Devore, P. v. Metro Aviation, Inc.

J-A22023-23

2024 PA Super 274

PATRICK DEVORE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

METRO AVIATION, INC. :

:

Appellant : No. 943 WDA 2022

Appeal from the Judgment Entered July 19, 2022

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 18-012018

PATRICK DEVORE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

METRO AVIATION, INC. : No. 944 WDA 2022

Appeal from the Judgment Entered July 19, 2022

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 18-012018

BEFORE: BOWES, J., OLSON, J., and KING, J.

OPINION BY OLSON, J.: FILED: November 18, 2024

At the appeal docketed at number 943 WDA 2022 in this consolidated

matter, Metro Aviation, Inc. (Metro) challenges an adverse judgment entered

on July 19, 2022 in the Civil Division of the Court of Common Pleas of

Allegheny County. Among other things, Metro asserts that it is entitled to a

judgment notwithstanding the verdict (JNOV) on grounds that the trial court

wrongly permitted Metro’s former employee, Patrick DeVore (DeVore), to

pursue a common law wrongful discharge claim under the public policy

J-A22023-23

exception to Pennsylvania’s at will employment doctrine. At the cross-appeal

docketed at 944 WDA 2022, Devore also challenges the July 19, 2022

judgment, but he claims the trial court erred in denying him the opportunity

to seek punitive damages against Metro. After careful consideration, we

conclude the trial court erred in allowing DeVore to invoke the public policy

exception and pursue a wrongful termination claim under the facts of this

case. Accordingly, we are constrained to vacate the judgment entered in the

trial court and remand this matter for entry of a JNOV in favor of Metro.

The trial court summarized the factual background of this case as

follows.

This case arises following [Metro’s] decision to suspend, and

ultimately terminate, [DeVore].

[DeVore was] a seasoned pilot with various high ratings and

certifications.1 [He] began working at Metro as a pilot in April

2007, up until his suspension and ultimately, his termination, in

October 2017. Metro is an air medical operator with various bases

specializing in providing emergency transportation services,

including transporting Allegheny Health Network (“AHN”) patients

and accompanying medical personnel by LifeFlight helicopters,

piloted by Metro employees. [DeVore] began his career with

Metro as a line pilot in Cranberry, Pennsylvania, before becoming

a lead pilot in Chicago, Illinois.2 [DeVore] then worked as a line

____________________________________________

1 [DeVore] has more than 35 years of experience and holds Certified Flight

Instructor and Certified Flights Instructor Instrument certifications issued by

the Federal Aviation Association (“FAA”), a single engine airplane commercial

rating, and an Air Transport Pilot rating in multi-engine aircraft and

helicopters.

2 Lead pilots earn $3,000.00 more than line pilots at Metro.

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pilot in Rostraver, Pennsylvania, and finally as a line pilot in

Canonsburg, Pennsylvania (“Base”).3

In 2017, Metro began using a smaller aircraft (“EC-135”) for AHN

transport from the Base.4 Due to the new-found lack of space,

AHN medical personnel began requesting reconfigurations to allow

for better in-flight access to patients. Sometime before

September 2017, [DeVore] discussed the nurses’ requests with

supervisor David Taggart (Taggart), Metro’s then-Aviation Site

Manager, who responded to [DeVore] that reconfiguring the EC-

135 was illegal.

After nurse complaints persisted, two AHN nurses (Candice Myrgo

and Robert Fareri) visited the Base to explore possible

reconfigurations of the EC-135 during [DeVore’s] shift on

September 20, 2017.5 [DeVore] attempted to telephone Chad

Slovick (Slovick), a Metro mechanic, to inquire about the safety of

the reconfiguration. However, [DeVore’s] call was transferred to

Metro’s headquarters where he spoke to Mark Breton (Breton),

Metro’s Head Director of Maintenance. During the conversation,

[Breton] confirmed that the reconfiguration was safe so long as

[it was] done in accordance with any flight manual and/or

supplements. The EC-135 remained in the reconfiguration at

turnover when Lead pilot Gene Zalutsky (Zalutsky) began his

shift. When [DeVore] reported back to work the next day,

[Zalutsky] accused [DeVore] of failing to follow the chain of

command and verify the EC-135’s airworthiness before turnover,

____________________________________________

3 Metro continued to compensate Mr. DeVore as a lead pilot, despite his

position as a line pilot at the Rostraver and Canonsburg bases.

4 Before using the EC-135, Metro pilots primarily flew an EC-145, a larger

aircraft, for emergency air transport.

5 Matt Poremba (AHN Medical Director) and Chief Flight Nurse Karen Bourden

knew of Nurse Myrgo’s and Nurse Fareri’s visit to the Base to explore possible

reconfigurations. DeVore also believed Taggart had knowledge of Nurse

Myrgo’s and Nurse Fareri’s visit to the Base for purposes of exploring possible

aircraft reconfigurations.

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which led [DeVore] to a brief outburst directed toward [Zalutsky]

and [Slovick].6

On October 4, 2017, [DeVore] was suspended for three days due

to [his behavior, conduct, and insubordination, together with a

safety policy violation]. Shortly thereafter, Metro [directed

DeVore] to make a rare trek to Metro’s headquarters for failing to

follow the chain of command. Finally, on October 10, 2017, Metro

terminated [DeVore], asserting that he failed to complete a pre-

flight checklist on October 4, 2017.

[DeVore initiated this action on September 17, 2018, upon filing

a complaint against Metro. Devore’s complaint alleged one count

of wrongful termination in violation of Pennsylvania’s public policy,

as expressed in the Emergency Medical Services System (EMSS)

Act, 35 Pa.C.S.A. § 8101-8158. At the conclusion of trial on March

10, 2022, the jury began deliberations and found that DeVore was

terminated contrary to the policy declared in the EMSS Act.

