Shick v. Shirey

• Decision Date: 19 March 1997
• Citation: 691 A.2d 511,456 Pa.Super. 668
• Parties: , 12 IER Cases 1747 David L. SHICK, Appellant, v. Donald L. SHIREY t/d/b/a Donald L. Shirey Lumber, Appellee.
• Court: Pennsylvania Superior Court

Page 511

691 A.2d 511

456 Pa.Super. 668, 12 IER Cases 1747

David L. SHICK, Appellant, v. Donald L. SHIREY t/d/b/a Donald L. Shirey Lumber, Appellee.

Superior Court of Pennsylvania.

Argued Nov. 26, 1996.

Filed March 19, 1997.

Ronald Elliott, New Bethlehem, for appellant.

H. John Drayer, Clarion, for appellee.

Before CAVANAUGH, J., CIRILLO, President Judge Emeritus, and POPOVICH, JOHNSON, HUDOCK, FORD ELLIOTT, SAYLOR, EAKIN and SCHILLER, JJ.

EAKIN, Judge:

David Shick appeals from an order of the Court of Common Pleas of Clarion County sustaining the preliminary objections of appellee Donald L. Shirey. We affirm.

In October 1991, appellee hired appellant as an employee at-will, with no written contract. While on the job on September 13, 1993, appellant injured his left knee, requiring surgery in December 1993. Appellant received workers' compensation benefits through March 1, 1994; on that date, appellant was released to return to work. Appellant, in this action, alleges he notified appellee of his availability, but was informed that he no longer had a job because of his claim under the Pennsylvania Workers' Compensation Act. ¹

In May 1994, appellant filed a complaint against appellee alleging that he had been illegally terminated due to his workers' compensation claim. Appellee filed preliminary objections in the nature of a demurrer on the ground that appellant had failed to state a cause of action. The Honorable Charles R. Alexander sustained the demurrer.

One issue is presented for our review: whether Pennsylvania recognizes a cause of action for retaliatory discharge of an at-will employee who filed a workers' compensation claim.

When reviewing an appeal from an order sustaining preliminary objections in the nature of a demurrer, all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for purposes of review. Clifton v. Suburban Cable TV Co., Inc., 434 Pa.Super. 139, 142, 642 A.2d 512, 514 (1994) (citations omitted). "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer." Id. It is well-settled that Pennsylvania recognizes the at-will employment doctrine. As a general rule, no cause of action exists for terminating an at-will employment relationship. Beginning with Henry v. Pittsburg & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891) and as recently reaffirmed in Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 658 A.2d 333 (1995), the at-will doctrine provides that unless a written contract exists between the parties, an employer may terminate an employee at any time for any reason or for no reason. See, e.g., Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355 (1993) ("an at will employee may be terminated for good reason, bad reason, or no reason at all"). In Geary, our Supreme Court held that an at-will employee discharged in retaliation for calling to his supervisors' attention that a product his employer manufactured was dangerous and defective has no cause of action against his employer for wrongful discharge. The fact that Geary was acting in the best interests of both his employer and the general public did not establish a cause of action.

The Geary Court, however, noted in dicta that a cause of action might lie in limited circumstances where a termination clearly violated public policy: "where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public polic y is violated thereby, an employee at will has no right of action against his employer for wrongful discharge." Id. at 184, 319 A.2d at 180 (emphasis added). See also Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990); Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989); Marsh v. Boyle, 366 Pa.Super. 1, 530 A.2d 491 (1987); Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 505 A.2d 259 (1985). An employee must establish that there has been a "violation of a clearly mandated public policy which 'strikes at the heart of a citizen's social right, duties, and responsibilities.' " Turner, 351 Pa.Super. at 55, 505 A.2d at 261.

This court has recently reiterated the source of these public policy exceptions:

the employee must point to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision .... [citation omitted]. Furthermore, the stated mandate of public policy, as articulated in the constitution, statute, or judicial decision, must be applicable directly to the employee and the employee's actions. It is not sufficient that the employer's actions towards the employee are unfair.

