Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MULGREW v. SEARS ROEBUCK & CO.

October 4, 1994

JAMES MULGREW, Plaintiff,
v.
SEARS ROEBUCK & CO., Defendant.



The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 Yohn, J.

 James Mulgrew ("Mulgrew") initiated this diversity action against his former employer, Sears Roebuck & Company ("Sears"), asserting wrongful discharge, intentional infliction of emotional distress, and intentional and/or negligent misrepresentation.

 Sears has moved to dismiss the complaint or, in the alternative, for summary judgment on all counts. The issues before this court are 1) whether Pennsylvania recognizes a cause of action for a claim for wrongful discharge with specific intent to harm; 2) whether plaintiff has a valid cause of action under a public policy exception to the Pennsylvania employee-at-will doctrine; and 3) whether Mulgrew has met his burden of demonstrating the elements of intentional infliction of emotional distress and intentional and/or negligent misrepresentation.

 Since Pennsylvania does not recognize a specific intent to harm exception to at-will employment and Mulgrew has not alleged a violation of a clear mandate of public policy as required to sustain a claim for wrongful discharge, defendant's motion to dismiss Count I of plaintiff's complaint will be granted. Further, because the actions taken to terminate Mulgrew did not constitute extreme and outrageous conduct, defendant's motion to dismiss plaintiff's claim of intentional infliction of emotional distress will be granted. Finally, after viewing the facts in a light most favorable to plaintiff, defendant's motion to dismiss plaintiff's charge of intentional and/or negligent misrepresentation will be denied. Defendant's motion for summary judgment for intentional and/or negligent misrepresentation will likewise be denied as there exist genuine issues of material fact.

 Standard

 A. Motion to Dismiss

 The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In reviewing a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). A court must determine whether the party making the claim would be entitled to relief under any set of facts that could be established in support of his or her claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 B. Summary Judgment

 On a motion for summary judgment a court must consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In making this determination, all reasonable inferences must be drawn in favor of the non-moving party. Anderson, 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202. The initial burden of demonstrating the absence of a genuine issue of material fact is on the moving party. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991).

 Facts

 According to plaintiff's complaint, after twenty-one years of employment at Sears, he was fired from his position as a sales manager in December of 1991. (Compl. at P6) Throughout his tenure at Sears, which began when he was hired as a "floorman" in 1970, Mulgrew received various promotions and commendations. (Compl. at P7) In the fall of 1990, however, plaintiff received a "Deficiency Memorandum" from his immediate supervisor, Al Dubeck.(Compl. at PP6-10) Again in January and then in May plaintiff received unsatisfactory reviews. (Compl. at PP11, 13) On June 6, 1990, Dubeck sent electronic mail to the Regional Sears Manager, James Curran, concerning future Mulgrew evaluations. (Compl. at P15) This communication detailed when Mulgrew should receive his next deficiency review, what tone the review should take, and then stated that "he [Mulgrew] will take us to Court or at least see a lawyer and claim that we are being unfair." Id..

 Plaintiff claims that following these reviews he wrote to the National Head of his department concerning the manner in which the evaluations were being given but received no reply. (Compl. at P19) In mid July, Mulgrew was told that he had to improve within thirty days or be fired. (Compl. at P18) In December, Mulgrew was discharged for allegedly violating company policies.(Compl. at P21) Mulgrew denies having committed these violations, (Ans. and Objections of Plaintiff at no. 18), arguing that he was deliberately put in a situation in which he was unable to properly execute jobs and assignments and led to believe that he would be given the opportunity to rectify the problems. (Brief in Opp. to Defendant's Motion at pp.10-12) Plaintiff further contends that he was fired as a result of Sear's willful intent to injure him and to bar Mulgrew from being able to seek redress under federal and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.