Accordingly, the jury awarded DeVore $1,142,582.00 in economic

damages, as well as non-economic damages in the amounts of

$500,000.000 for harm to reputation, $300,000.00 for pain and

suffering, $300,000.00 for embarrassment and humiliation, and

$257,418.00 for loss of the ability to enjoy the pleasures of life.]

On March 18, 2022, Metro timely [moved for post-trial relief

seeking a JNOV, a new trial as to liability and damages, and a

remittitur of the jury’s award. DeVore also timely filed a motion

for post-trial relief on March 28, 2022], seeking a new trial limited

to the question of punitive damages. Both motions for post-trial

relief were ultimately denied on July 15, 2022, following oral

argument. On July 19, 2022, judgment was entered on the

verdict, which Metro and [DeVore] appealed to [this Court] on

August 16, 2022, and August 17, 2022, respectively. On the same

respective dates, [the trial court directed the parties] to file

concise statements of error complained of on appeal within 21

days[.]7 On September 6, 2022, both parties timely filed their

[concise statements].

____________________________________________

6 Following the accusations, DeVore told Slovick that he was “sick of [his]

bullsh**t” before sticking his finger into Slovick’s chest.

7 Pursuant to Pa.R.A.P. 1925(b).

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Trial Court Opinion, 12/5/22, at 1-4 (footnotes in original).

On appeal, Metro initially asserts that it is entitled to a JNOV since

DeVore conceded he was an at will employee and the trial court erred

in allowing him to proceed with a common law wrongful termination

claim under the public policy exception to Pennsylvania’s at will

employment doctrine. We agree with Metro that the exception was not

applicable under the facts of this case and, since we find this issue

dispositive of the claims raised by both sides, we shall forgo discussion

of Metro’s administrative exhaustion and new trial claims, see Metro’s

Brief at 7-8 and 31-57, and we will not undertake a review of the

punitive damage issues raised by DeVore in his cross-appeal. See

DeVore’s Brief at 73-74 and 78-105.

Metro claims that the trial court erred in denying its post-trial

motion for a JNOV because, as a matter of law, DeVore did not identify

a valid public policy exception to Pennsylvania’s at will employment

doctrine. Our standard and scope of review for an order that denied a

request for a JNOV involve well settled legal principles.

A motion for [JNOV] is a post-trial motion which requests the court

to enter judgment in favor of the moving party. There are two

bases on which the court can grant [JNOV].

[One holds that] the movant is entitled to judgment as a matter

of law [and the other holds that] the evidence is such that no two

reasonable minds could disagree that the outcome should have

been rendered in favor of the movant. With the first, the court

reviews the record and concludes that even with all factual

inferences decided adverse to the movant the law nonetheless

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requires a verdict in his favor, whereas with the second, the court

reviews the evidentiary record and concludes that the evidence

was such that a verdict for the movant was beyond peradventure.

In an appeal from the trial court's decision to deny [a motion for

JNOV, a court] must consider the evidence, together with all

favorable inferences drawn therefrom, in a light most favorable to

the verdict winner. Our standard of review when considering

motions for a directed verdict and judgment notwithstanding the

verdict are identical. We will reverse a trial court's grant or denial

of a [JNOV] only when we find an abuse of discretion or an error

of law that controlled the outcome of the case. Further, the

standard of review for an appellate court is the same as that for a

trial court.

Concerning any questions of law, our scope of review is plenary.

Concerning questions of credibility and weight accorded the

evidence at trial, we will not substitute our judgment for that of

the finder of fact[. A JNOV] should be entered only in a clear case.

[T]he entry of a [JNOV] is a drastic remedy. A court cannot lightly

ignore the findings of a duly selected jury.

Stange v. Janssen Pharmaceuticals, Inc., 179 A.3d 45, 52-53 (Pa. Super.

2018) (internal citations, punctuation, and quotation marks omitted).

Metro’s position is that a JNOV was proper because the limited

scope of the public policy exception did not permit the trial court to

review DeVore’s termination as an at will employee in the undisputed

circumstances presented here. In this Commonwealth, the law

presumes that all employment relationships are at will, that all at will

employees may be discharged for any reason or no reason, and that

discharges from at will employment are not subject to review in a

judicial forum. See Scott v. Extracorporeal, Inc., 545 A.2d 334, 336

(Pa. Super. 1988). “[Since at will employment is the presumption in

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Pennsylvania], the burden of proving that one is not employed [at will]

rests squarely upon the employee.” Rutherford v.

Presbyterian-University Hosp., 612 A.2d 500, 503 (Pa. Super.

1992). To rebut the presumption of an at will employment relationship,

an employee must establish: “(1) sufficient additional consideration;

(2) an agreement for a definite duration; (3) an agreement specifying

that the employee will be discharged only for just cause; or (4) an

applicable recognized public policy exception.” Robertson v. Atlantic

Richfield Petroleum Products Co. (a Div. Atlantic Richfield Co.),

537 A.2d 814, 819 (Pa. Super. 1987). DeVore’s complaint against

Metro alleged a single wrongful discharge count in violation of the

policies declared in the EMSS Act; hence, DeVore conceded his status

as an at will employee of Metro and this appeal turns on whether the

trial court, as a matter of law, properly permitted DeVore to invoke the

public policy exception as grounds to overcome the presumption of at

will employment.

