Petition for Writ of Certiorari — Madej v. Air Products & Chemicals, Inc.

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88-740

SUPREME COURT OF THE Fy D Siena arene

October Term, 1988S

W. VICTOR MADEJ,

Petitioner,

VS.

AIR PRODUCTS & CHEMICALS, INC.,

Respondent.

ON APPEAL TO

THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

PETITITION FOR A WRIT OF CERTIORARI

W. VICTOR MADE, pros

3355 Birch Circle

Allentown, Pa 18103

(215) 437-3622

gf 1 9 13988

- eS Sr

QUESTIONS PRESENTED FOR REVIEW

I. Whether the trial court erred in granting Defendant's

Motion For Summary Judgment where genuine issues of ma-

tcrial fact exist concerning Plaintiff's allegations that Defen-

dant breached an employment contract entered between

Plaintiff and Defendant for a definite duration of employment?

Il. Whether the trial court erred in granting

Defendant's Motion For Summary Judgment where genuine

issues of material fact cxist concerning allegations that Plaintiff

reasonably relied upon Defendant’s promise, which promise

Defendant should have reasonably expected to induce action

or forbearance of a definite and substantial character by Plain-

uff; and such promise did induce such action or forbearance

and that injustice can be avoided only by enforcement of the

promisc?

Hf. Whether the trial court erred as matter of law in

sustaining the Defendant's Preliminary Objections to the Com-

plaint where the Plaintiff pleaded a cause of action indicating

that the Defendant breached a covenant of good faith dealing

in employment contracts?

IV. Whether the trial court erred as a matter of law in

sustaining the Defendant’s Preliminary Objections to the

Complaint where the Plaintiff indicated a cause of action for a

retaliatory termination of his employment because Plaintiff

exercised his constitutional right to free speech and his con-

tractual obligation to monitor safety practices of this employer;

which discharge violates public policy forbidding limitations

c

of constitutional rights?

LIST OF PARTIES

The partics in the procecdings below were Petitioner,

W. VICTOR MADEJ, and Respondent, AIR PRODUCTS &

CHEMICALS, INC.; a multinational corporation with head-

quarters in Pennsylvania.

The nature of the Questions Presented For Review

makes pertinent the identity of the specific directors during

the year 1982. Initiating correspondence and complaints were

sent to the Board of Directors, by name.

ee

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW i

LIST OF PARTIES ii

TABLE OF CONTENTS iil

TABLE OF AUTHORITIES iv

OPINIONS AND JUDGEMENT BELOW vi

JURISDICTION & STATUTES INVOLVED vil

STATEMENT OF THE CASE 1

REASONS FOR GRANTING THE WRIT 6

CONCLUSION 17

APPENDICES: OPINIONS AND ORDERS

A. Order of December 6, 1985 (Lehigh County

Court of Common Picas).

B. Order of December 10, 1986 (Lehigh County

Court of Common Plcas).

C. Opinions, Judge Backenstoc, (Lehigh County

Court of Common Pleas).

D. Opinion and Order of Superior Court of

Pennsylvania, 5 November 1987.

E. Order of Supreme Court of Pennsylvania,

Eastern District, 27 June 1988, Per Curiam.

Table of Authorities

PAGE

Clearly v. Airlines, Inc. 111 Cal. App.3d 443 (1980) 11

Clouser v. Shamokin Packaging Co. 240 Pa.Super. 268, 273-74, 361

A.2d 836, 839-40 (1976) 16

Darlington v. General Electric. Pa. Super. $04 A.2d 306, 307, 314.

