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JOHN E. BRESLIN (12/30/85)


December 30, 1985


No. 02631 Philadelphia, 1984, Appeal from the Order entered August 24, 1984 in the Court of Common Pleas of Schuylkill County, Civil Division, at No. S-1638-1983.

Before Beck, Popovich and Trommer*fn* , JJ.

Per Curiam:

Order affirmed.


Appellant John E. Breslin challenges the trial court's order sustaining the preliminary objections of appellee, Good Samaritan Hospital, and dismissing appellant's second amended complaint without further leave to amend. For the reasons stated below we affirm.

Appellant was employed by appellee as a security officer for approximately four years before his termination on June 10, 1983. The stated reason for his firing was off-duty conduct unbecoming to a security officer; he was charged with criminal mischief and conspiracy in connection with an April 25, 1983 incident.*fn1

Appellant brought suit against Good Samaritan Hospital seeking reinstatement and back pay. His original complaint and first amended complaint were dismissed on appellee's preliminary objections, with leave granted to amend. His second amended complaint alleged that he was terminated without good cause and that his termination was in breach of an employment contract between the parties. Appellant averred that a "Department of Safety and Security Policy and Procedure Manual" and a written job description contained the terms of the contract. The trial court dismissed the second amended complaint without leave to amend, holding that it failed to state a cause of action.

On appeal from an order sustaining preliminary objections to a complaint, we must take as true all well-pleaded allegations. Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth, 35 Pa. Commw. 133, 384 A.2d 1367 (1978). The complaint should be dismissed only where it is clearly warranted and the case is free from doubt. Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982).We hold that the second amended complaint is inadequate even when appellant is given the benefit of these principles.

Although this court held in Banas v. Matthews International Corp., No. 1205 Pittsburgh 1982 (filed June 14, 1984), reargued en banc, December 13, 1984, that the provisions of an employee manual can become part of the contract between the employer and the employee, appellant's complaint fails to state a cause of action under even the most generous reading of Banas. First, appellant has not alleged that either the "Department of Safety and Security Policy and Procedure Manual" or the "job description" were ever distributed to Breslin or any other employee. In fact, the complaint avers that the manual is in the "exclusive possession of Defendant" (Second Amended Complaint at P10).*fn2 In Banas, the existence of enforceable contractual rights arising from a personnel manual was predicated on the distribution of the manual to employees, which constitutes an offer of the terms and conditions contained within as part of the contract of employment, and the employee's indication of his acceptance by continuing to perform the duties of hib job in reliance on the employer's offer. Appellant's allegation that certain terms and conditions are stated in documents which remain in the "exclusive possession" of the employer is therefore insufficient because there is no claim that an offer was communicated by the employer or accepted by the appellant employee while he was on the job.

Secondly, in Banas we did not adopt the theory that a general requirement of just cause applied to all discharges, and we specifically held that an employee handbook cannot create a contract entitling an at-will employee to a definite tenure of employment. Therefore, appellant's allegations that he was discharged without good cause (Second Amended Complaint at P20) and that "[t]he Manual and job description create a contract . . . assuring continued employment to Plaintiff unless Plaintiff fails to comply with the requirements in the Manual and job description" (Id. at P7) are insufficient to plead a cause of action. On the latter of these, see also Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 466 A.2d 1084 (1983), holding that a personnel manual which provided for "continual employment to all employees whose work proves satisfactory" did not establish a definite term of employment.

For the foregoing reasons the trial court was correct in dismissing appellant's second amended complaint. When the trial court sustains preliminary objections in the nature of a demurrer, leave to amend should be allowed unless it appears with certainty that the law will not permit recovery on the facts averred and there is no reasonable possibility that amendment will be successful. Schuylkill Products, Inc. v. H. Rupert & Sons, Inc., 305 Pa. Super. 36, 451 A.2d 229 (1982); Hoza v. Hoza, 302 Pa. Super. 72, 448 A.2d 100 (1982). In the instant case the court has already given appellant two changes to amend his complaint to plead a cause of action. Whether to grant leave to amend is generally a matter committed to the discretion of the trial court. Junk v. East End Fire Department, 262 Pa. Super. 473, 396 A.2d 1269 (1978). Under the circumstances the trial court did not abuse its discretion in refusing further leave to amend. See Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960) (dismissing complaint without leave to amend where first amended complaint and proposed second amendment both inadequate).

*fn* Judge Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

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