Al-Saleem, E. v. Health Network Lab.

• Court: Superior Court of Pennsylvania
• Decided: January 3, 2023
• Docket: 795 EDA 2022
• Status: Unpublished

Opinion

J-A24020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESSEL AL-SALEEM : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HEALTH NETWORK LABORATORIES, : No. 795 EDA 2022 L.P. :

Appeal from the Order Entered February 17, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2020-C-1255

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 3, 2023

Essel Al-Saleem, M.D., appeals from the trial court’s February 17, 2022

order entering summary judgment in favor of Health Network Laboratories,

L.P. (“HNL”), and against Dr. Al-Saleem. Additionally, Dr. Al-Saleem

challenges the February 2, 2022 order sustaining in part and overruling in part

HNL’s preliminary objections and dismissing Count II of Dr. Al-Saleem’s

second amended complaint, which was made final by the entry of summary

judgment. After careful review, we affirm.

Dr. Al-Saleem is a board-certified pathologist with a specialty in

hematopathology. HNL operates anatomical pathology labs. Dr. Al-Saleem

and HNL executed an employment agreement whereby HNL employed Dr. Al-

Saleem to provide anatomical and clinical pathology services beginning on July

15, 2019, and concluding on December 31, 2021. The employment agreement J-A24020-22

permits HNL to terminate the agreement for cause without notice and without

further obligation to compensate Dr. Al-Saleem. The employment agreement

also allows HNL to terminate the agreement without cause, provided HNL

affords Dr. Al-Saleem 90 days’ written notice of termination. Termination

without cause entitles Dr. Al-Saleem to an additional three months’ salary.

HNL terminated Dr. Al-Saleem’s employment on December 2, 2019,

pursuant to the provision of the employment agreement governing

termination without cause. HNL instructed Dr. Al-Saleem to stop reporting to

work but continued to pay Dr. Al-Saleem’s salary through the 90-day notice

period. HNL also paid Dr. Al-Saleem an additional three months’ salary

following the conclusion of the notice period.

On May 28, 2020, Dr. Al-Saleem filed a complaint alleging wrongful

termination, violation of Pennsylvania’s Whistleblower Law,1 and breach of

contract. Dr. Al-Saleem alleged that she was terminated in retaliation for her

numerous reports about lab practices she believed were “unsafe, unethical,

illegal and/or out of compliance[.]” Complaint, 5/28/20, ¶ 31. Dr. Al-Saleem

raised concerns about, among others, “outdated” reporting values, which

resulted in unnecessary testing; lack of pathologist review before samples

were sent to the cytopathology section; and alterations made to her own

reports without her knowledge or approval. See id. at ¶¶ 36-39, 52-53. Dr.

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1 See 43 P.S. §§ 1421-1428.

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Al-Saleem alleged that she spoke with several superiors about these concerns.

See id. at ¶¶ 43-47, 49.

Dr. Al-Saleem subsequently filed an amended complaint.2 HNL filed

preliminary objections asserting the complaint failed to allege facts sufficient

to constitute a cause of action. Dr. Al-Saleem filed a response. Following oral

argument, the trial court sustained HNL’s preliminary objections and granted

Dr. Al-Saleem permission to file a second amended complaint.

On July 16, 2021, Dr. Al-Saleem filed her second amended complaint.

Therein, Dr. Al-Saleem alleged that the use of “outdated” limits for normal

interval values in tests caused unnecessary additional testing, and in turn, “in

unwarranted billing to insurance companies, and governmental payors

including, without limitation, Medicare and Medicaid.” Second Amended

Complaint, 7/16/21, at ¶ 37; see also id. at ¶¶ 39, 54. Further, Dr. Al-Saleem

alleged that such unnecessary testing “would fall within the company’s internal

definition of ‘abuse’ which includes practices that may directly or indirectly

result in unnecessary cost to the Medicare program or other federal or state

programs.” Id. at ¶ 55; see also id. (stating the same definition of “abuse”

is used in HNL’s compliance investigations policy). Dr. Al-Saleem also

generally alleged that HNL engaged in self-referral, which constitutes fraud.

See id. at ¶¶ 57-58.

2 HNL filed preliminary objections to the original complaint, but they were dismissed as moot after Dr. Al-Saleem filed the amended complaint.

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HNL again filed preliminary objections claiming the second amended

complaint had not remedied the defects of the first amended complaint. Dr.

Al-Saleem filed a response. The parties appeared for oral argument on the

preliminary objections in December 2021. On February 2, 2022, the trial court

entered an order sustaining in part and overruling in part HNL’s preliminary

objections and dismissing Count II (Whistleblower Law) of Dr. Al-Saleem’s

second amended complaint. In particular, the trial court concluded Dr. Al-

Saleem failed to allege she made a good faith report of waste or wrongdoing

by HNL. See Order, 2/2/22.