In rejecting Metro’s post-trial motion for a JNOV, the trial court

appears to have assumed that the EMSS Act contained a sufficiently

clear and robust declaration of public policy that permitted DeVore to

overcome the presumption of at will employment and created for him a

cognizable, common law claim for wrongful termination. As such, the

court did not consider, as a separate matter, whether the statements

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contained within the EMSS Act established a viable employment claim

for DeVore. Instead, the court recalled one of the policy statements

found in the Act and concluded that, since the evidence (viewed in the

light most favorable to DeVore) was sufficient to demonstrate that Metro

discharged DeVore in violation of the cited policy language, the record

did not support Metro’s request for a JNOV. Specifically, the trial court

stated:

Here, the Pennsylvania General Assembly has articulated by

statute, amongst other things, “[i]t serves the public interest if

the emergency medical services system is able to quickly adapt

and evolve to meet the needs of the residents of this

Commonwealth for emergency and urgent care and to reduce

their illnesses and injury risks.” 35 Pa.C.S.A. § [8102(5)]. At

trial, [DeVore] introduced ample evidence that the EC-135

reconfiguration constituted an aim toward better in-flight access

to patients, and thus, patient safety.”8 [DeVore] also introduced

evidence regarding communications with mechanic staff to ensure

that the reconfiguration was safe. The inquiry here is not whether

the [trial c]ourt agrees with the jury’s findings, but rather,

whether there was sufficient evidence in support thereof. See

Brown v. Shirks Motor Exp., 143 A.2d 373, 379 (Pa. 1958) (“A

judge’s appraisement of the evidence is not to be based on how

he would have voted had he been a member of the jury, but on

the facts as they come through the sieve of the jury’s

deliberation.”). Seeing that there was sufficient evidence

introduced at trial supporting the jury’s finding that Metro

wrongfully terminated [DeVore] in violation of public policy

established pursuant to the [EMSS] Act, and viewing such

evidence in favor of [DeVore], it cannot be said that “no two

reasonable minds could disagree that the outcome should have

been rendered in favor of [Metro].” [Janis v. AMP, Inc., 856

____________________________________________

8 The testimony of Nurse Candice Myrgo, Nurse Robert Fareri, and Chief Flight

Nurse Karen Bourden supported the conclusion that the EC-135 was

reconfigured for the purpose of allowing better in-flight access to patients.

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A.2d 140, 142-144 (Pa. Super. 2004)]. As such, [the trial c]ourt

did not err in denying Metro’s [motion for JNOV].

Trial Court Opinion, 12/5/22, at 8-10.

DeVore defends the trial court’s rejection of Metro’s motion for a JNOV,

maintaining that he “properly pursued a claim for wrongful discharge under

Pennsylvania common law” and noting that “Pennsylvania courts have long

recognized a claim for wrongful discharge where a public policy is threatened

or violated by the employee’s discharge.” DeVore’s Brief at 18. Citing various

statutory and regulatory provisions, DeVore insists that the EMSS Act

established an obvious public safety policy, that his termination contravened

and impeded the policy, and that the public policy exception allowed him to

pursue a wrongful discharge claim consistent with Pennsylvania precedent.

See id. at 20. Specifically, DeVore asserts:

In the [EMSS] Act, the Pennsylvania [General Assembly] stated,

inter alia, “It serves the public interest if the medical services

system is able to quickly adapt and evolve to meet the needs of

the residents of this Commonwealth for emergency and urgent

medical care and to reduce their illness an injury risks.” 35

Pa.C.S.A. § 8102(5). In addition, [DeVore] notes that 28 Pa. Code

§ 2017.40 details the scope of emergency medical services to be

provided and the desire to safely operate equipment. A third

public policy interest is enumerated by the Pennsylvania

Legislature at 74 Pa.C.S.A. § 5301(d) which requires conformity

with federal aviation laws. Further, 28 Pa. Code § 117 details the

importance of providing lifesaving emergency services. It is clear

that safety considerations in emergency helicopter transport are

of paramount importance to the Commonwealth as expressed in

multiple statutes by the legislature and that employees are

expected to conduct themselves in conformity with those laws.

The purpose behind reconfiguring the EC-135 aircraft to better

store equipment and have better access to patients is in accord

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with Pennsylvania’s public policy to “meet the needs of the

residents of this Commonwealth for emergency and urgent

medical care and to reduce their illness and injury risks.” 35

Pa.C.S.A. § 8102(5). Further, the reconfiguration of the EC-135

aircraft involves emergency transport which the General Assembly

declared is an “integral part of the health care delivery system in

this Commonwealth, and it is in the public interest that the

emergency medical services system serve all persons in this

Commonwealth who: (1) require medical care to address illness

or injury; (ii) need transportation to a hospital or other health care

facility to receive that care; and (iii) require medical assessment,

monitoring, assistance, treatment or observation during

transport.” 35 Pa.C.S.A. § 8102(4)(emphasis supplied). The

legislature’s intent could not be more clear in that references to

“public interest” or “public services” appear in each of the first

seven (7) paragraphs of the [EMSS] Act. To suggest a public policy

is not specifically enumerated belies the plain text of the statute.

See id. at 20-22.

To support his contention that the conduct on which his discharge was

based aligned with the declarations of public policy found within the EMSS Act,

DeVore points to the trial testimony of flight nurses, who explained that the

purpose behind the reconfiguration “was to allow for better in-flight access to

patients needing treatment.” Id. at 23. DeVore also notes that his

“communications with Metro’s headquarters followed his express desire to

assist AHN [nurses in their] ability to effectively treat patients during a flight.”

Id. at 23-24. DeVore insists that the jury agreed, and Metro did not refute,

that “[t]he root of [DeVore’s inquiry with Metro’s headquarters was

confirmation] of the safety of the reconfiguration for the purpose of adapting

and evolving to meet the needs of the residents of this Commonwealth for

emergency and urgent medical care and to reduce their illness and injury

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risks.” Id. at 25-26 (emphasis omitted). In view of his termination following

these internal, safety-related inquiries aimed at improving patient treatment

during emergency medical transport, DeVore concludes that he alleged a

viable claim for wrongful discharge under the public policy exception,

observing:

The public policy expressed in the [EMSS] Act is for the safety and

welfare of the residents of this Commonwealth [who seek]

emergency transport services. It is imperative that those services

be provided consistent with the policy advanced by the legislature.

