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`
`:
`
`
` Plaintiff,
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`:
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`:
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`v.
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`:
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`
`:
`MHM HEALTH PROFESSIONALS,
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`:
`
` Judge Sylvia H. Rambo
`:
`
`
` Defendant.
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`M E M O R A N D U M
`Before the court is Defendant’s Motion to Dismiss Plaintiff’s Complaint.
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`(Doc. 5.) For the reasons outlined below, the court will deny the motion.
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`I.
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`BACKGROUND
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`For the purpose of this motion, the court takes all well-pleaded facts as true
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`and makes all reasonable inferences in favor of Plaintiff Cameron Romer (“Plaintiff”
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`or “Cameron”). Defendant MHM Health Professionals (“Defendant” or “MHM”) is
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`a limited liability company that contracts with the Pennsylvania Department of
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`Corrections (“DOC”) to provide psychiatric services for mentally ill inmates.
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`Plaintiff was an employee of Defendant who served in an administrative role,
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`reviewing contracts and services provided by Defendant to ensure it was complying
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`with its obligations. She was not licensed to practice medicine.
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`Around January of 2019, the DOC informed Defendant that it would soon be
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`engaging in a new bidding process for additional contractual services. To increase
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`1
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 2 of 16
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`its odds of winning, Defendant instructed Plaintiff to acquire secret information
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`concerning the other entities that were bidding. Plaintiff informed Defendant
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`multiple times that she thought this was wrong and illegal, but Defendant
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`nonetheless insisted that she do it. Plaintiff eventually caved and agreed to acquire
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`the information, but she also shared this information with multiple people, angering
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`Defendant and causing it to shift blame for the bidding espionage to Plaintiff.
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`Around April of 2019, Plaintiff informed Defendant it was failing to comply
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`with some of its contractual obligations to the DOC. Specifically, Plaintiff informed
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`Defendant it acted wrongly in providing inadequate hours and quality of treatment,
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`understaffing medical providers, and overmedicating certain prisoners to such an
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`extent that one soiled himself and required hospitalization. Plaintiff went further to
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`inform Defendant that it was inaccurately recording the treatment being rendered.
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`While one of Plaintiff’s superiors investigated and ultimately agreed with Plaintiff’s
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`allegations, she chose to hide her findings and instructed Plaintiff to complete a
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`medical report without the presence or aid of any licensed physician. Defendant
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`went on to make certain company-wide mandates for drug provisions during the
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`treatment of patients and instructed Plaintiff to work with and monitor Defendant’s
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`psychiatrists to ensure they were providing proper care to DOC patients. Plaintiff
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`protested that Defendant was instructing her to engage in the unlicensed practice of
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`2
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 3 of 16
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`medicine for the purpose of hiding Defendant’s fraudulent representation of its
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`inadequately rendered care.
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`
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`On October 1, 2019, Defendant terminated Plaintiff, allegedly due to, among
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`other things, her failure to properly engage in the acquisition of bidding secrets and
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`the practice of unlicensed medicine. On June 29, 2020, Plaintiff sued Defendant in
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`the Court of Common Pleas in Cumberland County, alleging three causes of action.
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`First, Plaintiff accused Defendant of violating the Pennsylvania Whistleblower Act
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`(“PWA”) by terminating her for reporting wrongdoing.1 Second, Plaintiff alleged
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`that Defendant wrongfully discharged her under the common law wrongful
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`discharge doctrine, accusing Defendant of terminating her for refusing to engage in
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`unlawful activity. Third, Plaintiff alleged Defendant violated the Medical Care
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`Availability and Reduction of Error (“MCARE”) Act.2 On July 24, 2020, Defendant
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`removed the case to federal court on diversity grounds. (Doc. 1.) On August 14,
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`2020, Defendant filed its Motion to Dismiss Plaintiff’s Complaint. (Doc. 5.)
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`Plaintiff filed a brief in opposition (Doc. 9), and Defendant replied (Doc. 10). The
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`motion is thus ripe before the court.
