APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Gibbons, Weis and Sloviter, Circuit Judges. Gibbons, Circuit Judge, dissenting.
Appellant Clare Bruffett seeks damages in this diversity action on a variety of tort and contract theories because his employer, the Franklin Mint Corporation (Franklin), a subsidiary of defendant Warner Communications, Inc., terminated his temporary employment and failed to offer him permanent employment. The district court dismissed the complaint. For the reasons which follow, we will affirm the judgment of the district court in all respects.
According to the allegations of the complaint, which on review of a dismissal under Fed. R. Civ. P. 12(b) (6) must be taken as true, Bruffett responded in October 1978 to an advertisement placed in a Philadelphia newspaper by Franklin Mint inviting applications for employment as an advertising designer. Following an interview, Bruffett was hired for a two-week trial period in November 1978. By letter dated November 30, Bruffett was offered permanent employment contingent on "the successful completion of both [Franklin's] medical and security examinations." Following the initial medical examination conducted on the Franklin Mint premises, Bruffett was requested to undergo additional medical tests by outside physicians. The complaint alleges that these examinations were "successfully completed", but that notwithstanding this fact "Franklin unreasonably and without cause took the position that Plaintiff had not successfully completed the medical examination and so informed Plaintiff orally on or about January 12, 1979." Pending consideration of Bruffett's request that he be given permanent employment in exchange for "a waiver and release from Franklin's medical insurance coverage for any matters disclosed in the medical examinations", Bruffett was continued on a "full-time free lance" basis. On or about April 16, 1979, "Franklin unreasonably and without cause refused to employ Plaintiff in full-time permanent status in the position which Franklin had offered employment and ordered him to leave the premises by May 11, 1979."
The complaint asserted four causes of action: Count I asserted breach of contract to hire Bruffett as a permanent employee as offered in the letter of November 30, 1978. Count II asserted intentional infliction of emotional distress, in that Franklin Mint "through its agents and employees did require Plaintiff to undergo serious medical examination procedures, including without limitation a kidney x-ray and a kidney biopsy, to which Plaintiff rightfully refused to submit" and "communicated to Plaintiff a risk of future, serious kidney failure which was not justified in view of the results of the medical examination which Plaintiff did undergo." Count III alleged the discharge violated the "clear mandate of public policy set forth in the Pennsylvania Human Relations Act and the Federal Rehabilitation Act of 1973," which prohibit discrimination in employment on the basis of handicap or disability. Count IV alleged "termination of Plaintiff's employment in full-time, free lance status and the refusal to hire Plaintiff in full-time permanent status" without cause or justification, and in violation of "the implied contractual covenant of good faith and fair dealing."
Defendant Warner moved for summary judgment on the ground that each count of the complaint was barred by this court's opinion in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 113, 99 S. Ct. 87 (1978), "otherwise fails to state a claim upon which relief can be granted, or is barred by the applicable statute of limitations." Warner attached the affidavit of Dr. Marvin L. Lewbart, a staff physician at Franklin Mint, who stated, inter alia, that "Mr. Bruffett was rejected on medical grounds, based on the totality of the evidence available, because of my professional opinion of the significant probability of major future medical complications associated with Mr. Bruffett's heavy proteinuria."
In opposition to Warner's motion for summary judgment, Bruffett filed an affidavit stating, inter alia, that he has "had diabetes since approximately 1950 which has been under control continuously since that date by use of insulin and diet measures;" that this diabetic condition "has not affected [his] ability to perform as an advertising designer, and during the period of [his] employment by Franklin Mint Corporation [his] performance as an advertising designer was not affected by [his] diabetic condition;" that "as a result of the failure of Franklin Mint Corporation to honor its obligation to employ [him], [he has] suffered damages . . . consisting of lost wages and benefits since May 11, 1979;" and, finally, that as a result of Franklin Mint's wrongful conduct, he has suffered damages including "loss of sleep, hypertension, and other pain and suffering," which symptoms first manifested themselves after December 16, 1979. Bruffett also moved pursuant to Fed. R. Civ. P. 56(e)-(f) to permit the Lewbart affidavit to be further opposed by defendant's forthcoming answers to interrogatories and by granting plaintiff the opportunity to take Lewbart's deposition.
