Banas v. Matthews International Corp.

502 A.2d 637, 348 Pa. Super. 464, 121 L.R.R.M. (BNA) 2215, 1985 Pa. Super. LEXIS 10443

• Court: Supreme Court of Pennsylvania
• Decided: December 20, 1985
• Docket: 01205
• Status: Published

Opinions

SPAETH, President Judge:

This is an action for defamation and breach of contract. The action arises out of appellee’s dismissal as an employee of appellant. Appellant is engaged in the business of making, among other things, bronze grave markers. When appellee was dismissed, in July 1979, he was a tooler. In late June 1979, the Resurrection Cemetery, one of appellant’s customers, notified appellant that contrary to the settled practice between the cemetery and appellant, a grave marker made at appellant’s plant had been placed on a grave in the cemetery without having first been purchased through the cemetery. Appellant engaged a private investigator to determine who had removed the marker from its plant. The investigator’s report disclosed that appellee had, and that the marker had been placed on his nephew’s grave. On July 31, 1979, following a meeting with several of appellant’s officers during which appellee admitted having made and removed the marker, appellee was dismissed. Appellee’s action for defamation is based on certain remarks concerning his dismissal made by two of appellant’s officers. His action for breach of contract alleges breach of a section of appellant’s employee handbook that provided that employees could do personal jobs with their supervisor’s permission. A jury awarded appellee $15,000 for defamation, $25,000 punitive damages for defamation, and $10,000 for breach of contract. We affirm the award of $15,000 for defamation but otherwise reverse and enter judgment in favor of appellant. Appellee did not prove the sort of conduct on the part of appellant’s officers that would entitle him to punitive damages for defamation. Neither did he prove the existence of an employment contract that could provide the basis of an action for breach of contract. The trial court should therefore have granted appellant’s motion for judgment notwithstanding the jury’s verdicts for punitive damages and damages for breach of contract.

I

The Defamation Claim

Appellant has argued two issues: whether the trial court erred in charging the jury that appellant’s conditional privilege could be abused, and therefore lost, by a defamatory communication that was made negligently; and whether the trial court erred in charging the jury on punitive damages.

-A-

Appellant argues that its conditional privilege could be abused, and therefore lost, only by a defamatory communication made with malice — not simply negligently, as the trial court charged the jury. This argument may be disposed of summarily.

In Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72 (1984), we stated:

Matus [v. Triangle Publications, Inc., 445 Pa. 384, 286 A.2d 357 (1971) cert, denied, 408 U.S. 930, 92 S.Ct. 2494, 33 L.Ed.2d 343 (1972) ], ... declare[s] quite unequivocally, that under Pennsylvania law, once the issue of conditional privilege is raised by a defendant who has been sued by a private figure for defamatory communications concerning matters which are not of public concern, the burden of proof of the plaintiff in order to establish abuse of the conditional privilege is ‘want of reasonable care and diligence to ascertain the truth’ or more simply put, negligence. Id. 445 Pa. at 398, 286 A.2d at 365 (quoting Purcell v. Westinghouse Broadcasting Co., supra, 411 Pa. [167] at 179, 191 A.2d [662] at 668 [(1963)]. 335 Pa.Super. at 185, 484 A.2d at 83.

We made this statement in the course of discussing the effects of the United States Supreme Court’s decisions in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (“so long as they do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual”), and Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (private figure plaintiff must prove ‘actual malice’) (plurality opinion), on Pennsylvania defamation law. The issue in Rutt was not the burden of proof to establish abuse of a conditional privilege but rather the burden to establish liability in a private figure defamation case, but our conclusion that Gertz and Rosen-bloom had not altered the burden to establish liability compels the conclusion here that neither did those decisions alter the burden to establish abuse of a conditional privilege, and the latter burden is settled. The Pennsylvania Supreme Court has long held that “[w]ant of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication, will destroy the privilege.” Montgomery v. Dennison, 363 Pa. 255, 262, 69 A.2d 520, 524 (1949), quoting Hartman v. Hyman & Lieberman, 287 Pa. 78, 83-84, 134 A. 486, 487-488 (1926). See also Baird v. Dun & Bradstreet, Inc., 446 Pa. 266, 275, 285 A.2d 166, 171 (1971) (negligence establishes abuse of conditional privilege). And see Hepps v. Philadelph Newspapers, Inc., 506 Pa. 304, 314, 485 A.2d 374, 380 (1984), appeal pending — U.S. —, 105 S.Ct. 3496, 87 L.Ed.2d 628 (1985) (“privilege is abused if the defamatory statement is negligently published”).¹

-B-

Appellant argues that the trial court erred in charging the jury on punitive damages in two respects: the charge represented an incorrect, or at least confusing, statement of the law; and even if correct, the charge should not have been given because as a matter of law the evidence was insufficient to support an award of punitive damages. We do not consider the first argument, for we agree that the evidence was insufficient to support an award of punitive damages. Accordingly, on appellee’s defamation claim, we vacate the award of $25,000 punitive damages. Appellant has not challenged the award of $15,-000 compensatory damages, and it is affirmed.

