NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-3104 _____________

KATHERINE A. LOMASKIN, Appellant

v.

SIEMENS MEDICAL SOLUTIONS USA, INC. doing business as Siemens-Healthineers ________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2:18-cv-04257) District Judge: Honorable Eduardo C. Robreno ________________

Submitted Under Third Circuit L.A.R. 34.1(a) June 15, 2020 ________________

Before: CHAGARES, PORTER, and FISHER, Circuit Judges

(Opinion filed: July 17, 2020) ____________

OPINION* ____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Circuit Judge.

Katherine A. Lomaskin brought whistleblower and wrongful termination claims

under Pennsylvania law against her former employer Siemens Medical Solutions USA,

Inc. (“Siemens”), alleging that Siemens engaged in an improper pay-to-play scheme with

Pennsylvania State University (“Penn State”) and that Siemens fired her for reporting the

scheme. The District Court granted Siemens’ motion to dismiss, holding that Lomaskin

failed to plead facts to establish that either Siemens or Penn State engaged in waste or

wrongdoing — necessary elements for a whistleblower claim — and that Lomaskin did

not allege that Siemens required her to do anything illegal — a necessary element for a

wrongful termination claim. For the following reasons, we will affirm.

I.

We write solely for the parties and so recite only the facts necessary to our

disposition. Lomaskin is a former senior-level Siemens employee who alleges that

Siemens and Penn State engaged in a scheme in which Siemens would contribute

donations and research funding to Penn State in return for Penn State awarding Siemens

certain non-competitive, fixed-price contracts. Siemens company policy bars making

gifts that could be understood as an attempt to influence a government official or offering

anything of value in order to gain an unfair advantage, and Siemens charges its

employees with ensuring that it and its counterparties abide by this policy. Lomaskin

claims that she dutifully reported the alleged scheme to her superiors, but that her

concerns were not addressed, and that, instead, she was sidelined on projects and

eventually taken off the Penn State account altogether. Lomaskin reported this situation

2 to human resources, but instead of addressing her complaints, Siemens terminated her.

Lomaskin then filed this action, claiming that Siemens violated Pennsylvania’s

whistleblower law and wrongfully terminated her. Regarding her whistleblower claim,

she alleged that both Siemens and Penn State had committed waste by trading donations

for non-competitive, fixed-price contracts, and that both Siemens and Penn State had

committed wrongdoing because the alleged scheme violated Siemens’ internal policies.

The District Court dismissed Lomaskin’s original complaint without prejudice and

allowed her to replead. However, the District Court did not allow Lomaskin to replead

her whistleblower claim based on wrongdoing by Siemens because it held that Siemens is

not a “public body” susceptible to such a claim. App. 13 (citing

(a)).

Lomaskin filed an amended complaint, and the District Court dismissed it again,

this time with prejudice. The District Court held that Lomaskin’s waste allegations failed

because non-competitive, fixed-price contracts alone are not sufficient evidence of waste.

It also held that Lomaskin could not allege “wrongdoing” by Siemens because Siemens is

not responsible for “ensuring Penn State’s compliance” with the law or Penn State’s own

policies. App. 14. Finally, the District Court held that Lomaskin failed to establish a

claim for wrongful termination, reasoning that Pennsylvania law’s public policy

exception to the employment-at-will doctrine did not apply because Siemens had not

required her to commit a crime, prevented her from complying with a statutory duty, or

discharged her when “specifically prohibited from doing so by statute.” App. 14 (quoting

Fraser v. Nationwide Mut. Ins. Co.,

(3d Cir. 2003)).

3 II.

The District Court had jurisdiction under

, and we have

jurisdiction under

. We exercise plenary review over the District

Court’s order granting Siemens’ motion to dismiss. Encompass Ins. Co. v. Stone

Mansion Rest. Inc.,

(3d Cir. 2018). In reviewing an order dismissing a

complaint under Rule 12(b)(6), we apply the same standard as the District Court, that is,

we “construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to

relief.”

(quoting Bruni v. City of Pittsburgh,

(3d Cir. 2016)).

III.

A.

Pennsylvania’s whistleblower law prohibits employers from retaliating against an

employee who reports “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.”

(a). A “public body” includes any entity “which is funded in

any amount by or through” Pennsylvania or its political subdivisions.

§ 1422.

“Wrongdoing” is defined as “[a] violation . . . of a Federal or State statute or regulation,

of a political subdivision ordinance or regulation[,] or of a code of conduct or ethics

designed to protect the interest of the public or the employer.” Id. Finally, “waste” is

“[a]n employer’s conduct or omissions which result in substantial abuse, misuse,

destruction or loss of funds or resources belonging to or derived from” Pennsylvania or

its political subdivisions. Id.

