Diberardinis-Mason v. Super Fresh

• Decision Date: 14 April 2000
• Docket Number: No. CIV. A. 99-3410.,CIV. A. 99-3410.
• Citation: 94 F.Supp.2d 626
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: Carol A. DIBERARDINIS-MASON and Roy R. Mason, h/w v. SUPER FRESH, also t/a The Great Atlantic & Pacific Tea Co., Inc.

94 F.Supp.2d 626

Carol A. DIBERARDINIS-MASON and Roy R. Mason, h/w v. SUPER FRESH, also t/a The Great Atlantic & Pacific Tea Co., Inc.

No. CIV. A. 99-3410.

United States District Court, E.D. Pennsylvania.

April 14, 2000.

Faye Riva Cohen, Cohen and Cohen Associates, Philadelphia, PA, for plaintiffs.

Linda M. Barone, Sara A. Begley, Reed, Smith, Shaw & McClay, Philadelphia, PA, for defendants.

MEMORANDUM

DALZELL, District Judge.

We must here interpret a narrow exception to Pennsylvania's strong commitment to the employment-at-will doctrine. For the reasons that follow, we hold that the exception does not apply and will enter summary judgment in favor of defendant Super Fresh.

Facts

This action, for wrongful termination in violation of public policy and loss of consortium,¹ arises out of Super Fresh's July 3, 1997 decision to fire plaintiff Carol A. Diberardinis-Mason ("Mason"). The facts are largely undisputed.

Super Fresh hired Mason as a pharmacist on February 24, 1997, after she completed a standard Super Fresh application for employment. See Def.'s Mot. Ex. 3. Hank DeGeorge, Super Fresh's Director of Pharmacy, interviewed Mason for the job.

On the application, Mason stated that her "present" employer was "Acme Markets, Inc." and that she was leaving Acme because it offered "no chance for advancement." Id. In reality, however, Acme had suspended and then fired Mason.² See id. Ex. 1, at 219; Ex. 5 ¶ 10; Ex. 1, at 46; see also Pls.' Br. at [2] (Mason's "termination from Acme occurred on January 2, 1997"). Thus, her statements on the Super Fresh application were untrue.

After hiring Mason, Super Fresh provided her with job training and assigned her to its store in the Somerton section of Philadelphia. Various employees have testified that Super Fresh had serious problems with Mason's job performance almost immediately. See, e.g., Def.'s Ex. 2, at 34-45. DeGeorge met with Mason on several occasions about these deficiencies. See Def.'s Br. Ex. 2, at 47-49; Ex. 11 ¶ 7.³

On May 15, 1997, Super Fresh transferred Mason to its new store on Cottman Avenue. DeGeorge testified that he began receiving complaints about Mason within a week of the store's opening. Id. Ex. 2, at 61. Also, while working at the Cottman store, Mason mistakenly gave the wrong prescription to a customer. See id. Ex. 15.

On July 3, 1997, DeGeorge called a meeting with Mason and several other Super Fresh employees to address Mason's performance problems and some drugs (specifically, phenteramine tablets, which are the generic form of Apidex) that were missing from the pharmacy. During the meeting, Mason became upset and asked DeGeorge if anyone at Super Fresh had found out about her problems with Acme. She left the meeting to call her husband and shortly thereafter received a call from her attorney. At that point, the meeting ended and Super Fresh fired her.

Mason thereafter filed this action. Super Fresh has moved for summary judgment,⁴ arguing that (a) Mason cannot identify a recognized public policy that her discharge violated, and (b) it had a legitimate independent basis for firing her.

Discussion

In general, Pennsylvania⁵ does not recognize a common-law cause of action for the termination of at-will employment.⁶ See, e.g., Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346, 348 (1990); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). An at-will employee may be fired for good reason, bad reason, or no reason at all. Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355, 358 (1993). "Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy." Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 918 (1989). Pennsylvania first recognized this public-policy exception to at-will employment in Geary.

In order to make out a case under the exception, Mason must point to a clear public policy articulated in the constitution, legislation, an administrative regulation, or a judicial decision. Hunger v. Grant Cent. Sanitation, 447 Pa.Super. 575, 670 A.2d 173, 175 (1996). The stated mandate of public policy must be directly applicable to the employee and her actions. Id. at 175-76 ("It is not sufficient that the employer's actions toward the employee are unfair.").

The public-policy exception is generally broken down into three categories: an employer cannot (1) require an employee to commit a crime; (2) prevent an employee from complying with a statutorily imposed duty; or (3) discharge an employee when a statute specifically prohibits it from doing so. See, e.g., Spierling v. First American Home Health Servs., Inc., 737 A.2d 1250, 1252 (Pa.Super.1999); Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa.Super.1998).