The test to be applied in determining the sufficiency of evidence to support an award of punitive damages is stated in Hepps v. Philadelphia Newspapers, Inc., supra. There, the trial court withdrew the issue of punitive damages from the jury on the ground that the evidence was “insufficient to establish ‘actual malice.’ ” Id., 506 Pa. at 330, 485 A.2d at 388. On the plaintiff’s appeal, the Supreme Court held that to be entitled to punitive damages, the plaintiff had to establish that the defamatory publication was made either with knowledge that it was false or with reckless disregard of whether it was false. Id., 506 Pa. at 331, 485 A.2d at 389. Applying this test, the Court concluded that “there was no basis for the jury to have concluded that the publication was made with knowledge of the falsity of its content”, and that “[wjhile the plaintiff attempted to show that the dissemination was made with reckless disregard of the truth of its content, it is equally apparent that a jury issue was not created under the clear and convincing test required for such an award of damages.” Id., 506 Pa. at 332, 485 A.2d at 389 (citations omitted). The Court therefore affirmed the trial court’s decision to withdraw the issue of punitive damages from the jury.²

Here, too, the trial court should have withdrawn the issue of punitive damages from the jury. Having failed to do that, the court should have granted appellant’s motion for judgment n.o.v. as to the award of punitive damages.

Two statements served as the basis of appellee’s defamation claim. The first statement was made at a meeting on July 31, 1979, preceding appellee’s dismissal for having made a grave marker for his nephew’s grave. The meeting was attended by Francis Donnelly, Vice President in charge of manufacturing, Charles Krepp, Vice President and Plant Manager, and Alfred Lee, Vice President and Director of Personnel. Appellee was shown a photograph of the grave marker and was asked whether and how he had made it. He admitted having made and removed the marker. N.T. 53. Then, according to appellee, Donnelly stated: “We can’t have thieves around here, because we have a lot of valuable stuff in here.” Id. The second statement was by Krepp. In response to the “uproar” that followed appel-lee’s dismissal, Krepp met with employees in small groups to explain the reasons for the dismissal. At trial Krepp testified that “[pjeople were very concerned, because their security had been shaken.” N.T. 159-60. He told the employees that appellee had been dismissed for the “unauthorized removal of company property.” N.T. 161. He “may have” told “one or two employees” that appellee could have been “indicted because of this action.” Id. He also stated that appellee “not only violated the company rules, but he also violated the rules of the municipality.” Id. (quotation from Krepp’s deposition as read into trial transcript).

Appellee’s case hinged upon whether he had received permission to make the grave marker. He claimed that he had received permission in compliance with the following provision in appellant’s employee handbook:

Personal Jobs

Employees are not generally permitted to work on personal jobs during company time or on company premises. However, supervisors will often cooperate by giving permission for you to use our equipment and waste material for your personal work.

In support of this claim, appellee testified that he asked for and received permission to make the marker from Jack Campbell, his immediate supervisor. N.T. 42-43, 333. Ap-pellee also testified that William Donatelli, the general foreman of the plant, gave him permission to take the piece of bronze scrap that he used in making the marker, N.T. 37, and that Betty Desport, a nonsupervisory receiver, gave him permission to take a scrap bronze vase used in making the marker, N.T. 76-77, 330. (Campbell, Donatelli and Desport denied having given the permission that appellee claimed they had. N.T. 333-34, 325, 330.) Appellee also testified that some seven to eight years previously he had made a marker for the grave of Donatelli’s father as a personal job. N.T. 32. (Donatelli testified that he had not. N.T. 324.)

Appellant introduced a written policy statement, entitled “Bronze Division Procedures”, that provided in part: “For the good of all concerned it should be thoroughly understood that we cannot run the risk of offending our customers by permitting employees to buy direct from Matthews. Every employee who desires to purchase a bronze memorial should contact the cemetery office and arrange for said purchase.” N.T. 274-75. Appellee testified, however, that he did not become aware of this policy until after he had been dismissed. N.T. 81.

