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KRUSHINSKI v. ROADWAY EXPRESS

September 5, 1985

EUGENE KRUSHINSKI, Plaintiff
v.
ROADWAY EXPRESS, INC., Defendant


Nealon, J.


The opinion of the court was delivered by: NEALON

Plaintiff began this action in the Court of Common Pleas for Monroe County, Pennsylvania on September 11, 1984 by filing a praecipe for a writ of summons. After a formal complaint was filed October 22, 1984, Defendant Roadway Express, Inc. [Roadway] filed a petition for removal *fn1" in this court pursuant to 28 U.S.C. § 1446, dated November 6, 1984. On February 1, 1985, defendant filed a Motion to Dismiss the Complaint, attaching deposition testimony and an affidavit thereby requesting the court to treat the motion as one for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiff opposed this motion by brief filed March 6, 1985 to which defendant replied on March 22, 1985. Plaintiff failed to file any counteraffidavit or deposition testimony in opposition to that submitted by defendant in support of its Motion for Summary Judgment. By Order dated May 9, 1985, plaintiff was required to file a supplemental brief responding more specifically to defendant's Motion for Summary Judgment. Plaintiff filed his amended memorandum on May 20, 1985 and defendant filed its supplemental reply on May 30, 1985. The motion is now ripe for disposition. For the reasons set forth below, defendant's motion for summary judgment will be granted.

 I. FACTS

 The gravamen of plaintiff's complaint centers upon his termination of employment from Roadway on September 24, 1982. *fn2" Plaintiff, previously employed as a dock worker by Roadway, alleges that he was discharged because of his religious beliefs. As a member of The Worldwide Church of God, plaintiff maintains that his religion observes a doctrine which requires abstaining from work from Friday at sundown until Saturday at sundown. Plaintiff alleges defendant denied him time off from work to observe the Sabbath and, as a result, plaintiff was forced to use personal and sick leave time. When these days were exhausted, plaintiff did not report for work and was subsequently suspended and terminated from his employment.

 Plaintiff has alleged a myriad of claims: *fn3" a direct cause of action under the Pennsylvania Constitution; the common law tort claim of wrongful discharge; intentional infliction of emotional distress; the common law claim of breach of contract; claims arising under the Pennsylvania Human Relations Act; as well as conspiracy, damage to reputation or credit rating and standing and invasion of privacy. These will be addressed seriatim.

 II. MERITS

 A. The Pennsylvania Constitution

 Plaintiff alleges that Roadway violated Article I, Sections 3 and 4 *fn4" of the Pennsylvania Constitution. In its Motion for Summary Judgment, Roadway argues that plaintiff cannot maintain a direct action under these sections because of the absence of governmental activity. The court agrees. "Article I is entitled "Declaration of Rights" and all of the first twenty-six sections of Article I which state those specific rights, must be read as limiting the powers of government to interfere with the rights provided therein." Commonwealth v. National Gettysburg Battle Tower, Inc., 454 Pa. 193, 200, 311 A.2d 588 (1973). Further, in Murphy v. Harleysville Mutual Ins. Co., 282 Pa. Super. 244, 258, 422 A.2d 1097, cert. denied 454 U.S. 896, 70 L. Ed. 2d 211, 102 S. Ct. 395 (1981) the Pennsylvania Superior Court cited Gettysburg Battle Tower, supra for the proposition that the provisions of Article I are only intended to be limits upon the actions of state government. See also NAACP v. Pennsylvania Public Utility Comm'n., 5 Pa. Commw. 312, 290 A.2d 704 (1972). Plaintiff relies upon Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983) to support his position that a direct cause of action exists, but the court finds this reliance misplaced. Contrary to plaintiff's assertion, the court does not read Novosel as recognizing a direct cause of action under the Pennsylvania Constitution for private sector employees. Rather, Novosel involved a non-union, at-will employee claiming a common law tort claim of wrongful discharge based upon public policy. Our Third Circuit Court of Appeals, applying the logic of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) found that Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy. Novosel, supra at 898. The decision did not rest upon the Pennsylvania Constitution.

 Geary, supra recognized a non-statutory cause of action for a wrongful discharge of an at-will employee for reasons violative of public policy. While the Geary court looked to the Pennsylvania Constitution, it did so only to establish that the plaintiff was complaining of a matter of public policy and not to establish that a cause of action was arising directly from the Constitution itself. Plaintiff does not allege that Roadway's conduct can be classified as state action. An examination of Pennsylvania case law, see Gettysburg Battle Tower, supra; Murphy, supra, convinces this court that a direct cause of action under §§ 3, 4 of the Pennsylvania Constitution arises only when state action is present. Thus, the court finds no support for plaintiff's argument that he has a cause of action against a private employer flowing directly from the Pennsylvania Constitution and those claims will be dismissed.

