Scranton Quincy Clinic Co. v. Palmiter

2021 PA Super 155

SCRANTON QUINCY CLINIC COMPANY, LLC D/B/A PHYSICIANS HEALTH ALLIANCE AND SCRANTON QUINCY HOSPITAL COMPANY, LLC D/B/A MOSES TAYLOR HOSPITAL Appellants v. PAMELA PALMITER

No. 498 MDA 2020

No. J-A07009-21

Superior Court of Pennsylvania

August 5, 2021

Appeal from the Order Dated December 31, 2019 In the Court of Common Pleas of Lackawanna County Civil Division at No(s) 19-CV-1315

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E ^[*]

OPINION

BOWES J.

Scranton Quincy Clinic Company, LLC d/b/a Physicians Health Alliance and Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital (collectively "Hospital") appeal from the December 31, 2019 order overruling in part its preliminary objections in the nature of a demurrer to Pamela Palmiter's claims under the Medical Marijuana Act ("MMA"), 35 P.S. §§ 10231.101-10231.2110.^[1] We affirm.

Ms. Palmiter pled the following. In 2017, she was employed as a medical assistant by Medical Associates of NEPA. In December 2018, she "became a patient able to use medical marijuana through[out] the Commonwealth of Pennsylvania" due to her "chronic pain, chronic migraines, and persistent fatigue." Third Amended Complaint, 5/30/19, at ¶¶ 10-11. During her tenure there, Medical Associates of NEPA was acquired by the Hospital herein, but she was assured by her superiors while that process was pending that she would keep her job and seniority. Id. at ¶ 23. On January 11, 2019, Ms. Palmiter "applied for the position of Certified Medical Assistant" with the Hospital and was notified four days later that she was "a new employee of [the Hospital]." Id. at ¶¶ 14-15.

When Ms. Palmiter appeared for a scheduled employment-related drug test on January 22, 2019, she informed the laboratory that she was prescribed medical marijuana. Id. at ¶¶ 16-17. She also faxed to the laboratory a copy of the medical marijuana certification. Id. at ¶18. On January 29, 2019, Ms. Palmiter received a telephone call from Jessica Vaccaro of the Hospital advising her that she could not work for the Hospital based upon her drug test. Id. at ¶19.

On February 21, 2019, Ms. Palmiter commenced this action against the Hospital. In her third amended complaint, Ms. Palmiter advanced five causes of action: violation of the MMA; breach of contract; invasion of privacy; wrongful discharge; and intrusion on seclusion. The Hospital filed preliminary objections in the nature of a demurrer alleging that Ms. Palmiter's complaint failed to state a claim under any of these theories. The trial court sustained the demurrer as to Count II (breach of contract), Count III (invasion of privacy), and Count V (intrusion on seclusion); but overruled the preliminary objections to Count I asserting a private cause of action under the MMA, and Count IV, a wrongful discharge claim based on a violation of public policy.^[2]See Order, 11/22/19. Thereafter, the Hospital asked the trial court to certify that its interlocutory order involved a controlling question of law as to which there was a substantial ground for difference of opinion, and that an immediate appeal would materially advance the ultimate disposition of the litigation. The trial court agreed and amended its earlier order to include the requested 42 Pa.C.S. § 702(b) language. Order, 12/31/19. The Hospital filed a petition for permission to appeal in this Court, which was granted on March 20, 2020. The Hospital and the trial court thereafter complied with Pa.R.A.P. 1925.

The Hospital presents two issues for our review:

1. Whether Appellee's claim under the Medical Marijuana Act ("the MMA" or "the Act"), 35 P.S. §§ 10231.101 to .2110, as set forth in Count I of the Third Amended Complaint, is legally insufficient because the Act does not provide for a private right of action?

2. Whether Appellee's attempt to state a claim for wrongful discharge in violation of public policy, as set forth in Count IV of the Third Amended Complaint, is legally insufficient?

Appellant's brief at 3-4.

In ruling on preliminary objections in the nature of a demurrer, the trial court was required to "accept as true all well-pleaded allegations of material fact and all reasonable inferences deducible from those facts" and resolve all doubt "in favor of the non-moving party." Commonwealth v. UPMC, 208 A.3d 898, 904 (Pa. 2019). The question presented was "whether, on the facts averred, the law says with certainty that no recovery is possible." Id. at 24 n.9 (citing Tucker v. Phila. Daily News, 848 A.2d 113 (Pa. 2004)). When any doubt exists as to whether the demurrer should be sustained, this doubt should be resolved in favor of overruling it. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005).