315 (1986) 7,15

Fortune v. National Cash Register Co. 373 Mass 6, 364 N.F.2d 125]

(1977) 11

Geary v. United States Steel Corporation 456 Pa 171.319 A.2d 174

(1974) 15,16

Gillian v. Consolidated Foods Corp. 424 Pa. 407, 227 A.2 858 | 1967) 7

Gram v. Liberty Mutual Insurance Co. 429 NF. 2d 2}: Sup.Judj.Ct

(1981) 12

Huguet v. Food Sales, Inc. 19 Pa. D&C.3d 376 (1980) 7

Lubrecht v. Laurel Stripping Co. 387 Pa. 393, 396, 127 A.2d 687

(1956) a

Lucaher v. Kerson, 158 Pa.Super. 437, 45 A.2d 245 (1946) 7

Mattia v. Eployers Mutual Companies 294 Pa.Super. 877, 579, 440

A.2d 616, 617 (1982) 6

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) 13

McCormack v. Jermyn 351 Pa. d61, 40 A.2d 477 (1945) 10

McCulloch v. Maryland 17 US. Wheat.) 3216 (1819) 4L.FEd.579 15

McGinley v. Burroughs Corporation, 407 F.Supp. 903, 911 (E.D., Pa.

(1975) 15

MeNulty v. Borden, Inc. 474 FSupp. 111 E.D., Pa. (1979) 7

Murpiry and Slota v. Burke 454 Pa 391, 311 A.2d 904 ( 1973) 10

New York Central Railroad Co. v. Lockwox nl, U.S. Supreme Court,

S4_ U.S. (17 wall.) 357 (1873) 13

Novosel v. Nationwide Insurance Co. 721 F.2d 894 (3d Cir. 1983) 12.15

O'Neill v. ARA Services, Inc. 457 F.Supp. 182, 186 (1978) 915

Iv

Philips v. Babcock & Wilcox Tubular Products, Division of McDermott,

Inc. Pa Super. __503 A 2d 36 (1986) 15

Slonaker v. RG. Publishing Co. 338 Pa. 292, 13 A.2d 48 (1940) 7

Small v. Seldows Stationary 617 F.2d 992 (3d Cir, 1980) 6

Thorsen v. Iron and Glass Bank 328 Pa.Super. 135, 141, 476 A.2d

928, 931 (1984) 6

logue v: National Rolling Mills 72 Pa. D.&D.2d 335 (1974) y)

HWeidman v. United Cigar Stores, Co. 223 Pa. 160, 161, 72 A.2d 377

(1909) 7

Weiss v. Keystone Mack Sales, Inc. 310 Pa.Super. 425, 430, 456

A.2d 1009, 1011 (1983) 6,10

12 A.L.R. 4th,560,6a(1982) 11

STATEMENT OF THE CASE

Petitioncr was a Cost Engineer who graduated from

the U.S. Military Academy at West Point in 1970, and served

full-time in the Infantry and in the U.S. Army Special Forces

(Plaintiff's Affidavit, paragraphs 14 & 15).

During 1977, Petitioner began civilian employment as

an industrial engineer for Corning Glass in New Martinsville,

West Virginia. At that time he was also serving in an Army

Reserve Enginecr Battalion and, in his spare time, working on

a Master’s Degree in Business Administration.

During 1979, Petitioner remained successfully and

gainfully employed by Corning glass (a multinational corpora-

tion) earning in excess of $20,000.00 per ycar, plus $98.00 per

duty day in his position with the Army Reserve. Petitioner

maintained an excellent performance and attendance record

with Corning Glass.

Based upon Pctitioncr’s outstanding educational, mili-

tary and employment background, Respondent contacted Pe-

titioner and and induced him to seck a career with Air Products

(Plaintiff's Affidavit, paragraph 8). About mid-April 1979,

Petitioner was requested to fly to corporate headquarters in

Pennsylvania, at Respondent’s expense, so that he could be

interviewed regarding employment (Plaintiff's Dep. w. p. 12).

After a series of interviews, Respondent wrote to Pcti-

tioner on May 4, 1979 with an offer of employment (Plaintiff's

Affidavit, Exhibit D), affirming that Air Products was "con-

vinced of the mutual satisfaction that will result from your

decision to join us." They further assured the Petitioner that

"you will find excellent opportunitics for continued carecr

growth and development at Air Products (Plaintiff's Affidavit

and Exhibit D).

Petitioner rejected this initial offer of employment be-

causc he had a secure position and family life in West Virginia.

He also had a firm alternative carccr opportunity with the

Federal Government, because the Army had offered Petitioner

a specific position in his geographic arca (Defendant's Dep.,

Exhibit No. 4).