Prior to the final resolution of the preliminary objections, HNL also filed

a motion for summary judgment on all three counts.3 HNL argued that Dr. Al-

Saleem’s wrongful termination claim fails as a matter of law because she did

not establish that she was an at-will employee, where her position was

governed by an employment agreement. Additionally, HNL argued that Dr. Al-

Saleem failed to establish either that HNL breached the employment

agreement by barring her from working during the 90-day notice period or

that she suffered monetary damages as a result. Dr. Al-Saleem filed an

answer. The trial court conducted a hearing, and on February 17, 2022, the

court entered an order granting summary judgment in favor of HNL and

3Because the trial court dismissed Count II in its February 2, 2022 order, the court did not address the Whistleblower Law claim on summary judgment.

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against Dr. Al-Saleem on the remaining wrongful termination and breach of

contract claims. The instant timely appeal followed.

On appeal, Dr. Al-Saleem raises the following questions for our review:

1. Did the trial court err in sustaining HNL’s preliminary objections with respect to Dr. Al-Saleem’s claim under the Whistleblower Law in holding that the operative complaint did not allege a good faith report of wrongdoing or waste[,] where Dr. Al-Saleem sufficiently pled that she made a good faith report of wrongdoing and waste, that Dr. Al-Saleem’s report made clear how HNL was guilty of wrongdoing and provided information sufficient to identify the laws violated, and explained how HNL’s wrongful acts violated the cited statutes?

2. Did the trial court err in granting HNL’s motion for summary judgment with respect to Dr. Al-Saleem’s claim of wrongful termination in holding that Dr. Al-Saleem was not an at-will employee because she had a written contract of employment[,] where Dr. Al-Saleem presented sufficient evidence that she was an at-will employee, as Dr. Al-Saleem was terminated without cause prior to the expiration of the purported term, and thus she was entitled to the Pennsylvania common law exception to the at- will employment doctrine requiring that employees not be retaliated against for opposition to and refusal to engage in illegal activity in violation of Pennsylvania public policy?

3. Did the trial court err in granting summary judgment with respect to Dr. Al-Saleem’s claim for breach of contract where Dr. Al-Saleem presented sufficient evidence that HNL terminated Dr. Al-Saleem without allowing her [to] work during the 90[-]day notice period?

4. Did the trial court err in granting summary judgment with respect to Dr. Al-Saleem’s claim for breach of contract where Dr. Al-Saleem presented sufficient evidence that HNL compelled Dr. Al-Saleem to perform services for which she was not qualified in direct contradiction of the terms of the agreement?

5. Did the trial court err in granting summary judgment with respect to Dr. Al-Saleem’s claim for breach of contract where Dr. Al-Saleem presented sufficient evidence that she suffered damages as a result of HNL’s breaches of contract?

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Appellant’s Brief at 5-6 (some capitalization omitted).

In her first issue, Dr. Al-Saleem claims the trial court erred in sustaining

HNL’s preliminary objections to her Whistleblower Law claim. See id. at 23-

27. Dr. Al-Saleem argues she made a good faith report of waste and informed

her supervisors of fraudulent conduct. See id. at 23-24.

We review a trial court’s order sustaining preliminary objections for an

error of law:

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Feingold v. Hendrzak, 15 A.3d 937 (Pa. Super. 2011) (citation omitted). A

court addressing preliminary objections in the nature of a demurrer is limited

to review only of the pleadings. See Morley v. Gory, 814 A.2d 762, 764 (Pa.

Super. 2002). When demurring to a complaint, “no testimony or other

evidence outside of the complaint may be considered to dispose of the legal

issues presented[.]” Id. (citations and quotation marks omitted).

Importantly, a plaintiff under the Whistleblower Law must identify

concrete actions or omissions of the employer, and explicitly identify the law

that the conduct or omission violated. See Greco v. Myers Coach Lines,

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Inc., 199 A.3d 426, 433 (Pa. Super. 2018). “[R]eports of vague or

subjectively wrong conduct are not considered wrongdoing under the

Whistleblower Law.” Id. (citation omitted).

Here, the trial court concluded, among other reasons, that dismissal of

the Whistleblower Law claim was appropriate because Dr. Al-Saleem failed to

establish how any of HNL’s alleged actions violated any of the cited statutes.

See Trial Court Order, 2/1/22, n.1. We agree.

In her complaint, Dr. Al-Saleem identifies at least 13 separate statutes

the HNL allegedly violated. See Second Amended Complaint, 7/16/21, at ¶

108. However, the complaint does not make any attempt to apply the terms

of these statutes to her allegations. For example, 18 U.S.C. § 1035 prohibits

a person involved in a health care benefit program from knowingly and willfully

making misleading statements about material facts. While Dr. Al-Saleem

alleged that HNL used reporting ranges that differed significantly from other

providers in the industry, she did not allege that these reporting ranges are

materially false or misleading. Nor did she allege that HNL or its employees

knowingly and willfully used misleading reporting ranges.

