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filed: October 31, 1980.


No. 1682 October Term 1979, Appeal from the Order of the Court of Common Pleas of Lehigh County, Civil Action - Law, at No. 253 Jan. Term 1976.


Paul A. McGinley, Allentown, for appellant.

William H. Fitzgerald, Allentown, for appellee.

Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., concurs in the result.

Author: Spaeth

[ 281 Pa. Super. Page 564]

This is an appeal from an order granting summary judgment in a trespass action. The issue is what remedies may be available to an employee-at-will who has been discharged by his employer.

[ 281 Pa. Super. Page 565]


The principles to be applied in deciding whether to grant a motion for summary judgment are settled:

"Summary judgment is made available by Pa.R.C.P. 1035, 12 P.S. Appendix when the pleadings, depositions answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment." (Citations omitted). Husak v. Berkel, Inc., 234 Pa. Super. 452, 458, 341 A.2d 174, 177 (1975). See also Amabile v. Auto Kleen Car Wash, [249] Pa. Super. [240], 376 A.2d 247 (Filed June 29, 1977); Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976). The moving party bears the burden of demonstrating clearly that there is no genuine issue of material fact. Prince v. Pavoni, 225 Pa. Super. 286, 302 A.2d 452 (1973); Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). LeGrand v. Lincoln Lines, Inc., 253 Pa. Super. 19, 22, 384 A.2d 955, 956 (1978).

On this view of the evidence, the facts may be stated as follows.

In 1973, appellant was employed by the Ingersoll-Rand Company at its Standard Pump-Aldrich Division (hereafter SP-AD) as manager of customer services and technical service engineer. Appellant had been employed at SP-AD since 1959, when Ingersoll-Rand acquired the Aldrich Pump Company. Before that, he had been employed by the Aldrich Pump Company since 1944. Appellant's employment at SP-AD was at will and could be terminated without notice by either party. Appellant was a good employee who, in addition to being technically accomplished, was, in the words of Lee Topp, general manager of SP-AD in 1973, "willing to

[ 281 Pa. Super. Page 566]

    do anything for the company." Record at 39a. Although outspoken and opinionated, appellant had never been insubordinate.

In February 1973, appellant was asked by SP-AD to travel to Italy to inspect pumps SP-AD had sold to Italsider, the national steel company of Italy. The pumps were not working properly, and appellant was to find out what the problem was and make a recommendation to SP-AD as to how it should be corrected. Appellant went to Italy, analyzed the problem, and submitted reports to Topp and SP-AD's department heads recommending the replacement of certain parts of the pumps and a change in the manufacture of the pump rods to correct machining errors, which he believed to be the ultimate cause of the problem. SP-AD followed many of appellant's recommendations. His criticism of the manufacture of the pump rods, however, antagonized Dennis Burns, manager of SP-AD's manufacturing department. About six weeks after appellant returned from Italy, and while SP-AD was still in the process of determining how to repair the Italsider pumps, Burns, who had been friendly towards appellant, asked appellant into his office, and there "cursed [him] to high heaven for writing his report," and sending it to all SP-AD department heads. Record at 231a. Appellant then accused Burns of lying to Topp regarding the inspection of the Italsider pumps prior to their shipment to Italy. Further heated argument ensued among Burns, appellant, and others who had been invited into the discussion, but no resolution was achieved. The next day appellant was informed by Steve Sandy and Dick Frick, his superiors, that he would not be returning to Italy to repair the pumps, and thereafter appellant was no longer involved in the Italsider project.

During the period in which these events occurred, Topp decided to transfer appellant from his position in SP-AD's financial control department to a new position in the manufacturing department. Topp's reasons for the transfer were as follows:

[ 281 Pa. Super. Page 567]

We had Charlie reporting, as I indicated to you, to Dick Frick, who was associated with the financial department. And, there were reasons that were particular to that company for that particular arrangement with Frick.

As we were growing-excuse me, as Ingersoll-Rand was growing-I'm putting myself in the old context-it became apparent that we had to have integrity of responsibility for field service with manufacturing. And so, we decided-they decided-I decided, that is going to confuse everything, to transfer Charlie Yaindl to the manufacturing department.

And, there were two reasons for that. One is we wanted to have the field service available to us by Charlie Yaindl with the manufacturing department, because there were other field service people in the company who were normally assemblers that already worked for manufacturing. So, we wanted to integrate the field service portion of the company.

Further, there was a need to develop in manufacturing far more cost estimating ability on Aldrich products. And, I felt that Charlie Yaindl could make a contribution to that area, because he had a long record of experience in designing and in field work with those products. And, it seemed that he could do that job.

