Rothrock v. Rothrock Motor Sales, Inc.

810 A.2d 114, 2002 Pa. Super. 303, 19 I.E.R. Cas. (BNA) 214, 2002 Pa. Super. LEXIS 2722

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2002
• Status: Published

Opinions

OPINION BY

BOWES, J.:

¶ 1 Rothrock Motor Sales, Inc. appeals from the judgment entered after a jury-awarded Theodore Rothrock $192,000 in compensatory damages in this wrongful discharge action. The main issue presented is whether a wrongful discharge action is permitted in Pennsylvania when an employee is fired for refusing to dissuade a subordinate employee from pursuing a workers’ compensation claim. We conclude that such a cause of action exists and affirm.

¶ 2 Appellees are Theodore Rothrock and Douglas Rothrock, father and son, respectively, who were at-will employees of Appellant. They instituted this action asserting that they both had been discharged in violation of the public policy of Pennsylvania. Bruce Rothrock, Theodore’s brother, was the owner and president of Appellant. Theodore was the manager of the body shop and direct supervisor of Douglas, who worked as a painter in that department. In April 1992, Douglas injured himself and in May 1992, filed a claim for workers’ compensation benefits alleging his injury was work-related. Appellees averred that they were both fired in July 1992 after Douglas refused to withdraw his workers’ compensation claim.

¶ 3 Appellees presented the following evidence at trial. Theodore was aware that Douglas had reported a work-related injury to the personnel department sometime in April 1992, although he did not know that Douglas filed a claim in late May. In June 1992, a few weeks after Douglas filed his workers’ compensation claim, Bruce summoned Theodore to his office and asked whether he knew that Douglas had filed a claim. Theodore responded in the negative. Bruce insisted that Douglas had not been injured at work, but that his physical problems were the result of a stock car accident that occurred some time prior to 1992.

¶ 4 Theodore testified that during that June 1992 meeting, “[Bruce] told me that ... I should go home and have Doug come in and sign a release [of] ... the company of any liability for his injuries that he had.” N.T. Trial Vol. II, 9/6/00, at 31. Theodore further testified that Bruce said, “[I]f I didn’t do this, not one would be gone, two would be gone. Meaning that if I didn’t get it done, not one fired, two are fired.” Id. at 33. Theodore went home that day and relayed to Douglas Bruce’s threat to fire them both. Douglas initially told Theodore that he was willing to sign the release in order to save Theodore’s job, but he subsequently decided not to do so.

¶ 5 Theodore then was summoned to a July 16, 1992 meeting with Bruce, Bruce Jr., who is Bruce’s son, Douglas, and Douglas’s wife. Theodore testified that at the meeting, “[Bruce] gave Doug a paper and he said Doug, I want this signed. And Doug ... said Uncle Bruce, I can’t sign this paper.” Id. at 37. An argument between Bruce and Douglas ensued. Theodore indicated that “the argument concluded with getting into a very heated session and my brother told my son, Doug, to get the ‘f out of the shop, you’re fired.” Id. at 39. At that point, Douglas and his wife left. After they left, Bruce looked at Theodore and told him “remember what I told you.” Id. at 40. Theodore understood that this meant that since Theodore had not gotten the release signed, he was fired. Theodore took his personal belongings and left the premises.

¶ 6 At trial, Douglas testified that in May 1989, he suffered a cut to his chin in a stock car accident. He never experienced any problems as a result of that accident and actually attended a company picnic the following day. At the end of April 1992, he suffered an injury to his neck when he picked up a computer while he was working. He reported his injury to the personnel coordinator on April 28, 1992, and then filed a workers’ compensation claim at the end of May. Sometime in June 1992, Theodore informed Douglas that Douglas had to sign a release form for Appellant regarding the workers’ compensation claim or “both me and him would be fired from the company.” N.T. Trial Vol. Ill, 9/7/00, at 73. Douglas initially told Theodore that he would sign it in order to save Theodore’s job. Theodore later counseled Douglas against signing it since Douglas should not be forced to sign the release in order to save Theodore’s job. Ultimately, Douglas did not sign the release. Id. at 74. Douglas testified that at the meeting among the parties, Bruce said to Theodore, “Ted, do you remember what I said to you from the last meeting? It goes for now.” Id. at 77. Douglas understood that to mean that he and his father were fired, and he left the premises.