 B. Wrongful Discharge

 Plaintiff alleges that his termination due to his religious beliefs gives rise to a common law claim of wrongful discharge.

 To maintain a common law tort claim of wrongful discharge, plaintiff must fit within the ambit of Geary, supra. In Geary, an at-will employee alleged he was wrongfully discharged after he told his superiors that a product manufactured by the company was dangerous and defective. As a result of plaintiff's expression of reservations concerning the product, it was withdrawn from the market. Shortly thereafter plaintiff was fired. While Geary's complaint was ultimately dismissed, the Pennsylvania Supreme Court recognized that a common law cause of action for wrongful discharge may lie when the severance of the employment relationship results in violating a clear mandate of public policy. Geary, supra at 184-85. Finding that under the facts presented no clear public policy had been violated, the Geary court dismissed the action. Id. at 184.

 
The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unredressed would leave a valuable social policy to go unvindicated.
 
It is clear that the whole rationale undergirding the public policy exception is the vindication or protection of certain strong policies of the community. If these policies or goals are preserved by other remedies, then the public policy is sufficiently served. Therefore, application of the public policy exception requires two factors: (1) that the discharge violate some well established public policy; and (2) that there be no remedy to protect the interest of the aggrieved employee or society.

 Wehr v. Burroughs Corp., 438 F. Supp. 1052, 1054-55 (E.D. Pa. 1977) aff'd with modification on other grounds 619 F.2d 276 (3d Cir. 1980).

 While it is clear that an employee's discharge based upon the employee's religious beliefs would violate public policy, plaintiff fails to meet the second requirement, viz., that there is no other remedy available to vindicate the protected interest. Clearly, the Pennsylvania Human Relations Act "not only establishes one's right to be free from a number of types of discrimination, but also creates a remedy to safeguard these rights." Wehr, supra at 1055. Thus, like the Wehr court, this court finds it inappropriate to create a common law remedy in this instance.

 The court further notes that plaintiff was not an at-will employee. Rather, he was a member of the International Brotherhood of Teamsters, Local 229 and the terms and conditions of his employment were governed by one or more collective bargaining agreements. Deposition of Eugene Krushinski, Document 3 of the Record, Exhibit 2 at 2-3. The narrow public policy exception enunciated by the Geary court is limited to employees "at-will." Harrison v. Fred S. James, P.A. Inc., 558 F. Supp. 438, 444 (E.D. Pa. 1983); accord Smith v. Greyhound Lines, Inc., 614 F. Supp. 558 (W.D. Pa. 1984). Because plaintiff was not an "at-will" employee and he had other statutory remedies available to him, he may not maintain a common law wrongful discharge claim. As a result, this claim will be dismissed.

 C. Breach of Contract

 As noted supra, as a member of Local 229, the terms and conditions of plaintiff's employment were governed by the collective bargaining agreements negotiated between the Teamsters and Roadway. The issue raised by plaintiff's breach of contract claim is whether the alleged contract violation is properly brought pursuant to a state law contract claim or if the claim is governed exclusively by federal law pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a). Plaintiff's breach of contract claim is grounded upon the allegation that Roadway failed to comply with its own rules and regulations. Complaint, Document 1 of the Record, Paragraph 15H. It seems apparent that if Roadway is obligated to follow its rules and regulations as to plaintiff, that obligation arises under the collective bargaining agreement. Plaintiff, however, cites no authority in support of his contention.

 Generally, Section 301 provides the exclusive remedy for violations of collective bargaining agreements. An employee, protected by such an agreement, may sue his employer only after he has pursued the grievance remedies provided by the contract, and he establishes that his right of fair representation was violated. Vosch v. Werner Continental, Inc., 734 F.2d 149 (3d Cir. 1984). In Vosch, our Court of Appeals held that plaintiff-employees had failed to state a cause of action pursuant to Section 301 when they failed to challenge the fairness or adequacy of their union's representation in the arbitration procedure. Here, plaintiff makes no claim that he was denied fair representation. The court concludes that any breach of contract claim must be governed by Section 301 of the Labor Management Relations Act and that plaintiff has failed to state a cause of action.

 D. Intentional Infliction of Emotional Distress

 Plaintiff alleges that as a result of the intentional wrongful acts of the defendant plaintiff has suffered and will continue to suffer, inter alia, strain to his emotional and nervous system. Thus he attempts to set forth a claim for intentional infliction of emotional distress.

 Pennsylvania recognizes such a cause of action and adopted the definition set forth in the Restatement Second of Torts, § 46(1):

 
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subjected to liability for such emotional distress, and, if such bodily harm to the other results from it, for such bodily harm.

 As a preliminary matter, the court must determine whether defendant's conduct may be regarded as so extreme as to ...


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