Gross v. Nova Chemicals Services, Inc.

J-S11045-17

2017 PA Super 121

JOSEPH M. GROSS : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

NOVA CHEMICALS SERVICES, INC. : No. 1408 WDA 2016

Appeal from the Order August 17, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD16-008023

BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED APRIL 24, 2017

Joseph M. Gross (“Appellant”) appeals from the order entered in the

Court of Common Pleas of Allegheny County sustaining the preliminary

objections filed by Nova Chemicals Services, Inc. (“Nova”) and dismissing

his complaint with prejudice. We affirm.

We note the following pertinent facts as averred in Appellant’s

complaint:

7. Plaintiff [hereinafter “Appellant”] began employment with

Defendant [hereinafter “Nova”] as an at-will employee in or

about November 2004 and continued in such capacity of

employment in the position of Chief Pilot until May 13, 2014.

8. Appellant’s final base salary with Nova was approximately

$321,500 per year.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

J-S11045-17

9. Appellant worked with a flight crew in his capacity as Chief

Pilot; this flight crew included, among others, two other pilots.

10. The Federal Aviation Administration required two pilots for

the operation of Nova’s aircraft.

11. As Chief Pilot, Appellant was primarily responsible for the

operation of the aircraft.

12. Under [the Federal Aviation Act (FAA)], 14 CFR 91.3(a),

the pilot in command is “directly responsible for, and is the final

authority as to the operation of the aircraft.”

13. Responsibility of the aircraft includes the safety of the

aircraft and its passengers; such safety depends upon the ability

of the pilot in command to properly communicate with the flight

crew, particularly a co-pilot.

14. If a pilot does not believe that he can responsibly operate

the aircraft, he has a duty to abstain from operation of the

aircraft.

15. In or around January 2014, an employee of Nova began

making frivolous and anonymous complaints against Appellant.

16. Nova investigated each complaint and found all to be

without merit.

17. On or about March 5, 2014, employee and co-pilot Gale

Truitt and Appellant were operating a flight which, among other

passengers, included a Vice-President of Human Resources.

18. During the trip, Mr. Truitt approached the VP to ask why

no action had been taken against Appellant, revealing to all

parties that Mr. Truitt was the actor making the frivolous

complaints against Appellant.

19. After the March 5, 2014, trip, Appellant spoke with his

Human Resources contact, Denise McBride, regarding the

situation with Mr. Truitt and asked if any action would be taken

regarding the situation.

20. Ms. McBride replied that nothing would be done, and that

specifically Appellant was not to approach Mr. Truitt, as Nova

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feared an age discrimination suit if Nova took any action towards

Mr. Truitt.

21. The situation between Mr. Truitt and Appellant became

increasingly difficult. Mr. Truitt’s behavior towards Appellant

caused a breakdown in communication during flights.

22. This breakdown in communication, because of Nova

employee’s behavior, led Appellant to become increasingly

concerned for in-flight safety.

23. Appellant expressed to Ms. McBride the communication

difficulties that were experienced and the concerns he had

regarding safety.

24. Ms. McBride asked Appellant if he could continue to fly with

Mr. Truitt as a crew member; Appellant stated that for safety, he

should not be paired with Mr. Truitt.

25. Ms. McBride stated that she understood and they agreed

that this was a temporary solution.

26. Nevertheless, on April 7, 2014, Appellant and Mr. Truitt

were forced to fly together.

27. During the trip, Mr. Truitt refused to communicate

effectively with Appellant. Appellant in his assessment, as Chief

Pilot, believed that this lack of communication presented a safety

hazard and prevented Appellant from executing his duty to be

the final authority of the aircraft.

28. Appellant made several inquiries to Ms. McBride following

this April 7, 2014, flight to receive an update on the situation

with Mr. Truitt and request a permanent solution; Appellant also

reasserted his concerns regarding communication and safety.

29. Appellant never received any information regarding a

permanent solution or an update on the matter.

30. During this time Appellant also had a conversation with his

supervisor, Peter Masterman, regarding what could be done to

remedy the unsafe conditions.

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31. Mr. Masterman’s response was “I had hoped that if I

ignored this issue long enough it would go away.”

32. Appellant, in his assessment as Chief Pilot, determined

that going forward he could no longer execute his duties under

the FAA with the current conditions, as Nova continued to refuse

to address the matter.

33. In order to comply with his duties under the FAA, including

to have the final authority over the operation of the aircraft,

Appellant’s employment wrongfully terminated on May 13, 2014.