As a result of Respondent's perseverance; i.c., induce-

1

ments of more money and repeated verbal and written prom-

ises, Petitioner finally decided to uproot his family and move

to Allentown, Pennsylvania for the promised career position

with Air Products. (Plaintiff's Affidavit, Paragraph 8). Specifi-

cally, Respondent continued promises of job security

(Plaintiff's Dep. p. 64 L21-23;Plaintiff’s Affidavit, Paragraphs

6, 7, 11), and on 29 May 1979, wrote to Petitioner with an

increased salary offer (Plaintiff's Affidavit, Exhibit G). In

consideration of these promises, Petitioner agreed to drasti-

cally alter his way of life (Plaintiff’s Affidavit, paragraphs 35,

37).

This alteration, effectively destroyed the pattern of the

Petitioner’s existence, and is is enumerated as follows:

> He resigned his position at Corning Glass where his

salary (adjusted for cost-of-living difference) approximated the

salary offered by Respondent.

> He rejected the firm offer of military employment as

Training Officer (Defendant’s Dep., Exhibit No. 4); and the

total compensation package offered by the Army was similar

to that of Air Product’s (Plaintiff's Dep. p. 28 L25).

> He found an equivalent house in Allentown, but it

cost 30% more than his home in West Virginia would bring.

He also had to give up a mortgage rate of 8.75% and accept

one and at the interest rate of 11.3% with a mortgage 23,000.00

larger than the previous one (Plaintiff's Affidavit, Paragraph

18). Petitioner incurred substantially increased real estate

taxes and living costs in the new community. (Plaintiff's Affi-

davit, paragraph 18). He also endured the nineteen month

pressure of being unable to sell his house in a depressed West

Virginia housing market.

> He was forced to discontinuc his graduate education.

>» He was forced to relocate his wife, then about 4

months pregnant.

>He gave up his position with the Army Reserve En-

gineer Battalion, paying thousands of dollars per year, to meet

the demands of a new carccr.

> He signed a Patent and Confidential Information

Contract (which even today restricts his freedom of expression)

2 _

as required by Respondent in partial consideration for a career

position. Petitioner agreed to sign said agreement based upon

Respondent's promised career position (Plaintiff's affidavit,

Paragraph 9).

>»He remained loyal in accordance to his contractual

obligation, throughout his employment. At no time during his

employment with Respondent did he seck outside or alterna-

tive employment (Plaintiff’s Affidavit, Paragraph 17).

»He remained a devoted worker throughout his em-

ployment. During the three and onc half years work the Re-

spondent he was absent less than a day a year duc to illness;

and until being told of his termination, he worked about 20%

more hours than he was officially allowed to charge (Plaintiff's

Affidavit, Paragraph 17).

In order to mect the Petitioncr’s expressed need for a

career position, with security and full benefits for himself and

his family, and to entice him to undertake the aforementioned

steps the Respondent offered written assurances emphasizing

the veracity of its promises (Plaintiff's Dep. p. 29 L5-6 and his

Affidavit, paragraph 10). The following lists specific docu-

ments used to induce the Petitioncr’s trust:

© A description of bencfits dcfining promises of income

to age 65, plus lifetime monthly income upon retirement

(Plaintiff's Affidavit, Paragraph 3,).

@ Assurances about Performance Planning and Ap-

praisal and annual report policy statements on carcer employ-

ment (Plaintiff's Affidavit, Paragraphs 7, 11).

@ Statements in the letters that offered employment

(Plaintiff's Dep. Exhibits D, E; and his Affidavit Par. 5); never

contradicted in numerous employment interviews, no onc Iced

him to believe that anything Iess than a career was offered

(Plaintiff's Affidavit, Paragraphs 6, 7, 11).

@ On 13 July 1979, respondent in writing assured third

parties about Petitioner’s "excellent" probability of continued

employment (Plaintiff's Dep. Exhibit I), knowing that this

statement would be used to underwrite indebtedness.

