The plaintiff has offered as proof of this argument a copy of a "Notice" which states that the plaintiff's separation pay would be seventy-five percent of his salary through June 30, 1983, when his health insurance would also cease, and that the plaintiff would pay a premium of $163.50 each month for that benefit. Both parties agree the plaintiff was presented with this document on April 29, 1983, two days after he allegedly struck the severance "bargain" with K. W. Spahr. The defendant alleges the plaintiff signed this document, constituting a contract, and that under the Pennsylvania parol evidence rule prior oral representations which alter the terms of the written contract (such as the oral representations allegedly made by K. W. Spahr) are inadmissible. The rationale for such an argument is that "unless fraud, accident or mistake [is] averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence." Harrison v. Fred S. James, P.A., Inc., 558 F. Supp. 438, 442-44 (E.D. Pa. 1983).
The plaintiff "specifically denied signing the document and in fact recalls refusing to sign it as prepared." (Plaintiff's Memo. at 5) The plaintiff also points to other "problems" with the "Notice" document as indications that it does not constitute a contract. Lastly, the plaintiff argues that the document does not purport to contain the entire agreement of the parties, or even purport to be an agreement and thus is not subject to the parol evidence rule.
The defendant responds by asserting that the plaintiff is attempting to create an issue of fact by making contradictory statements. The defendant refers to representations he recalls the plaintiff's counsel making at a pretrial conference in chambers. The court must confine itself to the affidavits and depositions properly presented. Because the defendant has denied signing the "notice" and has presented questions regarding whether the notice constitutes an enforceable agreement by its terms, material issues of fact exist and the court may not enter summary judgment as to this count. The defendant has requested permission to retain a handwriting expert; leave to do so is approved by the court.
The plaintiff alleges in Count III that he was wrongfully discharged due to his efforts as a safety engineer to correct serious and chronic health and safety problems at the defendant's plant and to effect the proper storage and disposal of hazardous and toxic substances. In general, there is no non-statutory cause of action under Pennsylvania law for an employer's termination of an at-will employment relationship. Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 31, 386 A.2d 119, 120 (1978). However, when the discharge of an employee-at-will threatens certain public policies, the employee may have a limited, nonstatutory cause of action against the employer for wrongful discharge. Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Division, 281 Pa. Super. 560, 422 A.2d 611 (1981), citing Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). The plaintiff alleges he was discharged in violation of the public policy of the Commonwealth which favors safe and healthy working environments for employees and the proper disposal of hazardous waste. The plaintiff cites the following as manifestation of this public policy: "the Occupational Safety and Health Act of 1970, Pub.L. 91-596, December 29, 1970, 84 Stat. 1590 ["OSHA"]; Toxic Substances Control Act, Pub.L. 94-469, October 11, 1976, 90 Stat. 2003; Environmental Quality Improvement Act of 1970, Pub.L. 91-244, Title II, et seq. 202-205, April 3, 1970. 84 Stat. 114, Article I, Section 27 of the Pennsylvania Constitution, and 43 P.S. 25-1 et seq."
The defendant argues that the heart of the plaintiff's claim for wrongful discharge has been preempted by OSHA, regardless of any alleged common law rights for wrongful discharge. The court is persuaded that this argument is correct.
OSHA, 29 U.S.C.A. § 660(c)(1), and the Toxic Substance Control Act, 15 U.S.C.A. § 2622 (West 1982 & Supp. 1985), provide specific remedies for corporate retaliation against employees who participate in any action to carry out the purpose of the federal statutes. See also 29 C.F.R. §§ 24.1-24.9 (1985). The statutory remedies are exclusive: they provide for the filing of a complaint with the Secretary of Labor and there is no private right of action. See Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980).
The applicable federal regulation specifically protects employees as follows:
(b) Any person is deemed to have violated the particular federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has: