January 21, 1958
MURRAY CORPORATION OF AMERICA.
Appeal, No. 8, April T., 1958, from judgment of Court of Common Pleas of Armstrong County, Dec. T., 1956, No. 190, in case of Samuel Bonanno v. Murray Corporation of America. Judgment affirmed.
Edward J. Steiner, with him E. O. Golden and John W. Rohrer, for appellant.
W. Davis Graham, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 231]
OPINION BY WRIGHT, J.
Samuel Bonanno filed a complaint in assumpsit seeking to recover earnings lost because he was discharged by his employer on January 4, 1955, for "an entirely false and fraudulent reason". He also alleged that the employer refused to furnish him with "a discharge slip or discharge letter or any statement in writing so that he would be able to get unemployment compensation", and that the employer "refused to put the grievance procedure in use as the plaintiff was entitled to have done and the defendant was bound to do under its Union contract". The defendant-employer filed preliminary objections in the nature of a demurrer assigning the following reasons: "1. The plaintiff is limited to the remedies provided in the contract. 2. Plaintiff's probationary period had not expired on January 4th". The preliminary objections were eventually sustained by the court below, and judgment entered in favor of the defendant. Bonanno has appealed.
A demurrer admits facts which are properly pleaded for the sole purpose of having their legal sufficiency
[ 185 Pa. Super. Page 232]
determined by the court Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112. It does not admit the pleader's conclusions clusions or averments of law: Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491. In addition to the averments heretofore detailed, the complaint alleges that appellant commenced work on June 28, 1954; that he joined the Union as required by the collective bargaining agreement, herein referred to as the contract; that he sustained a compensable wrist fracture on August 26, 1954; and that, when he attempted to resume work on January 4, 1955, the personnel manager stated that his (appellant's) lungs were not a good risk, which was a deliberately false and fraudulent misrepresentation. The pertinent provisions of the contract, a copy of which was attached to the complaint, are set forth in the footnote.*fn1
[ 185 Pa. Super. Page 233]
Appellant contends that, since he was employed on June 28, 1954, his ninety-day probationary period ended on September 28, 1954. The court below concluded, however, that the probationary period was suspended during appellant's disability and had not expired on January 4, 1955, wherefore appellant's discharge "could be accomplished for any reason, or no reason at all", and, as expressly provided by contract provision II (C), would not be subject to the grievance procedure. Appellant argues that, under contract provision VIII (A)(2)(c) disability is not a break in continuous service unless it endures for more than two years. The court below was of the opinion that the contract provisions relating to continuous service were not relevant, but that, even if they were, clause VIII (A)(2)(e) would be controlling. Appellant also argues that, if he were employed under an ordinary agreement between individuals, as opposed to a collective bargaining agreement, he could not be discharged without cause, citing Bernstein v. Lipper Manufacturing Co., 307 Pa. 36, 160 A. 770. However, the cited case is clearly inapposite as it involved an agreement for a definite term. Finally, the court below took the position that an employer is not required by law to "give any dismissal letter which is to be made a part of a claim for unemployment compensation".
The interpretation of the contract here under consideration was a matter of law for the court: Onofrey v. Wolliver, 351 Pa. 18, 40 A.2d 35. And see Filler Products v. Corriere, 381 Pa. 394, 113 A.2d 219. It is of course true that judgment on the pleadings should be entered only in clear cases: Wood v. Collingdale Borough, 366 Pa. 624, 79 A.2d 228; Adams v. Speckman, 385 Pa. 308, 122 A.2d 685; and that a summary judgment is improper where the case is not free from doubt: Kittanning Coal Co. v. Moore, 362 Pa. 128, 66 A.2d 273;
[ 185 Pa. Super. Page 234]
his fitness". The general rule is that interruptions are to be excluded in computing the period of probation. See Blake v. Lindbloom, 225 Ill. 555, 80 N.E. 252.