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ROBERT REUTHER v. FOWLER & WILLIAMS (04/28/78)

decided: April 28, 1978.

ROBERT REUTHER, APPELLANT,
v.
FOWLER & WILLIAMS, INC.



COUNSEL

John P. Pesota, Scranton, with him Munley & Munley, Scranton, for appellant.

Paul A. Barrett, Scranton, with him John Q. Durkin, Scranton, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price and Van der Voort, JJ., dissent.

Author: Spaeth

[ 255 Pa. Super. Page 30]

Appellant sued his former employer in trespass, alleging that he had been maliciously, wrongfully, injuriously and intentionally discharged from his employment in retaliation for his having taken a week off from work to serve on jury duty. After appellant's evidence, the lower court entered a compulsory non-suit; this appeal is from the court's order discharging a rule to show cause why the non-suit should not be taken off.

[ 255 Pa. Super. Page 31]

In general, there is no non-statutory cause of action for an employer's termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). However, our Supreme Court has indicated that where a clear mandate of public policy is violated by the termination, the employer's right to discharge may be circumscribed:

It may be granted that there are areas of an employee's life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer's power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer's privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited.

Id., 456 Pa. at 184, 319 A.2d at 180 (emphasis added; footnote omitted).

Courts of other jurisdictions have allowed causes of action in similar circumstances. See, e. g., Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (employee dismissed for refusal to commit perjury); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (employee dismissed for filing claim against employer under workman's compensation statute); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974) (employee dismissed as result of harassment by foreman, whose hostility stemmed from employee's refusal to accept his social invitations).

Of most direct pertinence to this case is Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975). There, an employee informed her employer that she had been called for jury duty. The employer gave the employee a letter to the court, stating that she could be spared from her work "for awhile" but not for a month (apparently the length of jury service in the county in question), and asking that she be excused. When the employee handed the letter to the court clerk, she said that she would like to serve her duty; the clerk replied that

[ 255 Pa. Super. Page 32]

    she would not be excused. The employee informed her employer that she would have to serve a minimum of two weeks' jury duty. Three days after she began her service, the employee received a termination letter, in which her employer stated that she was being fired because she had not pressed the employer's request that she be excused from serving, and also because the employer was otherwise dissatisfied with her work. The trial court allowed the case to go to a jury, which found for the employee. Affirming, the Supreme Court of Oregon held that the community's interest in having its citizens serve on jury duty was so important ...


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