Also in regard to appellant’s policy, appellant’s witnesses testified that making a grave marker did not come within the handbook provision covering personal jobs. For example, Donatelli testified that under company policy, “you weren’t allowed to make a memorial” for personal purposes. N.T. 324. He also stated that he had become aware of the policy before he became a supervisor. Campbell testified that “[w]e never classified a [c]emetery memorial as a ‘government job’ ” N.T. 325.³ He stated that he had learned of the policy when he first became employed in 1946. N.T. 333-34. Donnelly testified that he considered personal jobs as “favor type projects that people request, such as house numbers, identification plates for the front of automobiles, perhaps initials for car doors ...” N.T. 344. Removing a marker from the plant, he said, is “an obvious violation of company policy.” N.T. 345. Ralph West, Vice President and manager of memorial and architectural systems, testified that company policy was not to “give cemetery memorials to employees ... because it offends our customers.” N.T. 275. He described typical personal jobs as projects like “house numbers, license plates, numbers, desk plates, things like that, ...” N.T. 276. Krepp testified that “the company was more than happy to allow people to use scrap or waste material for small personal jobs. It’s in our handbook.” N.T. 148. He further testified that “[a] license plate with initials ‘RAB’ on it is something that could very well be a bona fide order, but more likely it is a personal job. That is totally different than a memorial.” N.T. 150.

When Krepp and West learned that a marker had been removed from the plant, they reported to Donnelly as their superior. West had received a telephone call from one of the plant managers “indicating that the cemetery had called and was quite concerned that we had changed our policy and were supplying memorials directly to our customers.” N.T. 281. The matter was then turned over to James Parker, Vice President and General Counsel. N.T. 282. Parker ordered a private firm, Universal Security Consultants, Inc., to conduct an investigation to determine who had removed the marker. N.T. 192. Meanwhile, Krepp held a meeting of the plant foremen, including Campbell and Do-natelli. Krepp testified that he “asked them the specific question, were memorials ever approved for personal jobs, and the answer was a resounding no.” N.T. 150. (Campbell testified that he did not recall Krepp or anyone else asking him “if Bob Bañas had permission to do a ‘government job.’ ” N.T. 135. Donatelli was not asked about the foremen meeting.) The private investigator’s report concluded that appellee had removed the marker from the plant.⁴ When Krepp told Donnelly the results of the report, Donnelly called the July 31 meeting at which, after reviewing the report, with appellee present, he said, “We can’t have thieves around here____” The testimony on the issue whether during that meeting appellee was asked whether he had received permission to make the marker is at variance. Appellee testified that he told those attending the meeting that Campbell had given him permission. N.T. 86. Krepp testified that appellee said he had received permission from Donatelli. N.T. 304. According to Lee, appellee was asked whether he had received permission but he “did not ... name anyone at that time.” N.T. 309. Donnelly testified that appellee said that he had not received permission. N.T. 347.

Of course, in considering the sufficiency of this evidence, we must view it in the light most favorable to appellee:

In reviewing an order denying judgment n.o.v., we must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to appel-lee as the verdict winner. See, e.g., Lynch v. Metropolitan Life Insurance Co., 427 Pa. 418, 423, 235 A.2d 406, 409 (1967). See also, Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980). Judgment n.o.v. should be entered when the facts are such that no two reasonable persons could disagree that the verdict was improper. See, e.g., Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 880-81 (1967); Bottorf v. Waltz, 245 Pa.Super. 139, 142-44, 369 A.2d 332, 334 (1976). Accordingly, when the lower court would be warranted in giving binding instructions to the jury, see, e.g., Connelly v. Ziegler, 251 Pa.Super. 521, 523-24, 380 A.2d 902, 903 (1977); Albright v. Metropolitan Life Insurance Co., 143 Pa.Super. 158, 164, 17 A.2d 709, 711 (1941), or when the evidence is insufficient to sustain a verdict against the losing party, see, e.g., Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 105-06, 410 A.2d 1270, 1271 (1979); Szumski v. Lehman Homes, Inc., 267 Pa.Super. 478, 480-81, 406 A.2d 1142, 1143 (1979); Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 274-75, 363 A.2d 1265, 1266-67 (1976), the court should enter a judgment n.o.v. McCloskey v. New York Life Insurance Company, 292 Pa.Super. 1, 5, 436 A.2d 690, 691-92 (1981).

By this test, there can be no question that the evidence was sufficient to show that the two statements in question were false and defamatory. The jury was entitled to accept appellee’s testimony that he had been given permission to make the grave marker, and to reject the testimony of Campbell, Donatelli, and Desport that he had not been, from which it follows that the jury was entitled to find that appellee was not a thief. This conclusion, however, does not dispose of the issue of punitive damages. On that issue, the dispositive questions are: What was Donnelly’s state of mind, when he charged appellant with being a thief, and what was Krepp’s, when he told other employees that appellee had taken company property without authority and could be indicted? Did either man make his statement “with knowledge of the falsity of its content” or “with reckless disregard of the truth of its content”? Hepps v. Philadelphia Newspapers, Inc., supra, 506 Pa. at 331, 485 A.2d at 389. And was the evidence of either man’s state of mind “clear and convincing”? Id.

