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GAIARDO v. ETHYL CORP.

November 26, 1986

ALBERT J. GAIARDO and PATRICIA GAIARDO, his wife, Plaintiffs,
v.
ETHYL CORPORATION, a/k/a ETHYL CORPORATION, VISQUEEN DIVISION, Defendant


Edwin M. Kosik, United States District Judge.


The opinion of the court was delivered by: KOSIK

EDWIN M. KOSIK, UNITED STATES DISTRICT JUDGE

 On June 16, 1986 the plaintiffs, Albert J. Gaiardo [plaintiff/employee] and his wife Patricia Gaiardo, instituted this action. The complaint alleges that the defendant Ethyl Corporation [Ethyl] wrongfully terminated plaintiff Albert Gaiardo's employment. Jurisdiction of this court is invoked by diversity of citizenship pursuant to 28 U.S.C. ยง 1332. On September 4, 1986 the defendant filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), essentially claiming that the complaint fails to state a claim. The defendant submitted a memorandum in support of its motion on September 15, 1986 and an appendix to said memorandum on September 17, 1986. The plaintiffs filed their brief in opposition to the motion to dismiss on October 1, 1986. A reply brief by the defendant was filed on October 14, 1986. Therefore, the defendant's motion to dismiss is ripe for disposition.

 The defendant requested that in accordance with Fed. R. Civ. P. 12(b) we construe its Rule 12(b)(6) motion to dismiss as a Rule 56 motion for summary judgment. *fn1" Rule 12(b) provides that if a motion to dismiss for failure to state a claim is filed and "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Rule 12(b) also provides that "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In conjunction with its request to consider its motion as one for summary judgment the defendant has submitted the following documents: an affidavit of its plant manager, Steven K. Smith; a copy of its personnel policies; a copy of its foreman's notes on plaintiff/employee; a copy of the plaintiff/employee's termination letter; a copy of the defendant's notice of employee separation regarding the plaintiff/employee; and a copy of the Pennsylvania Human Relations Commission complaint filed by the plaintiff/employee. *fn2" The plaintiffs have submitted only one document entitled "affidavit," in addition to their brief. *fn3"

 The standard to be applied by this court in considering a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is clear. When a motion to dismiss is filed the court must accept the allegations in the plaintiff's complaint as true. Hishon v. King & Spalding, 467 U. S. 69, 104 S. Ct. 2229, 2233, 81 L. Ed. 2d 59 (1984). Moreover, the court can dismiss a complaint pursuant to Rule 12(b)(6) only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id.

 In the case of Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977), the court stated that if a Rule 12(b)(6) motion is converted into a Rule 56 motion the plaintiff must be afforded additional safeguards, namely "in addition to having all of plaintiff's allegations taken as true, with all favorable inferences, the trial court cannot grant summary judgment unless there is no genuine issue of material fact." In the case at bar, the court shall consider the outside matters submitted by the parties, thus converting the defendant's Rule 12(b)(6) motion to dismiss as a Rule 56 motion for summary judgment. Furthermore, the plaintiffs have the burden to present some facts from which a reasonable inference could be drawn that a contract existed in fact or should be implied by law. Therefore we shall now determine if this case presents any genuine issues of material fact.

 I.

 The defendant first moves to dismiss Counts I, II and III of the plaintiffs' complaint. In Counts I, II and III the plaintiffs maintain that from July, 1969 until May 1, 1985 the defendant had an implied employment contract with the plaintiff Albert Gaiardo. The plaintiffs contend that this contract arose out of the defendant's employee handbook and rules. The plaintiffs do not allege that the plaintiff/employee had a written contract with the defendant. In fact, the defendant states that the plaintiff/employee never had a written contract for employment. *fn4" Counts I, II and III further allege that the defendant breached the plaintiff's employment contract when it wrongfully terminated the plaintiff without just cause. The defendant argues that the plaintiff was an at-will employee who served at the pleasure of the defendant and without any specified term or period of employment. It maintains that the plaintiff had no contract of employment with it neither expressed, nor implied, nor written, nor oral. *fn5" The defendant further states that plaintiff was not performing satisfactorily and even if he was, good faith is not required in the termination of an at-will employment relationship.

 In its brief the defendant claims that under Pennsylvania Law employee handbooks which contain company policy, do not constitute an employment contract. We agree. The well settled law of Pennsylvania is that a contract for personal services is presumed terminable at will by either party absent some provision setting forth the duration of the contract. Henry v. Pittsburgh and Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891); Geary v. U. S. Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974). This rule, often called the "at-will presumption," was again recently recognized in Pennsylvania in the case of Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306, 310 (1986), where the court stated "absent a contract, employees may be discharged at any time, for any reason, or for no reason at all." Our federal courts have also held that in the absence of an agreement for a fixed period of time, a hiring is a hiring at will. Beidler v. W. R. Grace, Inc., 461 F. Supp. 1013, 1015 (E. D. Pa. 1978), aff'd mem., 609 F.2d 500 (3d Cir. 1979); Ruch v. Strawbridge & Clothier, Inc., 567 F. Supp. 1078, 1080 (E. D. Pa. 1983). The federal courts have further ruled that in order to overcome the presumption that the contract was terminable at will, there must be specific guidelines for determining the duration of the contract. Ruch, supra, 567 F. Supp. at 1080; see also Geib v. Alan Wood Steel Co., 419 F. Supp. 1205, 1208 (E. D. Pa. 1976).

 In the case at bar, the plaintiffs have not alleged any facts demonstrating a guaranteed term of employment or a basis for implying one. We have reviewed the personnel policy manual which is relied upon by the plaintiffs and has been provided to the court, as stated, as part of the evidentiary materials offered in support of the summary judgment motion. *fn6" There is no dispute over the existence or wording of the employee handbook. The pertinent provisions of the manual read as follows:

 
Conduct
 
As employees, we are subject to certain rules and regulations and are expected to maintain high standards of personal behavior. However, when regulations are broken some action must be taken for the protection of all concerned.
 
The seriousness of offenses varies and action in each case must be appropriate for the particular infraction. Disciplinary action at the plant takes the form of a verbal reprimand, corrective interview, a written warning, suspension or discharge. Whenever an employee feels he is being treated unfairly, he may request a review of the situation with appropriate management representatives.
 
Certain offenses are subject to severe disciplinary action including immediate discharge without notice.
 
These offenses include but are not limited to:
 
a. Introduction, possession or use of intoxicants or marijuana, hallucinogens, amphetamines or narcotics on Company property. Coming to work under the influence of intoxicating liquors or such drugs as prohibited.
 
b. Deliberate or negligent interference with production, deliberate or negligent destruction of Company property.
 
c. Theft or the attempt to steal while on the plant premises, obtaining material(s) on fraudulent order(s).
 
e. Violation of a criminal law such as carrying prohibited weapons, fighting or attempting bodily injury to another, stealing, making fraudulent records, malicious mischief resulting in injury or destruction of ...

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