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VICTOR ROSSI v. PENNSYLVANIA STATE UNIVERSITY (03/01/85)

filed: March 1, 1985.

VICTOR ROSSI, JR., APPELLANT,
v.
THE PENNSYLVANIA STATE UNIVERSITY, DONALD W. JOHNSON, INDIVIDUALLY AND AS UDIS DIRECTOR, ROBERT DUNHAM, INDIVIDUALLY AND AS VICE PRESIDENT FOR UNDERGRADUATE STUDIES, QUENTIN WOOD, PRESIDENT OF THE BOARD OF TRUSTEES AND EDWARD D. EDDY, PROVOST, APPELLEES



No. 02134 Philadelphia, 1983, Appeal from Order, Court of Common Pleas, Civil Division, Centre County, No. 1981-2441

COUNSEL

Joseph A. Grappone, Assistant Public Defender, Altoona, for appellant.

R. Mark Faulkner, Langhorne, for appellees.

Cavanaugh, Cirillo and Johnson, JJ.

Author: Cavanaugh

[ 340 Pa. Super. Page 42]

Victor Rossi, Jr., the appellant herein, had been employed at The Pennsylvania State University at State College, Pennsylvania, as a motion picture production specialist in the University Division of Instructional Services (UDIS). The appellant commenced an action in trespass and assumpsit against The Pennsylvania State University, Donald W. Johnson, Director of the University Division of Instructional Services, Robert Dunham, Vice President for Undergraduate Studies, Quentin Wood, President of the Board of Trustees of The Pennsylvania State University and Edward D. Eddy, Provost of The Pennsylvania State University, the appellees herein. The complaint contained two counts: count one was in trespass for wrongful discharge and count two was in assumpsit for breach of contract. Count one of the complaint alleged that the appellant, while an employee at The Pennsylvania State University from 1976 until he was discharged in July, 1980, continually pointed out to his superiors, Johnson and Dunham, "the waste of tax dollars, mismanagement of U.D.I.S., waste of the much needed U.D.I.S. facilities and services and in general significant waste of a multi-million dollar media facility over several years."

With respect to his alleged wrongful discharge, the appellant further contended:

[ 340 Pa. Super. Page 4313]

. That after years of effort in trying to get the director of U.D.I.S., defendant Johnson to stop the waste, and also his supervisor defendant, Dunham, and the Provost Office through defendant Eddy and even the Board of Trustees through defendant Wood, plaintiff was wrongfully discharged as a direct result of such efforts.

15. The plaintiff was wrongfully discharges [sic] for attempting to promote the public policy of stopping the waste of tax dollars and providing the state with an effective resource for which there is a clear mandate, and which was being violated by the University and its agents, the above named defendants and each of them.

Count Two, which sounded in assumpsit, alleged that Johnson and Dunham and appellant "entered into an oral agreement wherein defendant agreed to give plaintiff the first job opening in his field or to retrain plaintiff for any job that opened in another field." It was further alleged that defendants, appellees, breached their agreement by giving a job in appellant's field to one Gerald Hutchinson and that "Dentant [sic] Wood and Eddy acquiesced in such actions with disinterested malice."

The court below entered an order granting the appellees' motions for summary judgment as to Count One and the motions for summary judgment of appellees Eddy, and Wood, as to Count Two. The motions for summary judgment by appellees, The Pennsylvania State University, Johnson and Dunham as to Count Two, were denied. An appeal was taken to this court from the order of July 13, 1983.