To answer these questions we must focus our attention on the evidence of how matters stood as of the July 31st meeting, when Donnelly charged appellee with being a thief. The evidence on this point is substantially uncontra-dicted: Donnelly knew that a grave marker had been taken; that this was against both company policy and practice of many years standing; and that a private investigator, engaged on the advice of company counsel, had reported that appellee had taken the grave marker. In addition, Donnelly had received a report from Krepp, his immediate subordinate and the person in charge of the plant’s operations; Krepp had met with the foremen and had been told by them that they had never given approval for a grave marker to be made as a personal job. According to appellee’s testimony, which we take as true because the jury accepted it, he told Donnelly that Campbell, his foreman, had given him permission to make the marker. Obviously, Donnelly did not believe appellee, or else he would not have rejoined that “[w]e can’t have thieves around here____; (stating, in effect, “I don’t believe you had permission; I think you stole the marker.”) We find no basis for concluding, however, either that Donnelly knew that what he had said was false, or that he said it with reckless disregard of whether it was false.

Appellee contends that “management” — presumably referring to Donnelly and Krepp — should have asked Campbell whether he had given appellee permission to make the grave marker. Supplemental Brief for Appellee at 22. This argument, however, is not persuasive.

It cannot be maintained that Donnelly’s failure to ask Campbell shows that he knew that his statement to appellee was false. Thus what appellee evidently contends is that Donnelly made his statement recklessly. But the evidence refutes, or at least does not support, that contention. An executive who relies on settled company policy, an investigator’s report, and the plant manager’s report is not acting recklessly. The fallacy of appellee’s argument is the assumption — which appellee either does not recognize or does not acknowledge — that if Donnelly had asked Campbell whether he had given appellee permission to make the grave marker, Campbell would have said that yes, he had. Nothing supports this assumption. To the contrary, Campbell testified on cross-examination that appellee had never asked him for permission to make a grave marker. N.T. 127.

Nor can it be maintained that Krepp’s failure to ask Campbell whether he had given appellee permission to make the grave marker warrants punitive damages. When Krepp met with the plant foremen, including Campbell, it had not been determined that appellee had taken the marker. It is therefore hardly surprising that Krepp only asked the foremen whether they had given anyone permission to take the marker; he had no reason to ask whether appellee had been given permission. Appellee argues that after he was dismissed by Donnelly, at the July 31st meeting, “Charlie Krepp, the plant superintendent, without talking to Campbell, then went onto the plant floor and called [appel-lee] a thief and stated that he could be indicted in front of most all of his colleagues.” Supplemental Brief for Appel-lee at 22. This evidence, however, could not show that Krepp knew that what he was saying was false. As for whether he said it with reckless disregard of whether it was false: Again, as is the case with regard to Donnelly’s statement, appellee assumes that if, after receiving the private investigator’s report, Krepp had asked Campbell whether he had given appellee permission to take the grave marker, Campbell would have said that yes, he had, and there is no basis in the evidence for that assumption.⁵

What appellee has done is to confuse his claim for punitive damages for defamation with his claim for compensatory damages for breach of an alleged employment contract. This confusion is manifest in his brief. Thus he contends that he was “made a scapegoat because the [cemetery company] threatened to cancel its business with [appellant].” Supplemental Brief for Appellee at 6. And see id. at 18. Whether appellant acted wrongfully in dismissing appellee is a separate issue, which will be discussed next; it has nothing to do with whether Donnelly’s and Krepp’s defamatory utterances were made in such a way as to warrant an award of punitive damages.

II.

The Contract Claim

As was noted at the outset, in describing this appeal, appellee’s action alleges breach of a section of appellant’s employee handbook that provided that employees could do personal jobs with their supervisor’s permission. Appellant argues that appellee’s “theory of recovery is simply not applicable to the facts in this case under the law of Pennsylvania.” Brief for Appellant at 29. We agree. As will become apparent, what appellee has argúed, — apparently without recognizing the fact — is that an employee handbook that does not provide job security may be contractually enforced as if it did provide job security. Appellee refers to no authorities in support of this proposition, and we are aware of none. Indeed, the proposition is contrary to the employment-at-will rule, which still is the rule in Pennsylvania.

