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DEBRA L. SMALL v. COLUMBIA GAS PENNSYLVANIA (05/04/87)

filed: May 4, 1987.

DEBRA L. SMALL, APPELLANT,
v.
COLUMBIA GAS OF PENNSYLVANIA, INC., APPELLEE



Appeal from Judgments of the Court of Common Pleas, Civil Division, of York County, No. 83-S-969.

COUNSEL

Daniel Fennick, York, for appellant.

Allen E. Roth, Columbus, for appellee.

Wieand, Montemuro and Johnson, JJ.

Author: Wieand

[ 363 Pa. Super. Page 63]

In this action for an alleged wrongful discharge of a handicapped person, the trial court determined that the discharge had not been in violation of the Human Relations Act and entered judgment in favor of the employer. The employee appealed. We affirm.

In June, 1981, Debra Small was employed by Columbia Gas of Pennsylvania, Inc. as a meter reader in and around Gettysburg. The employment was at will. Approximately five months later, during the early morning hours of November 13, 1981, Small was arrested in the State of Maryland for driving while under the influence of alcohol. Later, on the same day, she spoke with Margaret Burcham, a counselor at the Adams County Drug and Alcohol Center in Maryland, who persuaded Small to enter a residential detoxification facility known as Talbot Place for treatment of that which was perceived to be an alcohol problem. Burcham called Jack Klein, Small's immediate supervisor at Columbia Gas, informed him that Small had a drinking problem, and asked (1) whether Columbia's insurance program would cover the cost of residential placement and (2) whether Small would be permitted to take a thirty day leave of absence to attend the detoxification program at Talbot Place. At the time, Columbia Gas had an internal employee alcohol rehabilitation program in place. Klein agreed to get back to Burcham with answers to her questions, and he

[ 363 Pa. Super. Page 64]

    then consulted with other Columbia officials. They decided to reserve any decision until Monday, November 16, 1981. When Klein relayed this information to Burcham, he was told that Small had decided to undergo treatment regardless of whether her job would be available when the course of treatment was complete. On November 16, Klein was notified that Small had been admitted to Talbot Place and that she would be there for approximately thirty days. On the same day, Klein recommended to the district manager that Small be discharged from Columbia's employ.

Upon completion of the alcohol program in December, 1981, Small met with Klein regarding continued employment with Columbia. Following this meeting, Small was terminated. Although Columbia had a company policy of progressive corrective discipline, the lesser degrees of discipline were bypassed in Small's case in favor of the most severe form of discipline, which was discharge.

After pursuing administrative remedies unsuccessfully, Small began a civil action charging Columbia with an unlawful discriminatory practice under the Pennsylvania Human Relations Act,*fn1 i.e., discharging her even though alcoholism had rendered her a handicapped person. On July 8, 1985, following a non-jury trial, the court entered a verdict in favor of Columbia. Small filed post-trial motions on July 18, 1985, challenging the trial court's findings of fact and alleging that the trial court had failed to give adequate consideration to evidence that she had been treated differently than employees not perceived as having alcohol related problems. On November 14, 1985, before disposition of the post-trial motions, Small filed a motion to amend her complaint to state a new cause of action, to wit, that in discharging her, Columbia Gas had violated the employment policies set out in its Manual of Corrective Discipline and in its Employee Alcoholism Policy. On April 4, 1986, the trial court entered two orders, one denying Small's motion for post-trial relief and the other denying the motion to amend

[ 363 Pa. Super. Page 65]

    the complaint. In consolidated appeals from both orders, Small presents two issues for our consideration: (1) whether the trial court's finding that Columbia Gas had not terminated Small because of a perceived handicap of alcoholism was error; and (2) whether the trial court abused its discretion by refusing to allow Small to amend her complaint to include a new theory of ...


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