Drohan v. Sorbus, Inc.
| Decision Date | 17 December 1990 |
| Docket Number | No. 265,265 |
| Citation | 401 Pa.Super. 29,584 A.2d 964 |
| Parties | , 119 Lab.Cas. P 56,714, RICO Bus.Disp.Guide 7671 Edward F. DROHAN, Appellant, v. SORBUS, INC., Bell Atlantic Corporation, Louis Ross, Joseph Molnar, John T. Valentino, Thomas Nolan, and Michael Chamberlain. Phila. 1990. |
| Court | Pennsylvania Superior Court |
Edward J. O'Malley, Wayne, for appellant.
Jon A. Baughman, Philadelphia, for appellees.
Before ROWLEY, McEWEN and CERCONE, JJ.
After his employment with appellee Sorbus, Inc. ("Sorbus"), ended, appellant Edward F. Drohan filed a six-count complaint against Sorbus and the additional defendants/appellees named herein, alleging interference with contract, intentional infliction of emotional harm, breach of contract, wrongful discharge, and violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961-1968. In its order of December 20, 1989, the trial court sustained appellees' preliminary objections to appellant's claims of RICO violations and wrongful discharge. In this timely appeal, appellant contends that the trial court erred in doing so. For the reasons set forth below, we affirm the order of the trial court.
The well-pleaded facts of the case, as set forth in appellant's amended complaint and summarized by the trial court, are as follows: In 1983 appellant began working for Sorbus, a computer maintenance firm, as vice president of marketing. Defendant/appellee Bell Atlantic Corporation ("Bell") acquired Sorbus in 1985. Either Bell or Sorbus then executed an employment agreement with appellant.
Appellant began questioning and attempting to reform Sorbus' commission programs, which were controlled by defendants/appellees Thomas Nolan, Michael Chamberlain, and Joseph Molnar. Appellant also requested that Sorbus' business practices involving Jacom, a New York company, be investigated. Defendants/appellees Joseph Molnar, John Valentino, and Louis Ross repeatedly rejected appellant's requests.
As a result of appellant's efforts, the individual appellees began trying to force appellant to leave Sorbus. Appellant was eventually forced to choose between a demotion, in the form of a transfer to a position that was slated for elimination, or the termination of his employment with Sorbus. This "transfer or terminate" choice was also presented to other Sorbus employees who challenged appellees' methods. Appellant's employment with Sorbus terminated on February 28, 1988. Although Bell had acquired knowledge of these events by February 1988, it took no action against the individual appellees.
In his amended complaint appellant stated the following counts:
Count I: RICO violations based on 18 U.S.C. § 1962(c), against all defendants
Count II: RICO violations based on 18 U.S.C. § 1962(d), against all defendants
Count III: interference with contract, against Nolan, Molnar, Valentino, and Chamberlain
Count IV: intentional infliction of emotional harm, against all defendants
Count V: breach of contract, against Sorbus
Count VI: wrongful discharge, against Sorbus
In its order of December 20, 1989, the trial court sustained the preliminary objections in the nature of demurrers filed by all defendants to Counts I, II, and IV; sustained, as to the claim for breach of an oral contract, the preliminary objection in the nature of a demurrer filed to Count III by the defendants named therein, but overruled the same with respect to the claim for breach of a written contract; sustained the motion of the same defendants to strike Count III for failure to attach copies of writings as required by Pa.R.C.P. 1019(h); sustained the preliminary objections in the nature of demurrers to Counts V and VI filed by defendant Sorbus; dismissed all causes of action against Bell and against Louis Ross; and granted plaintiff, appellant herein, leave to replead Counts III, IV, and V within twenty (20) days. The effect of the court's order was to preclude appellant from proceeding with his claims based on allegations of RICO violations (Counts I and II) and wrongful discharge (Count VI). Appellant then filed this timely appeal.
