Kedra interpreted -- and still interprets -- this agreement as the Hospital's promise to promote her to a full-time job in the dietary department (Complaint P 19).
Her complaint in this action alleges she began to claim her right to a full-time position in 1989, after having been passed over for promotion to a full-time position (Complaint P 18).
Kedra also asserts that Hospital employees and supervisors demeaned, mocked, and harassed her because of her disabilities (Complaint P 20).
In January of 1992, Nazareth placed Kedra on three months' "probation", allegedly for poor job performance (Complaint P 21). On April 15, 1992, the Hospital discharged her, claiming "wilful misconduct" (Complaint P 22). Kedra alleges that the Hospital continued to harass her even after it discharged her, by opposing and appealing her claim for unemployment compensation benefits (Complaint P 23-25). Despite the Hospital's opposition and appeals, the Pennsylvania Office of Employment Security ultimately did award Kedra unemployment benefits. Kedra asserts that Nazareth's actions -- placing her on probation, charging her with wilful misconduct, discharging her, and opposing her claim for unemployment compensation benefits -- were done to intimidate and harass her, and to retaliate against her for having filed her earlier claim of discrimination.
Kedra filed her Complaint in this Court on November 18, 1993. She asserted seven counts against the defendants. Counts I and III charged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111-12213. By Order dated February 28, 1994, we dismissed these two claims, holding that the operative facts in Kedra's complaint occurred before the ADA took effect. Counts II and IV alleged violations of the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 955(a) (1991 & Supp. 1994); our Order of July 7, 1994 denied the Hospital's motion for partial summary judgment on these claims, and we filed a nine-page Memorandum on that day explaining our reasoning. Counts V, VI, and VII allege state law claims of wrongful discharge, breach of contract, and abuse of process; the parties' prior motion practice did not bring these claims before us for review.
By Order dated April 14, 1994, we granted Kedra's unopposed motion to assert an eighth count against the Hospital. Count VIII alleges a violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a).
Nazareth has moved this Court for summary judgment as to all counts in Kedra's complaint. The Hospital has also filed a motion to strike Kedra's Rehabilitation Act claim to the extent that she seeks compensatory damages, punitive damages, and a jury trial for its alleged violation. We will grant the Hospital's summary judgment motion as to Count V only, and we will deny the Hospital's motion to strike.
II. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law, id. at 248, and all inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).
On a motion for summary judgment, the moving party bears the initial burden of identifying for the Court those portions of the record that it believes demonstrate the absence of dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party meets its initial burden, the non-moving party then must satisfy Rule 56(e), and "may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49.
III. Legal Analysis
A. Counts I-IV
The parties have invited us to revisit our prior rulings in this case. Specifically, Kedra asks us to vacate our earlier Order dismissing Counts I and III. In turn, the Hospital asks us to grant summary judgment as to Counts II and IV, which we declined to do in July.
We have reviewed our prior rulings on these four counts, and see no reason to disturb them. We thus decline to rule again on Counts I through IV.
B. Count V: Wrongful Discharge with Specific Intent to Harm
Count V alleges that Nazareth terminated Kedra's employment with the specific intent to harm her (Complaint PP 40-42). The dispute between the parties over this issue is purely legal. Nazareth interprets Pennsylvania law to reject the claim of wrongful discharge with specific intent to harm. Kedra argues the contrary.
We have addressed this issue before. In Melendez v. Horizon Cellular Tel. Co., 841 F. Supp. 687, 692-94 (E.D. Pa. 1994), we examined the existing authority and concluded that the Pennsylvania Supreme Court would not recognize a wrongful discharge claim if presented with the question today. We noted that panels of the Pennsylvania Superior Court have granted recovery on the claim. Id. at 693. We also recorded our amiable disagreement with our colleague, Judge Joyner, who has allowed plaintiffs to proceed on the claim. Id. at 694 n.11.
