Bensinger v. Univ. of Pittsburgh Med. Ctr. T/A/

• Decision Date: 19 August 2014
• Court: Pennsylvania Superior Court
• Parties: John BENSINGER, Appellant v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER t/a/d/b/a Western Psychiatric Institute and Clinic, Appellee.

98 A.3d 672

2014 PA Super 174

John BENSINGER, Appellant

v.UNIVERSITY OF PITTSBURGH MEDICAL CENTER t/a/d/b/a Western Psychiatric Institute and Clinic, Appellee.

Superior Court of Pennsylvania.

Argued April 1, 2014.

Filed Aug. 19, 2014.

Daniel W. Ernsberger, Pittsburgh, for appellant.

John J. Myers, Pittsburgh, for appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.

OPINION BY OLSON, J.:

Appellant, John Bensinger, appeals from the judgment entered in favor of the University of Pittsburgh Medical Center t/a/d/b/a Western Psychiatric Institute and Clinic (“Western Psych”) on July 24, 2013. Among other issues, Appellant claims that the trial court erred in granting Western Psych's motion to strike Appellant's jury demand. We hold that there is no right to a jury trial under the Pennsylvania Whistleblower Law, 43 P.S. § 1421 et seq. For this reason, and because we conclude that none of Appellant's other claims merit relief, we affirm.

The factual and procedural background of this case is as follows.¹ From December31, 2001 until July 10, 2009, Appellant was employed by Western Psych's Center for Psychiatric and Chemical Dependency Services (“CPCDS”). CPCDS, which is a division of Western Psych's Addiction Medicine Services unit (“AMS”), treats patients with substance abuse problems and related mental disorders. CPCDS is licensed by the Pennsylvania Bureau of Drug and Alcohol Programs, Division of Drug and Alcohol Program Licensure (“DAPL”). DAPL conducts periodic reviews of CPCDS and other AMS programs that it licenses.

In October 2008, Appellant was promoted to CPCDS' facility director. In this position, Appellant reported to Western Psych's vice-president, Eleanor Medved (“Medved”). Appellant also reported to Dr. Dennis Daley (“Daley”), the chief of AMS. Appellant participated in the DAPL reviews and was responsible for ensuring DAPL had access to relevant materials.

Daley was employed as an associate professor at the University of Pittsburgh and by University of Pittsburgh Physicians, a subsidiary of UPMC. Daley, along with Dr. Thomas Kelly (“Kelly”), helped obtain grant money from the National Institute on Drug Abuse to conduct research relating to drug abuse. As this research was federally funded, it was subject to federal regulations. Federal regulations required the University of Pittsburgh to have certain research approved by an institutional review board. See45 C.F.R. § 46.103(b). Furthermore, as Daley worked for a DAPL licensee, he was subject to state regulations promulgated by DAPL.

On July 8 or 9, 2009, Cindy Hurney (“Hurney”), an AMS secretary, discovered a referral agreement between Western Psych and the Matilda Theiss Child Development Center on a copy machine. Hurney recognized that the date on the agreement had been altered from June 6, 2007 to June 6, 2009. Hurney informed the University of Pittsburgh's counsel, Al Ciocco (“Ciocco”), of the altered date. Ciocco directed Daley to inform Western Psych's Chief Executive Officer, Claudia Roth (“Roth”), of the altered agreement, which he did on July 10, 2009. Roth then informed Medved of the altered agreement. Medved directed Daley to check all of the referral agreements to ascertain whether other agreements had been altered. Medved also directed Daley to, along with a witness, confront Appellant to ascertain whether he was aware of the alterations.

Daley and AMS' Chief Medical Officer, Dr. Antoine Douaihy, confronted Appellant. Appellant admitted to altering the agreement. Daley informed Medved of the confession. Medved along with Roth, and the head of human resources, Katie Devine (“Devine”), decided to fire Appellant immediately for altering the agreement. Daley was not involved in the decision to terminate Appellant. When Medved communicated the termination decision to Appellant, he took full responsibility for his actions. He repeated this admission the next day while cleaning out his office.

On December 29, 2009, Appellant filed a complaint against Western Psych which alleged that he was fired for taking action protected by the Whistleblower Law. Of particular relevance to one of the issues raised in the present appeal, is the fact that Appellant's complaint included a jury trial demand. On February 1, 2013, the trial court granted Western Psych's motion to strike the jury trial demand.

