The opinion of the court was delivered by: Cohill, Chief Judge.
This action was referred to United States Magistrate Judge
Gary L. Lancaster in accordance with the Magistrates Act,
28 U.S.C. § 636(b)(1), and Rules 3 and 4 of the Local Rules for
Magistrates. On November 22, 1991, the Magistrate Judge filed
his Report, which concluded that defendant's motion for summary
judgment should be granted. Plaintiff filed timely objections
to the Report. After de novo review of the pleadings and
documents in the case, together with the Magistrate Judge's
Report and objections thereto, the following ORDER is entered
this day of 7th December, 1991:
Defendant's motion for summary judgment is granted.
The Report filed by Magistrate Judge Lancaster is adopted as
the Opinion of the Court.
Unless otherwise indicated, the following is undisputed.
Plaintiff Wurst was hired by defendant Nestle Foods Corporation
in January 1986. Until the summer of 1988, he worked as a
Territory Manager in Nestle's Food Service Division with
responsibility for the western half of Pennsylvania and
surrounding environs. In performing that job, he testified that
he spent 80% of his time traveling to visit his current and
At a sales convention in May, 1988, Wurst injured his back
while picking up a brief case. In July, 1988, Wurst began
receiving workmen's compensation benefits equal to two-thirds
of his salary. He still has not recovered to the extent
necessary to return to work.
In July, 1989, defendant adopted a formal written policy
addressing employees who are out of work for an extended period
of time on medical leave. That portion relevant to our inquiry
provided that when an employee takes workmen's compensation
leave, he is entitled to a full six months of leave before his
position is filled, thereafter, for an additional six months he
is entitled to reinstatement to an open position in his region.
If at the end of twelve full months the employee is still
physically unable to return to work, he is automatically
discharged with no right to reinstatement.*fn1
On September 22, 1989, the company's personnel director
advised Wurst that pursuant to the new company policy, he was
being terminated because twelve months had passed since Wurst
had worked and he was still unable to return to work.
Plaintiff's complaint asserts three separate counts for
relief. In count one, he claims wrongful discharge. In count
two, he contends that defendant discharged him with the sole
intent to harm him. In count three, plaintiff claims that he is
due wages for work he performed while on disability leave,
pursuant to Pennsylvania's Wage Payment and Collection Law. 43
Pa.Stat. Ann. § 260.1 et seq. ("WPCL").
Summary judgment is proper when the pleadings and evidence on
file show that "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a
matter of law." Fed. R.Civ.P. Rule 56(c). A "material fact" is
one whose resolution will affect the ultimate ...