Appellant’s Complaint, filed 6/13/15, at 4-6.

In his Complaint, Appellant charged Nova with one count of wrongful

termination in the nature of constructive termination. Specifically, the

Complaint averred that Nova’s refusal “to address communication issues led

to unsafe flight conditions and rendered [him] unable to comply with his

duties under the FAA to be the final authority on the aircraft.” Id. at ¶ 37.

“Compliance with a duty under FAA regulations and in-flight safety are

clearly public policy mandates in the best interest of the public health and

safety[,]” the Complaint continued. Id. at ¶ 42.

Additionally, Appellant posited that Nova’s refusal to approach Truitt

because Truitt was eligible to file an age-based discrimination suit amounted

to disparate treatment that “contravene[ed] public policy legislation, on both

a state and federal level, which prohibits an employer from treating an

employee differently on the basis of age.” Id. at ¶ 40. This discriminatory

action against Appellant, he claimed, further prevented him from performing

his duty to be the final authority on the aircraft under the FAA undermining

public safety concerns regarding in-flight safety. Id. at ¶ 41.

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Nova filed Preliminary Objections to Appellant’s Complaint on July 7,

2016, in the nature of a demurrer. Appellant filed a Brief in Opposition on

August 10, 2016. After entertaining oral argument, the trial court sustained

Nova’s Preliminary Objections and dismissed Appellant’s Complaint. This

timely appeal followed.

Appellant presents the following questions for our review:

I. DID THE HONORABLE TRIAL COURT COMMIT AN

ERROR OR ABUSE OF DISCRETION BY GRANTING

THE CLAIM OF A DEMURER [SIC] AND DISMISSING

THE CASE WHEN THERE WERE THEORIES OF LAW

AND FACT UNDER WHICH THE APPELLANT COULD

HAVE RECOVERED?

II. DID THE HONORABLE TRIAL COURT ERR OR ABUSE

ITS DISCRETION BY MAKING FACTUAL

DETERMINATIONS IN DECIDING TO GRANT THE

CLAIM OF A DEMURER AND DISMISS THE CASE?

Appellant’s brief at 5-6.1

Initially, we set forth our standard of review:

[O]ur standard of review of an order of the trial court overruling

or granting preliminary objections is to determine whether the

trial court committed an error of law. When considering the

appropriateness of a ruling on preliminary objections, the

appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal

sufficiency of the complaint. When considering preliminary

objections, all material facts set forth in the challenged pleadings

are admitted as true, as well as all inferences reasonably

____________________________________________

1

We note that Appellant has not challenged the trial court’s dismissal of his

age-discrimination claim.

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deducible therefrom. Preliminary objections which seek the

dismissal of a cause of action should be sustained only in cases

in which it is clear and free from doubt that the pleader will be

unable to prove facts legally sufficient to establish the right to

relief. If any doubt exists as to whether a demurrer should be

sustained, it should be resolved in favor of overruling the

preliminary objections.

Freundlich & Littman, LLC v. Feierstein, 2017 PA Super 40 (Feb. 23,

2017) (quoting Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012)

(internal citations omitted)).

This Court has explained the requirements of a wrongful termination

claim raised by an at-will employee:

[A]n action in the Court of Common Pleas is appropriate

for a wrongful termination claim that is based on a violation of

public policy. The Pennsylvania Supreme Court held that an

employee has a common law action for wrongful discharge

where there is a clear violation of public policy in the

Commonwealth. McLaughlin v. Gastrointestinal Specialists,

Inc., [561 Pa. 307], 750 A.2d 283 (Pa. 2000). In McLaughlin,

the court discussed the types of cases where an employee could

file a claim for wrongful discharge. The court noted “that the

exception to the employment at-will rule should be applied in

only the narrowest of circumstances.

***

The [McLaughlin C]ourt also observed that, “as a general

proposition, the presumption of all non-contractual employment

relations is that it is at-will and that this presumption is an

extremely strong one. An employee will be entitled to bring a

cause of action for a termination of that relationship only in the

most limited of circumstances where the termination implicates a

clear mandate of public policy in this Commonwealth.” Id.

Roman v. McGuire Mem'l, 127 A.3d 26, 31–32 (Pa.Super. 2015).

