Gross v. Nova Chems. Servs., Inc.

• Court: Pennsylvania Superior Court
• Writing for the Court: OPINION BY STEVENS, P.J.E.
• Citation: Gross v. Nova Chems. Servs., Inc., 161 A.3d 257 (Pa. Super. Ct. 2017)
• Decision Date: 24 April 2017
• Docket Number: No. 1408 WDA 2016,1408 WDA 2016
• Parties: Joseph M. GROSS, Appellant v. NOVA CHEMICALS SERVICES, INC.

161 A.3d 257

Joseph M. GROSS, Appellant

v.NOVA CHEMICALS SERVICES, INC.

No. 1408 WDA 2016

Superior Court of Pennsylvania.

Submitted January 30, 2017

FILED APRIL 24, 2017

Kathryn L. Sell, Pittsburgh, for appellant.

William S. Myers, Pittsburgh, for appellee.

BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Joseph M. Gross ("Appellant") appeals from the order entered in the Court of Common Pleas of Allegheny County sustaining the preliminary objections filed by Nova Chemicals Services, Inc. ("Nova") and dismissing his complaint with prejudice. We affirm.

We note the following pertinent facts as averred in Appellant's complaint:

7. Plaintiff [hereinafter "Appellant"] began employment with Defendant [hereinafter "Nova"] as an at-will employee in or about November 2004 and continued in such capacity of employment in the position of Chief Pilot until May 13, 2014.

8. Appellant's final base salary with Nova was approximately $321,500 per year.

9. Appellant worked with a flight crew in his capacity as Chief Pilot; this flight crew included, among others, two other pilots.

10. The Federal Aviation Administration required two pilots for the operation of Nova's aircraft.

11. As Chief Pilot, Appellant was primarily responsible for the operation of the aircraft.

12. Under [the Federal Aviation Act (FAA) ], 14 CFR 91.3(a), the pilot in command is "directly responsible for, and is the final authority as to the operation of the aircraft."

13. Responsibility of the aircraft includes the safety of the aircraft and its passengers; such safety depends upon the ability of the pilot in command to properly communicate with the flight crew, particularly a co-pilot.

14. If a pilot does not believe that he can responsibly operate the aircraft, he has a duty to abstain from operation of the aircraft.

15. In or around January 2014, an employee of Nova began making frivolous and anonymous complaints against Appellant.

16. Nova investigated each complaint and found all to be without merit.

17. On or about March 5, 2014, employee and co-pilot Gale Truitt and Appellant were operating a flight which, among other passengers, included a Vice–President of Human Resources.

18. During the trip, Mr. Truitt approached the VP to ask why no action had been taken against Appellant, revealing to all parties that Mr. Truitt was the actor making the frivolous complaints against Appellant.

19. After the March 5, 2014, trip, Appellant spoke with his Human Resources contact, Denise McBride, regarding the situation with Mr. Truitt and asked if any action would be taken regarding the situation.

20. Ms. McBride replied that nothing would be done, and that specifically Appellant was not to approach Mr. Truitt, as Nova feared an age discrimination suit if Nova took any action towards Mr. Truitt.

21. The situation between Mr. Truitt and Appellant became increasingly difficult. Mr. Truitt's behavior towards Appellant caused a breakdown in communication during flights.

22. This breakdown in communication, because of Nova employee's behavior, led Appellant to become increasingly concerned for in-flight safety.

23. Appellant expressed to Ms. McBride the communication difficulties that were experienced and the concerns he had regarding safety.

24. Ms. McBride asked Appellant if he could continue to fly with Mr. Truitt as a crew member; Appellant stated that for safety, he should not be paired with Mr. Truitt.

25. Ms. McBride stated that she understood and they agreed that this was a temporary solution.

26. Nevertheless, on April 7, 2014, Appellant and Mr. Truitt were forced to fly together.

27. During the trip, Mr. Truitt refused to communicate effectively with Appellant. Appellant in his assessment, as Chief Pilot, believed that this lack of communication presented a safety hazard and prevented Appellant from executing his duty to be the final authority of the aircraft.

28. Appellant made several inquiries to Ms. McBride following this April 7, 2014, flight to receive an update on the situation with Mr. Truitt and request a permanent solution; Appellant also reasserted his concerns regarding communication and safety.

29. Appellant never received any information regarding a permanent solution or an update on the matter.

30. During this time Appellant also had a conversation with his supervisor, Peter Masterman, regarding what could be done to remedy the unsafe conditions.

