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SORGE v. WRIGHT'S KNITWEAR CORP.

August 23, 1993

DANIEL SORGE, Plaintiff,
v.
WRIGHT'S KNITWEAR CORP., Defendant.



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 This wrongful discharge action arises from the termination of plaintiff Daniel Sorge's employment as a fabric cutter with Wright's Knitwear Corporation in October of 1991. Defendant has filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). According to defendant, plaintiff's complaint is deficient because (1) he has failed to allege circumstances amounting to a valid exception to the at-will employment doctrine of Pennsylvania, (2) his claim is preempted, and (3) there is no private cause of action for wrongful discharge under 29 U.S.C. § 660(c). For the reasons stated below, defendant's motion to dismiss shall be DENIED.

 I. INTRODUCTION

 In essence, plaintiff's complaint alleges that Daniel Sorge was terminated from his employment as a fabric cutter for Wright's Knitwear because he reported certain safety violations in his workplace to the United States Department of Labor Occupational Safety and Health Administration ("OSHA"). Plaintiff informed OSHA of his termination, claiming that it was discriminatory and caused by his reporting safety violations to the OSHA. However, in February of 1992, OSHA informed plaintiff that he had not met his burden of establishing that he was discriminated against in violation of Section 11(c)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c)(1). Plaintiff appealed the dismissal of his complaint to OSHA, but that appeal was dismissed on or about August of 1992. Defendant asserts three main grounds for dismissal. First, defendant contends that plaintiff cannot assert a claim based on 29 U.S.C. § 660(c)(1) because there is no implied right of action from that statute. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980). Second, defendant argues that generally there is no common law cause of action in Pennsylvania for termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (Pa. 1974). Finally, defendant charges that even if plaintiff had properly alleged a wrongful discharge claim, his cause of action is precluded by the administrative remedy offered in 29 U.S.C. § 600(c). Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989).

 In response, plaintiff states that he is not asserting a direct claim under 29 U.S.C. § 660(c). Instead, plaintiff argues that his complaint states a valid claim for wrongful discharge by alleging that his termination was in violation of the public policy of the Commonwealth of Pennsylvania. Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (Pa. 1990). Accordingly, this opinion shall address only the second and third arguments raised by defendant.

 II. DISCUSSION

 A. Standard of Review

 In resolving a motion to dismiss, the Court must accept as true all the well-pleaded allegations of the complaint, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable interpretation of the pleadings, the plaintiff may be entitled to relief. Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985); Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 B. Whether Plaintiff Has Alleged a Valid Public Policy Exception

 As defendant correctly asserts, as a general rule, no common law cause of action exists against an employer for the termination of an at-will employee in Pennsylvania. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (Pa. 1974). However, The Supreme Court of Pennsylvania has announced an exception to this rule when the discharge violates a clear mandate of public policy. Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (Pa. 1990). Plaintiff in this action contends that his termination falls within this limited exception.

 In Pennsylvania, public policies upon which wrongful discharge claims may be based can have their source in federal as well as state law. Kilpatrick v. Delaware County S.P.C.A., 632 F. Supp. 542, 543 (E.D. Pa. 1986); See also Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir. 1983). Plaintiff contends that the federal Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., sets forth the public policy of Pennsylvania. Indeed, in Kilpatrick v. Delaware County S.P.C.A., the Honorable Joseph F. Lord addressed this precise issue and found:

 
OSHA announces a clear and significant public policy sufficient under Pennsylvania law to give rise to a cause of action for wrongful termination if an employee is fired for complaining ...

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