Bailer v. Shipley Energy Co., 2025 Pa. Super. LEXIS 227 (May 21, 2025) Lazarus, P.J.
Bailer filed a complaint alleging a violation of the Pennsylvania Whistleblower Law and wrongful termination pursuant to Pennsylvania common law. Following the close of discovery, Appellees filed a motion for summary judgment, seeking rulings, inter alia, that, under the Whistleblower Law, Shipley was not a “public body” and that the alleged overcharging of FCPS was not an instance of “wrongdoing” or “waste” as defined by the Whistleblower Law. Appellees also sought summary judgment on the wrongful termination claim, asserting that Bailer had identified no concrete statute, regulation, constitutional provision, or judicial decision that would provide grounds to find a public policy exception to the termination of his at-will employment. Bailer cross-moved for summary judgment, alleging that there was undisputed evidence that Shipley qualified as an “employer” and “public body” and that its conduct constituted “waste” and
“wrongdoing” under the Whistleblower Law.
After a hearing, the Honorable Joseph Gothie granted, in part, and denied, in part, the cross-motions for summary judgment, holding that Appellees did not constitute a “public body” and that the conduct alleged by Bailer did not constitute “waste.” However, Judge Gothie denied Appellees’ motion for summary judgment on Bailer’s wrongful termination claim.
Bailer filed a motion to certify the order for interlocutory appeal, which was later withdrawn.
The Whistleblower Law prohibits the discharge of an employee who “makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority [,] an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in the act.” A “public body” is defined, in relevant part, as “any other body which . . . is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.”
This Court has previously held that a private medical institution that “received specific appropriations from the General Assembly of this Commonwealth” was a public body, stating that “[a] more direct and patent form of funding is difficult to imagine.” Riggio v. Burns,711 A.2d 497, 500 (Pa. Super. 1998). Further, a recipient of Medicaid funding qualified as a public body because “[t]he Law clearly indicates that it is[also]intended to be applied to bodies that receive public money that passes through the Commonwealth.” Denton v. Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571, 576 (Pa. Super. 1999).
Our review of the record supports the court’s analysis. Shipley’s transactions with government bodies for the purchase of fuel and related energy services were not a
“direct and patent form of funding” from the Commonwealth, but, rather, constituted payment by customers for services rendered in the normal course of business. See Riggio, 711 A.2d at 500. Defining any business transactions with government bodies for services rendered as “funding” would sweep too broadly to make any government contractor or vendor into a public body. See Pugh v. Valmont Indus., Inc., 2023 WL 7634758, at *4 (W.D.Pa. 2023) (rejecting argument that galvanizing facility’s service contracts rendered it public body because“[i]f the court were to find that a private entity may be considered a public body solely because it received either direct or indirect funds from a state entity in payment for services, it would contravene the statutory definition and also mandate nonsensical results”).
We find that Judge Menges properly deferred to the legal conclusions made by Judge Gothie—that Bailer had not proven the existence of a “public body” or “waste”—because there had been no change in the controlling law, facts, or evidence, and the prior holding was not “clearly erroneous.” As Judge Menges states, “we relied upon the previous determination of Judge Gothie and simply made the next logical conclusion, that evidence of [Shipley] being a public body and committing waste would not be introduced at trial [and, therefore,] there was no road to recovery for Bailer and accordingly, a trial would be a futile effort.” In dismissing the case, the trial court simply made the next, correct legal conclusion that Bailer could not establish a claim under the Whistleblower Law without the statutorily requisite “public body” or “waste.” See 43 P.S. § 1423(a).
“To state a public policy exception to the at-will-employment doctrine, the employee must point to a clear public policy articulated in the constitution, legislation, an administrative regulation, or a judicial decision.” Hunger v. Grand Central Sanitation, 670 A.2d 173, 175 (Pa. Super. 1996), citing Jacques v. Akzo Int’l Salt, Inc., 619 A.2d 748 (Pa. Super. 1993) (abrogated on other grounds). Bailer’s own argument to the trial court was that the common law wrongful termination claim depended on a finding of a violation of the Whistleblower Law. (“Therefore, if Plaintiff can establish a claim under the Whistleblower Act, then that alone establishes a public policy exception to the at-will employment doctrine[.]”). Based on our review of the record, Bailer has developed no other ground to support such a public policy exception. Therefore, Judge Menges did not err in also dismissing the wrongful termination claim after determining that Bailer could not establish a claim under the Whistleblower Law, given that Bailer did not provide any additional facts or evidence for the court’s consideration. See Hunger, 670 A.2d at 175; see also Starr, 664 A.2d at 1332. Bailer’s final two issues, thus, fail to merit relief and we affirm the trial court’s order dismissing his complaint. Order affirmed.