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`                                                            
`1
`Plaintiff also includes an allegation of “waste” in the complaint, but this allegation is
`conclusory and not explained in her brief. As such, the court will not evaluate the argument at this
`time.
`2
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`Plaintiff has agreed to dismiss Claim 3. It will thus, at this time, be dismissed.
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`3
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`II.
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`STANDARD OF REVIEW
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`To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege
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`“factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “When
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`reviewing a 12(b)(6) motion, we ‘accept as true all well-pled factual allegations in
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`the complaint and all reasonable inferences that can be drawn from them.’” Estate
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`of Ginzburg by Ermey v. Electrolux Home Prods., Inc., 783 F. App’x 159, 162 (3d
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`Cir. 2019) (quoting Taksir v. Vanguard Grp., 903 F.3d 95, 96-97 (3d Cir. 2018)).
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`The facts alleged must be “construed in the light most favorable to the plaintiff.” In
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`re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (internal
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`quotations, brackets, and ellipses omitted). The universe of facts upon which the
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`court may rely includes those facts alleged in the complaint, facts which the court
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`may take judicial notice of, and indisputably authentic documents referred to in the
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`plaintiff’s complaint. Hartig Drug Co., Inc. v. Senju Pharm Co., 836 F.3d 261, 268
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`(3d Cir. 2016).
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`The Third Circuit has detailed a three-step process to determine whether a
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`complaint meets the pleading standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014).
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`First, the court outlines the elements a plaintiff must plead to state a claim for relief.
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`Id. at 365. Second, the court must “peel away those allegations that are no more
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`4
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 5 of 16
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`than conclusions and thus not entitled to the assumption of truth.” Id. Third, the
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`court “look[s] for well-pled factual allegations, assume[s] their veracity, and then
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`‘determine[s] whether they plausibly give rise to an entitlement to relief.’” Id.
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`(quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task that
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`requires the reviewing court to draw on its judicial experience and common sense.”
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`Id. In assessing the level of factual details required under Twombly, the Third Circuit
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`has held:
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`The Supreme Court reaffirmed that Fed. R. Civ. P. 8
`requires only a short and plain statement of the claim
`showing that the pleader is entitled to relief, in order to
`give the defendant fair notice of what the claim is and the
`grounds upon which it rests, and that this standard does
`not require detailed factual allegations.
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`Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations and
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`quotations omitted).
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`III. DISCUSSION
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`a. Plaintiff Has Properly Alleged a Claim Under the PWA Because
`Defendant Is a Public Body Under the Statute.
`
`
` Under 43 P.S. § 1423(a):
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`No employer may discharge, threaten or otherwise
`discriminate or retaliate against an employee regarding the
`employee’s compensation, terms, conditions, location or
`privileges of employment because the employee or a
`person acting on behalf of 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
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`5
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 6 of 16
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`wrongdoing or waste by a public body or an instance of
`waste by any other employer as defined in this act.
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`Here, Plaintiff has properly alleged that she was terminated by Defendant for
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`complaining of wrongdoing. Defendant argues this only renders it liable under §
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`1423(a) if it is a public body.3
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`
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`43 P.S. § 1422 defines a public body as:
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`All of the following:
`(1) A State officer, agency, department, division, bureau,
`board, commission, council, authority or other body in the
`executive branch of State government.
`(1.1) The General Assembly and its agencies.
`(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.
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`
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`                                                            
`3
`Defendant’s argument in its original motion to dismiss Plaintiff’s first claim is solely that
`it is not an employer under the statute. On reply, however, Defendant first raised the argument
`that it did not qualify as a public body, therefore justifying dismissal on this alternative ground.
`The line of case law and portion of the statute concerning the definition of public body are distinct
`from those governing the definition of an employer. This renders Defendant’s argument new on
`reply, giving Plaintiff no opportunity to address it and rendering it improperly before the court.
