provide a private cause of action, plaintiff relies on the statute as a statement of public policy against such a requirement, breach of which policy serves as the basis for plaintiff's tort action.
In its motion to dismiss, defendant argues that § 7321 provides no basis for a cause of action. Defendant maintains that since the statute defines only criminal conduct, it provides no independent civil cause of action to private persons. Second, the defendant argues that the conduct defined in the statute is merely malum prohibitum not malum in se therefore providing no basis for tortious redress. Third, defendant asserts that absent a conviction under the criminal statute plaintiff has failed to establish the requisite causal connection between the criminal statute and the wrong for which plaintiff seeks redress.
In ruling on defendant's motion to dismiss, we note initially that the complaint may not be dismissed unless "it appears beyond doubt" that the plaintiff can establish "no set of facts in support of his claim" that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Factual allegations made by the plaintiff in his complaint must be taken as true for the purpose of determining whether a motion to dismiss should be granted. McKnight v. Southeastern Pennsylvania Transp., 583 F.2d 1229 (3d Cir. 1978). See also, Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172, 18 L. Ed. 2d 704, 87 S. Ct. 1526 (1967). The allegations contained in the complaint must be construed in the light most favorable to the plaintiff. See, Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977).
It has been recognized that considerations of public policy restrict and limit arbitrary decisions by employers to dismiss their employees. See, Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978). A discharged employee may have a cause of action against his employer when the employer exercises his otherwise absolute right to terminate the employment relationship in a manner which contravenes or undermines an important public policy. See, Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1061-62 n. 9 (5th Cir. 1981) (listing cases which recognize a cause of action for discharged employee based on public policy considerations). Such a public policy has been found by courts to be embodied in Pennsylvania's anti-polygraph statute. Courts have upheld tort actions for wrongful discharge of employees for their refusal to submit to polygraph examinations, Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir. 1979), and upheld actions for wrongful discharge based on the results of a polygraph examination allegedly required as a condition of continued employment, Polsky v. Radio Shack, 666 F.2d 824 (3d Cir. 1981) (a tort action was recognized despite release signed by employee when she underwent polygraph examination).
If plaintiff in the case sub judice can establish a causal connection between his polygraph examination and his dismissal there is ample legal authority to support his tort action against his employer. Upon a motion to dismiss, our scrutiny of plaintiff's complaint is at an end once it appears that there are facts which plaintiff can prove in support of his claim which would entitle him to relief. Plaintiff states that he underwent a polygraph examination at his employer's request and was dismissed due to the results of the examination. Therefore plaintiff has pleaded a valid cause of action for tortious discharge, and the defendant's motion to dismiss is denied.
The motion of the defendant to dismiss is DENIED.
IT IS SO ORDERED.