Because the question of appealability concerns the jurisdiction of the appellate court, a non-waivable matter, we may raise such an issue sua sponte even where, as in the present case, the parties have not done so. Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985). As a general rule, where, as here, an order dismisses some but not all counts of a multi-count complaint, the order is interlocutory and not appealable. Praisner v. Stocker, 313 Pa.Super. 332, 337, 459 A.2d 1255, 1258 (1983) (en banc). Such an order is final, however, if the dismissed counts do not merely state alternate theories for recovery, but instead state causes of action that are separate and distinct from the remaining counts. Id. at 341-42, 459 A.2d at 1260.
In determining whether an order is final and appealable, "[a] pivotal consideration ... is whether the plaintiff aggrieved by [the order] has, for purposes of the particular action, been put 'out of court' on all theories of recovery asserted against a given defendant for a given loss." Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987). Put differently, we consider whether the claims that have been dismissed and the claims that remain "request different relief for different harms...." Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 122, 573 A.2d 1116, 1118 (1990). Consideration of the relief requested will resolve the question of finality in many cases; in other cases additional factors will have to be considered.
In order to determine whether the portions of the order at issue are final and appealable, therefore, we look first to the relief requested by appellant. In Counts I and II appellant alleges that he "has been injured in his business by reason of Defendants' [RICO] violations," and in each of those counts he demands a sum "in excess of $20,000.00 trebled as allowed by RICO, plus interest, costs, and attorney's fees." This measure of relief, which includes treble damages, is sought nowhere else in the complaint. In addition, the fact that the claims stated in Counts I and II are based upon statutory law indicate that they are separate and distinct from the remaining non-statutory claims. Gatten v. Merzi, 397 Pa.Super. 148, ----, 579 A.2d 974, 975 (1990); Hardy v. Pennock Insurance Agency, 365 Pa.Super. 206, 213, 529 A.2d 471, 475 (1987). We conclude, therefore, that the trial court's order is final and appealable insofar as it precludes appellant from proceeding with Counts I and II.
In Count VI appellant states a claim for wrongful discharge against appellee Sorbus, his employer. Count III, alleging interference with contract, does not include Sorbus among the named defendants. Therefore, in order to determine whether the trial court's order is final and appealable insofar as it precludes appellant from proceeding with Count VI, we compare Count VI to Counts IV, alleging intentional infliction of emotional harm against all defendants, including Sorbus, and Count V, alleging breach of contract against Sorbus.
In Count IV appellant alleged that the individual appellees' "extreme and outrageous" conduct was intended to, and did, cause him to suffer severe emotional distress, and, alternatively, that the individual appellees' actions were within the course and scope of their employment with Sorbus. He sought "compensatory and punitive damages in an amount in excess of $20,000.00, plus interest and costs of suit."
Count V alleges that Sorbus breached its contract with appellant by refusing to pay him a thirty percent (30%) bonus for 1987, amounting to $24,000.00, as well as additional sums for accrued vacation days "and otherwise" to which he was entitled when his employment with Sorbus ended. In this count appellant claimed damages "in the amount of $24,000.00, plus the value of all benefits to which [he] was entitled, together with interest and costs."
The essence of appellant's claim against Sorbus in Count VI is that his termination "was caused and motivated by his objections to, and requests for an investigation of" the alleged wrongful conduct of appellees and was therefore in violation of the express and implied public policies of the Commonwealth. He sought damages "in an amount in excess of $20,000.00, plus interest and costs of suit."
While the sole harm for which appellant sought relief in Count VI was his allegedly wrongful termination, the harms alleged in Counts IV and V are not so limited. Count V by its own terms states a different claim for relief, and Count IV can fairly be read to encompass conduct that preceded appellant's termination. Therefore, as the harm alleged by appellant in Count VI is different from that alleged in the remaining counts against the same defendant, we conclude that the trial court's order is final and appealable insofar as it precludes appellant from proceeding with Count VI.
To understand the issues concerning Counts I and II of appellant's complaint, it is necessary that we examine several provisions of the RICO Act. As the basis for his right to bring a civil action pursuant to the Act, appellant relies on § 1964(c):
Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee.
18 U.S.C. § 1964(c). 18 U.S.C. § 1962, "Prohibited activities," a violation of which must underlie a civil action pursuant to § 1964(c), states in pertinent part as follows:
(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in...
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