On October 15, 2010, Appellant presented a motion to compel the production of various categories of documents. Specifically, Appellant sought documents relating to Daley's doctoral education. He also sought Kelly's research files. After argument and briefing, on December 14, 2010 the trial court denied Appellant's motion to compel.

A three-day bench trial was conducted from March 19–21, 2013. Appellant testified that he was fired, in part, because he informed Daley and Medved that Daley's research needed to be approved by DAPL. He produced no evidence to corroborate his testimony.² Appellant also testified that Daley received his Ph.D. from an institution not authorized to grant Ph.D.s and that Daley married an employee. Appellant did not testify that he reported Daley's marriage to any other individual. However, he did testify that Daley received his Ph.D. from a diploma mill.³

On April 10, 2013, the trial court issued findings of fact and conclusions of law and entered a verdict in favor of Western Psych. It concluded that Appellant did not report malfeasance by Daley and that Appellant was discharged for forging a document. On April, 18, 2013, Appellant filed a post-trial motion. That motion was denied on July 11, 2013. This timely appeal followed. ⁴

Appellant presents four issues for our review:

1. Did the [trial] court err when it granted a motion to strike the jury trial demand[?]

2. Must a new trial be granted because the [trial] court excluded evidence[?]

3. Did the trial court fail to decide all the issues, and make all appropriate findings of fact and conclusions of law necessary to evaluate the credibility of witnesses[?]

4. Was the verdict of the trial court unsupported by the evidence[?]

Appellant's Brief at 4 (capitalization removed).⁵

In his first issue on appeal, Appellant contends that the trial court erred by granting Western Psych's motion to strike his jury trial demand. Appellant contends that he has a constitutional right to a jury trial in an action brought pursuant to the Whistleblower Law.⁶ As resolution of this issue requires both statutory and constitutionalinterpretation, our standard of review is de novo and our scope of review is plenary. Pilchesky v. Lackawanna Cnty., ––– Pa. ––––, 88 A.3d 954, 965 (2014); see Buckwalter v. Borough of Phoenixville, 603 Pa. 534, 985 A.2d 728, 730 (2009).

As we attempt to avoid ruling on constitutional issues if the claim can be resolved on non-constitutional grounds, In re E.A., –––Pa. ––––, 82 A.3d 370, 384 (2013) (citation omitted), we first consider whether Appellant has a statutory right to a jury trial. When interpreting a statute, we are guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.See Commonwealth v. Raban, ––– Pa. ––––, 85 A.3d 467, 475 (2014). “[O]ur paramount interpretative task is to give effect to the intent of our General Assembly in enacting the” Whistleblower Law. See Commonwealth v. Warren, 84 A.3d 1092, 1095 (Pa.Super.2014) (citation omitted). “Generally, the best indication of the General Assembly's intent may be found in the plain language of the statute.” Commonwealth v. Spence, ––– Pa. ––––, 91 A.3d 44, 46 (2014) (citation omitted).

The Whistleblower Law is “chiefly a remedial measure intended to enhance openness in government and compel the government's compliance with the law by protecting those who inform authorities of wrongdoing.” O'Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1202 (2001) (internal quotation marks and citation omitted). It “is specifically designed to protect employees from adverse employment actions when making a good faith report regarding an instance of wrongdoing or waste.” Pa. Game Com'n v. State Civil Serv. Com'n (Toth), 561 Pa. 19, 747 A.2d 887, 892 n. 10 (2000).

The Whistleblower Law provides, in relevant part, that:

A court, in rendering a judgment in an action brought under this act, shall order, as the court considers appropriate, 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.

43 P.S. § 1425 (emphasis added).⁷ The plain language of this section refers to the court four times. It never refers to the jury. Thus, the plain language of the statute makes clear that Appellant did not possess a statutory right to a jury trial under the Whistleblower Law.⁸

This conclusion is consistent with decisions by our Supreme Court in Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153, 1154 (2003), and Wertz v. Chapman Tp., 559 Pa. 630, 741 A.2d 1272 (1999), and our decision in Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396, 399 (Pa.Super.2012), appeal denied,621 Pa. 658, 72 A.3d 604 (2013). In those three cases, appellate courts in this Commonwealth concluded that a statutory right to a jury trial does not exist under statutes with similar language to the Whistleblower Law.

In Mishoe, our Supreme Court considered whether there is a right to a jury trial in a bad faith insurance claim. Specifically, our Supreme Court considered whether there is a right to a jury trial under the following statutory provision:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount...