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BROSSO v. DEVICES FOR VASCULAR INTERVENTION

March 10, 1995

MARK JOSEPH BROSSO
v.
DEVICES FOR VASCULAR INTERVENTION, INC.



The opinion of the court was delivered by: STEWART DALZELL

 Dalzell, J.

 March 10, 1995

 Plaintiff Mark Joseph Brosso has brought this diversity action against his former employer, defendant Devices for Vascular Intervention, Inc. ("DVI"), alleging, in Count I of the complaint, that DVI terminated Brosso in retaliation for his failure to relinquish ownership in a medical device he designed. DVI has moved to dismiss this Count pursuant to Federal Rule of Civil Procedure 12(b)(6). We shall grant the motion.

 I. Factual and Procedural Background

 The following facts are taken from the complaint and are not disputed for the purposes of this motion. DVI employed Brosso, a Pennsylvania citizen, as a sales territory manager for Pennsylvania and neighboring states from January 2, 1990 until his termination on October 16, 1992. *fn1" Brosso was earning approximately $ 260,000 per year when he was fired. Brosso did not have an employment contract with DVI and it is not disputed that he was an at-will employee.

 On March 22, 1992, Brosso informed Brian Farley, DVI's vice-president of research and development, that he had designed a mechanical thrombectomy catheter on his own time and with his own resources. About a month and a half later, Michael Kopp, an officer of DVI, allegedly threatened to terminate Brosso if he did not relinquish to DVI his interest in the catheter design. Brosso refused DVI's repeated demands to relinquish his ownership interest in the catheter design and was subsequently terminated.

 Brosso commenced this action in the Court of Common Pleas of Philadelphia County, Pennsylvania, and defendants removed it to this Court based on our diversity jurisdiction. Brosso filed a four-count complaint against DVI, Eli Lilly & Co., and three DVI officers, Allan R. Will, Greg R. Patterson, and Michael Kopp, but the parties have stipulated to dismiss counts III and IV and all defendants, except DVI. *fn2"

 In Count I, Brosso claims that his termination constitutes a wrongful discharge in violation of a public policy recognized by the Commonwealth of Pennsylvania, namely, his common law property right in the medical device and his property rights under the Article I, Section 8, Clause 8 and the Fifth and Fourteenth Amendments to United States Constitution. DVI, on the other hand, contends that the narrow exception to the at-will employment rule in Pennsylvania for violations of public policy does not include retaliation for refusal to relinquish an ownership interest in property. DVI has now moved to dismiss Count I pursuant to Fed. R. Civ. P. 12(b)(6). *fn3"

 II. Discussion

 We have on two prior occasions discussed employment relationships and the existence of the tort of wrongful discharge in Pennsylvania, *fn4" albeit in slightly different contexts. See Kedra v. Nazareth Hosp., 868 F. Supp. 733, 736-37 (E.D. Pa. 1994) (predicting that Pennsylvania Supreme Court would not recognize tort of wrongful discharge with specific intent to harm), and Melendez v. Horizon Cellular Tel. Co., 841 F. Supp. 687, 692-94 (E.D. Pa. 1994) (same).

 For over a century in Pennsylvania, an employer was free to discharge an at-will employee "with or without cause at pleasure". Henry v. Pittsburgh & L.E.R.R., 139 Pa. 289, 297, 21 A. 157 (1891). In 1974, the Pennsylvania Supreme Court opened the door to wrongful discharge suits in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), by postulating in dictum that exceptions to the at-will rule may exist in theory for the torts of wrongful discharge with specific intent to harm and wrongful discharge in violation of public policy, although it did not find those exceptions applicable to the facts before it. Geary, 456 Pa. at 178-80 & 184-85, 319 A.2d at 177-78 & 180. While subsequent Pennsylvania Supreme Court opinions in Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989), and Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346 (1990), have, in our view, eliminated the exception for wrongful discharge with specific intent to harm, see Melendez and Kedra, the exception for wrongful discharge in violation of public policy remains viable. See e.g., Rutherfoord v. Presbyterian-Univ. Hosp., 417 Pa. Super. 316, 329 n.4, 612 A.2d 500, 506 n.4 (1992) ("The public policy exception to the at-will doctrine of employment has been consistently recognized in Pennsylvania.").

 While neither the Pennsylvania Supreme Court nor our Court of Appeals has ever defined the exact perimeter of the public policy exception in Pennsylvania, our Court of Appeals has attempted to "draw certain principles that govern what an employee must show to make out a claim for wrongful discharge under Pennsylvania's public policy exception to the principle of at-will employment". Clark v. Modern Group Ltd., 9 F.3d 321, 328 (3d Cir. 1993). *fn5"


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