`See Smithkline Beecham PLC v. Teva Pharm. USA, Inc., No. 04-cv-215, 2007 WL 1827208, at *1
`(D.N.J. June 22, 2007); In re Katrina Canal Breaches Litig., 620 F.3d 455, 459 n.3 (5th Cir. 2010)
`(“That argument is waived, because it was not made in the plaintiffs’ opening brief.”). Thus, even
`if the substance of Defendant’s argument is correct, this part of the motion will be denied on
`procedural grounds.
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`6
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 7 of 16
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`Plaintiff alleged that Defendant received payment from the DOC. Defendant does
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`not dispute that this constitutes money “by or through Commonwealth or political
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`subdivision authority.”4 Defendant, however, relies on federal district court
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`authority holding that this would not qualify as being “funded” by the DOC. Thus,
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`the operative question here is whether receiving money from a public entity
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`constitutes being “funded,” therefore rendering Defendant a public body.
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`In interpreting a Pennsylvania statute, the court must apply Pennsylvania rules
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`governing statutory interpretation. In re Trustees of Conneaut Lake Park, Inc., 855
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`F.3d 519, 523 (3d Cir. 2017). Under Pennsylvania law, the purpose of statutory
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`interpretation is to effectuate the intent of the legislature and give effect to every
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`provision. 1 Pa. C.S. § 1921(a). “In general, the best indication of legislative intent
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`is the plain language of a statute.” Sivick v. State Ethics Comm’n, --- A.3d ----, 2020
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`WL 5823822, at *6 (Pa. Oct. 1, 2020) (internal quotations omitted). Thus, “[w]hen
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`the words of the statute are clear and free from all ambiguity, the letter of it is not to
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`be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b); accord
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`Riggio v. Burns, 711 A.2d 497, 500 (Pa. Super. Ct. 1998) (en banc) (“Where the
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`language of a statute is unambiguous on its face, we are bound to give effect to that
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`language.”). “Only if the statute is ambiguous, and not explicit, do we resort to other
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`                                                            
`4
`The court does not hold, as a matter of law, that money from the Pennsylvania DOC,
`specifically, constitutes money through the Commonwealth or subdivision authority—it simply
`finds such an allegation plausible at this stage of litigation.
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 8 of 16
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`means of discerning legislative intent,” Crown Castle NG East LLC v. Pa. Public
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`Util. Comm’n, 234 A.3d 665, 674 (Pa. 2020) (internal quotations omitted), such as
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`the “circumstances under which [the statute] was enacted,” the “consequences of a
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`particular interpretation,” the “contemporaneous legislative history,” or the
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`“[l]egislative and administrative interpretation of the statute,” 1 Pa.C.S. § 1921(c).
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`Turning to the statute itself, the word “fund” ordinarily means “to provide the
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`money to pay for an event, activity, or organization.” Fund, Cambridge Dictionaries
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`Online, https://dictionary.cambridge.org/us/dictionary/english/funded (last accessed
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`10/26/2020). This is the most basic definition of “fund,” with “funded” simply being
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`its past tense. Thus, the plain language of the statute renders any entity a public
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`body if it is paid either directly by the Commonwealth or indirectly by a public entity
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`with money that has passed “through” the Commonwealth. 43 P.S. § 1422. Plaintiff
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`has alleged Defendant was paid by a public entity for the contractual rendering of
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`services. This constitutes the provisions of money to pay for an activity, i.e. funding.
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`Defendant thus constitutes a public body under § 1422.
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`Multiple Pennsylvania Superior Court decisions have supported this reading
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`of the statute. They have repeatedly held that “the statutory definition of ‘public
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`body’ for purposes of the Whistleblower Law includes, inter alia, private entities
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`which receive funding ‘in any amount by or through [the] Commonwealth.’”
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`Harrison v. Health Network Labs. Ltd. P’ship, No. 365-EDA-2018, 2018 WL
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`8
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`6520982, at *6 n.4 (Pa. Super. Ct. Dec. 12, 2018). In Denton v. Silver Streaming
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`Nursing and Rehabilitation Center, the Pennsylvania Superior Court held that the
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`phrase “by or through Commonwealth,” in the Pennsylvania Whistleblower Statute,
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`made any private entities “that receive not only money appropriated by the
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`Commonwealth, but also public money that passes through the Commonwealth” a
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`public body. 739 A.2d 571, 576 (Pa. Super. Ct. 1999) (emphasis in original)
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`(quoting 43 P.S. § 1422); id. (“[A] recipient of Medicaid funding is a ‘public body’
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`for purposes of the Whistleblower Law.”).
