Agosto, M. v. JRA Express, Inc.

J-A19037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MANUEL AGOSTO : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

JRA EXPRESS, INC. : No. 1001 MDA 2021

Appeal from the Order Entered June 29, 2021

In the Court of Common Pleas of Dauphin County Civil Division at No(s):

2017-CV-06261-CV

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 27, 2022

Plaintiff/Appellant Manuel Agosto appeals from the trial court’s order of

June 29, 2021, granting summary judgment in favor of Defendant/Appellee

JRA Express, Inc. (“JRA”) and dismissing Agosto’s action raising one count of

Wrongful Termination and one count claiming a violation of the Pennsylvania

Wage Payment and Collection Law. We affirm.

On December 14, 2015, JRA hired Agosto as a commercial truck driver.

JRA terminated Agosto’s employment on July 15, 2016. In Agosto’s legal

action filed with the trial court, he maintained JRA wrongfully terminated him

because he refused to receive part of his wages in the form of “under the

table” cash payments. He raised an additional claim asserting he was owed

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A19037-22

one-half week of earned but unused accrued vacation time. He sought

economic and punitive damages, as well as costs and fees.1

____________________________________________

1 The trial court opinion, attached infra, sets forth in more detail its findings

of fact, which observe that after Agosto had indicated in early 2016 his

intention to quit, he accepted JRA’s offer to increase his pay by paying him

both by paycheck plus a separate cash payment. Agosto received pay under

this arrangement from February until the beginning of April 2016, when

Agosto emailed JRA indicating he no longer wished to receive cash payments

but wanted his entire $1,450 included in a single paycheck. Agosto also

indicated his understanding that he would be eligible for a one-week (paid)

vacation as of May 2016 and he intended to use it in July.

JRA essentially agreed to Agosto’s demands, with the exception of stating he

would be paid for only one-half of his week vacation. Agosto replied that he

agreed to JRA’s counteroffer. He later asserted he refused cash payments

because he felt there were no tax withholdings and they were, therefore,

illegal.

However, JRA reported to its third-party payroll company that Agosto’s receipt

of $2,500 in cash wages were taxable earnings, specifically classified as “Extra

Comp” in a final paystub issued to Agosto in July 2016. The paystub reflected

tax withholdings from this extra compensation.

Also, JRA’s “Expense Cash Record”, which recorded reimbursements paid to

employees for expenses incurred, reflected that JRA reimbursed Agosto

$2,450 from February 26 through April 8, 2016. This document bears no

signature of Agosto, and Agosto claims it is a fake document prepared for

litigation.

Agosto also claimed retaliatory actions by JRA after he asked them to cease

cash payments for fear the payments were part of a tax fraud scheme. A

hostile work environment emerged wherein his communications were ignored

and he was subject to frequent yelling by superiors.

This retaliatory response included the “short-changing” of his paid, one-week

vacation that he claims he was promised at the beginning of his employment.

JRA denied this claim.

Agosto was eventually terminated and he filed the present suit.

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J-A19037-22

As noted, the trial court granted JRA’s motion for summary judgment

on both counts. Regarding Count I, the trial court found Agosto was an “at-

will” employee and, as such, bore the burden of demonstrating a genuine issue

of material fact that a clear mandate of Pennsylvania public policy was

implicated in his claim and thus qualified for an exception to the otherwise

strong presumption that the at-will nature of employment in the

Commonwealth requires protection. Although the trial court intimated that

Agosto’s assertions regarding JRA’s partial cash payments appeared credible,

while JRA’s assertions to the contrary appeared incredible, it explained that

the nature of the controversy alleged in this claim still failed to implicate a

clear mandate of Pennsylvania public policy.

