Palmiter, P. v. Commonwealth Health Systems

2021 Pa. Super. 159, 260 A.3d 967

• Court: Superior Court of Pennsylvania
• Decided: August 10, 2021
• Docket: 498 MDA 2020
• Status: Published

Opinion

J-A07009-21

2021 PA Super 159

PAMELA PALMITER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : COMMONWEALTH HEALTH SYSTEMS, : INC. D/B/A COMMONWEALTH : HEALTH and PHYSICIANS HEALTH : No. 498 MDA 2020 ALLIANCE D/B/A COMMONWEALTH : HEALTH and MOSES TAYLOR : HOSPITAL D/B/A COMMONWEALTH : HEALTH :

Appellants

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 BY BOWES, J.: FILED: AUGUST 10, 2021

Commonwealth Health Systems, Inc. d/b/a Commonwealth Health and

Physicians Health Alliance d/b/a Commonwealth Health and Moses Taylor

Hospital d/b/a Commonwealth Health (collectively “Hospital”)1 appeal from

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The petition for permission to appeal was filed by “Scranton Quincy Clinic Company, LLC d/b/a Physicians Health Alliance and Scranton Quincy Hospital Company, LLC d/b/a Moses Taylor Hospital.” According to preliminary objections filed by the Commonwealth Health defendants below, and noted by the trial court in its opinion, the Scranton Quincy entities are successors to (Footnote Continued Next Page) J-A07009-21

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. §§ 10231.101-10231.2110.2 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. ____________________________________________

the Commonwealth Health entities. However, the record contains no indication that there was a formal substitution of parties or amendment of caption below. Under the circumstances, the caption in this Court should mirror the caption in the trial court, and we have amended the caption herein to achieve that consistency.

2 Jurisdiction of the within interlocutory appeal was conferred by permission

pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311.

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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.3

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

3 Ms. Palmiter did not file a cross-appeal from the order dismissing Counts II,

III, and V of her third amended complaint.

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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).

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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)).4

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

4 A “private right of action” pertains to “[a]n individual’s right to sue in a personal capacity to enforce a legal claim.” MERSCORP, Inc. v. Del. Cty., 207 A.3d 855, 884 (Pa. 2019) (Dissent by Donohue, J.) (quoting Black’s Law Dictionary 1520 (10th ed. 2014).

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(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.5 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

5 Specifically, the Hospital does not contest that, as a certified medical marijuana user, Ms. Palmiter is a member of the class for whose special benefit the MMA was enacted, or that implying a private right of action is consistent with the stated purposes of the MMA and effectuates the legislative intent evident in § 2103(b)(1) by preventing employers from terminating lawful medical marijuana users.

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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

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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, for the proposition that such a vacuum was indicative of legislative intent

not to provide a private right of action or a remedy). The Hospital also

attempts to distinguish cases from other jurisdictions cited by Ms. Palmiter in

support of her claim that the MMA provides an implied private right of action.

Finally, the Hospital reminds us that “the violation of a statute and the fact

that some person suffered harm does not automatically give rise to a private

cause of action in favor of the injured person.” Witthoeft, supra at 627.

Ms. Palmiter largely adopts the thorough and well-reasoned conclusions

of the Honorable Terrence R. Nealon, who found that while the statute

authorized the Department of Health to regulate persons and entities who

opted to participate in Pennsylvania’s “Medical Marijuana Program,” the

absence of an agency enforcement provision in § 2103(b)(1) suggested that

the legislature did not intend to bar a private right of action under that section.

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The trial court reasoned further that the provision would be “rendered

meaningless if an aggrieved employee could not pursue a private cause of

action and seek to recover compensatory damages from an employer that

violates Section 2103(b)(1).” Trial Court Opinion, 11/22/19, at 2. The court

concluded that “[r]ecognition of an implied right of action under Section

2103(b)(1) is consistent with the MMA’s stated purpose of providing safe and

effective access to medical marijuana for eligible patients, while

simultaneously protecting them from adverse employment treatment in

furtherance of the legislative intent in Section 2103(b)(1).” Id. at 2-3.