On appeal from the trial court's order overruling preliminary objections in the nature of demurrer, our standard of review is de novo and our scope of review is plenary. Weaver v. Harpster, 975 A.2d 555, 559-60 (Pa. 2009). Hence, we apply the same standard as the trial court in evaluating the legal sufficiency of the complaint, and examine whether, on the facts averred, the law says with certainty that no recovery is possible. UPMC, supra at 909.

The Hospital contends that there is no private right of action under § 10231.2103(b)(1) of the MMA, which provides that "[n]o employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against an employee regarding an employee's compensation, terms, conditions, location or privileges solely on the basis of such employee's status as an individual who is certified to use medical marijuana." 35 P.S. § 10231.2103(b)(1). The Hospital asserts first that is "inarguable that there is no explicit right of action by which an employee can directly enforce this prohibition." Appellant's brief at 10. Furthermore, it argues that a private right of action is seldom found unless it is either provided in the statute or is clearly implied by the statutory language. Id. at 11 (citing Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 626 (Pa. 1997)).^[3]

The Hospital directs our attention to the three-part test for determining whether an implied private right of action exists, which was derived from the United States Supreme Court's decision in Cort v Ash, 422 U.S. 66, 78 (1975), and adopted in Pennsylvania in Witthoeft. Implied authority for a private cause of action exists when (1) the plaintiff is part of a class for whose 'especial' benefit the statute was enacted; (2) there is an indication of legislative intent to create or deny a remedy; and (3) an implied cause of action is consistent with the underlying purpose of the legislative scheme. See MERSCORP, Inc. v. Del. Cty., 207 A.3d 855, 870 n.14 (Pa. 2019) (citing Witthoeft, supra at 626).

The Hospital does not dispute that the first and third prongs of the test are met here.^[4] It focuses on the second prong: an indication of legislative intent to create or deny a remedy. The Hospital asserts first that there was no legislative intent to create a private remedy as evidenced by the fact that the statute authorizes the Department of Health to impose civil penalties for MMA violations and pursue "any other remedy available to the Department." 35 P.S. § 10231.1308(b). According to the Hospital, the Department of Health has the exclusive authority to enforce the MMA's provisions. The Hospital cites the Third Circuit Court of Appeals decision in Wisniewski v. Rodale, Inc., 510 F.3d 294, 305 (3d Cir. 2007), for the proposition that "[a]gency enforcement creates a strong presumption against implied private rights of action that must be overcome."

The Hospital contends further that Ms. Palmiter cannot demonstrate any indication of legislative intent to create a remedy because the statute does not contain rights-creating language focusing on the individual protected. It directs our attention to Wisniewski, wherein the issue was whether the Postal Reorganization Act ("PRA") permitted an implied private right of action. In that case, the Third Circuit noted that the PRA contained three sections, two of which focused on the person regulated and required that certain actions be taken, and one which addressed the right of the recipient to treat unsolicited mail as a gift. The court found that the first two sections did not necessarily create "personal rights" for recipients. However, the language providing that merchandise mailed in violation of the applicable section of the statute could be treated as a gift, and retained or disposed of by the recipient without any obligation to the sender, was rights-creating because it referenced a right and focused on the individual protected. Id. at 302. Nevertheless, since the statute provided for Federal Trade Commission ("FTC") enforcement, the court found that it created a presumption that FTC enforcement was exclusive in the absence of other enforcement provisions.

The court of appeals concluded that although the statute created a right in recipients of unsolicited merchandise to keep the merchandise, "it says nothing about the consequences if a mailer violates the statute and thereby induces a recipient to disregard this right." Id. at 306. The court found no intent to provide a private right of action for a violation of that provision. The Hospital concludes that "the MMA, like the PRA, focuses explicitly and exclusively, on prohibiting actions of employers, rather than creating rights or entitlements for employees." Appellant's brief at 18. According to the Hospital, that alone should end the inquiry.

Nonetheless the Hospital also maintains that Ms. Palmiter's claim under the MMA fails because the statute contains no remedy or time frame for action. See Appellant's brief at 19 (citing the dissent in MERSCORP, supra at 870 n.14,...