Specifically, the trial court catalogued a host of decisions holding that

the claimed public policy of this Commonwealth must go to the heart of a

citizen’s rights, duties, and responsibilities, and may not simply allege a

possible federal crime, which in this case would involve violations of federal

tax law. See, e.g., McLaughlin v. Gastrointestinal Specialists, Inc., 750

A.2d 283, 286-288 (Pa. Super. 2000) (holding an at-will employee will be

entitled to bring a cause of action for termination only in the “most limited of

circumstances” where the termination implicates a clear mandate of public

policy in this Commonwealth, as articulated in the Pennsylvania Constitution,

by the Pennsylvania Legislature, or through judicial decisions). See also

Castro v. Air-Shield, Inc., 78 Bucks Co. L. Rep. (Aug. 20, 2004) (employee’s

alleging employer’s violation of FDA regulations failed to implicate

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J-A19037-22

Pennsylvania public policy, which derives from Pennsylvania’s constitution,

court decisions, and statutes).

To the extent Agosto argued that Pennsylvania Code provisions

concerning tax withholding, obstruction of administration of law, aiding

consummation of a crime, and unsworn falsification to authorities had been

violated by JRA, the trial court similarly found the provisions in question were

not of the magnitude or import to reflect a “clear mandate of the public policy

of this Commonwealth,” particularly where there is no indication that Agosto

attempted to protect the purportedly clear public policy mandate by reporting

JRA’s alleged wrongdoing to any state or federal authority. Under such facts,

the trial court settled on the well-settled general rule that an “at-will”

employee can be terminated for any reason or no reason at all. See

McLaughlin, supra.

This timely appeal followed. Herein, Agosto raises two issues. In his

first issue, he contends that the tax evasion he alleged did, in fact, reflect a

clear mandate of Pennsylvania public policy. Like all Pennsylvania employees

working for a Pennsylvania employer, he argues, he is mandated to set aside

a portion of his compensation to pay Pennsylvania taxes. Yet, JRA was

requiring that he receive part of his pay in cash in order to avoid these tax

obligations.

Courts have recognized that only a very small number of wrongful

termination scenarios will implicate a clear mandate of Pennsylvania public

policy. See Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511, 516

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J-A19037-22

(Pa. 2005) (termination of supervisor for failure to dissuade subordinate from

filing Workers Compensation Act claim); Shick v. Shirey, 716 A.2d 1231,

1237 (Pa. 1998) (termination for filing a Workers Compensation Act

claim); Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 121 (Pa. 1978)

(termination for missing work due to jury service); Novosel v. Nationwide

Ins. Co., 721 F.2d 894, 900–01 (3d Cir.1983) (termination for refusal to

participate in private employer's lobbying effort after employee stated his

opposition to employer's political stand); McGuckin v. Brandywine Realty

Tr., 185 F. Supp. 3d 600, 608 (E.D. Pa. 2016) (collecting cases).

Agosto cites to several Pennsylvania federal district court decisions

holding that employees had adequately pleaded that they were wrongfully

terminated in violation of Pennsylvania public policy. See Urban v.

Walgreen, Co., 2014 WL 7232240 (E.D. Pa. Dec. 18, 2014) (holding

employee sufficiently pleaded claim for wrongful termination on allegations

termination occurred for his refusal to aid in the commission of fraud or theft-

by-deception of insurance companies through fraudulent billing schemes);

Godwin v. Visiting Nurse Ass’n Home Health Servs., 831 F. Supp. 449

(E.D. Pa. 1993), aff’d 39 F.3d 1173 (3d Cir. 1994) (holding in wrongful

termination case that Pennsylvania public policy was implicated by claim

employer terminated its bookkeeper-accountant after she refused to prepare

documents in support of employer invoices seeking reimbursement from

Medicare program for costs that were not reimbursable).

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J-A19037-22

JRA responds that Agosto relies on unreported federal decisions

involving motions to dismiss, none of which applies to the facts and issue at

bar. JRA, instead, relies on Booth v. McDonnell Douglas Truck Services,

Inc., 585 A.2d 24 (Pa. Super. 1991). In Booth, plaintiff asserted a claim for

wrongful discharge after he was fired for asserting a claim under the WPCL.

Id. at 243, 585 A.2d 24. The Superior Court concluded that an employer may

fire an employee for insisting on pay as promised. Id. (“[T]he compensation

due an employee is clearly an area where the employer has a legitimate

interest, and we find no violation of public policy here.”). In support of this

conclusion, the court explained that plaintiff could recover under a breach of

contract theory for any compensation due and owing. Id. at 24.