In addition, Ms. Palmiter points out that courts in other jurisdictions

have found implied private rights of action for employees who are

discriminated against by their employers under their states’ respective

medical marijuana statutes. Notably, after the trial court decision herein, the

federal district court for the Eastern District of Pennsylvania applied the three-

part test derived from Cort, supra, and concluded in Hudnell v. Thomas

Jefferson University Hosps., Inc., C.A. No. 20-01621, 2020 U.S. Dist.

LEXIS 176198 (E.D. Pa. September 25, 2020), that Pennsylvania would find

an implied private cause of action under its MMA.

The issue presented herein is one of first impression for the appellate

courts of this Commonwealth. To determine whether an explicit or implied

private right of action exists under a particular statute, we must examine the

language of the statute and analyze the legislative intent in enacting the

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statute. See Alfred M. Lutheran Distributors, Inc. v. A.P. Wilersbacher,

Inc., et al., 650 A.2d 83, 86 (Pa.Super. 1994). Absent an explicit statutory

right to a private cause of action, we look to the intent of the General Assembly

to determine whether there is an implied right of action. In determining the

intent of the legislature, we must read the statutory language in context, and

“every portion of statutory language is to be read ‘together and in conjunction’

with the remaining statutory language, ‘and construed with reference to the

entire statute’ as a whole.” Com. v. Office of Open Records, 103 A.3d

1276, 1285 (Pa. 2014) (quoting Board of Revision of Taxes, City of

Philadelphia v. City of Philadelphia, 4 A.3d 610, 622 (Pa. 2010)). As the

Supreme Court in Gass v. 52nd Judicial Dist., 232 A.3d 706, n.6 (Pa. 2020)

characterized the MMA as remedial in nature, it should be accorded a liberal

construction. See 1 Pa.C.S. § 1928(c).

Although the General Assembly did not expressly create a private right

of action on behalf of an employee whose employer discriminates against her

for medical marijuana use, it proclaimed a public policy prohibiting such

discrimination. See 35 P.S. § 10231.2103. Moreover, we have recognized

implied rights of action where the three-part Cort test is satisfied. See

Schappell v. Motorists Mut. Ins. Co., 934 A.2d 1184 (Pa. 2007) (finding

health providers had an implied cause of action for nonpayment of interest

under the Motor Vehicle Financial Responsibility Law (“MVFRL”) as they were

the group for which the statutory interest benefit was intended, the section

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contemplated that a remedy for nonpayment of specified interest would be

available, and a private cause of action was consistent with the underlying

purposes of the MVFRL).

Moreover, our view of the MMA does not support the Hospital’s claim

that the statute confers exclusive jurisdiction over the enforcement of § 2103

to the Department of Health. Compare Cty. of Butler v. CenturyLink

Communs., LLC, 207 A.3d 838 (Pa. 2019) (finding no private right of action

to enforce statute where legislature “provided sufficient indicia evincing its

intention to centralize enforcement authority in the relevant state

agency”). As the trial court aptly noted, “Section 2103 of the MMA does not

grant the Department [of Health] or any other agency the administrative

authority to enforce the antidiscrimination mandate in 35 P.S. §

10231.2103(b)(1).” Trial Court Opinion, 11/22/19, at 23. We would also

point out that § 2103(b) authorizes employers, not the Department of Health,

“to discipline an employee for being under the influence of medical marijuana

in the workplace or for working while under the influence of medical marijuana

when the employee’s conduct falls below the standard of care normally

accepted for that position.” 35 P.S. § 10231.2103(b)(2).

Admittedly, the MMA charges the Department of Health with the

implementation and administration of the MMA program by issuing permits to

medical marijuana organizations and registering practitioners, as well as

“regulatory and enforcement authority over the growing, processing, sale and

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use of medical marijuana in this Commonwealth.” 35 P.S. § 10231.301(a)(3).

