Recreation for the Hampton Township and his employer reached a confidential severance settlement after the employee was arrested for driving under the influence of alcohol and accused of making unwanted sexual advances towards another Township employee. When the circumstances surrounding the employee's resignation were published in a local newspaper, the employee brought suit against the township alleging, inter alia, that he was terminated in violation of "a constitutionally protected fundamental right to his reputation". Id., 651 A.2d at 643. The Commonwealth Court upheld summary judgment for the defendant, concluding as a matter of law that the discharge did not violate any public policy because there were valid reasons for the termination.
Holewinski v. Children Hosp. of Pittsburgh, 649 A.2d 712 (Pa. Super. 1994) involved a claim against a private employer for the retaliatory discharge of a whistleblower. Noting that Pennsylvania's whistleblower statute applies only to public employees, the court dismissed the claim as "meritless" because it was "not based on an established public policy exception". Id., 649 A.2d at 715. See also, Perry v. Tioga County, 649 A.2d 186, 189 & n.8 (Pa. Commw. 1994) (noting that there is no general public policy protecting whistleblowers in the private sector).
Finally, an employee involved in an automobile accident and who was charged with, but never convicted of, possession of controlled substances, was terminated from his job as an equipment operator in Rank v. Township of Annville, 163 Pa. Cmwlth. 492, 641 A.2d 667 (1994). In upholding the dismissal of the suit, the Commonwealth Court distinguished Hunter and rejected the employee's contention that his termination violated the public policy that one is presumed innocent until proven guilty. Id., 163 Pa. Cmwlth. at 496-97, 641 A.2d at 669-70.
Emerging from this jurisprudence would seem to be the rule that, to uphold an action for wrongful termination in violation of public policy, a court must find a public policy that is "clear and specific". Borse, 963 F.2d at 617. Brosso relies on his common law property interest in the design of the catheter. Specifically, Brosso cites state and federal cases for the proposition that an employee has a common law property right in any subject matter of which he is the inventor, even if he created the invention during the course of his employment. Brosso also finds a public policy in the United States Constitution, particularly Article I, Section 8, Clause 8
and the Fifth
Amendments. We do not believe any of these federal authorities provide the sort of "clear and specific" public policy that would permit Brosso to recover.
We express no opinion on Brosso's conclusion that he indeed has a common law property interest in the mechanical thrombectomy catheter because it is irrelevant for the purposes of resolving this motion. Even if we accept Brosso's legal conclusion as true,
however, DVI asked Brosso, on his account of it, to relinquish his ownership in the catheter design; DVI did not ask him to abstain from action "that is required by law" or "to engage in conduct prohibited by law." Clark, 9 F.3d at 328. In short, we have not detected a clear mandate of public policy here that the Pennsylvania Supreme Court would recognize in a wrongful termination suit.
The federal constitutional provisions that Brosso cites also do not support his claim. By its terms, Article I, Section 8, Clause 8 is a grant of power to Congress, not to any individual inventor. It has long been held that this constitutional provision authorizes Congress to enact the patent laws, but does not confer any rights by itself upon an individual. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6, 86 S. Ct. 684, 688, 15 L. Ed. 2d 545 (1966); Scott Paper Co. v. Marcalus Mfg. Co., Inc., 326 U.S. 249, 255, 66 S. Ct. 101, 104, 90 L. Ed. 47, reh'g denied, 326 U.S. 811, 66 S. Ct. 263, 90 L. Ed. 495 (1945). Notably, there is no suggestion here that Brosso ever patented his catheter design.
Similarly, Brosso's invocation of the Fifth and Fourteenth Amendments is unavailing because the protections of these Amendments are triggered by government action only. See, e.g., Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831, 107 S. Ct. 3141, 3145, 97 L. Ed. 2d 677 (1987) (Fifth Amendment); Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2770, 73 L. Ed. 2d 418 (1982) (Fourteenth Amendment); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S. Ct. 2744, 2754, 73 L. Ed. 2d 482 (1982) (Fourteenth Amendment); Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-28, 98 S. Ct. 2646, 2659-61, 57 L. Ed. 2d 631 (Fifth Amendment), reh'g denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978). There is no dispute that DVI is a private actor. Thus, Brosso cannot rely on any of the constitutional provisions he cites as representing a "clear" mandate of Pennsylvania public policy that the Pennsylvania Supreme Court would recognize.
Because we find that DVI did not violate a clear mandate of Pennsylvania public policy, Brosso's claim for wrongful discharge in violation of public policy cannot stand. We shall therefore grant DVI's motion to dismiss for failure to state a claim upon which relief may be granted. An appropriate Order follows.
AND NOW, this 10th day of March, 1995, upon consideration of defendant Devices for Vascular Intervention, Inc.'s motion to dismiss, and the response and reply thereto, and in accordance with the accompanying Memorandum, it is hereby ORDERED that:
1. The motion is GRANTED; and
2. Count I of the complaint is DISMISSED.
BY THE COURT:
Stewart Dalzell, J.