That public policy is undermined when an employer engages in

conduct intended to have a chilling effect on the exercise of

emergency transport personnel, and pilots in particular, of their

statutory obligation to ensure patient safety even if contrary to

business operations. As [DeVore] has set forth a lawful claim for

wrongful discharge pursuant to established Pennsylvania public

policy, judgment should be affirmed.

Id. at 28-29.

Metro takes a different view. It contends that the trial court wrongly

denied its motion for a JNOV since DeVore was an at will employee and he

failed to identify a valid public policy exception to Pennsylvania’s presumptive

rule. See Metro’s Brief at 19. According to Metro, DeVore did not point to a

clear public policy in the Commonwealth’s constitution, statutory enactments,

or judicial decisions which directly related to the facts in this case. See id. at

21. Also, Metro submits that Devore did not report safety concerns arising

from seat configuration to any Commonwealth agency (or pursuant to any

statutory mechanism) and, although he cited the EMSS Act as the basis for

his claims, that provision, unlike the statutory schemes that supported narrow

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exceptions to at will employment in prior Pennsylvania cases, did not create

specific statutory rights or privileges that were infringed or impaired by

DeVore’s termination. See id. at 23. As such, Metro concludes that DeVore’s

discharge following internal communications with his employer was not

retaliatory in nature, did not undermine the function of any Commonwealth

agency, and neither impaired nor impeded the operation of any Pennsylvania

statute. See id. at 29. Under these circumstances, Metro contends that it

was entitled to a JNOV since DeVore failed to “meet the high burden of carving

out a new public policy exception to at will employment.” See id. For the

reasons that follow, we agree with Metro that DeVore did not identify a public

policy exception which exempted his common law wrongful termination claim

from the preemptive sweep of Pennsylvania’s at will employment doctrine.

We begin by examining the principles of the at will employment doctrine

and the public policy exception to it. We then examine the EMSS Act to

determine whether it establishes, either through its content and structure or

by its declarations of community interest, a public policy exception to at will

employment that forbids termination following employee-employer

communications that pertain to interior safety reconfigurations of emergency

medical transportation aircraft.

Our Supreme Court has repeatedly recognized that Pennsylvania’s long

held presumption of at will employment “is an extremely strong one” and that

“the [public policy exception to the at will employment doctrine] should be

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applied in only the narrowest of circumstances.” McLaughlin v.

Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000)

(acknowledging that Pennsylvania employers, since the turn of the twentieth

century, could terminate employees for any reason absent a contract and that,

prior to 1974, no Pennsylvania court had ever recognized a common law cause

of action for the termination of an at will employment relationship); see also

Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009) (same); Rothrock v.

Rothrock Motor Sales, Inc., 883 A.2d 511, 516 (Pa. 2005) (“exceptions to

at will termination should be few”); Henry v. Pittsburgh & Lake Erie

Railroad Co., 21 A. 157 (Pa. 1891) (“railroad corporation, or an individual,

may discharge an employe with or without cause at pleasure, unless

restrained by some contract”). Pennsylvania has adopted a traditional view

that recognizes only few, narrowly drawn exceptions to at will employment so

as to avoid erosion of an employer's inherent right to operate its business in

the manner that it chooses. See Rothrock, 883 A.2d at 516.

Given the strong presumption that all noncontractual employment is at

will, it is unsurprising that our Supreme Court has acted cautiously in

recognizing public policy exceptions to the at will employment doctrine. That

caution was on display in Geary v. United States Steel Corp., 319 A.2d 174

(Pa. 1974), the Court’s first decision in which it acknowledged an exception to

the at will doctrine. In Geary, a former salesman employed by a steel

manufacturer reported to his superiors his concerns about the safety of certain

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tubular products, which the company later withdrew from the market. After

his termination, the salesman filed a common law action against his employer

alleging that he was wrongfully discharged in violation of public policy. The

trial court sustained the steel company’s preliminary objections and dismissed

the salesman’s amended complaint. This Court subsequently affirmed. After

granting allocator, our Supreme Court affirmed, holding that the salesman

had no right of action against his employer for wrongful discharge where his

complaint disclosed a plausible and legitimate reason for termination, and he

failed to demonstrate that his termination violated a clear mandate of public

policy. The Court acknowledged, however, that it might find, in appropriate

circumstances, a public policy exception to the doctrine of at will employment.

Geary, 319 A.2d at 180. In the absence of an unmistakable mandate of public

policy, however, the Court reasoned that disturbing the presumption of at will

employment would unwisely interfere with “the legitimate interest of

employers in hiring and retaining the best personnel available [and that t]he

ever present threat of [liability] might well inhibit the making of critical

judgments by employers concerning employee qualifications.” Id. at 179.

According to the Court in Geary, the General Assembly is the most

appropriate branch of government to create public policy exceptions to the at

will employment doctrine. Id. at 180 (“we are not persuaded that creating a

new non-statutory cause of action of the sort proposed by [the salesman] is

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the best way to [encourage employees to express their views on the quality

of an employer's products]”).

Our Supreme Court thus teaches that Pennsylvania courts must look to

the General Assembly as the primary source of public policies which form

exceptions to the principle of at will employment. In Weaver, the Court

explained:

In our judicial system, the power of the courts to declare

pronouncements of public policy is sharply restricted. Mamlin v.

