United States District Court, Western District of Pennsylvania
December 7, 1991
DAVID P. WURST, PLAINTIFF,
NESTLE FOODS CORPORATION, DEFENDANT.
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.
This is an action for wrongful discharge and related claims.
Jurisdiction is based
on diversity of citizenship. 28 U.S.C. § 1332. Before the court
is defendant's motion for summary judgment. For the reasons set
forth herein, defendant's motion should be granted.
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").
III. STANDARD OF REVIEW
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 determination of
the case. S.E.C. v. Seaboard Corp., 677 F.2d 1289, 1293 (9th
To demonstrate entitlement to summary judgment, the
defendant, as the moving party, is not required to refute the
essential elements of the plaintiff's case. The defendant need
only point out the insufficiency of the plaintiff's evidence
offered in support of those essential elements. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91
L.Ed.2d 265 (1986); Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d
538 (1986); Houser v. Fox Theatres Management Corp.,
845 F.2d 1225, 1229 (3d Cir. 1988). Once that burden has been met, the
plaintiff must identify affirmative evidence of record which
supports each essential element of his cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106
S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986).
Therefore, in order to defeat a properly supported motion for
summary judgment, a plaintiff can not merely restate the
allegations of his complaint, Farmer v. Carlson, 685 F. Supp. 1335
(M.D.Pa.1988), nor can he rely on self-serving conclusions
by specific facts in the record. Plaintiff must point to
concrete evidence in the record which supports each essential
element of his case. Celotex, 477 U.S. at 322-23, 106 S.Ct. at
2552-53. If the plaintiff fails to provide such evidence, then
he is not entitled to a trial and defendant is entitled to
summary judgment as a matter of law.
With these concepts in mind, the Court turns to the merits of
A. Wrongful discharge
As a general rule, in the absence of a specific statutory or
contractual restriction, Pennsylvania does not recognize a
cause of action for the wrongful discharge of an at-will
employee. Clay v. Advanced Computer Applications, 522 Pa. 86,
559 A.2d 917, 918 (1989). However, in Geary v. United States
Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), the Supreme
Court of Pennsylvania recognized an exception to the general
rule and held that an at-will employee may have a legitimate
wrongful discharge claim against her employer if her discharge
threatens clearly mandated public policy. See also Yaindl v.
Ingersoll-Rand Co., 281 Pa. Super. 560, 422 A.2d 611 (1980).
Recently, the Superior Court of Pennsylvania in Macken v.
Lord Corp., 402 Pa. Super. 1, 585 A.2d 1106 (1991), impliedly,
if not expressly, held that an allegation of discharge in
retaliation for filing a workmen's compensation claim states a
cause of action for wrongful discharge in violation of public
policy. The court stated:
Although there is no Pennsylvania Supreme Court
decision squarely on point, developing
Pennsylvania law suggests there can now be a cause
of action for discharge in retaliation for filing
workmen's compensation claims.
Id. 585 A.2d at 1108 (citing Rabatin v. Columbia Lines, Inc.,
790 F.2d 22
(3d Cir. 1986)).
Moreover, federal courts that have addressed the issue have,
without exception, held that Pennsylvania recognizes the public
policy exception for at-will employees where an employee has
been terminated allegedly in retaliation for filing a claim for
workmen's compensation benefits. See Burns v. United Parcel
Service, Inc., 757 F. Supp. 518 (E.D.Pa.1991); James v.
International Business Machines Corp., 737 F. Supp. 1420, 1428
and n. 6 (E.D.Pa.1990); Aquino v. Sommer Maid Creamery, Inc.,
657 F. Supp. 208, 212 (E.D.Pa.1987); Alexander v. Red Star
Express Lines, Inc., 646 F. Supp. 672, 678 (E.D.Pa.1986), aff'd
without op., 813 F.2d 396 (3d Cir. 1987); Galbraith v. Phillips
Information Sys., No. 83-6118, slip op., 1986 WL 6536 (E.D.Pa.
June 10, 1986); Michelson v. Exxon Research & Engineering Co.,
629 F. Supp. 418, 426 (W.D.Pa.1986), aff'd, 808 F.2d 1005 (3d
The instant case, however, is not that clean. Plaintiff
concedes that there is no evidence to show that defendant
intended to retaliate against him personally. Rather, it is
undisputed that the defendant discharged plaintiff due to a
company-wide policy. Nonetheless, plaintiff contends that his
discharge is actionable because the court should consider any
discharge based on absences due to work-related injuries to be
a per se violation of public policy and actionable as a
wrongful discharge. In support of his argument, plaintiff has
cited case law from other jurisdictions which have held that it
is a violation of public policy and state workmen's
compensation law to discharge an employee for absences due to
work-related injuries. See, i.e., Caldwell v. Columbus
Developmental Center, 47 Ohio App.3d 100, 547 N.E.2d 417
(1989); Griffin v. Eastman Kodak Co., 80 A.D.2d 689, 436
N YS.2d 441 (3d Dept.1981); LoDolce v. Regional Transit
Service, Inc., 77 A.D.2d 697, 429 N.Y.S.2d 505 (3d
Dept.1980);*fn2 County of Santa Barbara v. Workmen's
Bd., 109 Cal.App.3d 211, 167 Cal.Rptr. 65 (1980). In each of
these cases, the decision was based on a specific section of
that state's workmen's compensation law which expressly
prohibited discharge or other discrimination against an
employee because such employee claimed compensation from such
employer. The courts interpreted those statutes to mean that
absences due to work-related injuries could not be counted
against the employee.