¶ 7 In his testimony, Bruce denied that he threatened to fire Theodore and Douglas if the workers’ compensation claim was not withdrawn. He professed that Theodore and Douglas voluntarily left their jobs in anger because Bruce questioned whether Douglas’s injury was, in fact, work-related. In addition, Appellant presented evidence that even if Appellant had terminated Appellees, they were terminated for misconduct.

¶ 8 The parties stipulated that Douglas prevailed on his workers’ compensation claim. In addition, Theodore successfully collected unemployment benefits in an action that was contested by Appellant. During that proceeding, Appellant produced two warning slips purportedly signed by Theodore before the employment relationship was terminated. At that time, Theodore denied seeing or signing the slips before. At trial in this matter, Theodore was permitted to introduce those slips as well as the testimony of a handwriting expert witness, who opined that Theodore’s signatures on the slips were forged.

¶ 9 In response to special interrogatories, the .jury determined that Appellant had not terminated Douglas’s employment. The jury also found that Theodore was terminated because Douglas refused to abandon his workers’ compensation claim. The jury awarded Theodore $192,000 in compensatory damages, but declined to award punitive damages. This appeal followed the denial of post-trial motions and entry of judgment on the verdict.

¶ 10 Appellant initially contends that it is entitled to judgment notwithstanding the verdict because Theodore, as an employee at will, does not have a cause of action for wrongful discharge. In this case of first impression, we must decide whether a cause of action exists when an employee is discharged for refusing to interfere with a subordinate’s pursuit of a workers’ compensation claim. In making this decision, we are bound by the jury’s determination that Theodore, in fact, was fired in retaliation for his refusal to persuade Douglas, his subordinate, to withdraw his workers’ compensation claim.

¶ 11 At the outset, we acknowledge that the employment-at-will doctrine has deep roots in the history of this Commonwealth. “Generally, an employer ‘may discharge an employee with or without cause, at pleasure, unless restrained by some contract.’ Henry v. Pittsburgh & Lake Erie Railroad Company, 189 Pa. 289, 297, 21 A. 157 (1891).” Shick v. Shirey, 552 Pa. 590, 595, 716 A.2d 1231, 1233 (1998); accord McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 750 A.2d 283 (2000) (Pennsylvania courts have recognized for over a century that an employer may terminate an employee for any reason absent contractual provision to the contrary). In this jurisdiction, “the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Shick, supra at 595, 716 A.2d at 1233 (quoting Geary v. United States Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974)); see also Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990). Courts are reluctant to allow exclusions to the employment-at-will doctrine; exceptions are recognized only in narrowly-confined circumstances where a clear public policy is implicated.

¶ 12 Our Supreme Court eloquently has reviewed the principles that define the powers and responsibilities of the legislature and judiciary with regard to public policy considerations. It has observed that while the legislature has the authority to enact public policy as a matter of expediency, when the courts declare public policy, “it must, and may only, be a rebanee upon the consistency with sound policy and good morals as to the consideration or thing to be done.” Shick, supra at 601, 716 A.2d at 1236 (quoting Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941)). The Court has stated:

It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, web-defined, universal pubbe sentiment, deeply integrated in the customs and bebefs of the people and in their conviction of what is just and right and in the interests of the pubbe weal.

Id. at 600, 716 A.2d at 1235-36 (quoting Mamlin, supra at 325,17 A.2d at 409). As Judge Beck noted in her concurring opinion in Hunger v. Grand Central Sanitation, 447 Pa.Super. 575, 670 A.2d 173 (1996), a pubbe policy is one that strikes at the heart of a citizen’s social right, duties, or responsibilities and will be found only where the policy has been reduced to a legislative mandate reflected in constitution, statute, or regulatory provision.

¶ 13 As directed by our Supreme Court, we must be ever wary of entering into the nebulous area of judiciaby-created public policy when confronted with a request to expand an existing cause of action. The judiciary should grant such a request only when there is a positive, web-defined, universal public sentiment, deeply integrated in the bebefs of the people and in their conviction of what is just and right and in the interests of the common good.