Genoe (City of Philadelphia Police Beneficiary Ass'n), [17

A.2d 407, 409 (Pa. 1941)]. Rather, it is for the legislature to

formulate the public policies of the Commonwealth. The right of

a court to declare what is or is not in accord with public policy

exists “only when a given policy is so obviously for or against

public health, safety, morals, or welfare that there is a virtual

unanimity of opinion in regard to it.” Mamlin, 17 A.2d at 409.

Only in the clearest of cases may a court make public policy the

basis of its decision. Id. To determine the public policy of the

Commonwealth, we examine the precedent within Pennsylvania,

looking to our own Constitution, court decisions, and statutes

promulgated by our legislature. McLaughlin, 750 A.2d at 288;

Hall v. Amica Mutual Ins. Co., [648 A.2d 755 (Pa. 1994)];

Lurie v. Republican Alliance, [192 A.2d 367 (Pa. 1963)];

Mamlin, [17 A.2d at 409.]

Weaver, 975 A.2d at 563.

Fifteen years after the decision in Geary, the contours of the public

policy exception became more clear in Shick v. Shirey, 716 A.2d 1231 (Pa.

1998), the first decision in which our Supreme Court both recognized a claim

for wrongful discharge in violation of a clear mandate of public policy and held

that an employee forwarded viable allegations upon which relief could be

granted under that theory. In Shick, the employee sustained a knee injury

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while at work and a notice of compensation payable was issued pursuant to

the Workers’ Compensation Act. Id. at 1232. When the employee was

released by his physician to return to work, his employer informed him that

his job was no longer available because he filed a workers' compensation

claim. Id. The employee filed a claim for wrongful discharge and the trial

court sustained the employer’s demurrer to the complaint. Ultimately, an en

banc panel of this Court affirmed, concluding that no precedent or statutory

language existed to find that the termination of an employee who had pursued

workers' compensation benefits stated a cause of action for retaliatory

discharge. Id.

The Supreme Court in Shick granted allowance of appeal and

determined that an employer who terminates an employee in retaliation for

bringing a workers' compensation claim violates the public policy of this

Commonwealth and can be liable at common law for wrongful discharge. Id.

at 1238. Mindful of its obligation to look to legislative pronouncements as

guidance when seeking to identify public policy, the Court examined the

history and structure of the Workers' Compensation Act. The Court noted that

the “exclusivity” of the Workers' Compensation Act was rooted in the quid pro

quo exchange between employees who agree to forgo tort remedies and their

employers who agree to no-fault payments for work injuries that result in a

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loss of earning power.9 Id. at 1237. The Court concluded that the historical

balance achieved under the Workers' Compensation Act would be undermined,

and the rights included within the Act impaired, if an employer could penalize

an employee for filing a claim and pursuing remedies created under the

Workers' Compensation Act. Id. Therefore, the Court held that a wrongful

discharge claim could be pursued if an employee alleged a discharge in

retaliation for filing a workers' compensation action. Id. at 1238.

In Rothrock, our Supreme Court examined a parallel claim brought by

an employee who also alleged that his employer discharged him in violation

of public policies articulated in the Workers' Compensation Act. In Rothrock,

the employee was not himself a workers' compensation claimant but alleged

that he was discharged for failing to dissuade a subordinate employee from

filing a workers' compensation claim. Id. at 514. Our Supreme Court held,

“as a necessary corollary to the policy established in [Shick, that] a

Pennsylvania employer may not encourage a supervisory employee to

dissuade a subordinate from seeking [workers' compensation] benefits. If an

____________________________________________

9 The central argument raised by the employee in Shick asserted that a

retaliatory discharge of a worker who exercised legal rights created under the

Workers' Compensation Act violated a clear mandate of public policy. See

Shick, 716 A.2d at 1233. The employee reasoned that, the “refusal to

recognize a cause of action for wrongful discharge under such circumstances

places an employee who sustains a work-related injury in the untenable

position of choosing between exercising his legal rights and seeking

compensation for his injury under the Act, or forgoing his legal rights in an

effort to maintain his livelihood.” Id.

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employer does so, the supervisory employee shall have a cause of action for

wrongful discharge from employment.” Rothrock, 883 A.2d at 517.

Pennsylvania courts have consistently maintained that exceptions to at

will employment should be few and narrowly construed so as to preserve an

employer's inherent right to operate its business as it chooses. Nevertheless,

as the foregoing cases establish, public policy exceptions to at will

employment have been recognized where adverse employment actions have

impaired rights or duties established by statutory or constitutional law, or

where employers have retaliated against employees who attempted to enforce

specific statutory rights created by the General Assembly. See Reuther v.

Fowler & Williams, Inc., 386 A.2d 119 (Pa. Super. 1978) (employee could

not be discharged for serving on a jury, where disobedience of jury summons

subjected employee to fine); Hunter v. Port Auth. of Allegheny County,

419 A.2d 631 (Pa. Super. 1980) (public employer could not deny a former

offender employment on the basis of a prior conviction for which the offender

had been pardoned, unless the conviction was reasonably related to fitness to

perform the job sought); Highhouse v. Avery Transportation, 660 A.2d

1374 (Pa. Super. 1995) (discharge from employment constitutes violation of

public policy and supports tort claim for wrongful discharge if employer

terminates employee because employee made claim for unemployment

compensation); Raykovitz v. K Mart Corp., 665 A.2d 833 (Pa. Super. 1995)

(same); Kroen v. Bedway Sec. Agency, 633 A.2d 628 (Pa. Super. 1993)

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(holding that an employee was wrongfully discharged in violation of public

policy where employee refused to submit to a polygraph test and state statute

barred such testing); Owens v. Lehigh Valley Hosp., 103 A.3d 859 (Pa.

Cmmwlth. 2014) (employee could assert wrongful discharge in violation of

public policy embodied in Workers’ Compensation Act where she alleged

termination in retaliation for benefits claim filed with employer rather than

state board, which qualified as engagement in protected activity); Roman v.

