exception to the at will employment rule. See Paralegal, 783 F. Supp. at 232 (finding public policy against falsifying material facts and evidence from Rules 3.3(a)(1), 3.4(a), and 3.4(b)). In that case, a paralegal whose employer was being investigated by the state bar was terminated after she learned that the attorney-employer had created a false record to exculpate himself and so informed the lawyer who was representing the employer in disciplinary proceedings.
Taking plaintiff's allegations as true, defendants would appear to have violated the Pennsylvania Rules of Professional Conduct by misrepresenting to clients who had performed work for which they were paying or by effectively permitting the unauthorized practice of law by a non-lawyer. See Rule 1.5 (regulating fees); Rule 5.5(a) (prohibiting aiding non-lawyers in unauthorized practice of law); Rule 7.1 (prohibiting false or misleading communications about lawyer's services); 8.4(c) (defining "professional misconduct" to include dishonesty, fraud, deceit or misrepresentation).
Based upon pertinent precedent and persuasive authority, the court must distinguish between gratuitous disclosure of improper employer conduct and disclosures by persons responsible for reporting such conduct or for protecting the public interest in the pertinent area. See Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1345 (3d Cir. 1990), cert. denied, 113 L. Ed. 2d 660, 111 S. Ct. 1597 (1991)(discharged chemical company employee not responsible for reporting improper emissions or spills); Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 565 A.2d 1170 (1989)(nuclear safety expert discharged for making statutorily required report to federal agency). See also Hays v. Beverly Enters., 766 F. Supp. 350 (W.D. Pa.), aff'd, c 952 F.2d 1392 (3d Cir. 1991) (physician's duty does not extend to plaintiff nurse); Gaiardo v. Ethyl Corp., 697 F. Supp. 1377 (M.D. Pa. 1986), aff'd, 835 F.2d 479 (3d Cir. 1987) (plaintiff not supervisor or responsible for quality control).
The court concludes that plaintiff's termination for gratuitously alerting others about defendants' improper billing practice does not violate the type of significant, clearly mandated public policy required to satisfy the very narrow exception to Pennsylvania's rigid at will employment doctrine. By her own characterization what plaintiff did was to "blow the whistle" on wrongful conduct by her employer. The Pennsylvania Whistleblower Law, 43 Pa. C.S.A. § 1421 et seq., protects from retaliatory adverse employment action employees of public bodies or entities receiving public appropriations who report wrongdoing.
That Law, which excludes from its protection wholly private employment, has been found not to codify any previously existing legal right or privilege and held not to constitute an expression of clearly mandated public policy in the context of private at will employment.
See Smith, 917 F.2d at 1346; Cohen v. Salick Health Care, Inc., 772 F. Supp. 1521, 1531 (E.D. Pa. 1991)(employee discharged for alerting employer's prospective contractee of inflated financial projections); Wagner v. General Electric Co., 760 F. Supp. 1146, 1155 (E.D. Pa. 1991) (employee discharged after expressing criticism of employer's product to customers).
On the other hand, courts are less reluctant to discern important public policy considerations where persons are discharged for refusing to violate the law themselves. See Smith, 917 F.2d at 1344; Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699 (3d Cir. 1988) (refusal to sell liquor to intoxicated patron); Shaw v. Russell Trucking Line, Inc., 542 F. Supp. 776, 779 (W.D. Pa. 1982)(refusal to haul loads over legal weight); McNulty v. Borden, Inc., 474 F. Supp. 1111 (E.D. Pa. 1979)(refusal to engage in anti-trust violations). No employee should be forced to choose between his or her livelihood and engaging in fraud or other criminal conduct. To the extent that plaintiff appears to allege that she was also terminated for refusing herself to engage directly in fraudulent billing, her action may proceed.
Courts applying Pennsylvania law also have implied or assumed the existence of a specific intent to harm exception to the employment-at-will doctrine. See, e.g., Sugarman v. RCA Corp., 639 F. Supp. 780, 785 (M.D. Pa. 1985); McNulty, 474 F. Supp at 1119; Tourville v. Inter-Ocean Insurance Co., 353 Pa. Super. 53, 508 A.2d 1263 (1986), appeal denied, 514 Pa. 619 (1987). More recently, however, there is serious doubt about whether any such exception exists. See Mann v. J.E. Baker Co., 733 F. Supp. 885, 890 (M.D. Pa. 1990); McWilliams v. AT&T Information Systems, Inc., 728 F. Supp. 1186, 1193 (W.D. Pa. 1990); Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990).
Even assuming that a specific intent to harm exception exists, such an intent cannot be established by the harm normally occasioned by the act of discharging an employee. Tourville, supra at 56 n.5. Any such exception would apply only in cases of purely malevolent conduct, that is, a termination for which no reason existed other than "an atavistic desire to hurt another." Id. at 57. It appears from the face of plaintiff's complaint that defendants' reason for discharging her was conduct by her, however well motivated, which threatened to deprive defendants of clients and subject them to sanctions. To the extent that plaintiff's claim is premised upon an intent to harm theory, it will be dismissed.
An appropriate order will be entered.
AND NOW, this 12th day of January, 1992, upon consideration of defendants' Motion to Dismiss Plaintiff's Complaint, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED in part and DENIED in part in that counts I and III of plaintiff's complaint are DISMISSED.
BY THE COURT:
JAY C. WALDMAN, J.