The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
On December 8, 2008, Plaintiff, Arnold Hamovitz, filed his Second Amended Complaint in which he alleges that the decision of Defendants Santa Barbara Applied Research ("SBAR") and/or Maytag Aircraft Corp. ("Maytag") to terminate his employment and/or failure to hire him was in violation of his rights under the Uniform Services Employment and Reemployment Rights Act, as amended, 38 U.S.C. § 4301 et seq. ("USERRA"), and the Pennsylvania Military Affairs Act ("PMAA"), as amended, 51, Pa. C.S.A. § 7301, et seq., as well as any common-law wrongful discharge / failure to hire claim derived from the public policy underlying the PMAA. See Second Amended Complaint, ¶¶ 1 and 2.
In his Pretrial Statement, Plaintiff states that although the Court previously ruled that he was not entitled to recover punitive damages under either USERRA and/or the PMAA, because he "has also alleged a cause of action for wrongful discharge / refusal to hire in violation of the public policy of the Commonwealth of Pennsylvania prohibiting adverse employment actions against employees on account of their National Guard and/or Reserve obligations,... a common law claim exists to which compensatory damages for emotional distress, embarrassment and humiliation as well as punitive damages are recoverable." See Pl‟s Pretrial Statement, at 14 (emphasis added). Both Defendants strongly argue that Plaintiff is not entitled to pursue a common law tort action and to recover punitive damages thereunder, and therefore, request that the Court reject Plaintiff‟s common law claim for wrongful discharge / refusal to hire.*fn1
Defendants present three arguments in support of their position: (i) that the Court has previously ordered "without limitation" summary judgment on Plaintiff‟s claim that he is entitled to recover punitive damages; (ii) that Pennsylvania does not recognize a common law tort for failure to hire; and (iii) even if the existence of such a common law tort existed, no such common law action can be asserted where either federal or state statutory remedies exist.
The Court acknowledges that resolution of this issue is unquestionably a close call. But after a careful and deliberate review of the filings, both in support and in opposition, as well as the relevant statutory and case law, the Court finds that each of Defendants‟ arguments is without merit. Accordingly, the Court finds and rules that under the unique facts and circumstances of this particular case, Plaintiff is entitled to pursue a common law tort action for wrongful refusal to hire, which may entitle him to additional tort damages, including punitive damages.
Defendants‟ arguments will be addressed seriatim.
1. The Court Has Not Previously Addressed Plaintiff‟s Common Law Claim
Defendants contend that the Court‟s decision on their respective motions for summary judgment decided whether Plaintiff had a wrongful discharge / refusal to hire claim. The Court finds this argument to be without merit. After closely re-examining the motions for summary judgment and the briefs in support, as well as the Report and Recommendation filed by Magistrate Judge Lenihan (Document No. 106), and the Memorandum Opinion and Order adopting the Report and Recommendation (Document No. 114), the Court fails to find that either Defendant ever mentioned, referenced, or advanced an argument regarding Plaintiff‟s common law claim(s) in their respective motions.
On the other hand, the issue of punitive damages was raised by Defendants but only in the context of whether such damages were recoverable under USERRA. On that limited issue, the Court found in favor of Defendants, to wit: "[a]s noted,... USERRA provides for liquidated damages but not punitive damages in the case of "willful‟ violation. Under the facts sub judice,..., the Report concludes that there are material fact questions relevant to Defendants‟ liability for liquidated damages, and that summary judgment is therefore precluded." Report and Recommendation, at 31*fn2 (emphasis added).
Therefore, the Court finds and rules that, prior to the instant Memorandum Opinion, the issue of punitive damages incident to a wrongful discharge / refusal to hire common law claim has not been addressed by the Court or any of the parties.
2. USERRA Does Not Provide Plaintiff With An Exclusive Remedy
Next, Defendants argue that Congress intended USERRA to replace common law tort causes of action. When considering a preemption claim, the Court must "start with the assumption that the historic police powers of the States [are] not to be superseded by... Federal Act unless that [is] the clear and manifest purpose of Congress‟." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The purpose of Congress, therefore, is the ultimate touchstone of the preemption analysis. Id.
The purpose of Congress "may be "explicitly stated in the statute's language or implicitly stated in its structure and purpose." Cipollone, 505 U.S. at 516 (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). If the enacted legislation contains a provision explicitly addressing the issue of preemption, and if that provision "provides a reliable indicium of congressional intent with respect to state authority," the court need only identify the domain expressly preempted. Cipollone, at 517 (internal quotations omitted). Matters that do not fall within the domain are not preempted. Id.
Section 4302 of Title 38, United States Code, governs the relationship of USERRA to other federal and state laws. In pertinent part, section 4302 states:
(a) Nothing in [USERRA] shall supersede, nullify, or diminish any Federal or State law (including any local law or ordinance)... that establishes a right or benefit that is more beneficial to, or is in addition to, ...