Christmas under the guise of minor or trivial security violations. Plaintiff further points to defendant's "hatchet" memorandum, which outlined Mulgrew's future evaluations and eventual discharge, as well as the imposition of numerous and impossible job demands, as evidence of defendant's outrageous behavior.
Although working in such an adverse environment, knowing of your impending termination and being fired a week before Christmas is not an enviable position to be in, defendant's conduct does not rise to the level of outrageousness as required under Pennsylvania law. Defendant's actions, although harsh, were not so extreme as beyond all bounds of decency despite defendant's harmful motive and the resulting effects on plaintiff. Defendant's motion to dismiss Count II of plaintiff's complaint will be granted.
Count III: Misrepresentation
Pennsylvania courts recognize a cause of action for the tort of misrepresentation. Gibbs v. Ernst, 647 A.2d 882, Nos. 26 E.D. 1993, 61 E.D. 1993, 1994 WL 495644, at *6 (Pa. Sept. 13, 1994). To sustain a cause of action the plaintiff must demonstrate the existence of the following elements: (1) a representation; (2) materiality, unless the misrepresentation is intentional or involves a non-privileged failure to disclose; (3) scienter, which may be actual knowledge or made with reckless indifference to the truth; (4) justifiable reliance on the misrepresentation; and (5) resulting injury proximately caused by the misrepresentation. Wittekamp v. Gulf Western, Inc., 991 F.2d 1137, 1142 (3d Cir. 1993); Gibbs, 647 A.2d 882, 1994 WL 495644 at *5 (citing Page Keaton, Prosser and Keaton on the Law of Torts § 105; Restatement 2d of Torts § 525 (1977)). When considering defendant's motion for judgment as a matter of law "where fraud is the basis of the [plaintiff's] claim, the initial inquiry for the judge is whether the proof of every element has met the exacting [clear and convincing] standard, justifying refusal to grant" defendant's motion. Wittekamp, 991 F.2d at 1142 (citing Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2d 1243, 1253 (Pa. Super. Ct. 1983)).
Assuming all of plaintiff's allegations as true, there is a legitimate issue whether Mulgrew, based on his loyalty to his employer of twenty-one years, justifiably relied upon statements made by Dubeck and Curran concerning his future with Sear's and his opportunity to improve in accordance with defendant's demands. Further, plaintiff contends that relying upon these assurances he continued to work for Sears and specifically refrained from seeking new employment. According to plaintiff, had he sought employment at this time, instead of after his termination when he was viewed as damaged goods, plaintiff would have been a stronger and more appealing job applicant. Such reliance may have injured Mulgrew in his present ability to find employment and caused financial losses. As to the element of scienter, plaintiff contends that the "hatchet" memo, written in June 1991, demonstrates defendant's intent to terminate Mulgrew in the future, and that his release just prior to Christmas on the basis of policy violations was merely pretence to carry out this plan.
Since plaintiff has demonstrated the elements of misrepresentation, defendant's motion to dismiss or for summary judgment for Count III will be denied.
AND NOW, this 4th day of October , 1994, upon consideration of defendant's motion to dismiss and/or for summary judgment pursuant to Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 56, respectively, and for the reasons stated in the accompanying memorandum, it is hereby ORDERED that:
(1) Defendant's motion to dismiss Count I, wrongful discharge, and Count II, intentional infliction of emotional distress, is granted. Defendant's motion for summary judgment as to Counts I and II is thereby moot.
(2) Defendant's motion to dismiss and/or for summary judgment as to Count III, misrepresentation, is denied.
(3) Plaintiff having requested leave to file an amended complaint, leave is granted so long as the amended complaint is filed within 20 days of the date of this order and is consistent with the terms of the memorandum opinion.
William H. Yohn, Jr., Judge
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