In Appellant’s second issue, he challenges the trial court’s determination

that the Wage Payment and Collections Law (WPCL) does not create a

substantive right to compensation for unused vacation time in this case

because vacation time is precluded by JRA’s employment policy, which clearly

and unambiguously states that unused vacation time is not compensable upon

termination. The WPCL only establishes an employee’s right to enforce

payment of wages and compensation to which the employee is otherwise

entitled by the terms of an agreement. Here, there exists no contract between

JRA and Agosto that entitles Agosto to the vacation time he now seeks.

Had Agosto presented such a claim for used vacation time, the trial court

explains, summary judgment against him would not have been entered,

because Agosto had asserted there existed an oral agreement between JRA

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J-A19037-22

and himself which pre-dated issuance of the Employee Handbook. There is

no such oral agreement regarding unused vacation time however, so summary

judgment in favor of JRA on this issue was granted.

After a thorough review of the record, the parties’ briefs, the applicable

law, and the well-reasoned opinion of the Honorable John J. McNally, III, we

conclude that Appellants’ issues merit no relief. As summarized above, the

trial court opinion comprehensively discusses and properly disposes of

Appellants’ appellate issues. See Trial Court Opinion, 10/13/21, at 1-11.

Accordingly, we adopt the trial court’s opinion as our own and affirm on that

basis.

We conclude, therefore, that the trial court did not abuse its discretion

or commit legal error in granting summary judgment in favor of JRA and

dismissing Agosto’s claims. The parties are instructed to attach the opinion

of the trial court in any filings referencing this Court's decision.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2022

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Circulated 08/30/2022 02:37 PM 1)

Copies Distributed

Date • 1. J Z' - w'

MANUEL AGOSTO, :IN THE COURT OF COMMON PLEAS

Plaintiff DAUPHIN COUNTY, PENNSYLYANIA

V. :NO. 2017 CV 6261 CV " ` w

JRA EXPRESS, INC.,

CO

Defendant : C1VIL ACTION — LAW cn sv

October 13, 2021

MEMORANDUM OPINION

Plaintiff Manuel Agosto appeals from this Court's Order of June 29, 2021, granting

summary judgment in favor of Defendant JRA Express, Inc. (JRA). This opinion is offered in

support of the Court's Order, pursuant to Pa.R.A.P. 1925(a).

Procedural Background

Plaintiff initiated the current action in 2017 and later filed an Amended Complaint

against JRA asserting claims for wrongful termination (Count I) and violation of the

Pennsylvania Wage Payment and Collection Law (Count II). Plaintiff had been hired as a

commercial truck driver by JRA on December 14, 2015 and was terminated July 15, 2016.

Plaintiff asserted in Count Ithat he had been terminated primarily for refusing to engage in

illegal activity with JRA by receiving part of his wages in cash. In Count 11, Plaintiff asserted

that he was wrongfully denied payment for one-half week of earned but unused vacation time

accrued during his employment. He sought damages for economic losses and unpaid vacation

time, punitive damages, and costs and fees.

After the pleadings were closed, JRA filed a summary judgment motion seeking

dismissal of Plaintiffs claims. Following oral argument, this Court granted the motion,

entering the following Order:

AND NOW, this 29 t"day of June 2021, with the benefit of Oral Argument,

Defendant's Motion for Summary Judgment on Count I (Wrongful Termination)

is GRANTED. The Court finds that Plaintiff's employment was " at-will," and

Plaintiff has not demonstrated agenuine issue of material fact to articulate. a

clear mandate of public policy to be protected.

1

Defendant's Motion for Summary Judgment to Count II (Wage Payment

and Collections Law) is, likewise, GRANTED. The Wage Payment and

Collections Law cannot create asubstantive right to compensation for unused

vacation time which is clearly and unambiguously precluded by the policy

regarding same.

Plaintiff has appealed from this Order, which appeal is currently pending.

Factual Background

JRA is acommercial trucking company based in Middletown, Pa. It was newly created

in 2015 and Plaintiff was its first employee, hired on December 14, 2015. As noted, he was

employed for less than one year until his termination on July 15, 2016.

