Cromyak v. Conewago Pottsviflle et al

Filing 10

MEMORANDUM (Order to follow as separate docket entry) re 5 MOTION TO DISMISS Signed by Honorable James M. Munley on 10/25/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JON ANN CROMYAK,

:
No. 3:17cv1076
Plaintiff
:
:
(Judge Munley)
v.
:
:
CONEWAGO POTTSVILLE, and
:
FIRETREE, LTD, and CHARLES
:
FRITZ,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is a motion to dismiss filed by Defendant Conewago
Pottsville, Defendant Firetree, LTD, and Defendant Charles Fritz. Defendants’
motion has been fully briefed and is ripe for disposition.
Background
Plaintiff filed the instant complaint on June 20, 2017. (Doc. 1, Compl.).
Plaintiff avers in her complaint that on December 23, 2013, she began working
for Defendant Conewago Pottsville as a program monitor. (Id. ¶ 6). Plaintiff had
various job responsibilities including taking care of clients, teaching life skills,
transporting clients, providing medications and treatment, surveillance of clients,
providing security measures, and escorting clients to meetings. (Id. ¶ 8).
Throughout her employment, plaintiff maintained a discipline-free record at

Conewago Pottsville and was never written up for misconduct of any sort. (Id. ¶
17).
Plaintiff alleges that at some point during her employment, she began
observing a fellow employee by the name of Nick Nastasee “taking numerous
long breaks, not doing his job, taking numerous smoke breaks, and sleeping
while on the job.” (Id. ¶ 8). Plaintiff brought Nastasee’s behavior as well as
complaints of alleged harassment by Nastasee to the attention of her supervisor,
Shanda Potter. (Id. ¶ 9). When no action was taken against Nastasee by Potter,
plaintiff began trying to contact Defendant Charles Fritz, the Facility Director. (Id.
¶ 12). After numerous attempts, plaintiff finally spoke to Defendant Fritz on June
18, 2015 about Nastasee’s behavior. (Id.) Defendant Fritz stated to the plaintiff
that “he did not want to hear about it and he did not need people tattling on other
employees.” (Id. ¶ 13). Again, no action was taken against Nastasee. (Id.)
The following day, on June 19, 2015, plaintiff received a text message that
she was terminated from her employment with Conewago Pottsville and Firetree.
(Id. ¶ 14). Plaintiff retained new employment in August of 2015 with the
Department of Homeland Security, but was terminated after her security and
background check was processed. (Id. ¶ 16). She alleges that Defendant
Conewago Pottsville falsely informed the Department of Homeland Security that
Plaintiff was terminated from her employment with Conewago Pottsville due to
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“allegations of misconduct in employment, general behavior and conduct
violations, and unprofessional behaviors.” (Id.)
Based upon these facts, plaintiff filed the instant complaint. The causes of
action she asserts are: Count I -- violation of the Pennsylvania Whistleblower
Law, 43 P.S. § 142 and violation of the Whistleblower Protection Act of 1989, 5
U.S.C.S. § 2302(b)(8); Count II -- wrongful discharge; and Count III -- breach of
employment contract. Under the title “Count IV,” plaintiff alleges a respondeat
superior claim.
Defendants have filed a motion to dismiss the complaint pursuant to FED.
R. CIV. P. 12(B)(6) for failure to state a legally valid claim. (Doc. 5). Plaintiff filed a
brief in opposition to this motion (Doc. 8) in which she withdraws all of the
abovementioned claims with the exception of wrongful discharge, bringing this
case to its present posture.
Jurisdiction
Count I of plaintiff's complaint asserts a cause of action for a violation of the
Whistleblower Protection Act of 1989, 5 U.S.C.S. § 2302(b)(8). Because this
cause of action falls under the United States Constitution, plaintiff invokes this
court's federal question jurisdiction. See 28 U.S.C. § 1331. Federal question
jurisdiction provides that “the district courts shall have original jurisdiction of all

