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WEHR v. BURROUGHS CORP.

June 17, 1977

KARL C. WEHR
v.
THE BURROUGHS CORPORATION



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Plaintiff, Karl C. Wehr, was discharged by defendant Burroughs Corporation in August, 1975. In the first count of his complaint plaintiff alleged that the dismissal violated his rights granted by the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq. In the second count plaintiff asserted that his discharge by defendant constituted a breach of contract and violated the public policy of Pennsylvania. The face of the complaint contained a demand for a jury trial and the prayer for relief sought backpay, liquidated damages, reinstatement, attorney's fees, and an injunction barring defendant from further violations of the ADEA. Defendant has now moved for judgment on the pleadings *fn1" on count two of plaintiff's complaint and to strike plaintiff's demand for a jury trial.

 PLAINTIFF'S BREACH OF CONTRACT CLAIM.

 Count two of plaintiff's complaint charged that since the plaintiff's dismissal was motivated by age discrimination, it constituted a breach of his employment contract and violated Pennsylvania public policy. Since this contract claim is obviously bottomed in state law, we will address defendant's motion to dismiss according to our understanding of the applicable Pennsylvania statutes and legal precedents in this area.

 Both parties apparently concede that plaintiff's employment contract was a contract terminable at will. Under Pennsylvania law, it is clear that no action for breach of contract will lie for a discharge under an employment contract at will unless the severance of the employment relationship violates "a clear mandate of public policy." Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174, 180 (1974); see McGinley v. Burroughs Corp., 407 F. Supp. 903, 910 (E.D.Pa. 1975). This principle of contract law is referred to as the public policy exception.

 Plaintiff contends that the Pennsylvania Human Relations Act (Pennsylvania Act), 43 P.S. §§ 951 et seq., evidences a strong public policy favoring the eradication of age discrimination in all phases of employment and that the existence of an alternative remedy for this genre of employment discrimination should not preclude the creation of an independent cause of action in contract. Support for plaintiff's position, at least with respect to the interpretation of the Pennsylvania Act, may be found in Judge Green's opinion in McGinley v. Burroughs Corp., supra.

 On the other hand, defendant contends that no contract remedy is mandated by Pennsylvania public policy, and that, quite the contrary, recognition of a contract action in this context would contravene the policy of the Pennsylvania Act. Thus, the question for resolution is whether the application of the public policy exception is required by the Pennsylvania Act or some other consideration.

 Plaintiff correctly asserts that the Pennsylvania Act manifests a clear policy favoring elimination of age discrimination in employment. That Act states: "It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their . . . age . . . and to safeguard their right to obtain and hold employment without such discrimination. . . ." 43 P.S. § 952(b). Reasoning that this policy preamble satisfied the public policy exception as it exists in Pennsylvania, Judge Green has concluded that a contract cause of action was proper to remedy a complaint of age discrimination in employment. McGinley v. Burroughs Corp., supra at 910. However, and with due respect to the views of our learned brother, Judge Green, a further investigation of the Pennsylvania Act and rationale underlying the public policy exception leads us to find no contract cause of action here. A finding that certain conduct contravenes public policy is not enough by itself to warrant the creation of a contract remedy for wrongful dismissal by an employer. The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.

 Similarly, in Petermann v. Teamsters Local 396, 174 Cal. App. 2d 184, 344 P.2d 25 (1959), the court held that the trial court erred in dismissing a contract claim in which an employee alleged that he had been fired for refusing his employer's demand that he commit perjury before a committee of the state legislature. While recognizing the availability of criminal sanctions to penalize the perjury, the court decided that an additional civil remedy to aid the employee would allow full protection of the state's condemnation of perjury.

 While choosing to create a tort, rather than contract action, the Supreme Court of Oregon took a similar approach in Nees v. Hocks, 272 Ore. 210, 536 P.2d 512 (1975). In Nees, the plaintiff alleged that she had been dismissed for accepting jury duty in contravention of her employer's orders. The court noted that "[if] an employer were permitted with impunity to discharge an employee for fulfilling her obligation of jury duty, the jury system would be adversely affected. The will of the community would be thwarted. For these reasons we hold that the defendants are liable for discharging plaintiff because she served on the jury." Id. at 516.

 It is clear then that the whole rationale undergirding the public policy exception is the vindication or the protection of certain strong policies of the community. If these policies or goals are preserved by other remedies, then the public policy is sufficiently served. Therefore, application of the public policy exception requires two factors: (1) that the discharge violate some well-established public policy; and (2) that there be no remedy to protect the interest of the aggrieved employee or society. *fn2"

 Plaintiff in this case obviously does not fulfill the second factor. The Pennsylvania Act not only establishes one's right to be free from a number of types of discrimination, but also creates a remedy to safeguard these rights. Although the procedure is not exclusive, the Pennsylvania Act outlines a comprehensive administrative procedure to effectuate the rights guaranteed by the Act. See 43 P.S. § 959 (Supp. 1976-77). If the plaintiff desires to proceed directly to the courts ...


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