The Employment-at-Will Rule

In Pennsylvania the settled rule is that “[a]bsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. United States Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974). This rule, which is often referred to as the employment-at-will rule, originated in the late nineteenth century.⁶ The rule has been sharply criticized in recent years by commentators arguing that it gives employers too much discretion and allows them to take unfair advantage of employees. See, e.g., Blades, Employment at Will Vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum.L.Rev. 1406 (1967); Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 Va.L.Rev. 481 (1976); Note, Protecting At-Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816 (1980); Note, Implied Contract Rights to Job Security, 26 Stan.L.Rev. 335 (1974). In response to such criticism, the courts in some States have in effect abrogated the rule by implying into all employment contracts a term imposing on the employer the duty to dismiss an employee only in good faith and for just cause. See, e.g., Gates v. Life of Montana Insurance Co., 196 Mont. 178, 638 P.2d 1063 (1982); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974) modified in Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980); Cleary v. American Airlines, Inc., 111 Cal.App.3d 443, 168 Cal.Rptr. 722 (1980).⁷ Other courts have declined to imply a just cause term into employment contracts. See, e.g., Parnar v. Americana Hotels, Inc., 65 Hawaii 370, 652 P.2d 625 (1982); Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984); Brockmeyer v. Dun & Bradstreet, 113 Wisc.2d 561, 335 (1983). A recent and especially helpful discussion and collection of authorities appears in Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 491 A.2d 1257 (1985).

We need not decide whether to align ourselves with the critics or defenders of the employment-at-will rule. Appel-lee concedes — as under the evidence he must — that he had no definite term of employment with appellant. He might have argued that even though he had no definite term of employment, we should not apply the employment-at-will rule but should instead decide to abrogate the rule. We need not decide whether Geary would preclude such a decision, for appellee has not so argued. Accordingly, his claim must be dismissed — unless he has pleaded and proved that he is within one of the exceptions to the rule.

-B-

Exceptions to the Employment-at-Will Rule

In recent years both the Congress and State legislatures have created statutory exceptions to the employment-at-will rule.⁸ In addition, the Supreme Court and this court have developed as a matter of common law a public policy exception to the rule.

In Geary v. United States Steel Corporation, supra, the Supreme Court stated that “there are areas of an employee’s life in which his employer has no legitimate interest”, and that “[a]n intrusion into one of these areas might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened.” 456 Pa. at 184, 319 A.2d at 180. Relying on Geary, we have held that a public employer may not deny employment on the basis of a conviction for which the offender has been pardoned, unless the conviction was reasonably related to fitness for the job, Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), and that an employer may not discharge an employee because he accepts jury service, Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978). See also Yaindl v. Intersoll-Rand Co., supra, 281 Pa.Super. at 577, 422 A.2d at 620 (in reviewing order dismissing claim for wrongful discharge, “we must weigh several factors, balancing against appellant’s interest in making a living, his employer’s interest in running its business, its motive in discharging appellant and its manner of effecting the discharge, and any social interests or public policies that may be implicated in the discharge.”).⁹

Appellee neither pleaded nor proved that his case is within any statutory exception to the employment-at-will rule, or that it is within the public policy exception. We must therefore inquire whether he has shown that for some other reason the rule is inapplicable.

When, as in this case, an employment arrangement does not contain a definite term, it will be presumed that the employment-at-will rule applies. The employee may, however, be able to overcome the presumption:

The burden is on the plaintiff ... to overcome the presumption by showing facts and circumstances establishing some tenure of employment. The intention of the parties governs. One relying on the contract as provid-

ing for a reasonable length of time must establish something in the nature and circumstances of the undertaking which would create the inference that a definite or reasonable period of employment was contemplated. Cummings v. Kelling Nut Co., 368 Pa. 448, 451-52, 84 A.2d 323, 325 (1951) (citations omitted).

The question therefore arises whether appellee carried his burden of proof.

Sometimes proof of consideration, when added to proof of services to be rendered, has been sufficient to establish that the employment was not at-will but for a term. Compare Lucacher v. Kerson, 158 Pa.Super. 437, 45 A.2d 245, aff'd 355 Pa. 79, 48 A.2d 857 (1946), (plaintiffs resigning former position in New York to join Philadelphia firm and his plans to move his family to Philadelphia supports promise of “permanent employment”) with Cummings v. Kelling Nut Co., supra (when after nine years’ employment employee claims that he and employer had agreed that his employment would continue for as long as necessary to compensate him for expenditures made in the business during the first years of employment, employment nevertheless held to have been at-will, Court noting that plaintiff’s claim might have been “more plausible” if he had been required to give up another business activity).

Appellee, however, neither pleaded nor proved any consideration other than his services to appellant. Thus, if he is to escape the employment-at-will rule, he must look elsewhere.