McGuire Mem’l, 127 A.3d 26 (Pa. Super. 2015) (health care employee could

assert common law wrongful discharge claim under public policy exception

where she exercised her statutory right to refuse overtime that exceeded a

regularly scheduled shift and further alleged termination in retaliation for

exercising right of refusal).

Where claimants have deviated from a statutory scheme cited as the

source of a public policy, or where adverse employment actions have not

impaired an employee’s specific statutory or constitutional rights, or where a

putative public policy derives from a source other than Pennsylvania precedent

or an enactment of the General Assembly, Pennsylvania courts have not

hesitated in rejecting common law causes of action for wrongful discharge

brought under the public policy exception. In these contexts, as the cases

below emphasize, policy-based exceptions to at will employment must be

considered carefully so they reflect only well-defined legislative

pronouncements, not simply general statements of community interest, and

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preserve the General Assembly’s role as the principal source of public policies

from which exceptions to at will employment are derived.

For example, in Clay v. Advanced Computer Applications, Inc., 559

A.2d 917 (Pa. 1989), a married couple filed wrongful discharge claims alleging

that their at will employment had been terminated after the wife rejected

sexual advances by a management level employee. The trial court dismissed

the couple’s claims after determining that their failure to pursue administrative

remedies with the Pennsylvania Human Relations Commission (PHRC) barred

them from seeking judicial recourse. After this Court reinstated the claimants’

common law wrongful discharge claims, our Supreme Court reversed, finding

that the principle of exhaustion of administrative remedies applied to actions

brought under the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951

et seq. “[A]llowing a discharged employee to commence an action in the

courts without first exhausting administrative remedies would be logically

inconsistent with the legislature's [creation of] the PHRC to function as an

efficient mechanism for handling such disputes.” Clay, 559 A.2d at 919. The

PHRA was adopted to allocate the task of addressing unlawful employment

discrimination within the Commonwealth to an administrative agency with

expertise and broad remedial powers. Id. Allowing claimants to initiate

remedial actions in court, and to bypass the PHRC, would frustrate the General

Assembly’s intent. Id. at 920. Thus, Clay held that a common law wrongful

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discharge claim, predicated upon public policy, could not be maintained where

administrative remedies provided by statute have not been exhausted.

In Weaver, a discharged employee (whose claims had been rejected by

the PHRC) brought an action against her former employer alleging various

forms of sex discrimination prohibited by the PHRA. The trial court sustained

the employer's preliminary objections and dismissed several, but not all,

claims filed by the former employee. At the conclusion of trial, the court

entered judgment on the jury's verdict in favor of the employer. After the

former employee appealed, this Court vacated the order that granted the

employer's preliminary objections and remanded the matter for further

proceedings. Our Supreme Court granted the employer’s request for

allowance of appeal and held that neither the PHRA nor the Equal Rights

Amendment of the Pennsylvania Constitution provided a public policy

exception to the at will employment doctrine for sex discrimination by an

employer not covered by the PHRA.

The Court in Weaver acknowledged that the PHRA “establish[ed] the

right to be free from sex discrimination in the workplace and provide[d] the

administrative procedures by which those rights shall be vindicated.”

Weaver, 975 A.2d at 565; see also 43 P.S. § 953. The General Assembly,

however, also exempted from the PHRA employers with less than four

employees. 43 P.S. § 954. The former employer in Weaver had fewer than

four employees. Weaver, 975 A.2d at 557. The Weaver Court concluded

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that it was bound by both the broad policy declaration against employment

discrimination contained in the PHRA, as well as the exemption for small

employers; hence, it was not free to disregard one provision of the PHRA in

order to enforce another under the guise of public policy. Id. at 569. As a

result of the unambiguous policy determination made by the General

Assembly, the Court held that it was “constrained to conclude that a common

law claim for wrongful discharge, resulting from sex discrimination, will not lie

against those employers” with less than four employees. Id. at 556–557,

569.

Finally, our Supreme Court considered a common law claim for wrongful

discharge based upon policies set forth in the federal Occupational Safety and

Health Act (OSHA), not the statutes of this Commonwealth, in McLaughlin v.

Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000). In

McLaughlin, an employee brought a claim against her employer alleging that

she was discharged for making internal complaints which asserted that

workplace chemical exposures violated the maximum allowances under OSHA.

The employee made no claim which alleged that her employer violated a public

policy arising from a Pennsylvania statute that addressed health and safety.

See McLaughlin, 750 A.2d at 286. Moreover, the Court observed that the

employee was not the subject of retaliation for making a complaint to a

Commonwealth agency, as in Shick. Id. at 288. For these reasons, the

employee’s discharge did not thwart the administration of a Commonwealth

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agency or undermine any rights or obligations governed by a Pennsylvania

statute. Id. In the absence of such critical components of a policy-based

exception to the at will employment doctrine, the employee failed to show a

violation of any Pennsylvania policy and further failed to establish how private,

internal reports undermined the workings of any Commonwealth agency or

any statutory mechanism within Pennsylvania.10 Id. at 288–289. Having

determined that no violation of a Pennsylvania policy supported the

employee’s claims, the Court moved on to consider whether a potential

violation of a federal statute justified application of a policy-based exception

to Pennsylvania’s at will employment doctrine. In rejecting such a claim, the

Court stated:

[The employee] in some way must allege that some public policy

of this Commonwealth is implicated, undermined, or violated

because of the employer's termination of the employee. [The

p]ublic policy of the Commonwealth must be just that, the policy

of this Commonwealth. In cases like Shick there is no question

that the public interest and policy of this Commonwealth were at

stake, for if we allowed an employer to discharge an employee for

filing a complaint with a Commonwealth agency such as the

Workers' Compensation Appeal Board, we impact the rights of that

employee and the public by undermining the very purposes of a

statute of this Commonwealth.