The district court treated defendant's motion for summary judgment as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) and granted the motion to dismiss the complaint. Bruffett v. Warner Communications, Inc., 534 F. Supp. 375 (E.D.Pa. 1982). The court viewed Counts I and IV as stating essentially the same claim, and held that they failed to state a common law cause of action, relying on this court's decision in Bonham v. Dresser Industries, Inc., supra. The court held that Count III, which alleged a violation of public policy, must also be dismissed since "to the extent that [it] is intended to state a claim for direct violation of a provision of the [Pennsylvania Human Relations] Act, it is barred because of plaintiff's failure to file a complaint with the Pennsylvania Human Relations Commission within 90 days of the discriminatory act as required by the statute," and to the extent that it attempted to state a separate claim for relief, it must be dismissed for the same reasons as Counts I and IV. Finally, the court held that Count II which alleged intentional infliction of emotional distress was time-barred. In light of the fact that it had treated the motion for summary judgment as a motion to dismiss and had consequently not relied on the Lewbart affidavit, the court denied as moot Bruffett's motion for further discovery.
We consider first plaintiff's contention that the court erred in dismissing his claim for common law breach of express contract. Plaintiff argues that because he properly alleged a written offer of employment, fulfillment of all conditions precedent therein and breach by the employer, this claim should not have been dismissed for failure to state a claim. The complaint, however, expressly pleads that the offer of employment, upon which the alleged contract was based, was contingent on the " successful completion of both [Franklin's] medical and security examinations", App. at 6a (emphasis added), and a copy of the offer so stating was attached as Exhibit B to the complaint. Exhibit C to the complaint included the report of one of the examining physicians as follows:
I have reviewed the records of Clare Bruffett and saw him on 12/19/78 in my office. As you know he has long standing diabetes and apparently has the new appearance of heavy proteinuria without the full nephrotic syndrome. His renal function is very good as is his blood pressure. I don't think there is any more to do diagnostically and I believe the proteinuria is secondary to his diabetes. There is a lot we can do for any edema problems that may arise if he should develope [sic] the nephrotic syndrome in the future.
Plaintiff does not, and in light of this medical report could not, contend that no serious medical conditions were disclosed by the medical examination. Instead his claim appears to be that we must read the condition of "successful completion" contained in the offer to mean completion of a medical examination which did not uncover any medical conditions which might substantially interfere with his ability to perform the essential functions of the employment. Pennsylvania has stated that it adheres to the subjective standard in interpreting contracts which require performance to the "satisfaction" of the employer. See Kramer v. Philadelphia Leather Goods Corp., 364 Pa. 531, 533, 73 A.2d 385, 386 (1950). However, even if Franklin's offer were construed, as plaintiff suggests, by incorporating an implied covenant of fair dealing and good faith into the condition requiring "successful completion" of the medical examination, see Restatement (Second) of Contracts § 228 comment a (1981), plaintiff's breach of contract claim must fail unless some modification of Pennsylvania's adherence to the discharge at will doctrine could be predicted, since it would be to no avail to plaintiff to claim breach of an express contract of employment which would have been terminable immediately thereafter at the option of the employer.
The complaint does not allege that the contract for employment contained either an express or implied provision that the employment would be for a specific term. This would ordinarily mean that the employment was terminable at the option of either party. See Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Division, 281 Pa. Super. 560, 570-71, 422 A.2d 611, 616 (1980). Therefore, the district court did not err in considering the breach of contract claim in conjunction with plaintiff's challenge to the discharge at will doctrine.
The only authority cited by plaintiff with regard to his breach of express contract claim, Wagner v. Sperry Univac, 458 F. Supp. 505 (E.D.Pa. 1978), aff'd mem., 624 F.2d 1092 (3d Cir. 1980), is not helpful to his position. In that case, the employee was able to withstand summary judgment on his claim of breach of contract because he alleged that as a result of his long service with the employer, he could be discharged only in accordance with the employer's personnel policy to use seniority as the "governing factor" in such discharge. No limitation of the alleged employment contract is applicable here distinct from the issue raised by Counts III and IV as to the continuing validity of the common law employment at will doctrine.
Before considering that issue, we take up plaintiff's contention that the district court erred in dismissing Count II of the complaint alleging intentional infliction of emotional distress. Plaintiff does not dispute the applicability of the two-year limitations period for "action[s] to recover damages for injuries to the person", 42 Pa. Cons. Stat. § 5524(2) (1980). That period is computed "from the time the cause of action accrued." 42 Pa. Cons. Stat. § 5502(a) (1980). The Pennsylvania Supreme Court has stated that "[a] tort cause of action ...