As a result, we conclude Dr. Al-Saleem has not established the trial court

erred in sustaining the demurrer to her Whistleblower Law claim. Her first

argument on appeal merits no relief.

Dr. Al-Saleem’s remaining issues challenge the trial court’s entry of

summary judgment in favor of HNL. Our review of an order granting summary

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judgment entails reviewing the record to determine whether there is a triable

issue of fact:

Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. … When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt. On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material facts presents a question of law, and therefore, on that question our standard of review is de novo. …

Burlington Coat Factory of Pa., LLC v. Grace Const. Mgmt. Co., LLC, 126

A.3d 1010, 1017 (Pa. Super. 2015) (citation and internal brackets omitted).

Dr. Al-Saleem asserts the trial court erred by concluding she was not an

at-will employee and therefore could not maintain a wrongful termination

claim. See Appellant’s Brief at 28. According to Dr. Al-Saleem, the

employment agreement did not alter her at-will employee status because it

permitted termination without cause. See id. at 28-29.

In an at-will employment relationship, either party may terminate the

relationship at any time and for any or no reason. See Mikhail v. Org. for

Women in Early Recovery, 63 A.3d 313, 316 (Pa. Super. 2013).

“[E]mployment is presumed to be at-will unless it is shown that the parties

contracted to restrict the right to terminate employment.” Deal v. Children’s

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Hosp. of Phila., 223 A.3d 705, 711 (Pa. Super. 2019); see also Grose v.

Procter & Gamble Paper Prods., 866 A.2d 437, 441 (Pa. Super. 2005) (“A

clear and definite intention to overcome the presumption must be expressed

in the contract.” (citation and quotation marks omitted)). The presumption

can only be overcome if it is clearly established that the parties contracted for

a definite period. See DiBonaventura v. Consol. Rail Corp., 539 A.2d 865,

867 (Pa. Super. 1988). If an employment agreement sets forth a definite

period, the tort of wrongful discharge is unavailable to the employee. See H

& R Block Eastern Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 252 (Pa. Super.

2013)

The trial court here concluded that the employment agreement was for

a definite period. See Trial Court Memorandum, 2/17/22, at 2. Once again,

we agree.

As Dr. Al-Saleem concedes in her brief, the employment agreement

contains an explicit term of 29 months. See Appellant’s Brief, at 29 (“despite

the fact that the Employment Agreement contained a definite term for

employment…”); Employment Agreement, 5/15/19, at ¶ 2.4 Nevertheless, Dr.

4 We note that the employment agreement is entirely absent from the certified record on appeal. Ordinarily “matters which are not of record cannot be considered on appeal.” See Commonwealth v. Holston, 211 A.3d 1264, 1275 (Pa. Super. 2019) (en banc). “[T]he ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant[.]” Id. at 1276. Here, we decline to quash the appeal on the basis of the missing agreement – which is central to all of Dr. Al-Saleem’s claims – as there is no (Footnote Continued Next Page)

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Al-Saleem argues that because the agreement provides for termination prior

to 29 months without cause, it is not, as a matter of law, a contract for a

definite term.

Dr. Al-Saleem’s argument on appeal fails to recognize that the trial court

did not conclude the employment agreement had a definite term of 29 months.

Rather, the trial court concluded the employment agreement set forth a

definite term of 90 days. To understand why, we must look at the “Termination

Without Cause” provision of the agreement.

There, the employment agreement limits HNL’s power to discharge Dr.

Al-Saleem without cause by requiring HNL to provide 90 days’ prior written

notice of the discharge to Dr. Al-Saleem. See Employment Agreement,

5/15/19, at ¶ 8(D). The paragraph details that HNL is obligated to pay Dr. Al-

Saleem her salary and benefits for the 90 days so long as the termination was

without cause. See id. Under these circumstances, we agree with the trial

court’s conclusion that the employment agreement creates a “rolling” definite

term of 90 days for Dr. Al-Saleem’s employment. As such, we conclude Dr.

Al-Saleem is due no relief on her challenge to the trial court’s grant of

summary judgment to HNL on her common law wrongful discharge claim.

dispute as to the terms of the agreement and the Reproduced Record contains a full copy. However, we caution counsel that we are not required to ignore this misstep under these circumstances.

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Even if she were an at-will employee, Dr. Saleem would be due no relief,

as she has failed to identify an established mandate of public policy that HNL

violated by terminating her employment. There is generally “no common law

cause of action against an employer for termination of an at-will employment

relationship.” McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d

283, 287 (Pa. Super. 2000) (citation omitted). However, there is an exception

“only in the most limited circumstances, where the termination implicates a

clear mandate of public policy.” Weaver v. Harpster, 975 A.2d 555, 563 (Pa.