A few months into his employment, in February 2016, Plaintiff advised JRA's co-owner

Richard Alleyne, that he intended to quit. Plaintiff asserts that in an effort to retain him, JRA

offered to increase his pay from $ 1,100 to $ 1,450 per week. Plaintiff initially rejected JRA's

proposal but the parties later came to an agreement whereby Plaintiff would be paid $ 1,100 via

paycheck plus a cash payment for additional deliveries made each week. The agreement

between JRA and Plaintiff concerning cash compensation remained in effect from late

February 2016 until April 7, 2016. It is undisputed that Plaintiff received wages of $2,450

from JRA in the form of cash and gift card payments during this time period.

On April 7, 2016, Plaintiff sent an email to JRA stating he no longer wished to receive

cash payments but wanted his entire pay of $ 1,450 included in asingle paycheck instead of by

cash and check. (Defendant's Exbt. D) In the same email, Plaintiff listed his understanding of

his daily delivery and load pickup schedule. (Id.) Plaintiff additionally noted in the email that

he had aconversation with Alleyne on April 1, 2016 confirming that he would be eligible for

aone-week (paid) vacation as of May and that he intended to use it in July. (Id.)

In response, JRA agreed with Plaintiff's understanding of his schedule with some

stipulations, clarified his weekend load schedule and agreed to stop paying partial wages in

cash. (Id.) JRA also agreed to the vacation date he requested, but stated that he would be paid

for only one-half of his one-week vacation. JRA noted that it would send Plaintiff the

Employee Handbook the next day and excerpted the vacation policy language thereto. The

2

excerpt set forth the vacation accrual policy and also that no accrued vacation time would be

paid upon an employee's termination. (Id.)

Plaintiff emailed back stating "Iam in agreement." (Id.) He additionally requested that

he start receiving pay stubs on aweekly basis and sought clarification as to his total loads and

mileage. (Id.) JRA responded by email, agreeing to provide Plaintiff with weekly electronic

paystubs and clarified his weekend obligations. (Id.)

Plaintiff later asserted that he asked for cash payments to cease because there were no

tax withholdings and he believed he would be engaging in illegal activity with JRA to continue

to receive cash.

At some point in time, not clear from the record, JRA reported to its third party payroll

company that Plaintiff received $2,450 as taxable earnings, which is the amount the parties

agree Plaintiff was paid in cash. These earnings were classified as "Extra Comp" in afinal

paystub issued to Plaintiff, on or around July 28, 2016, by the payroll company. (Defendant's

Exbt. F) The paystub presumably reflects tax withholdings from this extra compensation.

The record also includes an undated document created by JRA titled "JRA Expense,

CASH RECORD," which appears to be atemplate form used by JRA presumably for use by

its employees to request reimbursement from JRA for expenses incurred. (Defendant's Exbt.

E) The expense form in the record reflects that JRA recorded that Plaintiff ("employee") had

seven expense entries of reimbursable expenses for "Meal, Travel, Gas" totaling $2,450 for

the period from February 26 through April 8, 2016. The expense form is undated and not signed

by Plaintiff. JRA has not provided any source documents supporting the nature of any expenses

it recorded as being reimbursable expenses incurred by Plaintiff. Plaintiff asserts that the

expense form is a "fake document created for litigation and that Plaintiff was never

reimbursed for "expenses" in the amount of $2,450. (Plaintiffs Response to SJM, T10)

Plaintiff asserts that after he asked for JRA to cease cash payments in his April 7, 201.6

email, JRA began to retaliate against him, which he claims was because he refused to further

engage in tax fraud. Plaintiff claims that JRA made numerous changes to his schedule and that

3

he received little to no communications or responses to his own communications. He claims

he was frequently yelled at and his work place became ahostile environment.

Plaintiff also claimed that as part of the retaliation, JRA short changed his paid vacation

time. Plaintiff alleges that at the beginning of his employment, JRA verbally promised him that

he would be entitled to one-week of paid vacation and that he never received an Employee

Handbook reciting any vacation policy until after JRA had agreed to pay him afull week.

