Kroen v. Bedway Sec. Agency, Inc.

• Decision Date: 03 November 1993
• Citation: 633 A.2d 628,430 Pa.Super. 83
• Parties: , 8 IER Cases 1727 Kenneth Bradley KROEN, Appellant, v. BEDWAY SECURITY AGENCY, INC., Appellee.
• Court: Pennsylvania Superior Court

Page 628

633 A.2d 628

430 Pa.Super. 83, 8 IER Cases 1727

Kenneth Bradley KROEN, Appellant, v. BEDWAY SECURITY AGENCY, INC., Appellee.

Superior Court of Pennsylvania.

Argued Sept. 13, 1993.

Filed Nov. 3, 1993.

Peter H. Thomson, Sewickley, for appellant.

David J. Singley, Pittsburgh, for appellee.

Before KELLY, POPOVICH and BROSKY, JJ.

POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County which granted summary judgment in favor of appellee. Instantly, appellant contends that the lower court erred in ruling that he is collaterally estopped from litigating the issue of whether appellee discharged him from his employment because of his refusal to submit to a polygraph examination. Further, appellant contends the court erred in determining that he was not constructively discharged from his job by his employer's actions. Finally, appellant submits that the public policy of Pennsylvania prohibits the firing of an employee for his refusal to take a polygraph test and, thus, his wrongful discharge action is viable. We agree with appellant and reverse the lower court's entry of summary judgment and remand for trial.

The record indicates that appellant was employed by appellee as a security officer. Following his initial assignment, appellant was promoted to lieutenant and was assigned to a building located at 441 Smithfield Street in Pittsburgh. Appellant was the on-site supervisor of all shifts in the building. After appellant was assigned to the Smithfield Street building, equipment thefts were reported at that location, and the thefts continued for several months. In March of 1989, appellee asked appellant and other of its employees to submit to polygraph examinations which were part of appellee's investigation into the thefts. Appellant refused to take the polygraph examination.

Shortly after appellant declined to submit to the polygraph, appellant was transferred from the Smithfield Street site to the Airport Holiday Inn. ¹ Appellant was also demoted from lieutenant to guard, his hours of employment per week were reduced from forty to sixteen and his rate of pay was reduced from $5.50 to $4.00 per hour. Although appellant initially indicated that he accepted the change in his employment conditions, he resigned prior to reporting to his new job site.

Subsequent to his resignation, appellant filed a private criminal complaint against appellee and Wayne L. Babish, appellee's executive vice-president, alleging a violation of Pennsylvania's Polygraph Act, 18 Pa.C.S.A. § 7321. ² The district attorney declined to prosecute the private complaint due to insufficient evidence to prove that appellant was required to submit to the polygraph. Appellant's counsel then petitioned the court for approval of the private criminal complaint pursuant to Pa.R.Crim.P. 133. ³ The trial court approved the private complaint for prosecution and directed the district attorney to proceed. However, before any further action could be taken, appellee and Wayne Babish petitioned the lower court for writs of habeas corpus on the theory that, because appellant had voluntarily resigned, the Polygraph Act had not been violated. After a hearing, the court determined that the Commonwealth could not make out a prima facie case against appellee or Mr. Babish since appellant resigned, and the court granted writs of habeas corpus. No appeal was taken by the Commonwealth from the writs.

Appellant then filed this civil suit for wrongful discharge. Subsequently, the lower court granted summary judgment in favor of appellee. The court ruled that appellant was collaterally estopped from relitigating the issue of whether he was fired for refusing to take the polygraph test since that same issue had previously been resolved in appellee's favor when the criminal court granted appellee's petition for a writ of habeas corpus.

Recently, in Grant v. GAF Corp., 415 Pa.Super. 137, 147-149, 608 A.2d 1047, 1053-1054 (1992), we reviewed the standards to be applied when the doctrine of collateral estoppel is applied and summary judgment is entered. Therein, we stated:

When reviewing the grant of summary judgment, this court will reverse only if there has been an error of law or an abuse of discretion. Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 528 A.2d 177 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988). Where the pleadings, depositions, answers to interrogatories and admissions filed show no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Hedlund Manuf. Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988).