Mason sets forth various reasons for her discharge, all of which, she claims, violate public policy. Specifically, she alleges that Super Fresh fired her because: (1) she complied with her alleged duty as a pharmacist to report dispensing irregularities; (2) she cooperated with a Commonwealth investigation; (3) she filed discrimination charges against Acme; and (4) she participated in union organizing while at Acme. See Pls.' Br. at [13]. We will address each of these purported bases in turn.

1. Mason's Duty to Report Dispensing Irregularities

While working at Super Fresh, Mason uncovered what she believed to be "irregularities" in the dispensing of controlled substances. Specifically, she alleges that "they", i.e., other Super Fresh pharmacists, were dispensing controlled substances to allegedly nonexistent senior citizens, and she claims that she reported this activity to Len Schwartz, the store manager, John Angelina, the store director, and an unnamed store security guard.

Mason claims that, under the Pharmacy Act, 63 Pa.Stat. Ann. § 390-1 et seq., she was required to report all irregularities regarding the dispensing of controlled substances. Specifically, she invokes 63 Pa. Stat. Ann. § 390-5(a)(11) and (12), which provide that the Board of Pharmacy may revoke or suspend the license of a pharmacist who has "acted in such a manner as to present an immediate and clear danger to the public health or safety" or is "guilty of incompetence, gross negligence or other malpractice, or the departure from, or failure to conform to, the standards of acceptable and prevailing pharmacy practice." She also cites Section 27.18c, 28 P.B. 4532, which provides that a pharmacist may not knowingly fill a prescription for a controlled substance "if the pharmacist knows or has reason to know it is for use by a person other than the one for whom the prescription was written, or will be otherwise diverted, abused, or misused." She argues that these provisions rendered her "statutorily, professionally and ethically obligated to report all dispensing irregularities she encountered." Pls.' Br. at [8], and she relies on Field v. Philadelphia Elec. Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989), to argue that this duty renders her termination unlawful. We disagree.

First, an examination of the language of the statutes Mason has cited simply does not reveal any sort of affirmative reporting duty. In contrast, the plaintiff in Field (an employee at a nuclear power plant) was by law specifically required to notify the Nuclear Regulatory Commission ("NRC") of any failure to follow NRC regulations and was subject to a fine if he failed to do so. The statute also specifically prohibited an employer from discharging an employee for reporting a violation. Similarly, in Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978), the plaintiff was fired for performing jury duty, which the law specifically required him to do.

Mason's case is readily distinguishable from Field and Reuther, where the plaintiffs were fired because they carried out specifically delineated statutory duties. Here, the alleged sources of public policy are, in fact, general guidelines for pharmacists' conduct. It is not at all apparent from the face of the statute that Mason had an affirmative duty to report suspicious behavior to the authorities, and we will not take it upon ourselves to read in such a duty absent Pennsylvania case authority.⁷ Thus, while her desire to ferret out illegal activity may be laudable, it will not form the basis of a wrongful discharge claim.⁸

In Geary, 319 A.2d at 178-79, the plaintiff, a steel salesman, expressed concerns about the quality and safety of the steel defendant was producing. Defendant fired him, even though the product was determined to be substandard. The Pennsylvania Supreme Court held that his wrongful discharge claim failed because he was not statutorily obligated to seek out or report defective or unsafe products. Cf. Spierling, 737 A.2d at 1254 (holding that a plaintiff who was fired because she searched through old files in an attempt to uncover past Medicare fraud was not entitled to protection under the public policy exception, since the law imposed no duty on her to report such fraud); Hunger, 670 A.2d at 176 ("[A] firing which resulted solely due to an employee's decision to report his employer's illegal activities is not actionable.... The firing must be specifically prohibited by statute.").

Like the plaintiffs in these cases, Mason was not required to report suspicious activity, and her claim therefore fails. Furthermore, Mason testified at her deposition that she "didn't know off the top of [her] head" of any obligation under the Pharmacy Act to report this sort of behavior. Def.'s Br. Ex. 1, at 445. We thus find her claim that she was carrying out her statutory duty implausible.

Alternatively, Mason's "duty to report" claim fails because the Pennsylvania courts have held that internal company reports will not support a wrongful discharge claim. In McLaughlin v. Gastrointestinal Specialists, Inc., 696 A.2d 173, 177-78 (Pa.Super.1997), the Superior...