After Petitioner began work in the Summer of 1979,

the Respondent did carry out some of its promises. In recog-

3

nition of Petitioner's outstanding performance, Petitioner was

given larger than average annual salary incrcases cach ycar

(Plaintiff's Dep. 32, L13-15), and was promoted to Senior Cost

Enginecr on 10 May 1982 (Defcndant’s Dep. Par. 24.)

Respondent also provided other agreed upon annual

benefits. In addition to his annual salary, there were annual

vacation and holidays. Other bencfits were also expresscd in

terms of annual salary. For example, life and travel insurance

were based on a multiple of annual salary, medical and dental

coverage had an annual valuc of about $1,500.00; a company

savings and stock ownership plan was said to have been worth

$3500.00 annually, unemployment insurance was valucd in the

amount of about $400.00 annually, social security had a valuc

of $2,170.00 annually, a matching gifts plan was worth about

$3,000.00 annually, and an employee sharcholder plan was

worth about $220.00 annually. The Company valucd this as

added annual income valucd about $6,757.00 in 1979 and

$10,020.00 in 1982. (Plaintiff's Affidavit, Paragraphs 3 and 4).

The written and oral promises of career, guarantecd

lifetime monthly income upon retirement, and employment

until retirement were not fulfilled. Under the circumstances,

the Petitioner concluded that he had been the victim of mali-

cious termination (Plaintiff's Affidavit, Paragraphs 35 and 37).

Somce indications of this arc as follows:

vAt the time of the s discharge Respondent continucd

outside hiring of new cmployccs Plaintiff's Affidavit, paragraph

28).

vRespondent rctaincd cmployccs with Icss seniority

and fewer qualifications than the terminated Petitioner

(Plaintiff's Affidavit, Paragraph 28).

¥ Respondent refused to make any offer of an alternate

position for which the Petitioner was qualified, in any of a

dozen departments where such work was sought (Plaintiff's

Affidavit, paragraph 28).

vRespondent refused to Icave open the possibility of

recalling Petitioner for any type of future re-employment of

any duration or salary. (Plaintiff's Affidavit, paragraph 28;

Plaintiff's Dep. p. 36-39).

The Petitioner has attributed this malice to several

actions:

@ While employed, Petitioner made several estimates

and conducted studies of Respondent's safcty costs (Plaintiff's

Affidavit, Paragraph 28). Petitioner acted in good faith insist-

ing upon careful attention to issues of safcty in cost estimating

for the construction of facilities; and was diligent in his efforts

to improve the safety at various Air Products facilitics. (A

classmate of the Plaintiff had died as a result of an oxygen spill

at an Air Products facility.) Petitioner safety recommenda-

tions, if followed, would reduce Defendant’s profits and this

provide motivation to remove him (Complaint, Paragraph 45,

46 and 47; Plaintiff’s Affidavit, Paragraph 28).

@ Misdirected management policy, indicated by a lack

of specific performance guidance to Petitioner and repeated

reassignments within his department (Plaintiff's Affidavit,

Paragraphs 21 to 28).

@ Unlawful violation of Petitioner rights in favor of

profits (Plaintiff's Affidavit, Paragraphs 35 to 37, and

Defendant’s evasions and objections to respond to Plaintiff

Interrogatorics 1, 6, 12, 35 to 37).

@ Inventing the "declining economic conditions" that

were cited as the cause of the Petitioner dismissal (Plaintiff's

Affidavit, Paragraphs 29 to 31; Defendant Deposition, Para-

graph 21, 22; and Defendant’s evasions and objections to

respond to Plaintiff Interrogatorics 10, 11, 23,25 to 28).

REASONS FOR GRANTING THE WRIT

I. Genuine issues of material fact substantiate

Petitioner's allegations that Respondent broke an employ-

ment contract of definite duration; and breached promises

intended to induce action or forbearance by the Petitioner.

Injustice can be avoided only by enforcement of the original

contract and promises.