4 Lomaskin argues that Siemens is a public body susceptible to a whistleblower

claim based on wrongdoing because Siemens receives funds through contracts with Penn

State. Although this was not in her amended complaint, she asserts that it is still a live

issue because repleading it below would have been futile given the District Court’s

refusing to allow it. Lomaskin contends that Siemens and Penn State committed

wrongdoing because the alleged pay-to-play scheme violated Siemens’ corporate

policies. And she claims that both Siemens and Penn State committed waste because the

alleged pay-to-play scheme produced non-competitive, fixed-price contracts between

them.

Siemens responds that Lomaskin waived her right to appeal whether Siemens is a

public body but, regardless, Siemens is not one because it is not funded by Pennsylvania.

Second, Siemens contends that Lomaskin’s waste arguments fail because they are based

solely on her allegations that Penn State awarded contracts to Siemens on a fixed-price,

“non-competition basis,” which, alone, is not evidence of waste. Siemens Br. 7. Third,

Siemens asserts that Lomaskin’s claim based on wrongdoing by Penn State fails because

Siemens does not have the power to enforce the laws, regulations, and internal policies

that bind Penn State.

We agree with the District Court that Lomaskin fails to state a viable

whistleblower claim based on waste or wrongdoing by either Siemens or Penn State.

First, although neither the Pennsylvania Supreme Court nor this Court has passed on the

issue, the federal district courts in Pennsylvania have consistently concluded that a

private entity does not qualify as a public body merely because it receives state funds

5 through contracts with public programs or government agencies. See, e.g., Grim v. May

Grant Assocs., No. 18-2231,

, at *4 (E.D. Pa. Jan. 29, 2019). We

concur with these courts that the phrase “funded by or through” in 43 Pa. Cons. Stat.

§ 1422’s definition of “public body” refers to money “specifically appropriated by a

governmental unit.” Id. Siemens does not receive appropriations from Pennsylvania or

any of its political subdivisions, including Penn State, and so does not qualify as a public

body under Pennsylvania whistleblower law.

Second, Lomaskin’s sole allegation that Penn State awarded Siemens fixed-price,

non-competitive contracts is insufficient to support a whistleblower claim based on

waste. See Bailets v. Pa. Turnpike Comm’n,

(Pa. 2015). In Bailets,

the Supreme Court of Pennsylvania acknowledged that fixed-price, non-competitive

contracts “can involve waste for at least two reasons”: (1) if the price is “artificially

inflated for a politically-connected vendor who need not compete on a level playing

field,” or (2) “if the fixed-price contract includes an item . . . which then becomes the

subject of a supplemental contract, the price of the supplemental contract constitutes

waste.”

Lomaskin did not plead either of these additional circumstances, nor did she

identify any other reason why the fixed-price, non-competitive contracts here might

involve waste.

Third, Lomaskin’s whistleblower claim based on alleged wrongdoing by Penn

State fails because a report of wrongdoing must relate to a violation of a law or regulation

that the employer is charged with enforcing. See Rohner v. Atkinson,

(Pa. Commw. Ct. 2015); Gray v. Hafer,

(Pa. Commw. Ct. 1994), aff’d

6

(Pa. 1995). Siemens cannot force Penn State to adhere to its corporate

policies, and Siemens is not responsible for ensuring Penn State’s compliance with the

law or Penn State’s own internal policies.

B.

Finally, with respect to her wrongful termination claim, Lomaskin argues that the

District Court improperly limited Pennsylvania’s public policy exception to the

employment-at-will doctrine; she claims that the exception applies whenever an

employee’s termination contravenes generalized public policy interests. In response,

Siemens echoes the District Court’s rationale in arguing that the public policy exception

to the employment-at-will doctrine does not apply to Lomaskin.

We again agree with the District Court that Lomaskin fails to plead a wrongful

termination claim. For Pennsylvania’s public policy exception to the employment-at-will

doctrine to apply, Lomaskin “must point to a clear public policy articulated in the

constitution, in legislation, an administrative regulation, or a judicial decision” that

Siemens violated in terminating her. Hunger v. Grand Cent. Sanitation,

(Pa. Super. Ct. 1996). Lomaskin fails to do so. Instead, she merely lists a series of

tangentially related state laws that she believes provide evidence that her termination

contravened public policy generally.

IV.

For these reasons, we will affirm the District Court’s judgment.

7