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In Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009), the

Pennsylvania Supreme Court expounded on the role of our courts in

declaring public policy in this Commonwealth:

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),

340 Pa. 320, 17 A.2d 407, 409 (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., 538 Pa. 337, 648

A.2d 755 (1994); Lurie v. Republican Alliance, 412 Pa. 61,

192 A.2d 367 (1963); Mamlin, 340 Pa. 320, 17 A.2d 407.

Weaver, 975 A.2d 555, 563 (2009).

Appellant argues that his Complaint pled facts that, if believed, proved

Nova constructively discharged him for reasons violating Pennsylvania public

policy. He points to his averment that Nova jeopardized the safety of the

aircraft and passengers by requiring Appellant to fly with a co-pilot who

refused to communicate properly with him. An employment decision that

impedes the responsible operation of an aircraft in this Commonwealth

implicates public safety under the FAA and, accordingly, violates

Pennsylvania public policy manifest in legislation implementing the FAA,

Appellant argues. Specifically, Appellant asserts in his brief that the

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Pennsylvania General Assembly has effectively declared a chief pilot’s

responsibilities under FAA rules to be public policy of this Commonwealth

though the enactment of 74 Pa.C.S.A. 5301, which requires that all rules

and regulations under this part shall be construed consistently with their

federal counterparts found in the FAA.2

In the trial court’s opinion, however, the “public policy exception” to

the general prohibition against claims asserting wrongful at-will employment

termination did not apply in the present case, as Appellant could point to no

Pennsylvania public policy implicated by Nova’s conduct. See Trial Court

Opinion 10/27/16 at 3. Appellant, instead, relied strictly on a federal

statutory duty—FAA regulation, 14 CFR 91.3(a), the pilot in command is

“directly responsible for, and is the final authority as to the operation of the

aircraft[,]” and in so doing failed to claim that public policy of Pennsylvania

was at stake, the trial court determined.

In support of its decision, the trial court invoked the rationale

expressed in our Supreme Court’s decision in McLaughlin. In McLaughlin,

the plaintiff/appellant claimed her employer discharged her in retaliation for

bringing an OSHA3-based safety complaint—substantiated with a laboratory

test result confirming that an office air sample contained excessive amounts

____________________________________________

2

74 Pa.C.S.A. § 5301 is more fully described infra.

3

Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, 660(c).

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of a toxic chemical stored in the office—to her employer’s attention. Despite

the safety implications raised in her underlying complaint, the Court affirmed

the Superior Court order upholding the sustaining of preliminary objections

and the dismissal of the action because the complaint failed to point to any

Pennsylvania public policy implicated by her employer’s alleged violation of

OSHA. The Court reasoned:

We believe that it is a mistake to baldly point to a federal statute

or administrative regulation and, without more, proclaim this as

the public policy of the Commonwealth, such that every violation

of any federal code, or statute becomes the basis for seeking a

common law remedy against an employer.

As our previous jurisprudence has shown, this Court has

steadfastly resisted any attempt to weaken the presumption of

at-will employment in this Commonwealth. If it becomes the law

that an employee may bring a wrongful discharge claim pursuant

to the “public policy” exception to the at-will employment

doctrine merely by restating a private cause of action for the

violation of some federal regulation, the exception would soon

swallow the rule. While, of course, this Commonwealth cannot

enact laws that contravene federal law, we are not required to

override our longstanding policy regarding common law at-will

employment and thus provide a common law remedy for

wrongful discharge simply because Congress provides a federal

statutory remedy to be brought in a federal forum. Rather, we

hold that a bald reference to a violation of a federal regulation,

without any more articulation of how the public policy of this

Commonwealth is implicated, is insufficient to overcome the

strong presumption in favor of the at-will employment relation.

McLaughlin, 750 A.2d at 290.

Here, Appellant argues his case is distinguishable from McLaughlin

because his Complaint alluded to Section 5301, “Authority of department,”

which provides in relevant part that the Pennsylvania Department of

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Transportation “shall promulgate and enforce regulations . . . and other laws

relating to aviation, airports and air safety within this Commonwealth.” 74

Pa.C.S.A. § 5301(a). The section further provides that “all rules and

regulations promulgated by this department under authority of this part shall

be consistent with and conform to the Federal statutes and regulations

governing aeronautics.” 74 Pa.C.S.A. § 5301(d). See Appellant’s brief at

15.

