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filed: October 21, 1987.


Appeal from the Order entered in the Court of Common Pleas of Blair County, Civil Division, No. 3461 E.Q. 1984.


Stephen D. Wicks, Altoona, for appellant.

David P. Andrews, Hollidaysburg, for appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ. Cirillo, President Judge, concurs with opinion. Montemuro, J., dissents with opinion.

Author: Tamilia

[ 367 Pa. Super. Page 413]

On September 9, 1965, appellant, Frederick F. Reilly, was hired by appellee, Stroehmann Brothers Company, after entering into a written employment contract for a position as a wholesale route salesman. Appellant was dismissed from appellee on November 12, 1983 for alleged wrongful misconduct. Relying on an employment handbook, published by appellee on April 26, 1982, appellant requested binding arbitration to review the matter of his discharge. This request was denied by appellee and appellant brought the instant action seeking specific performance of the binding arbitration provisions. The lower court sustained appellee's preliminary objection in the nature of a demurrer and appellant timely appeals that Order.

Our scope of review to a challenge to the sustaining of a preliminary objection in the nature of a demurrer is limited. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983); Swidzinski v. Schultz, 342 Pa. Super. 422, 493 A.2d 93 (1985). As an appellate court reviewing the approval of a demurrer, we must accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Mahoney, supra; Toolan v. Trevose Federal Savings and Loan Association, 501 Pa. 477, 462 A.2d 224 (1983); Leach v. Hough, 352 Pa. Super. 213, 507

[ 367 Pa. Super. Page 414]

A.2d 848 (1986). This Court is concerned only with determining the legal sufficiency of appellant's complaint; we must decide whether sufficient facts have been plead which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 489 A.2d 1364 (1985).

Appellant argues that the provisions of the employment handbook, specifically the arbitration section, were incorporated into the September 9, 1965 written contract of employment between the parties by operation of paragraph 7 of the contract, which reads as follows:

NOW THIS AGREEMENT WITNESSETH, that said employee agrees:

7. That said employee will faithfully observe all rules and regulations of said Company now in effect, or such as May hereafter be adopted by Company, and that the posting of such rules and regulations at the plant of the Company shall be notice to said employee of the same, and he shall be bound by the same terms and conditions as though embodied herein.

Appellant claims that the handbook falls within the definition of "rules and regulations" which paragraph 7 contemplates. Therefore, appellant argues that the handbook, including the arbitration procedure therein, became part of the employment contract and is subject to specific enforcement.

Alternatively, appellant argues that even if the handbook was not incorporated into the employment contract, the arbitration provisions should be enforceable as a unilateral promise by appellee. Appellant maintains that the arbitration provisions requirement for "final" and "binding" arbitration must be read as implicitly imposing a "just cause" requirement upon appellee when discharging employees. By this, appellant avers that implied in the arbitration provision of the handbook is the employer's declaration that

[ 367 Pa. Super. Page 415]

    its employees could only be discharged for just cause as determined by the arbitrator.

The well-settled rule in Pennsylvania is that: "[a]bsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason." Geary v. United States Steel Corporation, 456 Pa. 171, 175, 319 A.2d 174, 176 (1974); Betts v. Stroehmann Brothers, 355 Pa. Super. 195, 512 A.2d 1280 (1986); Banas v. Mathews International Corporation, 348 Pa. Super. 464, 502 A.2d 637 (1985). The at-will presumption, uniquely present in employment contracts, is that an employment agreement is presumptively terminable at will by either party; meaning, an employee may leave a job for any or no reason and an employer may discharge an employee for any or no cause. Greene v. Oliver Realty, Inc., 363 Pa. Super. 534, 526 A.2d 1192 (1987); Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306 (1986).

We find the terms of the instant employment contract made appellant an at-will employee. In paragraph 3 of his complaint, appellant admits his contract did not provide for a definite term of employment. Paragraph 4 of the complaint admits that appellant was terminated based upon an allegation of willful misconduct. The employment contract specifically states in paragraph 11(2) that appellee has the right to summarily terminate the employment relationship for misconduct:

2. Said Company agrees to give said employee 7 days notice, in writing, of its intention to sever his employment, except that said Company reserves to itself the right to summarily terminate said employment at any time, without notice, for any breach of trust or such serious misconduct on the ...

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