Here, however, plaintiff has no such statutory protection nor
has the plaintiff directed us to any Pennsylvania case law
which has expanded the perimeters of this common-law exception
to the at-will presumption to the extent urged by plaintiff. On
the contrary, in Macken v. Lord Corp., 402 Pa. Super. 1,
585 A.2d 1106 (1991), the Pennsylvania Superior Court, though
recognizing the cause of action, determined that the evidence
of record failed to establish that plaintiff's discharge was in
retaliation for filing a workmen's compensation claim and found
for that defendant employer. A fair reading of the Macken case
does not support plaintiff's claim for a per se analysis.
In summary, we find no support for plaintiff's argument that
his discharge violated clearly mandated public policy. It is
one thing to recognize that an employer violates public policy
by discharging an employee in retaliation for having filed a
workmen's compensation claim. However, it requires a quantum
leap in both law and logic to read into that concept that one
who is receiving workmen's compensation benefits is, by that
reason, immune from discharge regardless of whether he is, or
even will be, physically able to perform his job. For us to so
hold would expand the Geary principle well beyond the scope
intended by the Pennsylvania courts.
Finally, those states that have afforded injured workers the
right of unconditional reinstatement did so through legislative
enactment. The Pennsylvania legislature clearly has the legal
authority to enact similar legislature. We deem it significant
that it has chosen not to do so. If Pennsylvania workers are to
secure the type of job security plaintiff seeks, it is up to
the Pennsylvania legislature to bring it about, not the federal
courts. Summary judgment should enter for defendant.
Plaintiff's second claim is that defendant discharged him
with the intent to harm him. He contends that his discharge was
timed so as to cut off his health benefits at a time
immediately prior to a scheduled operation on his back of which
Nestle had knowledge.*fn3
In Yetter v. Ward Trucking Corp., 401 Pa. Super. 467,
585 A.2d 1022 (1991), the Superior Court of Pennsylvania recited the
history of this type of claim in Pennsylvania jurisprudence and
concluded that it had been abrogated by two recent Pennsylvania
Supreme Court cases, Clay v. Advanced Computer Applications,
522 Pa. 86, 559 A.2d 917, and Paul v. Lankenau Hospital,
524 Pa. 90, 569 A.2d 346 (1990). We are compelled to follow this
Accordingly, summary judgment should be entered for defendant
on Count II.
Finally, in Count III plaintiff made a claim for wages he
allegedly earned for work performed while on workmen's
compensation. The Pennsylvania Wage Payment and Collection Law,
43 Pa. S.A. § 260.1 et seq. ("WPCL"), provides:
Whenever an employer separates an employe from the
payroll, or whenever an employee quits or resigns
his employment, the wages or compensation earned
shall become due and payable not later than the
next regular payday of his employer on which such
wages would otherwise be due and payable.
Id. at § 260.5(a). The WPCL creates no substantive right to
wages, but is merely a vehicle for separated employees to
those wages that are otherwise contractually due them.
This claim is based on plaintiff's allegation that while he
was on workmen's compensation leave, his supervisor, Bob Bruno,
instructed him to continue working his territory. Accordingly,
Wurst contacted his customers by telephone and continued to
promote sales in his area. Nestle continued to send him sales
reports, continued to reimburse him for his business-related
expenses, and also continued to supervise him through its
managers. Wurst also continued to call Nestle's message center
twice a day as is required by all employees.*fn4
The purpose of the Workmen's Compensation Act is to provide
money benefits in lieu of earned wages to an employee who can
not perform his job due to a work-related injury. Thus, it is
axiomatic that an injured worker can not recover both benefits
and wages. Plaintiff has failed to direct us to any
Pennsylvania authority which would support such double recovery
on similar facts, nor has our research revealed any.
Moreover, it is undisputed that plaintiff was receiving
workmen's compensation benefits for total disability during the
relevant period of time. A finding of total disability
presupposes that the recipient's earning capacity is entirely
destroyed so that he cannot obtain any remunerative employment.
See Leaver v. Midvale Co., 162 Pa. Super. 393, 57 A.2d 698
(1948); see also Hughes v. H. Kellogg & Sons, 139 Pa. Super. 580,
13 A.2d 98 (1940). It is, at the very least, inconsistent
for plaintiff, while claiming entitlement to and receiving
total disability benefits, to also claim he earned wages during
the same time.
Accordingly, summary judgment should be entered for defendant
on Count III, also.