It also 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). However, as the trial court noted, the Department of

Health’s regulations at 28 Pa. Code § 1141.47(a)(1)-(6) only address the

agency’s power to regulate medical marijuana organizations. See Trial Court

Opinion, 11/22/19, at 24-25 (summarizing the regulations as empowering the

Department to suspend or revoke a medical marijuana organization’s permit,

to order operations to cease and desist, or to “[o]rder the restitution of funds

or property unlawfully obtained or retained by such an organization, issue

warnings, and develop plans of correction”). The court added that “not a

single regulation purports to bar employers from discharging employees based

on their status as certified medical marijuana user.” Id. at 25. See Solomon

v. United States Healthcare Sys. of Pa., 797 A.2d 346, 353 (Pa.Super.

2002) (finding no private cause of action under the Health Care Act where the

regulations provided an administrative procedure for health care providers to

file a complaint with the Insurance Department). See also Hudnell, supra

at *13 (holding that when read in context, the power and authority conferred

upon the Department of Health under § 1308(b) “more reasonably applies

only to parties who are participating in the Medical Marijuana Program

established by the Act (i.e., operators of a medical marijuana organization)).

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Our finding that the Department of Health does not have exclusive

enforcement authority is further buttressed by the following facts. Prices are

to be monitored by both the Department of Health and the Department of

Revenue. See 35 P.S. § 10231.705. Law enforcement is to be notified of

any suspected criminal violation of the Act, clearly undermining any notion

that all enforcement authority rests in the Department of Health. See 35 P.S.

§§ 10231.1301-10231.1307. The Department of Education is directed to

promulgate regulations governing the possession and use of medical

marijuana by students and school employees on school grounds. See 35 P.S.

§ 10231.2104. The Department of Human Services is similarly charged with

promulgating regulations governing children and employees in day-care

centers and youth development centers. See 35 P.S. § 10231.2105. The

State Ethics Commission is to determine the eligibility of certain public officials

and their family members to own a financial interest in or be employed by a

medical marijuana organization. See 35 P.S. § 10231.2101.1(d). In light of

the foregoing, we reject the Hospital’s contention that the Department of

Health is the exclusive enforcer of the provisions of the MMA and that §

1308(b) was intended to limit the remedies available to employee patients or

employers under § 2103.

Nor do we believe the MMA is focused solely on the provider rather than

the patient. The General Assembly’s declared policy in enacting the legislation

was to “mitigate suffering in some patients and enhance quality of life” by

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providing a program whereby patients could access medical marijuana safely.

35 P.S. § 10231.102. To that end, several chapters of the MMA are dedicated

to the regulation of medical marijuana organizations and their operations.

However, 35 P.S. § 10231.2103(a), titled “protections for patients and

caregivers,” provides generally that patients, caregivers, practitioners, and

other enumerated persons shall not be “subject to arrest, prosecution, or

penalty in any manner, or denied any right or privilege, including civil penalty

or disciplinary action by a Commonwealth licensing board or commission,

solely for lawful use of medical marijuana.” Id. See also Gass, supra at

708 (characterizing § 10231.2103(a) as an immunity provision protecting

patients from government sanctions). Subsection (b)(1) specifically prohibits

any employer from discharging, threatening, or refusing to hire or

discriminating or retaliating against an employee “solely on the basis of such

employee’s status as an individual who is certified to use medical marijuana.”

Id. at § 2103(b)(1). We find the foregoing to be the type of rights-creating

language that focuses on the individuals protected.

Furthermore, we find additional indications that the legislature intended

to create a private remedy for violations of § 2103, which focuses on

protecting employee-patients certified to use medical marijuana, such as Ms.

Palmiter, from employers who would penalize them for availing themselves of

the benefits conferred by the statute. That same section of the statute also

explicitly sets forth the rights of employers, i.e., that an employer is not

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required to provide an accommodation for certified users and may discipline

employees who are under the influence of medical marijuana in the workplace.

