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06/10/97 MARY MCLAUGHLIN v. GASTROINTESTINAL

June 10, 1997

MARY MCLAUGHLIN, APPELLANT
v.
GASTROINTESTINAL SPECIALISTS, INC.



Appeal from the ORDER entered May 10, 1996, Docketed May 14, 1996, In the Court of Common Pleas of Philadelphia County, Civil, No. 2982 DEC. TERM 1995. Before COHEN, J.

Before: Cavanaugh, Beck and Johnson, JJ. Opinion BY Beck, J.

The opinion of the court was delivered by: Beck

OPINION BY BECK, J.:

Filed June 10, 1997

We decide, inter alia, whether the appellant-employee stated a claim for wrongful discharge against the appellee-employer. The trial court held that the employee did not state such a claim, sustaining preliminary objections and dismissing the complaint. We reverse in part and affirm in part.

In this appeal from the trial court's order sustaining preliminary objections and dismissing the complaint, our review is plenary. All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of review. The question presented is whether, on the facts averred, the law says with certainty that no recovery is possible; any doubt should be resolved in favor of overruling the preliminary objections. Lenihan v. Howe, 449 Pa. Super. 426, 674 A.2d 273 (1996).

Mindful of this standard, we summarize the relevant facts averred in the complaint. Appellant Mary McLaughlin was employed as an office manager for appellee Gastrointestinal Specialists, Inc. ("GSI"). In this capacity, McLaughlin was responsible for the day to day operation of the office and supervision of GSI's employees. As part of its practice, GSI used a chemical called gluteraldehyde. Gluteraldehyde is a toxic, highly noxious solution which, according to the Occupational Safety and Health Administration ("OSHA"), is only to be used in an open, well ventilated area. In GSI's office, the gluteraldehyde was stored in a small closet totally lacking in ventilation, and a strong, noxious odor was emitted and toxic vapors were released whenever the closet door was opened.

Almost immediately upon her employment at GSI, McLaughlin began suffering from migraine headaches, nausea, fatigue, shortness of breath and dizziness. She learned that other employees in the office were suffering from these symptoms. In September 1995, McLaughlin notified GSI's practice manager, Mariko Danzy, of her concerns regarding the use of gluteraldehyde without proper procedures and ventilation. No action was taken. At the end of September, McLaughlin learned of the dangers of gluteraldehyde and obtained a sample to monitor the toxicity level of the room in which the chemical was stored. The sample was sent to a testing laboratory and the analysis result was that the gluteraldehyde was well in excess of OSHA's maximum exposure limit. *fn1 In mid-October 1995, after receiving the lab report, McLaughlin again complained to Ms. Danzy, who told McLaughlin to keep quiet, that GSI feared workers' compensation claims, and that a "makeshift construct" would be built. McLaughlin told Ms. Danzy that her information was that a makeshift construct would not suffice.

On October 27, 1995, GSI fired McLaughlin; no reason for the termination was given. GSI told McLaughlin that she would receive her wages for the week ending October 27, 1995, as well as two weeks wages as severance pay. McLaughlin received her "last weeks [sic] wages" in an envelope postmarked November 28, 1995, one week after her counsel sent a letter to GSI regarding these events.

McLaughlin filed the instant action against GSI, claiming that: 1) GSI violated Pennsylvania's Wage Payment and Collection Law ("WPCL"), 43 P.S. §§ 260.1-260.12, when it failed to timely pay her wages; 2) GSI violated Pennsylvania's Whistleblower Law, 43 P.S. §§ 1421-1428, when it fired her; *fn2 3) GSI is liable for wrongful discharge because its termination of McLaughlin was contrary to public policy; and 4) GSI is liable for damages arising out of her exposure to gluteraldehyde while employed by GSI.

Claim for Wages and Severance Pay

We first address McLaughlin's claim on appeal that GSI violated the WPCL when it failed to timely pay her wages and severance pay. *fn3 Under the WPCL, the term "wages" includes fringe benefits or wage supplements such as separation pay to be paid pursuant to an agreement to the employee. 43 P.S. § 260.2a. The act also provides that:

Whenever an employer separates an employe from the payroll, . . . the wages or compensation earned shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable.

43 P.S. ยง 260.5(a). Where wages remain unpaid for thirty days beyond the regularly scheduled payday, the employee may be entitled to claim, "in addition, as liquidated damages an amount equal to twenty-five percent (25%) of the total amount of wages due, or five hundred dollars ($500), whichever is greater." 43 P.S. ...


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