Initially, we note that Appellant’s Complaint invokes Section 5301 only

in its “Jurisdiction and Venue” section, wherein it indicates that the trial

court has personal jurisdiction over Nova under Section 5301 because Nova

conducts business in the Commonwealth of Pennsylvania. See Complaint, at

¶ 4. The Complaint, otherwise, points only to the Federal Aviation Act, at 14

CFR 913(a), as the source of public policy requiring a chief pilot to be the

final arbiter of safety issues arising during a flight. There is no averment or

suggestion elsewhere that the public policy of this Commonwealth, through

Section 5301 or any other means, mirrors this federal policy. In this regard,

therefore, we discern no divergence between the present Complaint and the

one in McLaughlin.

Even if we concluded that Appellant’s Complaint framed Section 5301

as a source of Pennsylvania public policy implementing 14 CFR 913(a), we

would reject this position as a misstatement of the law. To the extent that

our decision in this regard involves statutory construction of Section 5301,

we apply the following principles:

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Our task is guided by the sound and settled principles set forth

in the Statutory Construction Act, including the primary maxim

that the object of statutory construction is to ascertain and

effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing

that end, we are mindful that “[w]hen the words of a statute are

clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §

1921(b). Indeed, “[a]s a general rule, the best indication of

legislative intent is the plain language of a statute.” In reading

the plain language, “[w]ords and phrases shall be construed

according to rules of grammar and according to their common

and approved usage,” while any words or phrases that have

acquired a “peculiar and appropriate meaning” must be

construed according to that meaning. 1 Pa.C.S.1903(a).

However, when interpreting non-explicit statutory text,

legislative intent may be gleaned from a variety of factors,

including, inter alia: the occasion and necessity for the statute;

the mischief to be remedied; the object to be attained; the

consequences of a particular interpretation; and the

contemporaneous legislative history. 1 Pa.C.S. § 1921(c)[.]

Notwithstanding the primacy of the plain meaning doctrine as

best representative of legislative intent, the rules of construction

offer several important qualifying precepts. For instance, the

Statutory Construction Act also states that, in ascertaining

legislative intent, courts may apply, inter alia, the following

presumptions: that the legislature does not intend a result that

is absurd, impossible of execution, or unreasonable; and that the

legislature intends the entire statute to be effective and certain.

1 Pa.C.S. § 1922(1), (2). Most importantly, the General

Assembly has made clear that the rules of construction are not

to be applied where they would result in a construction

inconsistent with the manifest intent of the General Assembly. 1

Pa.C.S. § 1901.

Green v. Pennsylvania Prop. & Cas. Ins. Guar. Ass'n, --- A.3d ----,

2017 PA Super 73 (Mar. 21, 2017) (quoting Commonwealth v. Wilson,

111 A.3d 747, 751 (Pa.Super. 2015) (citation omitted)).

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Section 5301 of Title 74, Part III, “Aviation,” plainly states only that all

rules and regulations promulgated by the Department of Transportation

relating to aviation “shall be consistent with and conform to the Federal

statutes and regulations governing aeronautics.” 74 Pa.C.S.A. § 5301(d).

Appellant, however, has identified no such promulgated rule in this

Commonwealth addressing the subject matter or duty expressed in 14 CFR

913(a).

The General Assembly could have written Section 5301 to provide that

in the absence of a Pennsylvania legislative or regulatory counterpart to any

FAA rule or regulation, the FAA rule or regulation controls. Section 5301

does not say this, however. Instead, it confines application of the Section

5301(d) conformity clause to those DOT aviation rules and regulations

actually promulgated. We construe this language, therefore, to establish

that statutorily-created public policy pertaining to aviation may derive only

from the promulgated rules and regulations of this Commonwealth.

Precedent confines the scope of “public policy” of the Commonwealth

in this context to “our own Constitution, court decisions, and statutes

promulgated by our legislature.” Weaver, supra (emphasis added). The

federal duty expressed in 14 CFR 913(a) does not reflect a rule or regulation

promulgated by the Department of Transportation, nor has our General

Assembly enacted a law requiring DOT to promulgate a discrete rule or

regulation that requires conformity with 14 CFR 913(a). Accordingly, we

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discern no public policy of this Commonwealth within the FAA statutory duty

cited in Appellant’s Complaint.

Order is Affirmed.4

Judge Ransom joins the Opinion.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/24/2017

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4

Given our determination that Appellant failed, as a matter of law, to

implicate a public policy exception to the prohibition against a wrongful

termination claim in the at-will employment context, we need not address

his second issue charging the trial court with making factual determinations

not properly resolved at preliminary objections.

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