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`Many federal district courts are skeptical of such an interpretation because the
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`ordinary meaning of the phrase “public body” would not include a private entity
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`receiving public funding. However, the PWA’s explicit definition of public body
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`supplants any other interpretation of the term:
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`Notwithstanding the everyday meaning of “public body,”
`this term was expressly defined by our legislature for
`purposes of the Whistleblower Law. . . . The statute plainly
`and unequivocally makes any body “funded in any amount
`by or through the Commonwealth … authority” a public
`body for purposes of the Whistleblower Law. Where the
`language of the statute is unambiguous on its face, we are
`bound to give effect to that language.
`
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`Id. (quoting Riggio, 711 A.2d at 500); accord Hodges v. Rodriguez, 645 A.2d 1340,
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`1348 (Pa. Super. Ct. 1994) (“Where a statute provides internal definitions, we are
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`bound to construe the statute according to those definitions.”).
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`The Pennsylvania Superior Court has twice cited Denton favorably for its
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`interpretation of the Pennsylvania Whistleblower Statute, including after the statute
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`was amended in 2014. See Saltzman v. Thomas Jefferson Univ. Hosps., Inc., 166
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`A.3d 465, 475 n.8 (Pa. Super. Ct. 2017); Harrison v. 2018 WL 6520982, at *6 n.4.
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`Because Pennsylvania’s intermediate appellate court decisions are strong indicators
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`of how the Pennsylvania Supreme Court would rule—and because Denton is both
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`consistent with the plain language of the statute and has been favorably cited by later
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`Pennsylvania decisions—the court will follow Denton. Sheridan v. NGK Metals
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`Corp., 609 F.3d 239, 254 (3d Cir. 2010) (holding that courts interpreting state law
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`should generally follow that state’s intermediate appellate courts unless strong
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`evidence suggests they should not); Auto-Owners Ins. Co. v. Stevens & Ricci Inc.,
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`835 F.3d 388, 409-10 (3d Cir. 2016) (same).
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`The court recognizes that federal district courts are nonetheless split on this
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`issue, sometimes adopting Denton and other times rejecting it. Contrast Mayer v.
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`Boys & Girls Clubs of Phila. Inc., No. 10-cv-7574, 2011 WL 4467669, at *4-5 (E.D.
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`Pa. Sept. 23, 2011) (holding, based on Denton, that a private entity contracting with
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`a school district was covered by the Pennsylvania Whistleblower Law) with Adams
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`v. HCF Mgmt., No. 18-cv-47, 2018 WL 3388404, at *3-5 (W.D. Pa. July 12, 2018)
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`(holding Denton was incorrectly decided). While the court is not bound by federal
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`district court opinions, the Adams court is thoroughly reasoned and includes a review
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 11 of 16
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`of several federal and state opinions. The court has thus carefully reviewed it and
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`will address its rationale, which can be divided into four arguments.
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`First, the Adams court states that the 2014 amendments to the statute rendered
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`Denton inapplicable. The court disagrees. Two Superior Court cases favorably
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`citing Denton post-date the 2014 amendment. Further, the key language relied upon
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`in Denton—“funded by any amount by or through Commonwealth or political
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`subdivision authority”—remains within the amended version of the statute. The
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`2014 amendment did alter the definition of “employer,” but the Adams court goes
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`too far in suggesting that the definitions of “employer” and “public body” are
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`antagonistic to one another. See Adams, 2018 WL 3388404 at *3 (“HCF . . . appears
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`to fall squarely within the current statute’s definition of an ‘employer’ rather than
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`a ‘public body.’”) (emphasis added).5 The problem with this rationale is that the
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`definition of “employer” includes a “public body.” 43 P.S. § 1422. Thus, the 2014
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`amendments do not change the court’s analysis of the statute’s unaltered definition
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`of “public body.”