In recent years some courts have held that the employment-at-will rule is inapplicable where the employer has issued an employee handbook containing a provision that commits the employer to dismiss an employee for just cause only, and that an action will lie for breach of such a provision. See, e.g., Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982). It would, however, be improper for us to decide whether we agree with the reasoning of these decisions. Indeed, it would be mere dictum, for nowhere in the employee handbook issued by appellant is there a provision that commits appellant to dismiss an employee for just cause only — nor did appellee plead or argue any such provision. The employee handbook cases, therefore, are irrelevant to this case. In another case we may, or may not, decide to permit recovery for breach of a commitment made by the employer in an employee handbook, but this case does not present that issue.

The evidence and the theory of appellee’s case have already been discussed at some length, in examining the issue of punitive damages for defamation. At this point it is enough to recall that the basis of appellee’s breach of contract action is that the employee handbook issued by appellant contained a provision stating that an employee could “use our [appellant’s] equipment and waste material for your [the employee’s] personal work” if given permission by a supervisor. Appellant’s evidence was that making a grave marker was not “personal work”, but the jury accepted appellee’s evidence that it was; appellant’s evidence also was that Campbell, one of appellee’s supervisors, had not given appellee permission to make the grave marker, but the jury accepted appellee’s evidence that he had. Appellee’s argument, accepted by the trial court, is that to dismiss him for doing what he was given permission to do was unjust: “he [was] made a scapegoat because the Resurrection Cemetery threatened to cancel its business with [appellant].” Supplemental Brief for Appellee at 6.

There is no merit to this argument. To be sure, according to appellee, and according to the jury, Campbell gave appellee permission to make the grave marker. But according to appellant, Campbell did not give permission. Given the jury’s verdict, we may take it as fact that Campbell did give permission. But that fact is irrelevant. Appellant’s handbook nowhere provided that an employee would be dismissed only if the facts warranted it. If the handbook had contained, if not expressly at least by clear implication, a just cause provision, then appellee’s claim might have merit;¹⁰ indeed, it would have merit if this court were to decide to accept and follow the reasoning of cases such as Toussaint v. Blue Cross & Blue Shield of Michigan, supra. But as we have said, that is a decision that must await a case in which the action is brought for breach of a just cause provision.¹¹ Since here the handbook did not contain, expressly or by clear implication, any just cause provision, appellee has shown nothing to take his case out of the settled employee-at-will rule. As an employee-at-will, he could be dismissed, as he was dismissed, because appellant believed that he had made the grave marker without permission and knowing that to make it was against long-settled company policy. Whether appellant’s belief was correct — i.e., in accordance with fact — has nothing to do with the case; that it has nothing to do with the case is of the essence of appellee’s status as an employee-at-will, who may be dismissed “for any or no reason.” Geary v. United States Steel Corp., supra.12

The judgment is affirmed so far as the award of $15,000 compensatory damages for defamation is concerned. Otherwise it is reversed.

ROWLEY, J., files a concurring and dissenting Statement. BECK, J., files a concurring and dissenting opinion in which JOHNSON, J., joins.

1 . We recognize that because the burdens to establish defamation and abuse of a conditional privilege are the same, the privilege loses any meaning. See Restatement 2d of Torts § 580B Comment 1 ("[ajssum-ing that publishing a statement with lack of reasonable grounds to believe in its truth is the equivalent of negligence, proof of the fault required in general by the Constitution [under Gertz ] automatically would amount to an abuse of a conditional privilege and therefore render it invalid.”)

Appellant cites two decisions by this court, Doman v. Rosner, 246 Pa.Super. 616, 371 A.2d 1002 (1977), and Berg v. Consolidated Freight-ways, Inc., 280 Pa.Super. 495, 421 A.2d 831 (1980), in support of its suggestion that before Hepps, proof of fault greater than negligence was required to overcome a conditional privilege. Although Doman and Berg do indeed contain statements regarding ‘malice,’ an examination of those cases reveals that they do not hold that malice is required to destroy a conditional privilege. In Doman, we affirmed an order of summary judgment for the defendant principally on the ground that as a matter of law the statements were not defamatory. That being the case, our subsequent statement that there was no evidence that the defendant had "recklessly disregarded the truth,” 246 Pa.Super. at 625, 371 A.2d at 1006, may be regarded as dictum. Even if not so regarded, however, the plaintiff would still have been required to establish malice because we concluded that he was a public figure. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (public figure must prove malice). Berg was an appeal from an order denying defendants’ motions for a new trial or for judgment n.o.v. We found "satisfactory” the trial court’s instruction to the effect that the plaintiff was required to prove malice to overcome a conditional privilege. 280 Pa.Super. 495 at 501, 421 A.2d 831 at 834 (1980). Since the jury found malice, defendants-appellants did not complain on appeal that the jury should have been instructed that the plaintiff was required to meet the lesser standard of negligence. Our approval of the trial court’s instruction should therefore not be understood as requiring a private figure defamation plaintiff to prove malice.