¶ 14 If we accept Appellant’s argument that Appellee does not have a cause of action for wrongful discharge, our decision would, in effect, abow employers to engage in prohibited conduct through their supervisory employees. Consequently, we are inclined to carve out an exception to the employment-at-will doctrine to deter such behavior. This exception is warranted by the public pobey embodied in the Workers’ Compensation Act (the “Act”)¹ and prevailing Supreme Court precedent:

¶ 15 Public policy exceptions to the at-will employment doctrine, while rare, exist nonetheless. Our courts have permitted employees to proceed with wrongful discharge cases when public policy concerns are clear.² See Highhouse v. Avery Transportation, 443 Pa.Super. 120, 660 A.2d 1374 (1995) (employee was discharged for filing an unemployment compensation claim); Raykovitz v. K Mart Corp., 445 Pa.Super. 378, 665 A.2d 833 (1995) (same); Kroen v. Bedway Security Agency, 430 Pa.Super. 83, 633 A.2d 628 (1993) (employee was discharged for refusing to submit to a polygraph test as a condition of his employment); Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (employee was discharged for performing his statutory duty to report violations involving nuclear materials); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (employee was discharged for serving on jury, which is required by law).

¶ 16 In the present case, we are guided by our Supreme Court’s decision in Shick, supra, which identifies the public policy implicated in this case. Therein, the Court, firmly relying upon the legislative pronouncements embodied in the Act, held that “The Workers’ Compensation Act does provide a basis for ... finding that termination of an at-will employee for filing a workers’ compensation claim violates public policy.” Shick, supra at 603, 716 A.2d at 1237. In examining the historical underpinnings of the Act, the Court observed that the Act is the sole means for an employee to obtain compensation for injuries and a substitute for common law tort actions. Under the Act, an employee has no recourse against his employer for injuries sustained during the course of employment, even when those injuries are caused by the negligence of a fellow employee. In exchange, the employee may obtain workers’ compensation benefits under a no-fault system. The exclusivity of the statutory remedy is the historical quid pro quo that employers receive in return for being subjected to a no-fault system of compensation for an employee’s injuries. In sum, an employer is immune from tort liability while an employee can receive benefits in the absence of fault for a work-related injury. The Shick Court determined that the “historical balance would be disrupted if the employer could terminate an employee for filing a workers’ compensation claim.” Id. This balance would be disrupted, reasoned the court, since employees will not file claims for compensation if they can be fired, relieving the employer of its obligations under the Act.

¶ 17 By judicial decision, grounded in shielding the historical efficacy of a legislative pronouncement, our Supreme Court has determined that an employer may not discharge an employee for exercising his right to obtain workers’ compensation benefits. The Court observed that if this action were allowed, an employee would not exercise his statutory right.

. ¶ 18 The question presented in this case is whether the same public policy implicated in Shick is violated when an employer fires a supervisory employee because he has refused to engage in conduct prohibited by that public policy. The answer must be in the affirmative.

¶ 19 If we were to allow an employer to fire with impunity a supervisor who refuses to interfere with the statutory right to obtain workers’ compensation benefits, an employer could insulate itself from liability for the same violation of the aforementioned public policy. The supervisor would be forced to interfere with the employee’s exercise of that right in order to save his job. It is repugnant to that same public policy and anathema to the historical balance inherent in the workers’ compensation law to allow an employer to evade public policy by firing someone else who refuses to engage in what has been determined to be an unlawful act.

¶20 In Lins v. Children’s Discovery Centers of America, Inc., 95 Wash.App. 486, 976 P.2d 168 (1999), the Court of Appeals of Washington addressed the same issue presented in this case. The plaintiff, a supervisory employee of the defendant, was ordered to fire several subordinate employees for disloyalty because they were contemplating fifing workers’ compensation claims for injuries sustained during the course of their employment. In Washington, as in Pennsylvania, it is against public policy for an employer to discharge an employee for fifing a workers’ compensation claim. When the supervisory employee refused to interfere with her subordinates’ exercise of their right to file workers’ compensation claims, the supervisor was fired. The Washington Court of Appeals allowed recovery. In so doing, the Court employed a sound test that has application herein:

When the judiciary addresses the problem [presented in this case], it inquires (1) whether a clear public policy exists; (2) whether that policy will be jeopardized unless the activity in issue is protected; (3) whether employers in general have “overriding justification” for wanting to use the activity in issue as a factor affecting the decision to discharge; and (4) whether the particular employee’s activity in the case at bar was a substantial factor in (i.e., a cause of) the particular employer’s decision to discharge. Always, however, the judiciary should be slow to protect activity not previously protected; as the Supreme Court has said, Courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.

