The deficiency of the complaint in the instant case is clearer than that in Geary. O'Neill alleges that he found criminal wrongdoing in the organization. He then asked to train for management and was transferred to management training. He complained that he was being overlooked for executive openings and was then fired. Nothing in these allegations suggests a specific intent to harm plaintiff other than a general desire to prevent him from continuing in the employment of ARA Services, Inc. Geary specifically rejected a cause of action based on a general intent to harm, "for some degree of harm is normally foreseeable whenever an employee is dismissed." Id. at 177, 319 A.2d at 177.
If O'Neill has an action for wrongful discharge, it would seem to rest on the theory that his discharge was in violation of public policy. In Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (Pa.Super.1978), Judge Spaeth concluded on the basis of Dicta in Geary that Pennsylvania recognizes a cause of action for damages resulting from a discharge which violated the public interest. Reuther involved an employee who was discharged for failing to avoid jury service. The performance of jury service by a citizen being squarely in the public interest, Judge Spaeth held that the discharge was clearly an interference with that public interest. To a greater extent than in Geary, O'Neill's complaint fails to disclose that his discharge by ARA violated a clear mandate of public policy.
In support of his claim, O'Neill alleges that he discovered organized crime infiltration of ARA and that ARA did not disclose this wrongdoing to stockholders or the proper authorities. In order to conceal these wrongful acts, he asserts, ARA fired him. Clearly, ARA wanted to know about these things, not cover them up. The complaint states that ARA hired O'Neill at $ 50,000 a year to set up an internal security program and develop ARA's security business. ARA specifically requested that O'Neill investigate rumors of organized crime infiltration in ARA subsidiaries. It was O'Neill who was concerned that the investigation would deter his performance of other duties and might delay his advancement to a corporate executive position. ARA told O'Neill that the investigation of organized crime was to take precedence over his other duties. Clearly, ARA wanted to know about these things, not cover them up. At the specific direction of defendants, O'Neill spent the vast majority of his time over the next two years investigating illegal conduct by ARA personnel. The company acted on O'Neill's investigations and several key executives resigned or were fired. O'Neill was given "outstanding" ratings. According to the allegations, ARA in no way sought to interfere with O'Neill's investigation of organized crime. It was O'Neill who requested that he be removed from the investigation so that he might train for a management position. O'Neill located a replacement for his position and introduced the replacement to law enforcement officials. It was only after he was transferred to management training and after he had trained there for three months that O'Neill was fired. Nothing in the complaint suggests that defendants interfered with plaintiff's carrying out of a public policy objective. The court can only infer from the allegations that ARA encouraged O'Neill in his investigatory efforts. It is difficult to see how discharging plaintiff three months after he left his security position would help ARA to Conceal wrongful acts. Nor is it possible to infer from the pleadings that ARA discharged O'Neill in retaliation for a successful investigation, particularly after ARA had encouraged that investigation over a two year period.
Finally, plaintiff alleges that ARA Services, Inc., President Fishman, and other corporate officers conspired to deprive plaintiff of his rightful occupation as an executive manager in the service industry, for which he seeks compensatory and punitive damages.
In support of this motion, plaintiff's brief states: "Again, the conspiracy count is controlled, we believe, by the reasonable implications of Geary." Plaintiff's brief at 7. Since the reasonable implications of Geary do not provide plaintiff with a cause of action for the tort of wrongful discharge as this Court held Supra, they also do not provide the basis for a claim of conspiracy to deprive plaintiff of his rightful employment.
Plaintiff's right to his occupation could be based on the contract alleged or on the right to be free from malicious interference with prospective advantage. Under either theory, this action is dismissed against the corporation, ARA Services, Inc., since an employer cannot be said to conspire to induce breach of its own employment contract or terminate its own employment relationship. This count will also be dismissed as against the individual defendants because, according to the inferences of the complaint, they acted as agents of the corporation. The law is not entirely settled, as to whether the officers of the corporation can conspire with each other. The general rule, as developed in this circuit in anti-trust cases, is that a corporation cannot conspire with itself anymore than a individual can, and the acts of the agents are the acts of the corporation. Nelson Radio and Supply Corporation v. Motorola, Inc., 200 F.2d 911 (5th Cir. 1952), Cert. denied, 345 U.S. 925, 73 S. Ct. 783, 97 L. Ed. 1356 (1953); Approved in dicta in Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3rd Cir. 1960). In Johnston v. Baker, 445 F.2d 424 (3rd Cir. 1974), in ruling on an action for conspiracy to harass a plaintiff in the conduct of his business, the Third Circuit Court of Appeals held that a corporation can conspire with its agents if the agents are acting for their own personal interests and one of the alleged conspirators is not an employee or agent of the corporation. There, the court declined to pass on the continued viability of Nelson Radio. Nothing in the present complaint suggests that defendants were at any time acting outside their roles as officers and agents of the corporation or that they were acting for personal motives.
However, this Court need not base its dismissal of the claim against the corporate officers on an agency theory. The fact that defendants are the president and upper echelon executives in the corporation confers on them the privilege of interfering with plaintiff's employment relationship, Menefee v. Columbia Broadcasting System, Inc., 458 Pa. 46, 329 A.2d 216 (1974). See also §§ 769, 772, Restatement of Torts; Geib v. Alan Wood Steel, supra. As executives in the corporation, the individual defendants were privileged to advise ARA Services, Inc. They had the necessary interest in ARA to interfere with plaintiff's employment relationship, provided they did not do so solely for their personal purposes. As stated above, nothing in the complaint indicates that defendants were acting out of ill will or for some other purpose unconnected to their interest in ARA.
Plaintiff also argues that because of a change in the composition of the Pennsylvania Supreme Court subsequent to the Geary decision, this court should hesitate to dispose of this case until it can ascertain the present state law.
"(T)he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law unless it has later given clear and persuasive indication that its pronouncement will be modified, limited or restricted (citation omitted)." West v. American Telephone and Telegraph Co., 311 U.S. 223, 236, 61 S. Ct. 179, 183, 85 L. Ed. 139 (1940).
The replacement of one judge by another on the state's highest court does not provide "clear and persuasive indication" of any change in the state law. Pennsylvania courts have declined to recognize a cause of action broad enough to encompass the second and third counts in this case. This federal court should be reluctant to circumscribe private conduct of citizens of the Commonwealth where the courts of the Commonwealth have declined to do so.