JRA's Alleyne testified that he believed the vacation policy was initially averbal policy and

that it was put into written form in the Employee Handbook sometime between late Winter

2015 and Spring 2016. (Plaintiffs Exbt. L (p. 42)) In any event, Plaintiff objected to the policy

and JRA was firm that it had clearly communicated the vacation policy to him. (See Plaintiff's

Exbt. S (emails))

At some point during his employment, Plaintiff began to communicate with Thomas

Callahan, aCompliance Specialist for FedEx. FedEx was one of JRA's main clients and it

required that JRA enter into astandard contractor operating agreement with it. As part of the

operating agreement, JRA promised to comply with certain legal provisions including that all

of JRA's personnel "be treated as employees for all payroll, tax, withholding, insurance, and

other purposes under applicable law." JRA also promised to provide certain employment and

payroll records to FedEx as requested. (Plaintiffs Exbt. V)

In aJuly 1, 2016 email, Plaintiff reached out to Callahan and complained that JRA was

retaliating by withholding promised vacation time and refusing to give him apromised pay

raise, and that he was afraid to meet with his JRA bosses because they intimidated him.

(Plaintiff Exbt. N) He asked that Callahan keep his contact confidential. A few days before he

was terminated, Plaintiff exchanged more emails with Callahan. On July 12, 2016, Plaintiff

received an email from Callahan asking for more information about Plaintiffs report that JRA

paid him in cash. (Plaintiff Exbt. B, E, F) Callahan asked for specifics and any evidence as to

how much JRA paid him in cash, when it. occurred and if he knew if other employees were

paid in cash. (Id.) Plaintiff responded he would rather discuss matters in acall. A few days

later, Plaintiff shared with Callahan screenshots of texts from JRA confirming its agreement to

pay him partially in cash and also on one occasion by gift card. (Plaintiffs Exbts. C, G, Y) On

4

July 15, 2016, Plaintiff informed Callahan in an email that he was so anxious from talking to

Callahan that he called in sick and that JRA did not initially respond to him but later called and

yelled at him and changed his delivery run. (Plaintiff's Exbt. K)

Also on July 15, 2016, Plaintiff sent an email to JRA stating that he thought it was

unfair that JRA was short changing him with his schedule and runs and that he noticed that his

unfair treatment began after he sent JRA his April 7, 2016 email (concerning his daily schedule

and that he no longer wanted cash payments). (Defendant's Exbt. I) He complained to JRA

that it was "unprofessional." (Id.) Within fifteen minutes of sending this email, JRA responded

that it was officially terminating his employment effective immediately. In the same email,

JRA wrote: "JRA EXPRESS NEVER PAID YOUR WORK SALARY IN CASH. You

received acheck every week. You have pay stubs receiving checks. We have documentation

to prove this. Any correspondence from here on out will be from our lawyer." (Plaintiff's Exbt.

O (Caps in original))

JRA's co-owner Alleyne stated that Plaintiff was fired for a number of reasons

including unprofessional behavior to staff and customers, insubordination, shift abandonment,

refusing to do pickups, attendance, and poor performance. (See Defendant's Exbt H (Alleyne

dep. at 10-12)) He recalled on one occasion that Plaintiff refused to do apickup from anew

customer, Chewy, and also that another customer, Nordstrom, formally complained to JRA in

an email dated April 13, 2016 that Plaintiff did "not listen to instructions and has a poor

attitude." (Id. (dep. at 12); Defendant's Exbt. G) Alleyne stated that JRA often verbally

reprimanded Plaintiff for his conduct though he was never given any written warnings nor

disciplined. (Exbt H (dep. at 13, 39-40) Alleyne admitted that after Plaintiff was terminated,

JRA did not oppose him receiving unemployment compensation. (

Id. (dep. at 38))

On October 12, 2016, afew months after Plaintiff was terminated, Alleyne sent aletter

to FedEx in which JRA offered assurances to FedEx that it would comply with the FedEx-JRA

operating agreement, including that it would treat all JRA personnel as employees and "will

ensure that similar breaches will never occur in the future." (Plaintiff's Exbt. W) JRA also

promised to FedEx that it would do the following with regard to employee compensation:

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properly pay quarterly uninsurance, properly pay state and federal tax, maintain proper payroll

records, and ensure correct federal and state deductions.' (Id.)

Following his termination, Plaintiff was unemployed for approximately one month.

