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JEFFREY CLAY AND MARY CLAY v. ADVANCED COMPUTER APPLICATIONS (01/28/88)

filed: January 28, 1988.

JEFFREY CLAY AND MARY CLAY, INDIVIDUALLY AND AS HUSBAND AND WIFE, APPELLANTS,
v.
ADVANCED COMPUTER APPLICATIONS, INC., BJORN J. GRUENWALD, INDIVIDUALLY AND AS PRESIDENT OF ADVANCED COMPUTER APPLICATIONS, INC., AND RICHARD BAUS, APPELLEES



Appeal from the Order entered in the Court of Common Pleas of Bucks County, Civil at No. 85-6016-11-1.

COUNSEL

Lee D. Rockafellow, Morrisville, for appellants.

Alfred J. Monte, Jr., Doylestown, for Advanced Computer, appellees.

Dianne C. Magee, Doylestown, for Baus, appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Del Sole, Montemuro, Tamilia, Kelly, Popovich and Johnson, JJ. Tamilia, J., files a concurring and dissenting opinion in which Cavanaugh, J., joins.

Author: Montemuro

[ 370 Pa. Super. Page 501]

Appellants, Jeffrey Clay and Mary Clay, challenge the dismissal of their claims against appellees, Bjorn J. Gruenwald and Richard Baus. We affirm in part and reverse in part the order of the Bucks County Court of Common Pleas.

The Clays filed this action to recover damages for wrongful discharge, breach of an implied contract of employment and intentional infliction of emotional distress. In their complaint, they alleged that Bjorn Gruenwald had terminated their employment with Advanced Computer Applications, Inc. solely because Mary Clay had rebuffed the sexual advances of Richard Baus, a management-level employee. The complaint named as defendants (1) Advanced Computer; (2) Bjorn J. Gruenwald, both individually and as president of Advanced Computer, and (3) Richard Baus. On September 20, 1985, an attorney representing both Advanced Computer and Mr. Gruenwald filed preliminary objections to the Clays' complaint. The preliminary objections contained a "motion to strike Bjorn J. Gruenwald as an individual defendant" and a "demurrer."*fn1 Both the "motion to strike" and the "demurrer" rested on the same two theories. The first was that Mr. Gruenwald had acted as an agent of Advanced Computer, not as an individual, in discharging the Clays. The second was that none of the allegations in the complaint were sufficient to state a cause

[ 370 Pa. Super. Page 502]

    of action against Mr. Gruenwald even if he had acted as an individual.

On October 4, 1985, an attorney representing Mr. Baus also filed preliminary objections to the complaint. These objections contained five "demurrers" and a "petition raising a question of lack of personal jurisdiction." The "petition" challenged the method by which the sheriff served process against Mr. Baus. The "demurrers" in sum declared that the allegations in the Clays' complaint were insufficient to state a cause of action against Mr. Baus for either wrongful discharge, breach of contract or intentional infliction of emotional distress. The trial court decided these preliminary objections together with those filed by the attorney for Advanced Computer and Mr. Gruenwald.

In an order dated April 7, 1986, the court referred to the various preliminary objections collectively as "motions to dismiss." The order simply granted the "motions" without elaboration. In a subsequent opinion, however, the court offered three grounds for its action. First, the court reasoned that it lacked subject matter jurisdiction over any of the wrongful discharge claims because the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provide the exclusive remedy for grievances arising from sexual discrimination in the workplace. Second, the court concluded that the Clays had failed in their complaint to state a cause of action for breach of contract. The conclusion apparently applied to both Mr. Baus and Mr. Gruenwald, although only Mr. Baus specifically challenged the sufficiency of the breach of contract allegation. The order granted both "motions to dismiss" without distinguishing between the two. Moreover, the parties in their arguments on appeal have assumed that the trial court meant to dismiss the contract claim against Mr. Gruenwald as well as the one against Mr. Baus. Third, the court also concluded that the Clays had failed to state a cause of action for intentional infliction of emotional distress. Again, this apparently applied to both Mr. Gruenwald and Mr. Baus

[ 370 Pa. Super. Page 503]

    alike.*fn2

On appeal, the Clays raise the following issues:

1. Did the trial court err in dismissing the wrongful discharge claims for want of subject matter jurisdiction when none of the parties raised subject matter jurisdiction as a ground for dismissal?

2. Do either the Pennsylvania Human Relations Act or Title VII of the Civil Rights Act of 1964 bar common law tort actions for wrongful discharge in cases that arise from alleged sex discriminating?

3. Did the trial court act on its own initiative, rather than on the preliminary objections actually raised by the parties, when it dismissed the breach of contract and intentional infliction of emotional distress claims against Mr. Gruenwald and Mr. Baus?

4. Did the trial court err in concluding that the Clays failed in their complaint to state causes of action against Mr. Gruenwald and Mr. Baus for breach of contract and intentional infliction of emotional distress?*fn3

We will address these issues in order.

The Clays contend that the trial court could not raise lack of subject matter jurisdiction sua sponte as a ground for dismissal. We disagree. A court necessarily

[ 370 Pa. Super. Page 504]

    has the authority to determine on its own initiative whether it has jurisdiction to decide a controversy. See Hanik v. Pennsylvania Power Co., 308 Pa. Super. 352, 454 A.2d 572 (1982); Marcus v. Diulus, 242 Pa. Super. 151, 363 A.2d 1205 (1976). The action or inaction of the parties cannot bestow subject matter jurisdiction upon a court that otherwise lacks it. See T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Cheng v. Cheng, 347 Pa. Super. 515, 500 A.2d 1175 (1985). Our rules of procedure therefore provide that either the parties or the court sua sponte can raise lack of subject matter jurisdiction at any time. See Pa.R.C.P. 1032(2). See also LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986); Cheng v. Cheng, supra; Shields v. C.D. Johnson Marine Service, 342 Pa. Super. 501, 493 A.2d 701 (1985). In the case now before us, the trial court properly addressed the jurisdiction issue even though the parties never raised it in their preliminary objections.

We nonetheless agree with the Clays that neither the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., nor Title VII of the Civil Rights Act of 1964, U.S.C. § 2000e, deprives the trial court of jurisdiction over the Clays' wrongful discharge causes of action. The Clays had each sought relief for wrongful discharge against each of the three defendants. Their complaint offered three theories in support of these claims. First, the Clays maintained that their discharge "violated" the "public policy" of this Commonwealth. Second, they charged that the defendants acted with "malice." Third, they indicated that the defendants breached an "implied covenant of good faith and fair dealing."*fn4 Although the trial court in its opinion mentioned

[ 370 Pa. Super. Page 505]

    only "good faith and fair dealing" specifically, it appears to have concluded that "statutory remedies" exclude any "tort cause action" for wrongful discharge, regardless of the underlying theory. In so concluding, the trial court has misconstrued the Human Relations Act and Title VII of the Civil Rights Act.

Section 962 of the Human Relations Act provides in part as follows:

(b) Except as provided in subsection (c), nothing contained in this act shall be deemed to repeal or supersede any of the provisions of any existing or hereafter adopted municipal ordinance, municipal charter or of any law of this Commonwealth relating to discrimination because of race, color, religious creed, ancestry, age, sex, national origin or handicap or disability, but as to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil, or criminal, based on the same grievance of the complainant concerned. If such ...


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