____________________________________________

10 Citing Geary, the Court in McLaughlin also rejected the position that

retaliation for internal reporting of workplace grievances could support a

common law wrongful discharge claim under the public policy exception. See

McLaughlin, 750 A.2d at 288-289 (“[In] Geary, supra, [the Supreme] Court

refused to accept the premise that an employer, who might have terminated

an employee in retaliation for making internal reports regarding the safety of

a product, threatened the public policy of this Commonwealth to such an

extent that it outweighed the presumption of at will employment.”).

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Id. at 289 (emphasis in original).

We now review the content and structure of the EMSS Act to ascertain

whether DeVore has identified a valid public policy that supports a cause of

action under an exception to the at will employment doctrine. To recap,

DeVore’s position is that the EMSS Act establishes a public policy favoring the

creation and development of an emergency medical services system that is

capable of rapid adaptation and evolution to meet the needs of the residents

of Pennsylvania for urgent medical care. See DeVore’s Brief at 15-16. He

asserts that the purpose behind the reconfiguration of the EC-135 aircraft was

to better store equipment and improve patient access during emergency

medical transport. Id. at 21-22. DeVore further contends that his

communications to Metro’s headquarters aligned with the public policies found

in the EMSS Act because his intention was to assist AHN flight nurses in

enhancing their ability to treat patients during emergency flights. Id. at 24-

25. DeVore concludes that Metro violated the policies found in the EMSS Act

when it terminated him for reporting, to Metro headquarters, issues

surrounding the reconfiguration of the EC-135 aircraft without first

communicating his concerns to immediate supervisory personnel. Id. at 25.

DeVore explains that, despite his at will employment status, he is entitled to

pursue a judicial remedy since the policies expressed in the EMSS Act are

“undermined when[ever] an employer engages in conduct intended to have a

chilling effect on the exercise of emergency transport personnel, and pilots in

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particular, of their statutory obligation to ensure patient safety even if

contrary to business operations.” Id. at 28-29.

To support his public policy claims, DeVore relies exclusively on

pronouncements found in the “declarations of policy” provision of the EMSS

Act. Within that section of the EMSS Act, the legislature included several

broadly framed pronouncements regarding the emergency medical services

system in Pennsylvania. See 35 Pa.C.S.A. § 8102. DeVore has cited the

following declarations as the basis for his public policy claims:

(2) It is in the public interest to assure that there are high quality

and coordinated emergency and urgent medical services readily

available to the residents of this Commonwealth to prevent

premature death and reduce suffering and disability which arise

from severe illness and injury.

***

(4) Transportation of both emergency and nonemergency patients

is an integral part of the health care delivery system in this

Commonwealth, and it is in the public interest that the emergency

medical services system serve all persons in this Commonwealth

who:

(i) require medical care to address illness or injury;

(ii) need transportation to a hospital or other health

care facility to receive that care; and

(iii) require medical assessment, monitoring, assistance,

treatment or observation during transportation.

(5) It serves the public interest if the emergency medical services

system is able to quickly adapt and evolve to meet the needs of

the residents of this Commonwealth for emergency and urgent

medical care and to reduce their illness and injury risks.

35 Pa.C.S.A. § 8102(2), (4), and (5).

DeVore urges us to accept his contention that the foregoing provisions

comprise such a sufficiently clear, robust, and fulsome public policy that they

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displace Pennsylvania’s traditional doctrine of at will employment. Nowhere

does DeVore explain, however, how these broadly drawn statutory

declarations function like the legislative provisions that have supported policy-

based exceptions to at will employment in prior cases.11 Plainly, the

____________________________________________

11 Our own study of the EMSS Act has uncovered two provisions which have

only tangential relevance to the issues we confront in this case. DeVore

neither cites nor discusses either provision. Section 8129(h) of the EMSS Act

directs the Department of Health to inspect an emergency service provider’s

vehicles and equipment “from time to time” but not less than every three

years. It creates no rights pertaining to employees and it imposes no duties

or obligations upon an employer. Moreover, it offers no guidance concerning

the agency’s role in monitoring, reviewing or approving aircraft configurations,

much less discuss the agency’s role in the resolution of employment disputes

that might arise between employers and employees in this context. Section

8129 states in full:

§ 8129. Emergency medical services agencies

(h) Inspection.--The department or its agent shall inspect an

applicant's vehicles, equipment and personnel qualifications prior

to granting an EMS agency license and shall inspect an EMS

agency from time to time, as deemed appropriate and necessary,

but not less than once every three years.

35 Pa.C.S.A. § 8129(h).

The second provision is Section 8131 of the EMSS Act, which describes the

purpose of air ambulances and sets the minimum staffing requirements for

such vehicles when dispatched for the purpose of transporting patients who

have encountered medical emergencies.

§ 8131. Air ambulances

(a) Purpose.--An air ambulance is a rotorcraft staffed by a crew that

provides medical assessment, treatment, monitoring, observation

and transportation of patients who require EMS where time to

administer definitive care is of the essence and transportation by

(Footnote Continued Next Page)

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statements DeVore draws to our attention create no rights and regulate no

conduct or behavior within the employment context. Moreover, DeVore

identifies no statutory mechanism or administrative structure created under

the EMSS Act to monitor or approve the design or configuration of emergency

air transport vehicles. In the absence of any statutory mechanisms and

administrative structures created to resolve disagreements pertaining to the

issues raised in this case, we cannot be certain about legislative preferences

regarding appropriate forums and the substantive principles that would apply

to such disputes. Nor are we prepared to agree that an employee must prevail

in litigation commenced after the termination of employment simply because

he acted in a manner arguably consistent with the broad declarations found

in the EMSS Act. Therefore, despite the broad pronouncements found in

Section 8102, we are persuaded that nothing in the composition of the EMSS

____________________________________________

air ambulance to a facility able to provide the care is faster than

transportation by ground ambulance, or require EMS provided by

specialized equipment or providers not available on a ground

ambulance and the air ambulance can provide this faster than the

patient would receive such care at a receiving facility if

transported by ground ambulance.