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`Second, the Adams court finds that the legislative history and debate
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`concerning the 2014 amendments of the PWA support its interpretation of the
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`                                                            
`5
`Even if those definitions were exclusive of one another, Plaintiff has alleged that Defendant
`is an LLC—a type of business organization that is not included in the apparently exhaustive list of
`business entities, other than public bodies, in the statute’s definition of “employer.” It thus does
`not fall within the definition of employers outside of public bodies.
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`statute. Under Pennsylvania law, however, the court must begin with the
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`unambiguous language of the statute, only turning to the legislative history or
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`legislature’s interpretation of the statute if the court finds the language ambiguous.
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`That court never found the statute ambiguous. Turning to the legislative history was
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`thus incorrect. Riggio, 711 A.2d at 500.6 The court today also finds the statute’s
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`wording unambiguous. The operative phrase in § 1422’s definition of “public body”
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`plainly includes any entity receiving funds coming from or passing through the
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`Commonwealth. No reasonable people could disagree on this definition of public
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`body nor has the court located any authority holding as much.
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`
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`Third, the Adams court finds that Denton relied upon a misreading of the
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`holding of Riggio, but another decision by the Western District of Pennsylvania held
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`otherwise. See Ellis v. Allegheny Specialty Practice Network, No. 2:12-cv-404, 2013
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`WL 411477, at *3-4 (W.D. Pa. Feb. 1, 2013) (“In Riggio[], the en banc court
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`determined that a private medical provider could be a ‘public body’ under the
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`                                                            
`6
` The early bedrock case rejecting Denton commits this same error, overtly disregarding the
`plain language of the statute in favor of its conjecture regarding legislative intent. See Cohen v.
`Salick Health Care, Inc., 772 F. Supp. 1521, 1526-27 (E.D. Pa. 1991) (“Although there is no
`question that many doctors and other health care providers receive ‘funds’ for services rendered
`to Medicaid eligible patients, it was clearly not the intention of the Pennsylvania legislature to
`include them as funded public bodies under the Whistleblower Law.”); see also Adams, 2018 WL
`3388404 at *4 (including the same quote); Zorek v. CVS Caremark Corp., No. 1:13-cv-1949, 2014
`WL 12487695, at *7 (M.D. Pa. Apr. 16, 2014) (same); Eaves-Voyles v. Almost Family, Inc., 198
`F. Supp. 3d 403, 408-09 (M.D. Pa. 2016) (holding Cohen justifies rejecting Denton). The Cohen
`court began with the legislative history because “no Pennsylvania appellate court has yet
`interpreted the Pennsylvania Whistleblower Law”—a statement which is no longer true and, even
`if it was, does not justify leaping over the statute’s plain language. 772 F. Supp. at 1525.
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 13 of 16
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`Whistleblower Statute based upon its receipt of public money.”). Moreover, while
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`Riggio is factually distinguishable, it still rejected the underlying rationale of many
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`of the cases rejecting Denton by holding that the plain language of the PWA must
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`be followed over the more circuitous route of determining the legislature’s intent
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`employed by those courts. See Riggio, 711 A.2d at 500. Riggio is thus both
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`consistent with Denton and inconsistent with the analysis of various federal district
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`courts.
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`Fourth, the Adams court says “Denton appears to have been rejected by the
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`majority of the courts that considered it,” 2018 WL 3388404 at *4, but that court
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`appears to have only reviewed federal district court decisions in coming to this
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`conclusion. Because the Pennsylvania Superior Court itself has twice cited Denton
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`favorably after the statute was amended, the court finds this argument unpersuasive.
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`See Am. Equip. Leasing v. McGee’s Crane Rental, Inc., No. 01-CV-4783, 2002 WL
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`32341794, at *3 n.3 (E.D. Pa. Dec. 11, 2002) (“[F]ederal district court opinions are
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`not to be given greater weight than state court decisions [when interpreting state
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`law].”); Pennell v. Wells Fargo Bank, N.A., 507 F. App’x 335, 338 (5th Cir. 2013)
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`(“Federal district court cases are not authoritative statements of state law.”).