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civil actions arising under the Constitution, laws, or treaties of the United States.”
Id.
Because we have original jurisdiction over plaintiff’s Whistleblower
Protection Act of 1989 claim, we have supplemental jurisdiction over plaintiff’s
state law claims. The law provides that, “in any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
Legal Standard
This case is before the court pursuant to defendants’ motion to dismiss for
failure to state a claim upon which relief can be granted filed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. When a 12(b)(6) motion is filed,
the sufficiency of the allegations in the complaint is tested. Granting the motion is
appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff
has not pleaded “enough facts to state a claim to relief that is plausible on its
face,” or put another way, “nudged [his or her] claims across the line from
conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The Third Circuit interprets Twombly to require the plaintiff to describe
“enough facts to raise a reasonable expectation that discovery will reveal
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evidence of” each necessary element of the claims alleged in the complaint.
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that “justify
moving the case beyond the pleadings to the next stage of litigation.” Id. at 23435.
Discussion
Defendants move to dismiss plaintiff’s complaint for failure to state a legally
valid claim. In response, plaintiff withdraws Count I, violation of the Pennsylvania
Whistleblower Law, 43 P.S. § 142 and violation of the Whistleblower Protection
Act of 1989, 5 U.S.C.S. § 2302(b)(8); Count II, breach of contract; and all claims
against Defendant Charles Fritz, which we interpret as plaintiff’s Count IV. (Doc.
8 at 7). The sole remaining claim is a wrongful discharge claim against
Defendant Conewago Pottsville and Defendant Firetree.
Prior to plaintiff’s withdrawal, plaintiff’s complaint stated a single federal-law
claim and a number of state-law claims. Plaintiff was able to establish federal
question jurisdiction under Count I, the Whistleblower Protection Act of 1989, 5
U.S.C.S. § 2302(b)(8). Because this is a civil action in which we had original
jurisdiction, the state law claims fell within our jurisdiction because they derived
from the same nucleus of operative facts as the federal-law claim: Conewago

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Pottsville’s dismissal of plaintiff. Dismissal of the Whistleblower Protection Act of
1989 claim removes the basis of our original jurisdiction.
Federal courts are courts of limited jurisdiction, and thus have a continuing
duty to satisfy themselves of jurisdiction before addressing the merits of a case.
Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993). In fact, it is
to be presumed that a cause lies outside this limited jurisdiction and the burden
of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Moreover, federal
courts have the obligation to address the question of subject matter jurisdiction
sua sponte. Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d
Cir. 2010) (citation omitted); Shaffer v. GTE North, Inc., 284 F.3d 500, 502 (3d
Cir. 2002).
The sole remaining claim in plaintiff’s complaint, the wrongful discharge
claim, is based on Pennsylvania state law. The supplemental jurisdiction statute
enumerates situations in which district courts can refuse to exercise
supplemental jurisdiction. Specifically, this court may decline to exercise
supplemental jurisdiction over state law claims if: (1) the claim raises a novel or
complex issue of state law; (2) the claim substantially predominates over the
claim or claims over which the district court has original jurisdiction; (3) the
district court has dismissed all claims over which it has original jurisdiction; or (4)
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in exceptional circumstances, there are other compelling reasons for declining
jurisdiction. 28 U.S.C. § 1367(c)(3). Here, plaintiff herself has withdrawn the one
claim over which the court had original jurisdiction. Thus, we choose not to
exercise supplemental jurisdiction over the wrongful discharge claim.
In making this determination, we consider the procedural posture of this
case. The law provides that where litigation is in its early stages and the
complaint asserts federal question jurisdiction, the district court has “a powerful
reason to choose not to continue to exercise jurisdiction.” Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 351 (1988). Here, plaintiff filed her complaint on June 20,
2017. (Doc. 1). Defendant’s first pleading in this case was the instant motion to
dismiss which was filed September 1, 2017. (Doc. 5). The parties have not yet
conferred with the court on a discovery plan, nor is there one scheduled in light of
the pending motion. Because litigation in this case is clearly in its early stages,
we find that it is appropriate to decline to exercise jurisdiction. Plaintiff is free to
file this claim in the appropriate state court if she so chooses.

Conclusion
Counts I, II and IV are withdrawn and we will dismiss Count III without
prejudice to plaintiff seeking relief in an appropriate state court. An appropriate
order follows.
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Date: October 25, 2017

s/ James M. Munley______
JUDGE JAMES M. MUNLEY
United States District Court

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