2009); see also Deal, 223 A.3d at 712. Wrongful discharge claims have only

been allowed where the discharge infringes on statutory or constitutional

rights. See Weaver, 975 A.2d at 563.

Dr. Al-Saleem maintains that she was an at-will employee and

sufficiently stated a claim for wrongful termination. However, even as an at-

will employee, Dr. Al-Saleem would have to establish her termination

implicates a mandate of public policy in order to bring a wrongful termination

claim. See Weaver, 975 A.2d at 563. Dr. Al-Saleem does not identify an

applicable public policy consideration that would allow her to advance a

wrongful termination cause of action. Because Dr. Al-Saleem did not allege or

prove her discharge by HNL falls within the limited public policy exception to

the employer’s right to discharge an at-will employee for any or no reason,

Dr. Al-Saleem could not maintain a cause of action for wrongful termination.

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Therefore, the trial court did not err in granting summary judgment in favor

of HNL on this issue.

Next, Dr. Al-Saleem claims that the trial court incorrectly concluded HNL

did not breach the employment agreement.5 See Appellant’s Brief at 32-37.

“To successfully maintain a cause of action for breach of contract the plaintiff

must establish: (1) the existence of a contract, including its essential terms,

(2) a breach of a duty imposed by the contract, and (3) resultant damages.”

Hart v. Arnold, 884 A.2d 316, 332 (Pa. Super. 2005).

The parties do not dispute that the employment agreement constitutes

a contract. Rather, the parties disagree about certain provisions in the

agreement. Dr. Al-Saleem first asserts that the employment agreement

requires HNL to permit Dr. Al-Saleem to continue working during the 90-day

period following notice of termination. HNL terminated Dr. Al-Saleem’s

employment under the “without cause” provision of the agreement, which

provides as follows:

D. Termination Without Cause: HNL may terminate this Agreement without cause at any time upon ninety (90) days written notice to Physician. In the event that HNL terminates this Agreement without cause pursuant to this provision, Physician shall be entitled to three (3) months of salary continuation (i.e., severance) following the end of the notice period. In the event that Physician obtains subsequent employment before or during ____________________________________________

5 Despite raising her breach of contract claims as three distinct issues in her statement of questions involved, Dr. Al-Saleem combines her discussion of all three issues in her argument. See Pa.R.A.P. 2119(a) (providing that the argument section of an appellant’s brief “shall be divided into as many parts as there are questions to be argued”).

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the salary continuation period, HNL’s salary continuation obligation shall be offset by any compensation received by Physician from the subsequent employment. Physician shall have a duty to use reasonable efforts to mitigate Physician’s damages in this regard.

Physician may terminate this Agreement at any time upon (90) days written notice to HNL. At the time of notification, HNL reserves the right to release the Physician from this agreement at any time thereafter. If the Physician is requested to leave early and without cause, Physician shall be entitled to salary and benefits continuance for the duration of the ninety (90) day notification period.

Employment Agreement, 5/15/19 at ¶ 8(D).

The trial court concluded Dr. Al-Saleem failed to establish a prima facie

claim of breach of contract. See Trial Court Opinion, 2/17/22, at 3. Here, the

employment agreement explicitly required HNL to provide Dr. Al-Saleem with

90 days’ notice of termination, after which time she would remain entitled to

an additional 3 months’ severance pay. However, the terms of the agreement

did not require HNL to allow Dr. Al-Saleem to continue working in its facilities

after making the decision to terminate her employment. In fact, the last

sentence of ¶ 8(D) explicitly allows for HNL to end Dr. Al-Saleem’s

employment before the end of the 90-day notice period so long as it continues

to pay her salary and benefits. Dr. Al-Saleem continued to receive her salary

through both the notice and severance periods in accordance with the terms

of the agreement. Under these circumstances, Dr. Al-Saleem failed to

establish that HNL breached the employment agreement by ending her

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employment prior to the end of the 90-day notice period. Accordingly, the trial

court properly granted summary judgment in favor of HNL on this basis.

Dr. Al-Saleem also argues that HNL breached the employment

agreement by requiring her to perform tests despite her lack of qualifications

to do so. See Appellant’s Brief at 34. However, Dr. Al-Saleem’s argument on

this matter contains no more than bald allegations. She completely fails to

argue that either her performance or refusal to perform these tests led to her

termination without cause. This claim is therefore waived. See Bombar v.

West Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007) (“This Court will not

act as counsel and will not develop arguments on behalf of an appellant.”).

Based upon the foregoing, we affirm the trial court’s order granting

HNL’s preliminary objections in part and dismissing Dr. Al-Saleem’s

Whistleblower Law claim, and the order entering summary judgment in favor

of HNL as to Dr. Al-Saleem’s remaining claims.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/3/2023

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