Record at 36a-37a.

On May 8, 1973, Burns again asked appellant into his office and there informed him that he had a position he wanted appellant to accept. Without inquiring about the position, appellant refused the offer, saying he did not wish to work for Burns. Record at 238a-39a. Appellant continued to refuse the offer even after he learned from Walt Jennings, head of the financial control department, that his current position was being eliminated and SP-AD had no position for him other than the one offered by Burns. Not until James Sheedy, SP-AD's manager of industrial relations, was called to the meeting and urged appellant to accept did appellant relent by saying: "'Okay, I'll take the job. I'm not volunteering for it.'" Record at 250a. The

[ 281 Pa. Super. Page 568]

    meeting, however, did not end at this point. Burns and Sheedy criticized appellant's attitude towards the company and accused him of being "difficult." Record at 250a. Appellant defended himself, and the discussion became animated. Finally, Burns said, "'You are not so good, Yaindl. You called me a liar.'" Record at 251a. Appellant then said, "'I didn't call you a liar. You are a liar, and you admitted this in front of Floyd Riegel when you lied to Lee Topp.'" Id. Burns yelled at appellant, but appellant "just sat back and let him holler . . . ." Record at 253a. After Burns calmed down, appellant repeated that he would take the job, but Burns yelled at him again, saying, "'I don't want you.'" Id. So appellant said, "'Okay,'" and walked out. Id.

Burns and Sheedy informed Topp concerning the incident, and Burns informed Topp of his desire not to have appellant in his department. Topp enjoyed final authority over all hiring and firing decisions at SP-AD, but had, as a practical matter, delegated his authority to the heads of the various departments. He therefore acceded to Burns's wish, and when appellant returned to the plant the next day, he learned what he already suspected, that he was fired from SP-AD. Record at 254a-55a. Appellant removed his belongings from his office, and went through the plant to say good-bye to his friends. Record at 255a-56a. Before he left, John Morgan, SP-AD's quality control man, offered to "set something up" for appellant at another division of Ingersoll-Rand. Morgan then called David Deshler, who was responsible for hiring service personnel at Ingersoll-Rand's Turbo Products Division (hereafter Turbo), and recommended appellant as "a real good serviceman" who was available for hire. Several weeks later appellant was interviewed by Deshler for a job at Turbo. At the interview Deshler told appellant he wished to hire him. However, appellant never was hired by Turbo. According to Deshler's deposition, after his interview with appellant he was informed by Sheedy that appellant was still employed at SP-AD. Since it was not Deshler's practice "to pirate"

[ 281 Pa. Super. Page 569]

    employees from other Ingersoll-Rand divisions, Deshler did not follow up his interview. According to appellant's deposition, two weeks after the interview Deshler telephoned him and said that he could not offer him a job because he "'just got a call from Tom Bennett saying I'm not allowed to hire you, and if I do he's going to take it up with the group vice-president.'" Record at 264a.

Thomas Bennett was a group general manager at Ingersoll-Rand in 1973. In general, he was responsible for the operations of all divisions within Ingersoll-Rand's pumping and condensing group. That group included SP-AD but did not include Turbo, which was included in Ingersoll-Rand's condenser group. Bennett, in his deposition, admitted that he telephoned Richard Babcock, who along with Deshler was responsible for hiring service personnel at Turbo. Bennett informed Babcock that appellant had been terminated at SP-AD for insubordination to a senior manager, and while Bennett did not have authority to order Babcock not to hire appellant, he asked Babcock to consider appellant's insubordination in reviewing appellant's employment possibilities at Turbo. Record at 156a, 162a-63a.*fn1 According to Bennett, he placed his telephone call after he was informed by Topp that appellant had spoken to "a lot of people" at SP-AD that he was getting a job at Turbo at a salary higher than his old one at SP-AD. Record at 156a. Topp thought it wrong "for somebody who had been terminated because of insubordination to find in the same company an opportunity with more money," Record at 157a, and Bennett agreed. Bennett claimed to be especially disturbed because

     the broadcasting that [appellant] was apparently doing in Allentown was demeaning, you know, an additional demeaning point to the management in Allentown, and that Charlie had to stand responsible for that.

[ 281 Pa. Super. Page 570]

If Charlie had quietly slipped away someplace and got another job, I wouldn't have felt too strong about it. But when he runs up and down the streets of Allentown, apparently bragging about it, it puts the management out there in a hell of a position.

[T]here is no question that I felt that it would be embarrassing and demoralizing to the senior management in Allentown to have this guy make an ...

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