(b) Staffing requirements.--Minimum staffing standards for an air

ambulance when dispatched to provide or when providing medical

assessment, treatment, monitoring, observation or transportation

of a patient is one pilot and two EMS providers other than the pilot

who are above the advanced EMT level, with at least one of those

two EMS providers specially trained in air medical transport.

35 Pa.C.S.A. § 8131(a) and (b).

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Act creates the sort of statutory rights and administrative structures that

traditionally have been viewed as critical components of any finding that the

General Assembly intended to upset the strong presumption of at will

employment which has occupied a deeply-imbedded status in Pennsylvania

jurisprudence for over a century. See McLaughlin, supra.

Much as in McLaughlin, this is not a case in which DeVore has averred

that he made a complaint to a Commonwealth agency and was fired in

retaliation. Similarly, DeVore has not made clear how his termination

implicates the policy of the Commonwealth because it thwarted the operations

of a Commonwealth agency or undermined a statutory right or obligation

governed by a Pennsylvania statute. Unlike Schick, the circumstances of this

case did not place Devore in the untenable position of having to decide

whether to enforce a clear statutory right adopted by our General Assembly

or forgo such a pursuit in order to preserve his employment with Metro. Put

simply, if we set aside the broad declarations set forth in Section 8102(2),

(4), and (5), DeVore offers nothing to show how any policy of this

Commonwealth was violated because he was terminated after making a

private report to Metro’s headquarters.

DeVore’s argument thus appears to be that, although the EMSS Act does

not directly regulate Metro’s behavior, it might do so indirectly by announcing

a general policy applicable to all employers in Pennsylvania’s emergency

medical services system. We therefore will consider whether the policy

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expressions contained in Section 8102, standing alone, create a common law

cause of action for wrongful termination that is generally applicable to all

employers engaged in the Commonwealth’s emergency medical system.

DeVore's final argument represents a bold appeal to considerations of

public policy. Essentially, he asserts that he is entitled to pursue judicial

remedies because he acted in the best interests of the general public, as well

as his employer, in assisting AHN’s flight nurses in reconfiguring the EC-135

aircraft. Although DeVore maintains that his conduct should be protected

because his intentions inured to the benefit of the public, the courts have not

agreed with this view for several reasons. See Geary, supra;12 see also

McLaughlin, supra. First, most discharged employees can make the same

claim, so the assertion does not align with our understanding that public policy

exceptions to at will employment should be found only in few instances.13

____________________________________________

12 Geary recognized that, “the potential for abuse of an employer's power of

dismissal is particularly serious where an employee must exercise

independent, expert judgment in matters of product safety.” Geary, 319 A.2d

at 178. DeVore distinguishes himself from Mr. Geary, arguing that, as a pilot,

he possessed expertise in aircraft safety. See Devore’s Brief at 26, n.6. Even

if we assume that DeVore possessed the relevant skills, talents, and

experience, as we must under our standard of review, we nevertheless

conclude that Metro is entitled to relief as a matter of law.

13 We hasten to add that DeVore cannot simply cite a generalized statement

of public policy to support his common law claim of wrongful discharge.

Instead, he must identify such a clear and unmistakable declaration of public

policy that it supports an exception to the presumption of at will employment.

See McLaughlin, 750 A.2d at 288-289 (noting a heavy burden incident to

overcoming the presumption of at will employment where termination because

(Footnote Continued Next Page)

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Second, we doubt that such an expansion of the public policy exception would

operate universally to the benefit of the parties or of the public. Lastly, in

rejecting a cause of action based upon the same type of internal reports that

DeVore made at Metro, our Supreme Court said in Geary that “[t]he

praiseworthiness of [the employee’s] motives does not detract from the

company's legitimate interest in preserving its normal operational procedures

from disruption.” Geary, 319 A.2d at 183 (“In sum, while we agree that

employees should be encouraged to express their educated views on the

quality of their employer's products, we are not persuaded that creating a new

non-statutory cause of action of the sort proposed by [the employee] is the

best way to achieve this result.”); McLaughlin, supra. Without more

concrete guidance from the legislature, we believe that “disturbing the

[presumption of at will employment] would unwisely interfere with the

legitimate interest of employers in hiring and retaining the best personnel

available. The ever present threat of suit might well inhibit the making of

critical judgments by employers concerning employee qualifications.” Geary,

319 A.2d at 179 (internal quotations omitted).

As our previous cases have shown, Pennsylvania courts have acted

cautiously when confronted with requests to set aside the presumption of at

will employment. If it became the law that an employee may bring a wrongful

____________________________________________

of internal reports has occurred but has not impeded the administration of a

Commonwealth agency or impaired a statutory right).

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discharge claim pursuant to the public policy exception to the at will

employment doctrine merely by referring to generalized pronouncements

about community interests offered by the General Assembly, the exception

would soon swallow the rule. We therefore hold that a bald reference to

general articulations of the public interest, in the absence of something more

such as an adverse employment action which impairs a well-defined statutory

right or impedes the function of a Commonwealth agency, is insufficient to

overcome the strong presumption in favor of at will employment relationships.

Accordingly, we vacate the July 19, 2022 judgment of the trial court and

remand this matter with instructions to enter an order granting Metro’s motion

for a JNOV.

Judgment vacated. Case remanded with instructions. Jurisdiction

relinquished.

DATE: 11/18/2024

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