Collateral estoppel is appropriate where: (1) the issue decided in the prior action was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity to a party to the prior adjudication; and (4) the party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989). Summary judgment is properly granted on grounds of res judicata and/or collateral estoppel if there is no genuine issue of material fact and the pleadings, depositions, answer to interrogatories, admissions on file and supporting affidavits disclose that the moving party is entitled to judgment as a matter of law. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983).

First, we must determine whether the lower court's application of collateral estoppel was appropriate in this action. We are convinced that the issue presented in the criminal action against appellee is identical to that presented herein. In both cases, the central question is whether appellee discharged appellant due to his refusal to submit to a lie detector test. Thus, the first requirement for collateral estoppel is met by the facts of this case. Grant, supra. Although we are certain the issue is identical, we are not convinced that, in the context of the prior action, there was a "final judgment" on the merits, that appellant was in privity with the Commonwealth and that appellant had a "full and fair opportunity to litigate the issue".

We agree with the lower court that the granting of appellee's writ of habeas corpus in the prior criminal action was an appealable order. Commonwealth v. Hetherington, 460 Pa. 17, 23, 331 A.2d 205, 209 (1975). ⁴ However, we disagree with the lower court's conclusion that appellant could have appealed the criminal court's grant of the writs of habeas corpus, and his failure to do so rendered the criminal court's determination final. The lower court erroneously cites Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) in support of its conclusion. In Benz, supra, a plurality of our Supreme Court held that the Superior Court had jurisdiction to hear an appeal from the decision of the court of common pleas to disapprove a private criminal complaint after the district attorney also disapproved the complaint based on his determination that there was insufficient evidence to establish a prima facie case. Although the Benz court did not specifically address the issue of whether the private affiant has standing to challenge on appeal a common pleas court's decision to disapprove a private criminal complaint, it did permit a private affiant to appeal. We also note that private affiants have been expressly permitted to appeal the trial court's decision to disapprove a private criminal complaint under Pa.R.Crim.P. 133. See, Commonwealth v. Muroski, 352 Pa.Super. 15, 506 A.2d 1312 (1986) (en banc ); In re Wood, 333 Pa.Super. 597, 482 A.2d 1033 (1984); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980).

While we certainly acknowledge that an affiant has standing to appeal the decision of the court of common pleas to disapprove his private criminal complaint, the aforecited cases, including Benz, supra, are inapposite presently. Herein, there exists a significant procedural difference. The prior criminal action resulted in the common pleas court's approval of the private criminal complaint after which only the Commonwealth, not the private affiant, controlled the prosecution of the case. Upon petition by appellee, the criminal court granted a writ of habeas corpus from which only the Commonwealth had standing to appeal. The case of Commonwealth v. Malloy, 304 Pa.Super. 297, 450 A.2d 689 (1982) is directly on point and so holds. See also, Muroski, 506 A.2d at 1314 (distinguishing Malloy ); In re Wood, 482 A.2d at 1035 (distinguishing Malloy ). Thus, it is clear that appellant did not have standing to appeal the grant of the writs of habeas corpus in the prior criminal action.

Therefore, we find that application of the doctrine of collateral estoppel was not appropriate in this case. First, there was not a "final judgment" on the merits since the Commonwealth could refile the charges if additional evidence became available. Hetherington, supra; Genovese, supra. Second, after the court of common pleas approved the private criminal complaint, the district attorney took exclusive control of the prosecution, and appellant was no more in privity with the district attorney than any other citizen of the Commonwealth. Cf., Malloy, supra, citing Hutchinson v. Bank of Wheeling, 41 Pa. 42, 45 (1861) and Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). ⁵ And finally, appellant did not have a full and fair opportunity to litigate the issue. Appellant had no control over the prosecution once the court of common pleas approved the criminal complaint. Further, since appellant had no standing to appeal the grant of the writs, the Commonwealth's decision not to appeal from the writs does...