Thereafter, he became employed for anumber of months as atruck driver earning wages

slightly below what he earned with JRA. In February 2017, Plaintiff took another job earning

approximately $ 1,500 per week, until approximately August 2017, when his pay was reduced

to approximately $700 per week. As sometime thereafter, Plaintiff became unemployed and

remained unemployed through the date of his deposition (in November 2020). Plaintiff asserts

that following his termination, JRA refused to pay him for one-half of earned vacation time,

approximately $725.

Legal Discussion

Pennsylvania Rule of Civil Procedure 1035.2 allows acourt to enter judgment in favor

of a moving party "whenever there is no genuine issue of any material fact as to anecessary

element of the cause of action or defense which could be established by additional discovery

or expert report." Pa. R.C.P. 1035.2. In other words, "where there is no genuine issue of material

fact and the moving party is entitled to relief as amatter of law, summary judgment may be

entered." Shepard v. Temple Univ., 948 A.2d 852, 856 (Pa. Super. 2008). The party opposing a

motion for summary judgment "must do more than allege unsupported allegations" as they

cannot create genuine issues of material fact. Golaschevsky v. Dept. of Envtl. Res., 683 A.2d

1299, 1302 (Pa. Commw. 1996). If the party opposing the motion fails to meet its burden of

showing the existence of amaterial issue of fact, the moving party is entitled to judgment as a

matter of law because ajury cannot be allowed to reach averdict "merely on the basis of

speculation or conjecture." See, Young v. Com., Dept. of Transm, 744 A.2d 1276, 1277 (Pa. 2000).

In addressing asummary judgment motion, this Court views the record in the light most

favorable to the non-moving party, and all doubts as to the existence of agenuine issue of

material fact must be resolved against the moving party. Only where there is no genuine issue

as to any material fact and it is clear that the moving party is entitled to ajudgment as amatter

It is not clear from the record whether JRA was aware, when it terminated Plaintiff, that Plaintiff had

reported his cash payments to FedEx's compliance officer Callahan in the week prior to his termination

and/or whether JRA's letter to FedEx was related to issues Plaintiff had raised with Callahan, including

cash payments.

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of law will summary judgment be entered. Doman v. Atlas America, Inc., 150 A.3d 103, 105

(Pa. Super. 2016) (citation omitted).

At the outset, this Court notes that it rejected JRA's claim that it was entitled to summary

judgment on the wrongful termination claim because no factfinder could believe, according to

JRA, that Plaintiff was fired for reporting allegedly illegal payments given (a) the amount of time

that elapsed from the date of the April 2016 request until Plaintiff stermination on July 15, 2016,

(b) JRA's immediate compliance with Plaintiffs request that it cease making cash payments to

him, and (c) Plaintiffs "well-documented poor work performance." This Court additionally

rejected JRA's argument that that there was no factual dispute that that the record showed that all

amounts paid to Plaintiff were reported and required deductions made through JRA Express's

payroll company, revealing JRA was not in violation of any laws or regulations.

The record before the Court raises anumber of substantial questions concerning JRA's

credibility that afactfinder would have to consider in deciding the reason or reasons JRA fired

Plaintiff. Most notably, while it does appear that JRA did at some point report to its payroll

company that JRA paid Plaintiff $2,450 as "Extra Comp" and that proper tax withdrawals were

made therefrom - as reflected on its July 28, 2016 payroll summary (see Defendant's Exbt. F) - it

is unclear from the record when JRA properly reported this (cash) compensation. The record

suggests JRA initially tried to hide or deny the existence of the cash payments for aperiod of time. 2

For instance, in its termination email sent to Plaintiff on July 15, 2016, JRA voluntarily announced

to Plaintiff that it had never paid his work salary in cash (Plaintiff sExbt. O), which was untrue

and which JRA does not currently dispute. Furthermore, JRA created an expense document at

some unknown point in time which shows that JRA may have intended to treat the $2,450 cash

wages paid to Plaintiff as reimbursable expenses incurred by Plaintiff. (Defendant's Exbt. E)

Plaintiff, in fact, has asserted that this the expense document is "fake," which presumably

categorized $2,450 cash payments as non-taxable expenses and not taxable income. Furthermore,

Plaintiff has alleged that JRA's retaliation against him began right after he asked that cash

2 Neither party has provided any record of contemporaneous documentation prior to July 28 20I6,

reflecting when JRA reported Plaintiffs cash payments to the payroll company, and whether this

occurred before or after Plaintiff asked that cash payments cease and/or whether the extra the

compensation was reported prior to Plaintiffs termination.

