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filed: May 6, 1988.


Appeal from the Order entered in the Court of Common Pleas of Adams County, Civil Division, No. 86-S-290


Larry B. Selkowitz, Harrisburg, for appellant.

Bruce J. Kasten, Philadelphia, for appellees.

Wieand, Tamilia and Cercone, JJ. Concurring and Dissenting Opinion by Cercone, J.

Author: Tamilia

[ 374 Pa. Super. Page 523]

This case was originally commenced before the Court of Common Pleas of York County on or about May 16, 1984 with appellant's filing of a complaint. On March 20, 1986, the court sustained appellees' preliminary objections grounded on a question of venue and directed that the action be transferred to the Court of Common Pleas of Adams County. On April 25, 1986, appellant filed an amended complaint in Adams County along with a concurrent motion for leave to file the amended complaint, which motion was granted on May 30, 1986, leaving appellees twenty days to respond to the amended complaint. Appellees filed timely preliminary objections in the nature of a demurrer on June 19, 1986, claiming all three counts of appellant's amended complaint failed to state a cause of action upon which relief could be granted. After argument, the trial court, by Order dated January 12, 1987, sustained appellees' preliminary objections and granted appellant twenty days to amend its previously-amended complaint.

[ 374 Pa. Super. Page 524]

Appellant purposely elected not to amend and by praecipe filed February 6, 1987 requested judgment in favor of appellees and against herself be entered. In response to appellant's praecipe, the trial court entered judgment in favor of appellees and dismissed the original amended complaint on February 10, 1987. Appellant timely appeals the judgment.

Appellant claims the trial court improperly applied the proper standard of review in evaluating all three counts of her amended complaint and, consequently, erred in sustaining appellees' demurrer. Appellant contends her amended complaint alleges sufficient facts to state a cause of action and dismissal was improper.

In County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985), our Supreme Court set forth the proper scope of review to a challenge to the sustaining of a preliminary objection in the nature of a demurrer:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader's conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.

Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259

[ 374 Pa. Super. Page 525]

A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra, 436 Pa. at 291, 259 A.2d at 449.

See also Whitmer v. Bell Telephone Company of Pennsylvania, 361 Pa. Super. 282, 522 A.2d 584 (1987); Brown v. Taylor, 90 Pa. Commw. 23, 494 A.2d 29 (1985) (quoting County of Allegheny). With these principles in mind, we review appellant's claims.

Count one of the amended complaint is an action for wrongful discharge and counts two and three are grounded on alleged breach of contract claims. Accepting as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom, we find appellant was first employed by appellee, Hoffman Homes for Youth, Inc. ("Hoffman Homes"), in 1973 as a social worker. She alleges her terms of employment consisted of oral representations made to her as well as the provisions of Hoffman Homes' employee personnel handbook. Appellant avers her job performance was to be reviewed annually with written evaluations and that she was promised she would be retained as long as her job performance and her written evaluations were satisfactory.

In August 1981, appellant learned that two fellow employees had delivered by mail "illicit drugs" to a child who was residing at Hoffman Homes' York County facility. The amended complaint (paragraphs 9, 10, and 11) is not clear as to whether appellant notified Hoffman Homes' management of this incident or whether management learned of the incident on its own, but appellant avers that upon learning the two employees were merely "reprimanded" for the

[ 374 Pa. Super. Page 526]

    incident, she took it upon herself to meet with appellee Gerald W. Hagmayer, executive director of Hoffman Homes at its Gettysburg premises, and unsuccessfully attempted to persuade him to terminate their employment. At that meeting, appellant also notified Hagmayer of other drug "problems" she had perceived on Hoffman Homes' campus. Appellant was dissatisfied with Hagmayer's response and contacted the Hoffman Homes' Board of Directors directly to alert them to the alleged "drug use and child abuse" she perceived as being allegedly "tolerated" by Hoffman Homes.

Appellant avers that in direct retaliation to her actions she was reprimanded and subjected to continual harassment by Hagmayer and other co-workers acting at Hagmayer's behest. Further, appellant avers that in direct retaliation, Hagmayer notified her on February 1, 1982 that he would fire her unless she voluntarily resigned. Subsequently, appellant was given notice of termination on March 1, 1982, to be effective April 30, 1982. In addition to averring her termination was in retaliation to her prior actions concerning the alleged drug problems, appellant avers "Hagmayer maliciously terminated her from her job at [Hoffman Homes] in April, 1982 to prevent her pension benefits from vesting, as further punishment for her having appeared before the [Hoffman Homes] Board of Directors" (Amended Complaint at paragraph 20). At the time of termination, appellant was two months short of the service requirement of ten years for vesting of pension benefits. Although appellant eventually received a hearing and review of her termination by an outside hearing examiner, the Board of Directors voted to uphold her termination and refused to grant her pension benefits.*fn1

In her first count for wrongful discharge, appellant avers her discharge violated the Hoffman Homes' personnel policies and the public policy of Pennsylvania, specifically citing the Child ...

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