# Shick v. Shirey > Superior Court of Pennsylvania · March 19, 1997 · 456 Pa. Super. 668 URL: https://www.frixlaw.com/law-library/cases/9749062 ## Case - **Full name:** David L. SHICK, Appellant, v. Donald L. SHIREY T/D/B/A Donald L. Shirey Lumber, Appellee - **Court:** Superior Court of Pennsylvania - **Decided:** March 19, 1997 - **Citations:** 456 Pa. Super. 668; 691 A.2d 511; 1997 Pa. Super. LEXIS 580 - **Precedential status:** Published - **Opinion:** Dissent by Saylor - **Judges:** Cavanaugh, Cirillo, Popovich, Johnson, Hudock, Elliott, Saylor, Eakin, Schiller - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by Shick v. Shirey, 552 Pa. 590 (1998). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9749062 ## How later opinions describe it (automated extraction) - stating one “must point to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision” to meet exception (citations omitted) ## Opinion text SAYLOR, J., dissenting: As the majority notes, an employee cannot succeed on a public-policy-based wrongful discharge claim unless he or she can establish “a violation of a clearly mandated public policy which ‘strikes at the heart of a citizen’s social right, duties, and responsibilities.’ ” Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55 , 505 A.2d 259, 261 (1985), quoting Novosel v. Nationwide Insurance Company, 721 F.2d 894, 899 (3d Cir.1983). Such a public policy is, in my view, inherent in the Pennsylvania Workers’ Compensation Act. Therefore, I respectfully dissent. The General Assembly’s purpose in enacting the Workers’ Compensation Act was to address “the evil ... [of] uncompensated work-related injuries-” Keller v. Old Lycoming Township, 286 Pa.Super. 339, 350 , 428 A.2d 1358, 1363-64 (1981). The legislative scheme by which this purpose was accomplished has been described as a “fair exchange[,]” Rudy v. McCloskey & Co., 348 Pa. 401 , 35 A.2d 250, 253 (1944), a “quid pro quo [,]” Poyser v. Newman & Co., Inc., 514 Pa. 32, 36 , 522 A.2d 548, 550 (1987), a “compromise ... between employees and employers[,]” Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Company), 516 Pa. 240, 247 , 532 A.2d 374, 377 (1987), and as the embodiment of a “bargain theory[,]” Torrey & Greenberg, Pennsylvania Workers’ Compensation: Law and Practice 1-7 (1996). The Act assures employees that if they sustain medical bills and/or lost wages as the result of work-related injuries, they will be compensated promptly, without regard to fault and without the necessity of litigation. Torrey & Greenberg, *683 supra; American Association of Meat Processors v. Casualty Reciprocal Exchange, 527 Pa. 59 , 588 A.2d 491 (1991); Keller, supra. To insure the payment of such compensation, the Act requires every employer to carry the necessary insurance and makes the failure to do so a criminal offense. 77 P.S. § 501; Torrey & Greenberg, supra. In addition, the Act effectively forbids employers from requiring employees to waive, prior to injury, their right to receive workers’ compensation in the event of such injury; any such agreement or release is invalid and against public policy. 77 P.S. § 71; Torrey & Greenberg, supra. The corresponding benefit to employers is, of course, contained in the exclusivity provision of the Act: “[t]he liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes.... ” 77 P.S. § 481(a). In other words, the Act provides the employee’s exclusive remedy for work-related injuries. Poyser, supra. It deprives the employee of “any recourse against the employer in tort for negligence.” LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 581 , 515 A.2d 875, 879 (1986), quoting Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 519 , 412 A.2d 1094, 1097 (1980). It is “a complete substitute for, not a supplement to, common law tort actions.” Hefferin v. Stempkowski, 247 Pa.Super. 366, 369 , 372 A.2d 869, 871 (1977), appeal denied. Thus, “[t]he workmen’s compensation law has deprived some of rights in exchange for surer benefits, immunized some, to make possible resources to benefit many.... ” Kline v. Arden H. Verner Company, 503 Pa. 251, 255 , 469 A.2d 158, 160 (1983). As our Supreme Court has observed, employees receiv[e] immediate set benefits as opposed to the potentially greater benefits which could result from a successful tort action; and employers [are] protected from exorbitant unexpected costs which could result from employee lawsuits. Kachinski, 516 Pa. at 247 , 532 A.2d at 377 . Despite the comprehensive system of rights and immunities which the legislature has incorporated into the Workers’ Com *684 pensation Act, the majority concludes that since the Act contains no express language “proscribing discrimination or discharge for seeking benefits[,]” there exists no clear public policy against such retaliatory discharge. I believe that such public policy inheres in the “bargain” embodied in the Act. As the Supreme Court of Indiana has said of its state’s Workmen’s Compensation Act, [t]he Act creates a duty in the employer to compensate employees for work-related injuries (through insurance) and a right in the employee to receive such compensation. But in order for the goals of the Act to be realized and for public policy to be effectuated, the employee must be able to exercise his right in an unfettered fashion without being subject to reprisal. If employers are permitted to penalize employees for filing workmen’s compensation claims, a most important public policy will be undermined. The fear of being discharged would have a deleterious effect on the exercise of a statutory right. Employees will not file claims for justly deserved compensation — opting, instead, to continue their employment without incident. The end result, of course, is that the employer is effectively relieved of his obligation. Frampton v. Central Indiana Gas Company, 260 Ind. 249 , , 297 N.E.2d 425, 427 (1973) (emphasis supplied in original). Although the Indiana Act contains a prohibition against the use of any “device” that would relieve an employer of his statutory obligation, I believe that the Frampton analysis is applicable to any statute, including our own, which recognizes both an employee’s right to be compensated for work-related injuries and an employer’s immunity to actions in tort for such injuries. If employers may discharge employees in retaliation for their exercise of the rights granted them by the Workers’ Compensation Act, employees will be forced to choose between seeking compensation for their injuries and preserving their employment. This, in my judgment, would destroy the balance struck by the legislature and contravene the public policy of this Commonwealth. *685 Accordingly, I would reverse the decision of the trial court and allow plaintiffs claim to proceed. SCHILLER, J., dissenting: I join in the Dissenting Opinion of Judge Saylor. However, I wish to emphasize that there is no greater indication of public policy than the enactment of a constitutional provision, and in this Commonwealth the authority for the workers compensation system is derived from such a provision. See Pennsylvania Constitution Art. 3 § 18. The punishment of employees for the exercise of this legislatively created and constitutionally authorized right should not be condoned. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749062. Public record. Not legal advice.