31. Mr. Masterman's response was "I had hoped that if I ignored this issue long enough it would go away."

32. Appellant, in his assessment as Chief Pilot, determined that going forward he could no longer execute his duties under the FAA with the current conditions, as Nova continued to refuse to address the matter.

33. In order to comply with his duties under the FAA, including to have the final authority over the operation of the aircraft, Appellant's employment wrongfully terminated on May 13, 2014.

Appellant's Complaint, filed 6/13/15, at 4–6.

In his Complaint, Appellant charged Nova with one count of wrongful termination in the nature of constructive termination. Specifically, the Complaint averred that Nova's refusal "to address communication issues led to unsafe flight conditions and rendered [him] unable to comply with his duties under the FAA to be the final authority on the aircraft." Id . at ¶ 37. "Compliance with a duty under FAA regulations and in-flight safety are clearly public policy mandates in the best interest of the public health and safety [,]" the Complaint continued. Id . at ¶ 42.

Additionally, Appellant posited that Nova's refusal to approach Truitt because Truitt was eligible to file an age-based discrimination suit amounted to disparate treatment that "contravene[ed] public policy legislation, on both a state and federal level, which prohibits an employer from treating an employee differently on the basis of age." Id. at ¶ 40. This discriminatory action against Appellant, he claimed, further prevented him from performing his duty to be the final authority on the aircraft under the FAA undermining public safety concerns regarding in-flight safety. Id . at ¶ 41.

Nova filed Preliminary Objections to Appellant's Complaint on July 7, 2016, in the nature of a demurrer. Appellant filed a Brief in Opposition on August 10, 2016. After entertaining oral argument, the trial court sustained Nova's Preliminary Objections and dismissed Appellant's Complaint. This timely appeal followed.

Appellant presents the following questions for our review:

I. DID THE HONORABLE TRIAL COURT COMMIT AN ERROR OR ABUSE OF DISCRETION BY GRANTING THE CLAIM OF A DEMURER [SIC] AND DISMISSING THE CASE WHEN THERE WERE THEORIES OF LAW AND FACT UNDER WHICH THE APPELLANT COULD HAVE RECOVERED?

II. DID THE HONORABLE TRIAL COURT ERR OR ABUSE ITS DISCRETION BY MAKING FACTUAL DETERMINATIONS IN DECIDING TO GRANT THE CLAIM OF A DEMURER AND DISMISS THE CASE?

Appellant's brief at 5–6.¹

Initially, we set forth our standard of review:

[O]ur standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Freundlich & Littman, LLC v. Feierstein , 2017 PA Super 40 (Feb. 23, 2017) (quoting Richmond v. McHale , 35 A.3d 779, 783 (Pa. Super. 2012) (internal citations omitted)).

This Court has explained the requirements of a wrongful termination claim raised by an at-will employee:

[A]n action in the Court of Common Pleas is appropriate for a wrongful termination claim that is based on a violation of public policy. The Pennsylvania Supreme Court held that an employee has a common law action for wrongful discharge where there is a clear violation of public policy in the Commonwealth. McLaughlin v. Gastrointestinal Specialists, Inc. , , 750 A.2d 283 (2000). In McLaughlin , the court discussed the types of cases where an employee could file a claim for wrongful discharge. The court noted "that the exception to the employment at-will rule should be applied in only the narrowest of circumstances.

***

The [McLaughlin C]ourt also observed that, "as a general proposition, the presumption of all non-contractual employment relations is that it is at-will and that this presumption is an extremely strong one. An employee will be entitled to bring a cause of action for a termination of that relationship only in the most limited of circumstances where the termination implicates a clear mandate of public policy in this Commonwealth." Id.

Roman v. McGuire Mem'l , 127 A.3d 26, 31–32 (Pa.Super. 2015).

In Weaver v. Harpster , 601 Pa. 488, 975 A.2d 555, 563 (2009), the Pennsylvania Supreme Court expounded on the role of our courts in declaring public policy in this Commonwealth:

In our judicial system, the power of the courts to declare pronouncements of public policy is sharply restricted. Mamlin v. Genoe (City of Philadelphia Police Beneficiary Ass'n) , 340 Pa. 320, 17 A.2d 407, 409 (1941). Rather, it is for the legislature to formulate the public policies of the Commonwealth. The right of a court to declare what is or is not in accord with public policy exists "only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual

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