Pennsylvania Rule of Civil Procedure 1035(b) statcs

that summary judgment is appropriate if there is no gcnuinc

issue as to any matcrial fact, and the moving party is entitled

to judgment as a matter of law {Small v. Seldows Stationary 617

F.2d 992 (3d Cir, 1980)}. The court is not to decide issucs of

fact, but simply determinc if there is an issuc of fact {Thorsen

v. Iron and Glass Bank 328 Pa.Supcer. 135, 141, 476 A.2d 928,

931 (1984)}. The facts must be vicwed in the light most

favorable to the opposing party, and any reasonable doubt as

to the existence of gcnuinc issucs of fact is to- be resolved

against the moving partics {Mattia v.Employers Mutual Com-

panies 294 Pa.Supcr. 577, 579, 440 A.2d 616, 617 (1982)}.

Summary judgment should only be granted in cases which arc

clear and free from doubt {Weiss v. Keystone Mack Sales, Inc.

310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983)}. Disputed

facts preclude summary judgment.

The Petitioner has no doubt that he was promised a

career position at Air Products, but the Respondent denics

that a specific promise was ever made, and this position has

been sustained by the trial court. We can logically accept that

a contract includes a more narrow form of promise. Therefore,

in substantiating the veracity of his complaints in Count I and

II, the Petitioner need only show facts substantiating a single

indication of a broken promise or contract to demonstrate the

crror of the trial court in applying the above standards, and in

granting Respondent's Motion for Summary Judgment on

Count I and sustaining his Demurrer on Count IL.

1. Count I of Plaintiff's Complaint alleges that Respon-

dent breached its employment contract with Petitioner which

contract was for a definite duration of employment wiich, at

minimum, was a year-to-year oral contract (Complaint, Para-

6

graphs 16 and 20). Respondent has simply claimed that Em-

ployment Contracts not specifying a definite duration of em-

ployment are presumed to be terminable at will {Slonaker v.

PG. Publishing Co. 338 Pa. 292, 13 A.2d 48 (1940)}. Petitioner,

however, may overcome the at will presumption by showing

the intent of the partics that the contract last some definite

period of time OR for a reasonable period of time OR by

showing that Plaintiff gave considcration to Defendant in ad-

dition to the employce’s normal services, such as sacrificing

other employment opportunitics {McNulty v. Borden, Inc: 474

F.Supp. iii (E.D., Pa. 197°), (per Pennsylvania law)}.

2. Petitioner overcame the at-will presumption by

showing the intent of the parties that contract last a definite

period of time; in accordance with a Supreme Court of Penn-

sylvania rule based on Slonaker v. RG. Publishing Co. 338

Pa.-292, 296, 13 A.2d 48 (1940); Lubrecht v. Laurel Stripping

Co. 387 Pa. 393, 396, 127 A.2d 687 (1956). Also: Weidman v.

United Cigar Stores, Co. 223 Pa. 160, 161, 72 A.2d 377 (1909)

{Gillian v. Consolidated Foods Corp. 424 Pa. 407, 227 A.2d 858

(1967)}.

Petitioner has supported his allegation by presenting

documentation in annual benclit programs for salaried em-

ployee; in Annual Reports and a Carccr Planning & appraisal

guide which were given him by the Respondent during nego-

tiations relevant to undertaking employment with Defendant

(Plaintiff's Affidavit and Defendant’s Dep. Exhibits 2,3 and 4).

Further, Respondent’s intent to enter a year-to-year agree-

ment was implied through the offer and payment of an annual

salary, annual salary increases, annual employee reviews and

annual objectives for employees. (Plaintiff's Affidavit, Para-

graph 4 ). As further evidence of intent of demonstrating the

existence of this minimal ycear- to-year employment contract,

Petitioner enumcrated specific guaranteed and pro-

vided to him and quoted on a yearly basis. Such bencfits

include guaranteed income upon retirement based on annual

salary calculations; annual vacation and holidays; life and travel

insurance based upon a multiple of annual salary; medical and

dental coverage with an annual value of about $1,500.00; a

company savings and stock ownership plan worth up to about

TO

$3,500.00 annually; unemployment insurance valued annually;

Social security at the rate of $2,170.00 annually, a matching

gifts plan worth about $3,000.00 annually and an employee

sharcholder plan worth about $220.00 annually. Air Products

valued this added income to be worth about $6,757.00 in 1979

and $10,020.00 in 1982. (Plaintiff's Affidavit, Para 3 and 4).