Hunger v. Grand Central Sanitation, 447 Pa.Super. 575, 670 A.2d 173, 175 (1996) (citing Reese v. Tom Hesser Chevrolet-BMW, 413 Pa.Super. 168, 604 A.2d 1072 (1992) (fact that employer required employee, as condition of continued employment, to reimburse it for losses attributable to action of employee may have been unfair but did not violate law; employee failed to state public policy exception to at-will employment doctrine)); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986) (no public policy exception to at-will employment doctrine found even though employee was discharged unfairly in that he was not afforded the opportunity to defend himself against allegations of accounting irregularities).

Clearly, there are only a few, narrow public policy exceptions to the at-will employment doctrine, exceptions that do not represent novel theories of public policy. Darlington, 350 Pa.Super. at 191, 504 A.2d at 310. Generally, these exceptions fall into three categories: an employer cannot require an employee to commit a crime, cannot prevent an employee from complying with a statutorily imposed duty, and cannot discharge an employee when specifically prohibited from doing so by statute. See, e.g., Kroen v. Bedway Security Agency, 430 Pa.Super. 83, 633 A.2d 628 (1993) (employee discharged for refusing to take polygraph violated 18 Pa.C.S. § 7321); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (employee discharged for performing statutorily obligated jury duty violated 42 Pa.C.S. § 4501); Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (employee could proceed in wrongful discharge action after he was fired for reporting safety violations to Nuclear Regulatory Commission, as required by federal law).

Despite this, appellant asserts that a cause of action exists in Pennsylvania for the wrongful discharge of an employee in retaliation for filing a workers' compensation claim. Appellant's reliance on Macken v. Lord Corp., 402 Pa.Super. 1, 585 A.2d 1106 (1991) for this assertion is misplaced, however. Upon finding that Macken failed at trial to prove retaliatory discharge for filing a workers' compensation claim, this court made the observation that "[a]lthough there is no Pennsylvania Supreme Court decision squarely on point, developing Pennsylvania law suggests there can now be a cause of action for discharge in retaliation for filing workers' compensation claims." Id. at 4, 585 A.2d at 1108. However, as the trial court pointed out, a careful reading of Macken shows that this employment issue was never before the court; this language is thus dicta. Moreover, the Macken court did not identify the "developing law," other than cite the inapposite Rabatin v. Columbus Lines Inc., 790 F.2d 22 (3d Cir.1986) (injured worker brought products liability suit against manufacturer of equipment and a negligence action against the owner of the equipment he was using when he was injured). ²

Our colleagues on the Commonwealth Court have noted that whileMacken suggested a cause of action "may exist, there is no Pennsylvania appellate court decision that being discharged for being on workmen's compensation is sufficient to bring a wrongful discharge claim." Kuzel v. Krause, 658 A.2d 856, 860 (Pa.Commw.1995). The Commonwealth Court went on to state that for the purposes of that case only, it would "without reaching the issue, assume that a wrongful discharge action can be brought for being terminated for being on workmen's compensation." Id.

Since neither this court nor our Supreme Court has reached this issue, we have reviewed several trial court opinions that are precisely on point. In Butler v. Negley House, Inc., 20 Pa. D. & C.3d 543 (Pa.Com.Pl.1981), the trial court held that a cause of action in favor of an employee arose from an employer's refusal to rehire the employee in retaliation for his filing a workers' compensation claim. Negley House argued in preliminary objections that there was no provision within the Workers' Compensation Act that protected an employee from retaliatory action. However, the court stated that:

The purpose of [the Workers' Compensation Act] is to provide financial protection to employees injured in the course of their employment by requiring the employer to compensate an injured employee regardless of fault ... [the Act] included numerous provisions designed to prevent the employer from exercising [its superior bargaining power] to deprive employees of the benefits which this legislation was intended to provide.

Id. at 550. The court pointed to various provisions of the Act that, by specifically addressing the need to keep employees on a level playing field, expressed a clear legislative intent to protect employees from employers with superior bargaining power. Accordingly, "to promote the public policy of this state as expressed in this legislation, the case law must recognize a claim based on a retaliatory action taken...