filed: March 4, 1986.
LEON D. TOURVILLE, APPELLANT
INTER-OCEAN INSURANCE COMPANY AND JAMES COLWELL
Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division at No. GD 82-18768
John T. Tierney, III, Pittsburgh, for appellant.
Alan H. Perer, Pittsburgh, for appellees.
Brosky, Rowley and Feeney, JJ.*fn*
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This appeal is from summary judgment against plaintiff in a civil suit for wrongful discharge. Appellant contends that there were sufficient factual allegations to go to trial
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on the issue of wrongful discharge. We disagree and, accordingly, affirm.
Appellant was an insurance broker for appellee before he fell ill. During his hospitalization an employee of appellee came to his house and collected his business records; justifying this to his wife with the statement that he was dying. Appellant did not fulfill this prophecy, but returned home. His former clients were then told that by the same employee he had beat his wife, had a nervous breakdown and kept dishonest accounts. He denies his demise, his brutality and the dishonesty attributed to him. The trial court granted summary judgment for appellee based on the legal conclusion that appellant had not alleged a violation of public policy necessary to support a wrongful discharge action.
The seminal wrongful discharge case in Pennsylvania is Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Writing for a majority of the Court, Justice Pomeroy announced a cause of action for wrongful discharge for at-will employees. Under Geary, one of two circumstances have to be met: the discharge must be made with the specific intent to harm,*fn1 or it must be contrary to public policy.*fn2 We agree with the trial court that appellant's pleadings do not support a discharge violative of public policy. It remains to be seen, however, whether those pleadings establish the basis for going on to trial on a theory of discharge motivated by a specific intent to harm.
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reason for the action (other than an atavistic desire to hurt another). This, certainly, is something that the trial court can look for in the pleadings or in the evidence at trial to test the legal sufficiency of a case. If there is not present a cause, which in every day, civilized life would serve as the basis for the action, then the malevolence surely is pure, unadulterated and disinterested.*fn7
Applying this standard to the instant case, we find that appellant's cause of action fails. Appellee contended that appellant was discharged simply because he had fallen ill and could not perform his duties. Appellant did not gainsay the fact of his illness or of his temporary inability to do his job. This could, without any doubt, provide sufficient reason for an employer to discharge an employee, so that the presence of a malicious desire to harm cannot be inferred from the absence of any reason.*fn8
" Ulterior Purpose "
The other phrase from Holmes' American Bank that Geary highlighted was "ulterior purpose." This phrase finds definition in another case cited in Geary, Wheatley v. Baugh, 25 Pa. 528 (1855), and in the abuse of process cases, the progenitor of which is also cited in Geary.*fn9 The thrust of these cases is that a harmful action is done with sufficient reason (unlike our first type), but it is done with an ulterior motive -- to harm the other party. How, then, would a trial court find this to be present? Given a
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sufficiency of plausible justification, how would this reveal itself?
The answer, we think, is rather obvious: that what is harmfully done is beyond the necessity of the justified harmful act. The quality of maliciousness could be discovered by the lack of proportionality or the impropriety or viciousness with which a thing is done. Is that, then, present under the facts as alleged here? Before that can be answered, it must first be determined what facts are relevant.
To this point we have faithfully followed Geary and the cases cited by Geary. We would continue to do so, but at this juncture they no longer guide us. The central question here is what acts can be looked at to reveal these undesirable qualities. Can we only look to the act of discharge itself; or can we go beyond that to examine the acts committed by the employer before and after the actual discharge?
We conclude that the broader scope is the proper one. The actual act of saying to someone, "You're fired." could virtually never, in and of itself, reveal an intent to harm. On the other hand, we do think that the specific intent to harm by firing could, in all fairness, be revealed by the surrounding circumstances.*fn10
Given that scope, appellant has not alleged sufficient facts to support a wrongful discharge cause of action. See Farbo v. Caskey, 272 Pa. 573, 116 A. 543 (1922).
*fn* Honorable John M. Feeney of the Court of Common Pleas of Allegheny County, Pennsylvania, sat by designation but did not participate in the decision or disposition of this case.