See § 2103(b)(2). Thus, in the employment context, § 2103(b) of the MMA

not only delineates the rights afforded employees who are certified users, but

also sets forth the rights of employers to discipline employees who are in

violation of the terms of certified use. As the trial court correctly noted,

“neither the MMA nor the regulations promulgated by the Department [of

Health] provide an independent enforcement mechanism against employers

who violate Section 2103(b)(1).” Trial Court Opinion, 11/22/19, at 32.

Nor is the absence of a specific remedy or time frame for action

conclusive of a lack of legislative intent to create a private right of action.

Even where the statute expressly creates a private right of action, the

legislature does not always state the specific remedy or the time in which to

pursue it. See, e.g., Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396

(Pa.Super. 2012) (acknowledging express private cause of action for violation

of the Unfair Trade Practice and Consumer Protection Law (“UTPCPL”), but

recognizing that the remedies therein were not exclusive, and in the absence

of a statute of limitations provision, applying the six-year catch-all provision).

The trial court comprehensively surveyed the medical marijuana laws in

other jurisdictions, with special attention paid to statutes providing that

employers could not discriminate against employees who were certified users

of medical marijuana, but which were silent as to a private remedy. See e.g.,

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Bulerin v. City of Bridgeport, 2019 Conn. Super. LEXIS 517 *, 2019 WL

1766067 (Conn. Super. 2019); Callaghan v. Darlington Fabrics Corp.,

2017 R.I. Super. LEXIS 88 *, 2017 WL 2321181, at *2 (R.I. Super. 2017);

Noffsinger v. SSC Niantic Operating Co., 273 F.Supp. 3d 326 (D. Conn.

2017); Chance v. Kraft Heinz Foods Company, 2018 Del. Super. LEXIS

1773 *, 2018 WL 6655670, at *3 (Del. Super. 2018); Whitmire v. Wal-Mart

Stores, Inc., 359 F.Supp.3d 761 (D. Ariz. 2019) (finding an implied right of

action where statute contained a civil penalties provision). See also Hudnell,

supra at *15 (predicting that the Pennsylvania Supreme Court would likely

find the General Assembly intended to create an implied private cause of

action for a violation of § 2103(b) of the MMA).

Where, as here, the statute is not explicit, we may ascertain the intent

of the General Assembly by looking at the mischief to be remedied, the object

to be obtained, and the consequences of a particular interpretation. See 1

Pa.C.S.§ 1921(c) (The Statutory Construction Act). “[T]he General Assembly

does not intend a result that is absurd, impossible of execution or

unreasonable.” Id. at § 1922(1). Finally, “[t]he provision in any statute for

a penalty or forfeiture for its violation shall not be construed to deprive an

injured person of the right to recover from the offender damages sustained

by reason of the violation of such statute.” Id. at § 1929. In applying the

foregoing principles of statutory construction, and in the absence of specific

evidence of legislative intent, we find that the demurrer was properly

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overruled to Ms. Palmiter’s private action under the MMA for termination by

the Hospital due solely to her status as a certified user of medical marijuana.

With regard to the Hospital’s claim that the trial court erred in overruling

its demurrer to Ms. Palmiter’s wrongful discharge claim, the following

principles inform our review.6 Pennsylvania is an at-will employment state.

Greco v. Myers Coach Lines, Inc., 199 A.3d 426, 435 (Pa.Super. 2018).