We based our conclusion in Melendez on two relatively recent cases, Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (Pa. 1989), and Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (Pa. 1990). Melendez, 841 F. Supp. at 693. Both cases emphasized the continuing validity of the general rule restated in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174, 176 (Pa. 1974), that "absent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason." In Paul, for example, the court explicitly directed litigants to Justice Nix's concurring statement in Clay, in which he wrote:
This Court did not announce a cause of action for wrongful discharge in Geary. [. . .] Indeed the language in Geary clearly states that a cause of action for wrongful discharge in an at-will employment relationship does not exist.
Paul, 569 A.2d at 348 (quoting Clay, 559 A.2d at 923) (Nix, J., concurring) (alteration added). In Clay, the court emphasized that it had recognized "exceptions" to the rule of at-will employment "in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy." Clay, 559 A.2d at 918.
We continue to predict that the Pennsylvania Supreme Court would not recognize a claim like that of Count V, and we will therefore grant summary judgment as to that claim.
C. Count VI: Breach of Contract
Count VI alleges a state law breach of contract claim. Kedra alleges that Nazareth breached the settlement agreement that the parties had entered to resolve Kedra's first charge of discrimination. The operative language of the agreement reads:
In exchange for the promises of the Complainant, the Respondent shall: Offer the Complainant a part-time position as a Dietary Aide in the Dietary Department, 20 hours weekly. . . . Based on a good performance the Complainant will be given every consideration for any full time opening in the Dietary Department.
See Exhibit G to Defendant's Motion for Summary Judgment. Kedra reads this language as a promise to promote her as long as she showed "good performance" (Complaint P 45). Nazareth argues that the plain language of the agreement did not obligate it to promote her, and that it maintained absolute discretion to determine whether Kedra's performance warranted full-time work. Each party believes its position so obvious as to eliminate the need for citation of authority.
Pennsylvania law appears to take a middle ground between the two arguments that the parties present to us. We must interpret the terms of a written contract literally, according to its plain terms. Krizovensky v. Krizovensky, 425 Pa. Super. 204, 624 A.2d 638, 643 (Pa. Super. Ct.), allocatur denied, 637 A.2d 287 (Pa. 1993); Warren v. Greenfield, 407 Pa. Super. 600, 595 A.2d 1308, 1312 (Pa. Super. Ct. 1991) ("When the words of a contract are unequivocal, they speak for themselves"). Here, contrary to Kedra's assertions, the plain terms of the contract do not obligate Nazareth to give Kedra a full-time job. It only obligates the Hospital to give her "every consideration" for a full-time job, provided that Kedra exhibited "good performance". Thus, we cannot conclude that the Hospital's failure to promote Kedra to full time is a prima facie breach of the settlement agreement.
We decline, however, to accept the Hospital's assertions that the agreement left it with total discretion to promote Kedra or not. Rather, the plain language of the contract obliged the Hospital to give her "every consideration" for full-time work. Pennsylvania law imposes a duty of good faith and fair dealing in the performance of every contract. Liazis v. Kosta, Inc., 421 Pa. Super. 502, 618 A.2d 450, 454 (Pa. Super. Ct. 1992) ("Fundamentally, every contract imposes upon the parties a duty of good faith and fair dealing in the performance and enforcement of the contract.") (citing Germantown Mfg. Co. v. Rawlinson, 341 Pa. Super. 42, 491 A.2d 138 (Pa. Super. Ct. 1985)), allocatur denied sub nom. Tantaros v. Liazis, 637 A.2d 290 (1993).
Rawlinson, though a confusing case, is helpful to our analysis. In Rawlinson, the defendant signed a note in which she promised to pay "'any and all amounts in excess of One hundred and sixty thousand dollars ($ 160,000) which are determined by Affidavit of the President of Germantown Manufacturing Company. . . .'" Rawlinson, 491 A.2d at 140 (emphasis added). The Superior Court interpreted the contract to require the president of the company to exercise good faith in determining this amount:
Though it did not say so expressly, the second note did not authorize the President to arbitrarily designate any amount he desired on a whim. . . . "Every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement." . . . We therefore imply the promise on the part of Germantown to act in good faith in determining and setting the amount owed.