The Respondent has relied heavily on the Ex Post Facto

reasoning of a holding in Darlington v. General Electric. Pa.

Super. 504 A.2d 306, 307 (1986). This was an questionable

choice. First, because in Darlington, supra the jury found in

favor of the plaintiff (Overturned by Superior Court); and that

cases was allowed to go to a jury. In that the ruling in that case

came after presentation of the extant case it should not have

considered here because it was an ex-post facto decision (U.S.

Constitution, Preamble & 7th Amendment}. Second, unlike

the Darlington case, here the Petitioner did not rely upon vague

or indefinite promises, but offers numcrous documents and

statements as supporting cvidence), and provides proof of the

Respondent’s year-to-year commitment. The trial court there-

fore erred in using the casc to block a jury trial.

3. Petitioner overcame the at-will presumption by

showing that he gave his employer consideration other than

services for which he was hired {Lucacler v. Kerson 158

Pa.Super. 437, 45 A.2d 245 (1946)}. When Plaintiff gives

sufficient additional consideration, such as giving additional

consideration when he undcrgocs a substantial hardship other

than the services which he is hired to perform, courts infer that

the parties intended that the contract will not be terminable at

will {Huguet v. Food Sales, Inc. 19 Pa. D&C.3d 376 (1980);

again Darlington, supra at Pa.Supcer. 504 A.2d at 314, 315}.

Here the Petitioner has offered proof of additional

facts and circumstances well beyond the quotation of annual

salary that could support the jury’s finding that the contract

had some minimal fixed duration. Unlike many newly hired

employees that come from school or are not employed when

hired, the Petitioner had to make considerable sacrifice in

consideration of the Respondent’s demands.

During 1977, Petitioner remaincd gainfully employed

by Corning Glass, earning more than $20,000 per year, plus

7h

$98.00 for each day’s service with the Army Reserve. He

maintained an excellent record with both, and thus assured a

secure future. Based upon an outstanding educational, military

and employment background, Respondent induced him to seck

a career with Air Products. (Plaintiff's Affidavit, Paragraph 8).

During the initial interviews, Petitioner brought along a sample

career progression chart from his current employer, obviously

seeking to explore career opportunities (Plaintiff's Dep. p. 84).

The Respondent certainly understood this because it produced

a scrics of organizational charts for Air Products and discussed

long-term objectives and positions which offer Plaintiff in his

future with Air Products. (Plaintiff's response to Defendant’ s

Request For Documents).

After the intervicws, Respondent made a written offer

of employment May 4, 1979 to Petitioner (Defendant's Dep.

Exhibit No. 2), promising "excellent opportunitics for contin-

ued career growth and development" at Air Products.

(Defendant’s Dep. Exhibit No. 2). These words were deliber-

ately placed in the letter pursuant to the intervicws and to

entice the the Petitioner, allegedly to make him give up a

secure career and family life in West Virginia.

Due to Respondent’s perseverance, Petitioner finally

consented to give up school, Icave current employment, dis-

continue military service, uproot his family, and relocate to

Allentown, Pennsylvania for the promised career position with

Air Products. (Plaintiff’s Affidavit Paragraph 8, 10, 11;

Defendant’s Dep. Exhibit No. 3; and Plainut’s Dep. p.64 L21-

23). The Statement of The Casc has enumerated other specific

sacrifices made by the Respondent; all of which have been

denigrated by the trial court, perhaps based on unwarranted

presumptions by the Trial Court.

Would any reasonable man give up a career position

and make all the other sacrifices listed to accept some tentative

work, over 400 miles away from his home? Would he subject

his family to such hardship? Contrary to the information and

character description provided, the trial court has decided that

the Petitioner would take such unreasonable action, and used

this as a basis to deny duc process. Therefore, given the

additional facts and circumstances, apart from the quotation

8

of annual salary, the trial court erred in interpreting the nature

of the agreement and the partics involved.