Id. at 492-93, 976 P.2d at 173 (footnotes omitted).

¶ 21 Turning to the first element, Pennsylvania, as articulated by judicial precedent, has recognized a clear public policy against firing an employee because he filed a workers’ compensation claim. As to the second part of the test, it is evident that the announced public policy would be jeopardized if, insulating itself from liability, an employer could fire an employee for refusing to implement an unlawful directive. We believe, as did the Washington Court of Appeals, that if the employee’s refusal to commit the proscribed act, which in this case was to persuade his subordinate to withdraw his claim, is not actionable, the supervisory employee would perform the act to avoid losing his job, and the employer would have the means to execute his unlawful command. Thus, the public policy embodied in the Act and identified in Shick, supra, would be circumvented.

¶ 22 As to the third element, we adopt the view of the Washington Court of Appeals that employers do not have justification to consider an employee’s refusal to perform an unlawful order when deciding whether to fire the employee. As noted by the Court, “By virtue of the order being unlawful in the first instance, the employer should not have given it, and the employer has-no legitimate interest in having it carried out.” Id. at 494, 976 P.2d at 173. Mindful of the fact that this represents an exception to the general rule that this Court should give full deference to how an employer operates his business, we conclude that the discharge of an employee in these circumstances cannot serve any legitimate interest of the employer.

¶ 23 Finally, as to the existence of the final element in this case, the jury has spoken. It determined that Theodore’s refusal to interfere with Douglas’s exercise of his right to claim workers’ compensation benefits was the reason Theodore was discharged. Hence, we will allow recovery in this case.

¶ 24 We now address two other claims raised by Appellant on appeal. First, Appellant requests a new trial, claiming that the trial court erred in faffing to instruct the jury that Appellant was permitted to discharge its employees if it had a separate, plausible, and legitimate reason for doing so, regardless of whether an important public policy was threatened by the termination. That issue unquestionably was waived by Appellant’s failure to include it in post-trial motions. Pa. R.Civ.P. 227.1(b)(2). Nowhere in post-trial motions or in the brief filed in support of those motions did Appellant object to the court’s failure to so instruct the jury. Furthermore, Appellant failed to lodge this specific complaint when it objected to the instructions at trial. N.T. Trial Vol. V, 9/11/00, at 130-34.

¶ 25 Appellant also asks for a new trial on the basis that the trial court erred in admitting evidence about the forged warning slips. Appellant contends that any evidence, including factual evidence and the expert witness testimony, about the slips was irrelevant and prejudicial.

¶ 26 Initially, we note that the admission of evidence is within the sound discretion of the trial court. Cruz v. Northeastern Hospital, 801 A.2d 602 (Pa.Super.2002). In the present case, as noted, Appellant presented a twofold defense to these charges. It contended that Theodore and Douglas voluntarily left their employment. In the alternative, it argued that if it had fired Appellees, they were fired for cause. It specifically denied firing Appellees for a prohibited reason. Clearly, Appellant’s fabrication of the warning slips was relevant, as this subterfuge had a tendency to establish that Appellant was creating evidence to support its.position that it had cause to fire Theodore. In other words, fabrication of the warning slips showed that Appellant did not have a legitimate reason for terminating Theodore’s employment and that it created false evidence in a desperate attempt to prove that it did. Thus, evidence of the fabrication, including expert testimony that Theodore’s signatures were forged, was relevant and its prejudicial impact did not outweigh its probative value.

¶ 27 Judgment affirmed.

If 28 Judge BROSKY files a dissenting opinion.

1 . 77 P.S. §§ 1, etseq.

2 . Pennsylvania enjoys the company of approximately forty-two other states that emphasize the importance of protecting employees from • wrongful discharge by utilizing public policy concerns in adjudicating such cases. See Charles J. Muhl, The Employment-at-will Doctrine: Three Major Exceptions, 124 Monthly Lab.Rev. 3, 4-5 (Jan. 2001).