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filed: June 12, 1986.


Appeal From Order Entered March 22, 1985, Court of Common Pleas, Civil Division, Luzerne County No. 1538-C of 1983


Stephen J. Fendler, Wilkes-Barre, for appellant.

R. Eddie Wayland, Wilkes-Barre, for appellees.

Cavanaugh, McEwen and Cercone, JJ. McEwen, J., concurs in the result.

Author: Cavanaugh

[ 354 Pa. Super. Page 202]

This case deals, inter alia, with the contractual significance of an employee handbook.

On May 21, 1981, Dorothy Kay Martin, appellant, was fired from her position as a copy editor for the Times Leader newspaper in Wilkes-Barre, Pennsylvania. Martin had been hired by the paper in 1978 as an at-will employee. Employees represented by four unions went on strike against the newspaper in October of 1978. The newspaper continued to adhere to the terms of the collective bargaining agreements. After the third of the four unions had been decertified, the newspaper issued a handbook to its employees. Each employee was required to attend one of a series of meetings which were held in order to explain and distribute the handbook. At the meeting appellant attended, personnel manager, David Daris, thoroughly explained the handbook's contents. Copies were distributed to each of the employees present who, in turn, were obliged to sign a document acknowledging receipt of the handbook and promising to become familiar with its contents. The handbook contained a section entitled "standards of conduct" wherein it set forth a list of actions which, if engaged in by an employee, would lead to "disciplinary action." The handbook further stated that the list was illustrative and did not include other just causes for disciplinary action. In his deposition, Mr. Daris stated that the handbook provided a guideline for all employees. When asked whether or not the handbook set forth the terms of employment, other than wages, between the newspaper and the employees, Daris answered, "I would say so, yes." The newspaper's publisher basically told the employees that the handbook controlled their employment relationship. The newspaper's managing editor also stated that the handbook "covered" the terms and conditions of employment.

Besides being a copy editor for the Times Leader, appellant also owned an ice cream-hot dog stand known as the

[ 354 Pa. Super. Page 203]

"Soft Spot" in Harveys Lake, Luzerne County. Wishing to promote her business, appellant planned to hold a flea market in the parking lot of her business. To publicize the event, she placed advertisements in the Times Leader and in the Citizens Voice, another Wilkes-Barre daily newspaper. She placed the ad in the Citizen's Voice in someone else's name.

The Citizen's Voice newspaper was the Times Leader's sole competitor as Wilkes-Barre's only other daily newspaper. It was in fact born out of a labor dispute with the Times Leader. Four unions had commenced a strike against the Times Leader and only after the strike began did the Citizen's Voice commence publication. The Citizen's Voice was published by the Wilkes-Barre Council of Newspaper Unions, a corporation formed under Pennsylvania law. In its articles of incorporation, the following appears: "The operation of said newspaper [The Citizen's Voice] shall be on a weekly or daily basis throughout the pendency of the current labor dispute . . . ."

Martin's advertisement in the Citizen's Voice was discovered by a Times Leader employee pursuant to a routine check. When informed of appellant's advertisement in the rival paper, publisher Richard Connor summoned Martin to managing editor William Thompson's office. There, Martin admitted to placing the ad in the Citizen's Voice. Connor charged her with "treason", of "giving weapons to the enemy", and of "allowing them to buy one more sheet of paper and stay in business one second longer." He told her that the Times Leader was engaged in "war" with the Citizen's Voice, and that he was not confident of her loyalty to the Times Leader. Management personnel checked the handbook in deciding whether or not to discharge Martin.

Thirty minutes after their meeting, Connor discharged Dorothy Kay Martin.

On July 30, 1981, appellant filed a charge against the corporation which published the Times Leader with the National Labor Relations Board (NLRB) alleging that her discharge was the result of unfair labor practices. This

[ 354 Pa. Super. Page 204]

    action was dismissed. Next, appellant filed an action in the Court of Common Pleas of Luzerne County. Appellees' motions for summary judgment were subsequently granted. This appeal followed.


Before dealing with the employment issues, we must first decide whether the appellant's cause of action has been preempted by federal labor law. Appellees urge that we find the cause of action preempted. The United States Supreme Court has written:

"When an activity is arguably subject to § 7 or § 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board . . . ."

San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L.Ed.2d 775 (1959).

