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April 8, 1986


The opinion of the court was delivered by: LORD

 Linda Kilpatrick was terminated from her position as a kennel worker by the Delaware County Society for the Prevention of Cruelty to Animals ("S.P.C.A."). Her complaint alleged that she was fired because she reported an occupational health hazard to the Pennsylvania Department of Agriculture. Count I of her complaint alleged that the termination violated her first amendment rights. Count II alleged the common law tort of wrongful discharge. Count III alleged that particular aspects of her termination amounted to the intentional infliction of emotional distress. At trial, defendant's motion for a directed verdict was granted as to Counts I and III. The jury returned a verdict in plaintiff's favor as to Count II and found that the plaintiff had incurred damages of $15,931.29; $10,931.29 in lost wages and benefits and $5,000.00 for the emotional distress plaintiff suffered due to the termination.

 The defendant has moved for judgment notwithstanding the verdict contending that (1) since Count II incorporated the factual allegations of Count I, all of which were not proven at trial, Count II should have been dismissed along with Count I; (2) plaintiff's termination did not violate a clearly established public policy and therefore does not support a claim for wrongful discharge; (3) Count II of plaintiff's complaint is preempted by the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et seq. (1984), and; (4) there was insufficient evidence to justify submitting to the jury the issue of emotional distress arising out of the termination. For the reasons that follow defendant's motion will be denied.

 I. The facts

 A brief synopsis of the evidence presented at trial is necessary before considering defendant's legal arguments. In considering a motion for judgment notwithstanding the verdict, I must view the evidence in the light most favorable to the party who secured the verdict. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 50 L. Ed. 2d 770, 97 S. Ct. 767 (1977).

 Plaintiff is an unmarried mother, the sole supporter of herself and her child. One of her tasks at the S.P.C.A. was cleaning kennels. Terry Dotts, her immediate supervisor, gave her a new product, "T.B.Q.," and told her to mix a few drops of it with some bleach and water and spray down the kennels with the mixture. She was not provided with precise instructions about how to mix the solution, nor was she provided with gloves, goggles or protective clothing.

 Within one week of using T.B.Q. plaintiff developed a red rash on her hands, arms and face. Her skin became dry and itchy and began to seep. Plaintiff testified that one coworker developed the rash and another had trouble breathing after working with T.B.Q. Ann Porter, an S.P.C.A. employee, testified that one employee passed out and another became ill after using T.B.Q.

 Plaintiff complained to Terry Dotts. At first she received no response, then he claimed her problems were not being caused by T.B.Q. During a nine day vacation her hands began to heal, but they grew worse after she returned to work and exposure to T.B.Q. She decided to examine the label on the barrel of T.B.Q., but because it was facing the wall, needed the help of another employee to turn the barrel around. The label frightened her because it said that T.B.Q. was corrosive to tissues and could harm her eyes and skin.

 Plaintiff went to see her physician and brought along a copy of T.B.Q.'s ingredients. Her physician stated that her problems very likely were caused by T.B.Q. She reported this to Terry Dotts who again denied that T.B.Q. was responsible for her condition. Plaintiff asked for more information about T.B.Q., so he told her to look for a pamphlet about the product in his office. The pamphlet instructed users to wear goggles and gloves and to keep the product off their skin and clothing. After reading the pamphlet she complained again to Terry Dotts who ignored her.

 Plaintiff then explained her problems to Ms. Ottey, another of her superiors at the S.P.C.A. Later in the day Ms. Ottey reported that she had spoken with Ms. Meade, the S.P.C.A.'s president, who said there was nothing wrong with T.B.Q. and that they would continue using it. Terry Dotts then began to watch plaintiff in order to be certain that she was cleaning with T.B.Q. instead of pouring it down the drain as other employees were doing. Plaintiff then complained directly to Ms. Meade who told plaintiff that her problem was being caused by something in her home and not by T.B.Q. or anything in the kennel.

 Finally, plaintiff reported her problem to the Pennsylvania Department of Agriculture. The Department sent an inspector who concluded that the handling, dilution and use of T.B.Q. at the S.P.C.A. was contrary to the manufacturer's instructions and therefore a violation of the Pennsylvania Pesticide Control Act. 3 Pa. S.A. § 111.21 et seq. (1985). Specifically the Department objected to the fact (1) that gloves and goggles were not provided to employees, (2) that an odor control agent and bleach were added to the T.B.Q. and, (3) that insufficient amounts of water were used to dilute the T.B.Q.

 Two days after the inspection plaintiff was fired. When asked for a reason Ms. Meade told her that an employer did not need a reason to fire an employee. After being terminated plaintiff became frustrated, angry and depressed. Her physician testified that she deteriorated emotionally due to a pathologic depressive reaction. Physically she felt nauseous, would sometimes cry uncontrollably and had a great deal of trouble sleeping. She became very concerned about her poor financial condition, her lack of employment and her inability to support her child or function as a mother. After beginning to drink too heavily she went to her physician who prescribed Librium and Xanax for her depression. She also went to see a psychiatrist who prescribed Sinequan for her depression.

 The jury found that plaintiff was fired because of her complaint to the Department of Agriculture and found that the defendant would not have fired her absent that complaint. The jury also found that some of her emotional problems were caused by the termination.

 II. Plaintiff's failure to prove all of Count II's averments

 Defendant has advanced the novel theory that a cause of action must be dismissed simply because it contains irrelevant factual allegations that a plaintiff fails to prove at trial. In Count I of plaintiff's complaint she alleged that all of the defendant's complained of actions were done under color of the laws of the Commonwealth of Pennsylvania. That allegation was incorporated into the complaint's other counts, including Count II, plaintiff's claim of wrongful termination. At the close of plaintiff's case I dismissed Count I, explicitly holding as a matter of law that defendant was a private party and had not acted under color of state law. Defendant argues that Count II should have been dismissed along with Count I, since it contained the same factual allegation concerning state action which plaintiff failed to prove at trial. Count II, however, alleged a violation of the common law of Pennsylvania and it is therefore immaterial whether defendant acted as a private party or under color of state law when it committed the acts complained of in Count II. It, therefore, would have been absurd and unjust to dismiss Count II simply because plaintiff failed to prove a fact alleged in that Count which was immaterial to her claim.

 Fed. R. Civ. P. 12(f) gives me the power upon my "own initiative at any time" to remove this immaterial allegation from Count II of plaintiff's complaint. Since defendant is not prejudiced by this allegation remaining in the complaint, there is no ...

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