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BOYD MURPHY v. CARTEX CORPORATION (08/24/88)

filed: August 24, 1988.

BOYD MURPHY, APPELLEE,
v.
CARTEX CORPORATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County, Civil at No. 83-4413-03-1.

COUNSEL

John C. Wright, Jr., Philadelphia, for appellant.

Albert L. Blackman, Jr., Doylestown, for appellee.

Rowley, Wieand and Montemuro, JJ. Wieand, J., files a dissenting opinion.

Author: Montemuro

[ 377 Pa. Super. Page 183]

This case concerns the interpretation and application of several provisions of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.S.A. ยง 951 et seq. The appellee, Mr. Boyd Murphy, was hired by the appellant, Cartex Corporation, on July 10, 1979. Murphy's position with Cartex was that of a urethane utility man on the production line in Cartex's Doylestown plant.*fn1 When Murphy was initially hired by Cartex, he did not reveal the fact that he suffered from epilepsy. However, within a few months Cartex became apprised of Murphy's condition when Murphy suffered a seizure at work. Following this initial seizure, Cartex suspended Murphy and requested that he obtain the opinion of his physician concerning his physical ability to work for Cartex.*fn2 After receipt of the physician's letter, it is undisputed that Cartex offered to move Murphy from the

[ 377 Pa. Super. Page 184]

    production line into a position in the finishing department, where Murphy would have been able to have thirty minute break periods as opposed to the fifteen minute break periods afforded to production line employees. Murphy refused a position in the finishing department because it involved a lower salary.

Following Murphy's initial seizure, Cartex continued to employ Murphy on the production line until March of 1982. During the thirty-two months that Murphy was employed by Cartex, he suffered approximately fifteen seizures while on the job. N.T. July 14, 1986 at 23.*fn3 Unfortunately, in February of 1982, Murphy suffered a seizure while working which resulted in serious burns to his hands. As a result, on March 15, 1982, Cartex terminated Murphy's employment, advising him that his epilepsy created an unacceptable risk of physical injury to himself and to his fellow workers.

In June of 1983, Murphy filed suit against Cartex. First, Murphy alleged that Cartex had breached the terms of its employment contract with Murphy by failing to allow him to exercise his "bumping privilege" as set forth in the Cartex employee handbook:

Job Bumping:

(6) If for a relatively permanent medical reason, as determined by the Company physician, full time working employees are unable to perform the required duties of the job and disqualify themselves, they shall be allowed a special bumping privilege, provided the job they wish to bump into does not contain like or similar conditions to those causing the difficulty.

Brief for Appellant, Exhibit 3. As a second cause of action, Murphy alleged that Cartex had violated the Pennsylvania Human Relations Act by denying him the bumping privilege as set forth above before terminating his employment. Murphy properly requested a jury trial pursuant to Pa.R.C.P.

[ 377 Pa. Super. Page 1851007]

.1(b). Cartex's motion for summary judgment on both counts of Murphy's complaint was denied by the trial court on May 6, 1986.

The jury trial commenced on July 14, 1986. Initially, the jury was provided with a view of the Doylestown plant. Thereafter, Murphy testified. Part of Murphy's testimony established his belief that he could have safely worked in other departments of the Cartex Doylestown plant. Specifically, Murphy testified that he believed that he could have safely worked in the finishing department, the warehouse, and as a janitor. N.T. July 14, 1986 at 15. Murphy also read the above quoted provision of the Cartex employee handbook to the jury and testified that he was never given the opportunity to use the special bumping privilege. Id. at 18-19. Following the close of Murphy's testimony, Cartex moved for the dismissal of the breach of contract claim. Cartex also requested the court to excuse the jury if it dismissed the breach of contract claim, contending that the PHRA does not provide for trial by jury. The trial court dismissed the breach of contract claim, but refused to excuse the jury. After Cartex presented its case, the jury awarded Murphy $16,812.00, representing his lost wages without interest.*fn4 Cartex filed a timely motion for post-trial relief, requesting a judgment n.o.v. or a new trial. The trial court denied the post-trial relief requested by Cartex.

Cartex has presented the following issues to this Court for review:

1. Did the trial court err in finding that the verdict of the jury that Cartex had violated the PHRA was supported by sufficient evidence?

[ 377 Pa. Super. Page 1862]

. Did the trial court err in refusing to dismiss the jury following the dismissal of the breach of contract claim?

3. Did the trial court err in refusing to grant a new trial on the grounds that the jury was misled when it was not informed that the breach of contract claim had been dismissed?

4. Did the trial court err when it refused to grant a continuance to await the arrival of an expert witness for Cartex?

We will begin by addressing the third issue because it is upon this issue which we find reversible error. We recognize that a trial judge "has wide latitude in charging the jury as long as he fully conveys to the jury the law of the case." Jackson v. Spagnola, 349 Pa. Super. 471, 480-481, 503 A.2d 944, 949 (1986). In Olson v. Dietz, 347 Pa. Super. 1, 500 A.2d 125 (1985), this Court stated that "[i]n evaluating a claim of erroneous instructions to the jury, we must analyze the court's charge in its entirety . . . . If a legally valid requested point for charge is sufficiently and adequately covered in the trial court's instructions to the jury, it is appropriate to deny the request." Id., 347 Pa. Superior Ct. at 6, 500 A.2d at 128. Cartex excepted to the failure of the trial court to explain to the jury that the breach of contract claim had been dismissed, and the following exchange took place on the record:

THE COURT: Why charge them?

MR. WRIGHT: The jury doesn't know the handbook cannot be a contract and they can't base their verdict on that part of it.

THE COURT: I did not charge them on that, did I?

MR. WRIGHT: But don't you think you should explain to them it has been dismissed and has to be based solely on the Act?

THE COURT: I said that is [sic] the only thing they had to consider was the Pennsylvania Human ...


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