2 . In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., — U.S. —, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (plurality opinion), the United States Supreme Court held that the Gertz rule that presumed and punitive damages are constitutionally acceptable only upon a showing of "actual malice," that is, knowing falsehood or reckless disregard as to truth, does not apply in a defamation suit brought by a private person. In such cases, the states are free to fashion their own rules as to damages. Hepps states the rule fashioned by the Pennsylvania Supreme Court. And see generally Note, Punitive Damages and Libel Law, 98 Harv.L.Rev. 847 (1985) (collecting authorities).

3 . In the jargon of appellant’s workplace, "personal jobs” were usually referred to as “government jobs.”

4 . The report is dated July 18, 1979, and states that Universal Security Consultants, Inc., received the request to conduct its investigation from Parker on June 28, 1979.

5 . The trial court states in its opinion that "[i]t is no defense to the punitive damages claim of the Plaintiff that false utterances were made by one set of officials while knowledge of the falsity resided in yet another. The Defendant corporately knew the falsity of the allegations or at a minimum, uttered them with the reckless disregard as to their truth or falsity.” Slip op. of tr. ct. at 8. This reasoning is not persuasive. Accepting the fact, as we must, that someone did give appellee permission to make the grave marker, still, knowledge of that fact may not be imputed to appellant for the purpose of determining whether appellee was entitled to recover punitive damages unless it can be said that in giving permission, the person who did so was acting within the scope of his employment. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1278 (3d Cir.1979); Lake Shore & Michigan Southern Railway v. Rosenzweig, 113 Pa. 519, 544, 6 A. 545, 553 (1886); Restatement (Second) of Agency § 217C (1958); Restatement (Second) of Torts § 909 (1977). Here, the issue of whether in giving appellee permission, Campbell (or some other employee — Do-natelli or Desport) was acting within the scope of his authority was not pleaded, and the jury was not instructed on the point and therefore made no finding of authority. The trial court's resort to the law of agency as supporting the award of punitive damages was therefore unwarranted. In any event, given the extensive testimony that long-settled company policy was that permission to make a grave marker was not to be given, the evidence could not support a finding of authority to give appellee permission to make the marker.

6 . In Kirk v. Hartman & Co., 63 Pa. [13 P.F. Smith] 97, 105 (1870), it was said: “When, indeed, a person is employed as an agent, traveller or salesman, for no definite time, the law does not imply a hiring by the year, but at the will of both parties, and the principal has a right to terminate it at any time and to discharge the agent from his service without notice.” See also Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 297, 21 A. 157, 158 (1891), where the Court held that an employer "may discharge an employee with or without cause, at pleasure, unless restrained by some contract.” The employment-at-will rule appears to have developed in a piecemeal fashion, being applied first to professional workers and somewhat later to "menial domestic & husbandry servants”: “ ‘No doubt,’ as it is said in [Coffin v. Landis, 10 Wright 426], ‘there is a class of contracts for the employment of servants where the law presumes the contract to intend a yearly or monthly employment though nothing is said of the duration of service.’ ” Kirk v. Hartman & Co., supra. The obligation of the master to provide for his servant during the planting and harvesting seasons, as well as during the winter, was stated by Blackstone:

If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons, as well when there is work to be done as when there is not.

1 Blackstone Commentaries 425.

See also Chitty, The Law of Contracts Not Under Seal 588 (1855). See generally Feinman, The Development of the Employment at Will Rule, 20 Am.J.L.Hist. 118 (1976).

7 . One commentator has read this court’s opinion in Yaindl v. Inger-soll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980), as in effect abrogating the employment-at-will rule by implying a just cause requirement into employment contracts. Comment, The Role of Federal Courts in Changing State Law: The Employment At-Will Doctrine in Pennsylvania, 133 U.Pa.L.Rev. 227, 251 (1984).

It is not correct to read Yaindl so broadly. Rather, it applied the public policy exception to the employment-at-will rule, which the Supreme Court described in Geary v. United States Steel Corp., supra, and which we discuss infra. In Yaindl we concluded that a dismissal based upon an employer’s specific intent to harm the employee "is an example of when a discharge violates public policy.” 281 Pa.Super. at 573 n. 5, 422 A.2d at 618 n. 5. • After reviewing the evidence, we were unable to find any public policy implicated in the dismissal. We also concluded, however, that the employee had stated a claim for improper interference with his prospective employment relationship in a separate division of the company on the basis of actions taken by his superiors in threatening certain actions against the separate division’s management if it hired the employee. In so concluding we noted that interference with a dismissed employee’s future employment "constitutes a far greater infringement upon the employee’s right to earn a living than does the manager’s discharge of the employee from the manager's own company." 281 Pa.Super. at 585, 422 A.2d at 624.