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payments cease, which allegation was documented in an email Plaintiff sent to Callahan prior to

his termination.

This Court also rejected JRA's assertion that the undisputed and "well-documented" record

reflects that Plaintiff was terminated on July 15, 2016 as aresult of unprofessional behavior to

staff and customers, insubordination, shift abandonment, attendance, and poor performance. The

evidence in support of JRA's position that Plaintiff was fired for cause is not as well-documented

as JRA suggests. Besides the single written complaint on April 13, 2016, from Nordstrom to JRA

complaining about Plaintiff sdeliveries, JRA presented no other documentary evidence supporting

its claims that JRA repeatedly verbally warned and reprimanded Plaintiff about his poor

performance, insubordination etc. Plaintiff has denied that he was continually reprimanded.

This Court, viewing the record most favorably to Plaintiff, finds that Plaintiff has presented

sufficient evidence he might have been retaliated against and ultimately fired by JRA for declining

to receive income from JRA in cash and gift cards for which no tax withholdings were made (either

for the employer or employee); i.e. for refusing to participate in illegal activity. These are clearly

facts in dispute and afactfinder may or may not believe JRA's stated reasons for firing Plaintiff.

Having so found, this Court believes that it was nevertheless constrained under the law to

hold that Plaintiff does not have aremedy on his wrongful termination claim. As ageneral rule, an

at-will employee has no claim against an employer for termination of employment or "wrongful

termination." Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (

Pa. 1989); Geary

v. United States Steel Corp., 319 A.2d 174 (Pa. 1974). "Exceptions to this rule have been

recognized in only the most limited of circumstances, where discharges of at-will employees

would threaten clear mandates of public policy." Clay at 918. As our Supreme Court

explained:

This Commonwealth has reiterated since the turn of the last century that an

employer may terminate an employee for any reason, unless restrained by contract.

E.g., Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289,21 A. 157 (1891).

This remained the untouched law of the employment relation until our decision in

Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 ( 1974) stated

that an employee may bring anon-statutory cause of action against an employer for

that employee's termination, under very limited exception. Although we ultimately

found that Geary did not set forth a cause of action, in dicta we left open the

8

possibility of awrongful discharge claim in circumstances where atermination of

an employee would violate a "clear mandate of public policy." 31.9 A.2d at 180.

From these cases, we glean that, as ageneral 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 acause of action

for atermination of that relationship only in the most limited of circumstances

where the termination implicates a clear mandate of public policy in this

Commonwealth.

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 286-287 (Pa. 2000) (emphasis

added, footnote omitted). The Pennsylvania Supreme Court has " steadfastly resisted any attempt

to weaken the presumption of at-will employment in this Commonwealth." Id. at 290.

"The public policy claimed to have been violated must go to the heart of acitizen's rights,

duties and responsibilities or the dischargeis not wrongful." Booth v. McDonnell Douglas Truck

Services, Inc., 585 A.2d 24, 28 (Pa. Super. 1991). Furthermore, the public policy at issue

must be articulated in the Pennsylvania Constitution, by the Pennsylvania legislature or

through judicial decisions. McLaughlin at 288. "A plaintiff must do more than show apossible

violation of afederal statute ... [and] must allege that some public policy of this Commonwealth

is implicated, undermined, or violated." Id.; See also Kelly v. The Retirement Pension Plan For

Certain Home Office, 2003 U.S. App. LEXIS 1.8481 (3rd. Cir. 2003) (citing McLaughlin; no

violation of public policy when employee terminated after objecting to marketing methods

arguably in violation of federal Securities and Exchange Act of 1984); Castro v. Air- Shield,

Inc., 78 Bucks Co. L. Rep. 94, 101 (Aug. 20, 2004) (court found no violation of Pennsylvania

public policy when fonner employee cited FDA regulations, stating instead, Pennsylvania public

policy is determined by examining Pennsylvania's Constitution, court decisions and statutes).