The first problem we consider is whether the order granting summary judgment in favor of all of the defendants as to Count One and as to defendants, Quentin Wood and Edward D. Eddy as to Count Two is appealable. While the appellees have not raised this issue, we may do so sua sponte. Rigidply Rafters, Inc. v. Aetna Casualty & Surety Co., 311 Pa. Super. 549, 457 A.2d 1318 (1983); Swift v. Milner, 296 Pa. Super. 463, 442 A.2d 1144 (1982). Generally, an order is interlocutory and not appealable unless it effectively puts the litigants out of court, terminates the litigation

[ 340 Pa. Super. Page 44]

    or disposes of the entire case. Rigidply Rafters v. Aetna Casualty & Surety Co., supra. In applying the rule "we must look beyond the technical effect of the adjudication to its practical ramifications." Jackson v. Moultrie, 288 Pa. Super. 252, 255, 431 A.2d 1033, 1034-5, (1981). In the instant case, the matter has not been ended by the court's grant of limited summary judgment and the litigation continues. However, the appellant is out of court as far as Count One is concerned and as far as defendants Eddy and Wood are concerned in Count Two. An analogous case is found in Praisner v. Stocker, 313 Pa. Super. 332, 459 A.2d 1255 (1983). In that case the plaintiff joined three separate causes of action in one complaint. One count alleged false arrest and malicious abuse of process. Another count alleged assault and battery. The court below entered summary judgment in favor of one defendant in the count alleging false arrest and abuse of process. We held that the appeal was proper and that "where, as here, a final judgment has been entered on a separate cause of action, that judgment is appealable." In the instant case, a final judgment has been entered as to Count One as far as all defendants are concerned and is appealable under Praisner v. Stocker, supra. A separate problem exists as to Count Two, alleging an oral contract. The court entered summary judgment only as to defendants, Wood and Eddy, and the action continues as to defendants Johnson and Dunham in their individual and representative capacities and against The Pennsylvania State University. While the action continues below, it is terminated as far as appellant's claim against Eddy and Wood are concerned and summary judgment in their favor is, therefore, appealable.

Returning to our consideration of the appeal on its merits, we find that the court below properly granted summary judgment to all appellees as to Count One.*fn1 Summary

[ 340 Pa. Super. Page 45]

    judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982); Scheetz v. Borough of Lansdale, 64 Pa. Commw.Ct. 24, 438 A.2d 1048 (1982). It is basic that summary judgment may be entered only in a case that is clear and free from doubt. Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa. Super. 329, 421 A.2d 747 (1980). The appellees' motions were based on the pleadings and appellant's uncontradicted depositions. The appellant's job consisted of making films for various university departments using university equipment. He alleged that prior to and at the time of his firing, he informed his superiors that although the university had purchased millions of dollars of equipment to make movies, that his superiors were not utilizing the UDIS or its staff to make movies, but were instead paying a great deal of money to outside private companies to make movies. He specifically testified that on or about February 8, 1980, the appellant was informed that his position would be terminated on or about July 1, 1980 because of a reduction in the UDIS budget and lack of work in the appellant's area of employment. In general, an employer may discharge an employee at any time, without cause, in an employment at will, as we have in this case. However, the leading case of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) established the principle that an employee at will may have a cause of action against the employer for wrongful discharge when the discharge threatens public policy.

[ 340 Pa. Super. Page 46]

This court pointed out in Yaindl v. Ingersoll-Rand Co. 281 Pa. Super. 560, 572, 422 A.2d 611, 617 (1980) that "the precise extent to which the employer's interest in running his business is limited by considerations of public policy cannot be stated but must be worked out on a case by case basis." The court further stated at 281 Pa. Super. 573, 422 A.2d 618:

On the case before it the Court found that the employer's exercise of the right to discharge an employee at will was not impermissible because no facts were alleged from which one could infer that the employer discharged the employee with the specific intent either to harm him, or coerce him to break any law, or otherwise compromise himself. 456 Pa. at 178, 180, 319 A.2d at 177-178. n.5

Footnote 5 states:

5. It is sometimes said that Geary recognizes an action for wrongful discharge by an employee at-will in two situations: 1) where the employer's discharge is motivated by a specific intent to harm the employee; and 2) where the discharge violates a clear mandate of public policy. See O'Neill v. ARA Services, Inc., 457 F.Supp. 182, 186 (E.D.Pa. 1978). While this is a fair reading of Geary, as our foregoing discussion indicates, we think it more accurate to say that Geary's ...


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