8 . See, e.g., 42 U.S.C.A. § 2000e-l to -15 (1981) (Title VII of the Civil Rights Act of 1964); 29 U.S.C.A. § 623 (1975) (Age Discrimination in Employment Act); 43 P.S. § 955 (Supp.1985) (Human Relations Act, prohibiting discrimination in employment on the basis of race, age, sex, handicap or disability).

9 . Geary was one of the first cases to recognize the public policy exception to the employment-at-will rule. A recent article has cited twenty-two jurisdictions that have now adopted this exception. Lopatka, The Emerging Law of Wrongful Discharge — A Quadrennial Assessment of the Labor Law Issue of the 80's, 40 Bus.Law. 1, 6-7 n. 30. See, e.g., Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), modified in Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980) (discharge for refusal to accede to sexual advances of supervisor violates public policy); Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980) (discharge for refusing to violate code of professional ethics against public policy); Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 610 P.2d 1330, 164 Cal.Rptr. 839 (1980) (dismissal for refusal to participate in illegal price fixing scheme contrary to public policy); Trombetta v. Detroit, Toledo & Ironton R.R., 81 Mich.App. 489, 265 N.W.2d 385 (1978) (dismissal for refusal to alter pollution control reports in violation of state law against public policy).

10 . Appellant’s employee handbook does contain a section entitled ‘‘Disciplinary Action”, which provides that "[b]efore a permanent employee is dismissed, the case is carefully considered by at least two supervisors.” In addition, the handbook contains grievance procedures. Neither of these provisions, however, is the basis of appellee’s claim for wrongful discharge; nor, it may be added, is this surprising, for the record reveals that appellee’s case was reviewed by two supervisors, Donnelly, who was in charge of manufacturing in all six of appellant’s plants, N.T. 145, and Krepp, who was in charge of the plant in which appellee worked. N.T. 144.

11 . In Richardson v. Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983), an employee sued for breach of a provision in an employee handbook that stated that the employer would “provide continual employment to all employees whose work proves satisfactory;’’ the handbook further provided disciplinary procedures and grievance procedures. Richardson is different from the employee handbook cases cited above because it holds that a handbook provision purporting to offer employment as long as an employee’s performance is satisfactory is not contractually enforceable. “Such a promise is not.... a promise to discharge for cause or good or just cause only.” Toussaint v. Blue Cross & Blue Shield of Michigan, supra, 408 Mich, at 620, 292 N.W.2d at 895. It is instead hardly a promise at all, for the term “satisfactory” presumes that the employee’s “work [must] prove[] satisfactory” to the employer, leaving the employer with discretion to determine what measure of performance is satisfactory. In contrast, the promise to discharge only for cause provides an objective measure by which to evaluate the dismissal: What was the reason for the dismissal, and in the circumstances did the reason amount to just cause? See Toussaint v. Blue Cross & Blue Shield of Michigan, supra at 619, 292 N.W.2d at 895.

12 . The trial court instructed the jury that a "contract by estoppel” might be found if the jury concluded that appellant had received permission to make the grave marker. The court may have had the doctrine of promissory estoppel in mind when it gave its instruction. While our courts have applied that doctrine when consideration for a promise is absent, see, e.g., Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978), the doctrine does not provide a basis for relief when, as is the' case here, a promise is absent. It has been suggested that the doctrine of promissory estoppel may provide a basis for an employee’s recovery for commitments made in an employee handbook. See, e.g., Woolley v. Hoffmann-LaRoche, Inc., supra 99 N.J. at 303 n. 9, 491 A.2d at 1267 n. 9; DeGuisseppe, The Effect of the Employment-at-Will Rule on Employee Rights to Job Security, 10 Fordham Urb.L.Rev. 1, 44 (1981). We are not persuaded by the suggestion. Recovery on the theory of promissory estoppel, is ordinarily limited to recovery of amounts lost and expended in reliance on the promise, see, e.g., Hoffman v. Red Owl Stores, 26 Wis.2d 683, 133 N.W.2d 267 (1965), in order to place the plaintiff in the position he would have occupied had the promise never been made. See Fuller and Perdue, Reliance Interest in Contract Damages, 46 Yale L.J. 52, 56 (1936). In addition, the question arises whether any- reliance on the asserted promise was justified. If the employer has placed no limit on -its freedom of action, the promise would seem illusory only. See Murray, Murray on Contracts 149 (2d ed. 1974).