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SMYTH v. PILLSBURY CO.

January 18, 1996

MICHAEL A. SMYTH
v.
THE PILLSBURY COMPANY



The opinion of the court was delivered by: WEINER

 WEINER, J.

 JANUARY 18, 1996

 In this diversity action, plaintiff, an at-will employee, claims he was wrongfully discharged from his position as a regional operations manager by the defendant. Presently before the court is the motion of the defendant to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons which follow, the motion is granted.

 A claim may be dismissed under Fed.R.Civ.P. 12(b)(6) only if the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). The reviewing court must consider only those facts alleged in the Complaint and accept all of the allegations as true. Id. Applying this standard, we find that plaintiff has failed to state a claim upon which relief can be granted.

 Defendant maintained an electronic mail communication system ("e-mail") in order to promote internal corporate communications between its employees. Complaint at P 8. Defendant repeatedly assured its employees, including plaintiff, that all e-mail communications would remain confidential and privileged. Complaint at P 9. Defendant further assured its employees, including plaintiff, that e-mail communications could not be intercepted and used by defendant against its employees as grounds for termination or reprimand. Complaint at P 10.

 In October 1994, plaintiff received certain e-mail communications from his supervisor over defendant's e-mail system on his computer at home. Complaint at P 11. In reliance on defendant's assurances regarding defendant's e-mail system, plaintiff responded and exchanged e-mails with his supervisor. Id. At some later date, contrary to the assurances of confidentiality made by defendant, defendant, acting through its agents, servants and employees, intercepted plaintiffs private e-mail messages made in October 1994. Complaint at P 12. On January 17, 1995, defendant notified plaintiff that it was terminating his employment effective February 1, 1995, for transmitting what it deemed to be inappropriate and unprofessional comments *fn1" over defendant's e-mail system in October, 1994. Complaint at PP 13, 14.

 As a general rule, Pennsylvania law does not provide a common law cause of action for the wrongful discharge of an at-will employee such as plaintiff. Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 614 (3d Cir. 1992); Paul v. Lankenau Hospital, 524 Pa. 90, 93, 569 A.2d 346, 348 (1990); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Pennsylvania is an employment at-will jurisdiction and an employer "may discharge an employee with or without cause, at pleasure, unless restrained by some contract." Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 297, 21 A. 157, 157 (1891). See also, Johnson v. Resources for Human Development, Inc., 843 F. Supp. 974, 979 (E.D. Pa. 1994); Brown v. Hammond, 810 F. Supp. 644, 645 (E.D. Pa. 1993) (An employer's right to terminate an at-will employee is "virtually absolute".); Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022 (1991).

 However, in the most limited of circumstances, exceptions have been recognized where discharge of an at-will employee threatens or violates a clear mandate of public policy. Borse, 963 F.2d at 614; Clay v. Advanced Computer Applications, 522 Pa. 86, 88, 559 A.2d 917, 918 (1989) (If discharge of at-will employee threatens clear mandates of public policy, there is a cause of action against the employer.); Geary, supra. A "clear mandate" of public policy must be of a type that "strikes at the heart of a citizen's social right, duties and responsibilities." Novosel v. Nationwide Insurance Co., 721 F.2d 894, 899 (3d Cir. 1983). This recognized public policy exception is an especially narrow one. Burkholder v. Hutchinson, 403 Pa. Super. 498, 589 A.2d 721, 724 (1991). To date, the Pennsylvania Superior Court has only recognized three such exceptions.

 First, an employee may not be fired for serving on jury duty. Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978). The Reuther court cited the Pennsylvania constitution as well as the Pennsylvania statutes in concluding that "the necessity of having citizens freely available for jury service is just the sort of 'recognized facet of public policy' alluded to by our Supreme Court in Geary." 386 A.2d at 121.

 Second, an employer may not deny employment to a person with a prior conviction. Hunter v. Port Authority of Allegheny County, 277 Pa. Super. 4, 419 A.2d 631 (1980). The Hunter court relied on federal court decisions as well as Pennsylvania statutes and Pennsylvania court decisions before concluding that the defendant violated the Pennsylvania constitution and "the deeply ingrained public policy of this State . . . to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders." 419 A.2d at 636, n.5.

 And finally, an employee may not be fired for reporting violations of federal regulations to the Nuclear Regulatory Commission. Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170, 1180 (1989). That court held that the alleged discharge was against public policy because federal law required the employee to report violations and he was an expert in the area and there was no evidence that he bypassed any internal chain of command. 565 A.2d at 1180.

 As evidenced above, a public policy exception must be clearly defined. See also, McGonagle v. Union Fidelity Corp., 383 Pa. Super. 223, 556 A.2d 878, 885 (1989), appeal denied, 525 Pa. 584, 575 A.2d 114 (1990) ("Unless an employee identifies a 'specific' expression of public policy violated by his discharge, it will not be labelled as wrongful and within the sphere of public policy"). The sources of public policy can be found in "legislation, administrative rules, regulation, or decision; and judicial decisions . . . Absent legislation, the judiciary must define the cause of action in case by case determinations." Borse, 963 F.2d at 619, n.6 (3d Cir. 1992) quoting Cisco v. United Parcel Services, Inc., 328 Pa. Super. 300, 306, 476 A.2d 1340, 1343 (1984); Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 622 A.2d 355, 358 (1993); see also, Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1344 (3d Cir. 1990), cert. denied, 499 U.S. 966, 113 L. Ed. 2d 660, 111 S. Ct. 1597 (1991) ("[A] 'clear mandate of public policy' [is] embodied in a constitutionally or legislatively established prohibition, requirement, or privilege."). Whitney v. Xerox, C.A.No. 94-3852, 1994 U.S. Dist. LEXIS 10845, 1994 WL 412429 (E.D.Pa. August 2, 1994) slip op. at 3-4.

 Plaintiff claims that his termination was in violation of "public policy which precludes an employer from terminating an employee in violation of the employee's right to privacy as embodied in Pennsylvania common law." Complaint at P 15. *fn2" In support for this proposition, plaintiff directs our attention to a decision by our Court of Appeals in Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992). In Borse, the plaintiff sued her employer alleging wrongful discharge as a result of her refusal to submit to urinalysis screening and personal property searches at her work place pursuant to the employer's drug and alcohol policy. After rejecting plaintiff's argument that the employer's drug and alcohol program violated public policy encompassed in the United States and Pennsylvania Constitutions, our Court of Appeals stated "our review of Pennsylvania law reveals other evidence of a public policy ...


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