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ARTHUR OTT v. BUEHLER LUMBER COMPANY (05/25/88)

filed: May 25, 1988.

ARTHUR OTT, APPELLEE,
v.
BUEHLER LUMBER COMPANY, APPELLANT



Appeal from the Judgment entered February 24, 1987 in the Court of Common Pleas of Elk County, Civil Division, at No. 85-618.

COUNSEL

James H. DeVittorio, Ridgway, for appellant.

William P. DeLaney, Erie, for appellee.

Rowley, Del Sole and Montgomery, JJ. Rowley, J., files a concurring statement.

Author: Del Sole

[ 373 Pa. Super. Page 516]

This direct appeal is taken from the judgment entered in the Court of Common Pleas of Elk County. The questions presented for review stem from the discharge of Appellee, Arthur Ott, by the Buehler Lumber Company while Appellee was under a five-year employment contract.*fn1 For the reasons which follow, we reverse and grant Appellant a new trial.

[ 373 Pa. Super. Page 517]

Buehler Lumber Company, through its president, offered Mr. Ott a written employment contract for employment at its plant. Under the terms of this contract, Mr. Ott was to serve as Plant Maintenance Supervisor for electrical and mechanical maintenance problems for a period of five years. In addition to the recitation of salary and benefits, the contract outlined various preventative and corrective maintenance plans to be implemented by Ott. His work was characterized as instructing, supervising, and participating in plant maintenance functions. Ott accepted employment under these terms.

Approximately seven weeks later, Ott received a written notice from Buehler that he was being temporarily terminated due to a lack of orders. Six months thereafter, during which time Ott received no information regarding when he would be returning to work, he commenced an action in the Court of Common Pleas of Elk County alleging he had been discharged without just cause and in violation of his employment contract.

Buehler Lumber Company answered the Complaint and admitted that a lack orders was one of numerous factors which caused the layoff of several Buehler employees. However, it further stated that its ultimate decision not to recall Ott was reasonably based upon his failure to perform and persistent failure to fulfill the express duties outlined in his employment contract.

Following a trial before a jury, a verdict was returned in favor of Ott. Buehler then filed timely post-trial motions which were subsequently denied.

On appeal, Buehler Lumber Company maintains that the trial court erred when it instructed the jury that it must find both of the following circumstances as a condition precedent to a finding that Appellee's discharge by Appellant was justified: (1) that the employee's conduct was a breach of the employment contract, and (2) that an injury or loss to the business ...


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