Generally, a common law cause of action will not lie against an employer for

termination of such a relationship. See McLaughlin v. Gastrointestinal

Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000). It is only in limited

circumstances, such as where “termination implicates a clear mandate of

public policy,” that an at-will employee can pursue a cause of action. Gross

v. Nova Chems. Servs., 161 A.3d 257, 262 (Pa.Super. 2017) (citation

omitted). See e.g., Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998)

(holding that termination of an at-will employee for filing a workers’

compensation claim violates public policy of the Workers’ Compensation Act)

and Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511, 517(Pa. 2005)

(holding that termination of a supervisory employee for refusing to terminate

subordinate employee who filed worker’s compensation claim violates public

6 The Hospital identifies two questions on appeal, but contrary to our appellate

rules, divides the argument portion of its brief into six sections that do not align with those questions. See Pa.R.A.P. 2119(a) (providing “[t]he argument shall be divided into as any parts as there are questions to be argued”).

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policy). Public policy can be found in our judicial precedent, our Constitution,

and the legislature’s statutes. McLaughlin, supra at 288.

The trial court relied upon Roman v. McGuire Memorial, 127 A.3d 26

(Pa.Super. 2015), and we find that decision instructive herein. Roman, a

health care worker, was allegedly discharged in retaliation for refusing to

accept overtime work. She commenced an action against her former

employer for wrongful discharge, alleging that her termination “offend[ed] the

public policy of the Commonwealth of Pennsylvania as embodied in The

Prohibition of Excessive Overtime in Health Care Act (“Act 102”), 43 P.S.

§§ 932.1-932.6.” Id. at 27. The implicated section of Act 102 provided that

a health care facility could not require an employee “to work in excess of an

agreed to, predetermined and regularly scheduled daily work shift” and that

an employee’s refusal to accept work in excess of the limitations shall not be

grounds for discrimination, dismissal, discharge or any other employment

decision adverse to the employee.” 43 P.S. § 932.3(a)(1), (b). We held that

such language established a public policy precluding a health care facility from

requiring an employee to work in excess of a daily work shift. Although

Section 6 of the statute authorized the Department of Labor and Industry to

impose “an administrative fine on a health care facility or employer that

violates this act” and to “order a health care facility to take an action which

the department deems necessary to correct a violation,” we rejected the

employer’s claim that employee’s sole remedy was administrative as it was

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limited to fines and corrective action orders against the employer and did not

provide for backpay or reinstatement.

The Hospital argues that Roman is inapposite as the Department of

Health’s enforcement authority under the MMA is not as limited as the

remedies in Act 102. Furthermore, it argues that since the MMA provides for

remedies to be enforced exclusively by the Department of Health, no wrongful

discharge claim can be maintained. It cites Macken v. Lord Corp., 585 A.2d

1106, 1108 (Pa.Super. 1991), for the proposition that it is only in the absence

of a statutory remedy and when a well-recognized public policy is at stake,

that such a cause of action will be permitted. See Appellant’s brief at 34.

We have already determined supra that the MMA does not provide

statutory remedies for aggrieved employees through its administrative

enforcement provisions. Further, § 2103(b)(1) evidences a clear public policy

against termination of employment and other types of discrimination based

on certified marijuana use off the employment premises. Thus, Macken does

not preclude a private cause of action herein.

Finally, the Hospital cites Hershberger v. Jersey Shore Steel Co.,

575 A.2d 944 (Pa.Super. 1990), in support of its claim that “[t]he

Pennsylvania Supreme Court has never recognized a claim for wrongful

termination in violation of public policy based on the results of a drug test.”

Appellant’s brief at 38. In that case, the employee was terminated based on

an inaccurate drug test. Hershberger is inapposite. The enactment of the

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MMA in 2016 reflects a public policy designed to protect certified users of

medical marijuana from employment discrimination and termination. As the

Supreme Court of Pennsylvania recognized in Gass, supra at 711 (quoting

State v. Nelson, 195 P.3d 826, 833 (Mont. 2008)), “[w]hen a qualifying

patient uses medical marijuana in accordance with the MMA, he is receiving

lawful medical treatment. In this context, medical marijuana is most properly

viewed as a prescription drug.”

For the foregoing reasons, we see no impediment to Ms. Palmiter

maintaining a private action under the MMA or a wrongful discharge action on

the facts pled and the applicable law. Thus, we affirm.

Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/10/2021

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