This Court agreed with .IRA's argument that Plaintiff has failed to identify any clear

mandate of Pennsylvania public policy that was violated. Plaintiff references a number of

provisions from the Pennsylvania Code concerning the withholding of taxes, "obstructing

administration of law," " aiding consummation of a crime," and "unsworn falsification to

authorities." However, there is no judicial or legislative authority for Plaintiff's proposition that

these Code provisions reflect a "clear mandate of the public policy of this Commonwealth" that

warrants an exception to the strong "at-will" nature of employment in the Commonwealth. The

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record is further devoid of any evidence that Plaintiff sought to protect the purported clear mandate

of Pennsylvania public policy by reporting any alleged wrongdoing to any state or federal

authority. In short, as an " at-will" employee, Plaintiff could be terminated for any reason. Thus,

this Court granted summary judgment in favor of JRA as to the wrongful termination claim in

Count I.

In Count II, Plaintiff asserted aviolation by JRA of the Pennsylvania Wage Payment

and Collection Law (WPCL) 3 for JRA'S failure to pay him for one-half of aweek of unused

vacation time accrued during his employment, totaling approximately $ 725. (Am. Complaint,

T21) Because JRA's employment policy clearly and unambiguously states that unused

vacation time is not compensable upon termination, this Court dismissed Plaintiffs claim.

The WPCL "does not create an employee's substantive right to compensation; rather, it

only establishes an employee's right to enforce payment of wages and compensation to which

an employee is otherwise entitled by the terms of an agreement." Hartman v. Baker, 766 A.2d

347, 352 (Pa. Super. 2000) (citation omitted). JRA's policy, set forth in its Employee

Handbook, addresses unused vacation and explicitly provides:

All vacation time must have your supervisor's approval and must be scheduled two

weeks prior to requested time off;except in cases ofemergency. There is no

carryover or payment for unused vacation time nor is there any payment

of accrued vacation upon termination (either voluntary or involuntary).

As areminder, please note accrued and/or earned sick or personal days are not paid

upon termination.

Defendant's Exbt. J (emphasis added).

In the absence of a contractual agreement between Plaintiff and JRA that allows for

payment of unused vacation upon termination of employment, Plaintiff cannot maintain a

WPCL claim. There is no evidence of any agreement between JRA and Plaintiff that.

contradicts JRA's Employee Handbook policy. Thus, JRA was entitled to judgment as a

matter of law with respect to Count II.

This Court notes that the claim Plaintiff raised in his Amended Complaint, for payment

of accrued but unused time, is a. different claim than one Plaintiff suggests in other parts of the

3 43 P.S. § 260- et seq.

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record, which is that when he was hired, JRA promised him one-week of paid vacation time

but that JRA later reneged on that and offered him only one-week of vacation at half-pay. This

Court agrees with. Plaintiff that if the issue presented was whether Plaintiff should have been

paid for afull week or ahalf-week for used vacation time, this Court would not have granted

summary judgment in JRA's favor inasmuch as Plaintiff asserted he had an oral agreement

with JRA on that particular issue, which pre-dated issuance of the Employee Handbook.

However, this is not the claim Plaintiff has presented. His claim is for payment of unused

vacation time following termination and there was no evidence presented by Plaintiff that he

had any oral agreement with JRA concerning this particular employment benefit. As such,

JRA's vacation policy applies, which clearly and unambiguously precluded Plaintiff from

compensation for unused vacation time.

Accordingly, this Court entered its Order of June 29, 2021, granting summary judgment

in favor of the Defendant JRA and dismissing Plaintiff sclaims.

October 13, 2021

Date John J. Mc V , III, J dge

Distribution:

James A. Bell, IV, Esq., 1617 JFK Blvd., Ste. 1254, Philadelphia, PA 19103 (for Plaintiff)

jamesbell (albellandbelilaw.com

Michael E. Rowan, Esq., PO Box 88, Harrisburg, PA 17108 (for Defendant)

mrowanCa•shuinakerwiiliams.com

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