In the instant case, appellant previously filed a charge with the NLRB alleging that appellant engaged in unfair labor practices within §§ 8(a)(1) and (a)(3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (3).*fn1

[ 354 Pa. Super. Page 205]

That complaint was dismissed in its entirety. The administrative law judge who heard the case concluded that the newspaper did not violate § 8(a)(3) and (a)(1), nor did it engage in activity protected by § 7 of the Act. Garmon, supra, stated: "[T]he Board may decide that an activity is neither protected nor prohibited, and thereby raise the question of whether such activity may be regulated by the states." Id. In the instant case, we read the NLRB's decision to say that the appellant's discharge was not an unfair labor practice protected and prohibited by the NLRA. The administrative law judge wrote:

In what appears to be a final thrust, the General Counsel urges that even if Respondent did not believe that Martin was engaged in protected activity, the discharge should be deemed unlawful as motivated by a continuing vendetta against the strikers. To support such an inference the General Counsel argues that Connor "reacted so vehemently" not because of the "inconsequential loss of business" produced by the advertisement, but because of the "prolonged labor dispute which had spawned the Citizen's Voice." Here again, the General Counsel's view is lacking in merit. Connor's emotional and perhaps even irrational response was not beyond comprehension in the circumstances. The Citizen's Voice was Respondent's sole rival based in Wilkes-Barre whose publication primarily was addressed to the readers and advertisers in that immediate locale. Common experience leads to the realization that few municipalities comparable in size to Wilkes-Barre are capable of supporting more than one daily newspaper in this day and age. On all appearances, the Citizen's Voice is and has been a successful

[ 354 Pa. Super. Page 206]

    venture, and one which imposes a serious threat to the competitive position, profitability and perhaps even the existence of the Times Leader. Respondent's sensitivity in the light of these facts does not impel a conclusion that Connor was provoked by considerations other than hostility toward a new, but significant competitive force in a market which for some 40-50 years had been the exclusive relm of Respondent. In my opinion, the General Counsel's view of the evidence is founded upon little more than speculation and flirtation with an unwarranted substitution of business judgment.

As to this state's power to adjudicate disputes such as the instant one, our Supreme Court has stated:

The states . . . have not been deprived of all power where the activity in question is merely a peripheral concern of the Act, or where the action involves an interest so deeply rooted in the local community that the Court will not infer an intent on the part of Congress to preempt even though the tort action arose in the context of an unfair labor practice . . . . [I]n deciding whether the jurisdiction of the lower court is preempted, we must inquire whether the state has a strong interest in redressing the alleged injury, and, if it does, whether the state court can adjudicate the action without deciding the merits of the underlying controversy.

Schena v. Smiley, 488 Pa. 632, 637, 413 A.2d 662, 664 (1980). (Citations omitted.)

The Schena court went on to state:

We, however, do not hold that all matters touching on labor relations are preempted from the jurisdiction of our state courts, but limit this to issues involving an "unfair labor practice", which was created by statute and unknown to common law.

Schena, 488 Pa. at 639, 413 A.2d at 665.

Without hesitation, we may say that appellant's claims of breach of contract, wrongful discharge and interference with contractual obligations are all recognized actions of Pennsylvania common law. These actions were not

[ 354 Pa. Super. Page 207]

    created by statute, and the state has a strong interest in deciding whether the alleged injury should be redressed. Moreover, the state court can adjudicate the case without deciding the merits of the underlying labor dispute. The discharge here is quite peripheral to the labor dispute, and the state court's adjudication of the issue would have no bearing on it.*fn2

Accordingly, all of the claims were properly adjudicated in state court.


Turning to the merits of this appeal, we first note the familiar standard of review for summary judgments:

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982); Scheetz v. Borough of Lansdale, 64 Pa. Commw.Ct. 24, 438 A.2d 1048 (1982). It is basic that summary judgment may be entered only in a case that is clear and free from doubt. Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa. Super. 329, 421 A.2d 747 (1980).

Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 45, 489 A.2d 828, 831 (1985).

"Since at least 1891, Pennsylvania courts have recognized the rule that, absent a contract, employees may be discharged at any time, for any reason, or for no reason at all." Darlington v. General Electric, 350 Pa. Super. 183, 193, 504 A.2d 306, 310 (1986). See also Banas v. Matthews Intern. Corp., 348 Pa. Super. 464, 502 A.2d 637 (1985).

[ 354 Pa. Super. Page 208]

Both Darlington and Banas noted the criticisms which are now frequently levelled against this rule, called the "at-will" presumption.

Taking a nationwide view of the law in this area, it is apparent that what once was the corpus juris of employment relations has lately become an amorphous mass of confusion replete with holdings that defy reconciliation from one jurisdiction to the next. The at-will presumption, the citadel that once governed the field with such predictability, has been eroded of late by piecemeal attacks on both the contract and tort fronts and the entire field seems precariously perched on the brink of change.

Pennsylvania has thus far escaped the widescale turbulence so common to the field and still clings to the at-will presumption. We stated in Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306, 310 (1986): "Even had we been asked to review the question of whether the at-will presumption should be abrogated, we are not at liberty to so hold given our Supreme Court's stance on the issue. See Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974). Moreover, we believe that if terminable at-will contracts are to be forbidden, the judicial process may be an inappropriate forum for such sweeping policy change." Courts require definiteness in employment contracting in order to overcome the at-will presumption, and Pennsylvania will forbid discharges in contravention to "public policy" (a tort action) in only narrow circumstances. Id.

We first address the issue concerning the distribution of the handbook. The handbook which was distributed to the employees contains the following:

Standards of Conduct

Certain rules and regulations are required to efficiently operate a business. The purpose of these rules and regulations is not to restrict or limit, but ...

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