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`
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`Finally, outside of Adams, the court has identified one more argument raised
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`by federal district courts rejecting Denton. Some courts have held that there must
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`be a “difference between an entity that ‘receives’ public funds and one that is
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`‘funded’ by political subdivision authority.” Grim v. May Grant Assocs., No. 18-
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`cv-2231, 2019 WL 35820, at *4 (E.D. Pa. Jan. 29, 2019); accord Tanay v. Encore
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`Healthcare, LLC, 810 F. Supp. 2d 734, 742-43 (E.D. Pa. 2011) (same). The court
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`disagrees. It is true that the definition of employer includes “[a] public body or any
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`of the following which receives money from a public body. . . ,” 43 P.S. § 1422, but
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`there is nothing linguistically wrong with just reading this as a broad definition of
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`employer including many entities, even if it overlaps with the definition of public
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`body. This is consistent with the plain language of the statute and does not yield an
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`absurd reading, even if the court found its consequences strange. See Riggio, 711
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`A.2d at 500; 1 Pa.C.S. § 1921(b) (“[T]he letter is not to be disregarded under the
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`pretext of pursuing its spirit.”). Moreover, to create the distinction these courts
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`demand—confining “funding” to situations where the legislature directly allocates
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`money to these entities—would render the words “or through” the Commonwealth
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`meaningless. See Denton, 739 A.2d at 576 (emphasis in original); 1 Pa.C.S. §
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`1921(a) (“Every statute shall be construed, if possible, to give effect to all its
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`provisions.”). Thus, this final argument also lacks sufficient merit to permit the court
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`to disregard the plain language of the statute.
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`
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`In short, Plaintiff has alleged a plausible claim under the PWA by alleging
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`that she was terminated by a public body for reporting wrongdoing. Thus, at this
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`time, the court will allow that claim to go forward.
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`b. Plaintiff Has Alleged a Common Law Wrongful Discharge Claim
`Because Defendant Allegedly Terminated Her for Refusing to
`Commit a Crime.
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`Plaintiff alleges she was wrongfully discharged because Defendant terminated
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`her in a manner that violates public policy. Pennsylvania is an at-will employment
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`state. Generally, an employer can terminate an employee for any reason. There is,
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`however, a common law restriction on an employer terminating an employee for a
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`reason that violates public policy. As explained by the Third Circuit:
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`Although the parameters of the public policy exception are
`not explicitly defined, the Pennsylvania courts generally
`have limited its application 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.
`
`
`Brennan v. Cephalon, Inc., 298 F. App’x 147, 150 (3d Cir. 2008) (citing Hennessy
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`v. Santiago, 708 A.2d 1269, 1273 (Pa. Super. Ct. 1998); Fraser v. Nationwide Mut.
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`Ins. Co., 352 F.3d 107, 111-12 (3d Cir. 2003)). Here, Plaintiff alleges that: (1)
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`Defendant instructed her to engage in the practice of medicine despite lacking a
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`medical license; and (2) that she was terminated in part due to her refusal to do so.
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`Engaging in the unlicensed practice of medicine is a crime. See Commonwealth v.
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`Paolino, 837 A.2d 1216, 1221 (Pa. Super. Ct. 2003) (affirming the criminal
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`prosecution of a doctor in part for practicing medicine without a license). Defendant
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`Case 1:20-cv-01275-SHR Document 11 Filed 11/17/20 Page 16 of 16
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`does not address this theory in its motion to dismiss or reply brief. It is a sufficient
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`basis for Plaintiff’s count moving forward at this stage.
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`IV. CONCLUSION
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`For the reasons outlined above, the court will deny the motion. An appropriate
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`order will follow.
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`Dated: November 17, 2020
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`s/Sylvia H. Rambo
`SYLVIA H. RAMBO
`United States District Judge
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