4. Pennsylvania case law provides that a court could

infer that an employment contract is not terminable at will if

employee gives additional consideration.

a. In O'Neill v. ARA Services, Inc. 457 FSupp. 182

(1978), the defendant, plaintiff's former employer, contended

that plaintiff's complaint failed to state a cause of action for

breach of contract because the oral employment agreement

did not specify employment or a definite time period. Plaintiff,

O'Neill alleged that he Ieft his former employment and worked

for ARA for two years in reliance on the defendant’s promise

that he would be transferred to a management position after

two years; and alleged other assurances under the oral agree-

ment such as promises of a specific rate of pay and an official

title. The court noted that "[i]f these allegations were cstab-

lished at trial, it would not be unreasonable for a trier of fact

to conclude that the parties intended plaintiff's employment

in management to extend for a reasonable time." The court

therefore refused to grant the motion to dismiss "without giving

[plaintiff] an opportunity to prove the existence of facts and

circumstances which together may show a definite employment

contract” {O'Neill at 186}.

b. In Vogue v: National Rolling Mills 72 Pa. D.&D.2d

335 (1974), the Court on a motion for a new trial found that

there were additional facts and circumstances present apart

from the quotation of annual remuncration that could have

supported the jury’s finding that the contract was for a fixed

duration. Specifically, the plaintiff, Vogue, had resigned from

a position in another state and moved his family to Pennsylva-

nia to work for Defendant. Discussions between the partics as

to bonuses were based on annual salary figures, the position in

question was in management and there was a three-month

probationary period involved. Upon reviewing the case during

consideration of Defendant’s Preliminary Objections, the trial

court found that the allegations in the instant case are compa-

rable to those of the Plaintiff's in those cascs.

The court cited Defendant’s recruitment of Plaintiff

while working for anothcr employer in a different state,

9

Defendant's various promiscs and assurances relative to pro-

motion and a ycarly salary based on yearly objective perform-

ance reviews, and Plaintiff's resignation from his job out of

state and moving to Allentown after accepting Defendant's

offer of employment. (Appendix A). The Court found that,

like the Plaintiff in Vogue, the position of Plaintiff hercin was

a responsible onc with a substantial salary. It is thus possible

that the tricr of fact could conclude that the partics intended

Plaintiff's employment to be at Icast for a reasonable time.

5. The termination of the terms of a disputed oral

contract pursuant to the parties intention, as in this case, is

the exclusive function of a jury as a question of fact {McCor-

mack V. Jermyn 351 Pa. d61, 40 A.2d 477 (1945)}. Here, the

trial court decided as a matter of law that it was able to deter-

mine the intentions of the two partics; and that they did not

intend that the employment should last for some definite du-

ration. Here the court had ncither the ability to perceive the

depth of intent nor authority discount its existence.

Upon the Evidence offered by Petitioner under the

facts as alleged, it is also possible that a tricr of facts could

conclude that the partics intended the cmployment term - as a

minimum - on a ycar-to-ycar basis. As demonstrated this case

far from being free of doubt and therefore Summary Judgment

was not appropriate { Weiss v.Keystone Mack Sales, Inc., supra}

Determination of the terms of the disputed oral contract pur-

suant to the partics intention is the exclusive function of the

finder of fact {McCormack v. Jermyn: supra}.

6. A promise which the promisor should reasonably

expect to induce action or forbearance is binding if the injus-

tice cam be avoided only by enforcement of the promise

{Murphy and Slota v Burke 454 Pa. 391, 311 A.2d 904 (1973)}.

Petitioner incorporates hercin his arguments sect forth in the

preceding sections as if fully sct forth at Iength.

The allegation been well demonstrated that the Re-

spondent promised nothing less than than career position at

Air Products. He aggresivecly recruited the Pctitioncr; making

an increased offer when the original was rejected; and making

various written and oral promiscs or representations about the

duration of employment, as aforesaid. Respondent thus prom-

10

ised a career position, and the Petitioner justifiably relied

upon these promises of a career position. As described, he

quit a carecr positions, terminated graduate studics, aban-

doned a position in the Army Reserve, incurred substantial

losses of real property, increased tax liabilitics, and uprooted

his family, as aforesaid. Petitioner made these sacrifices in

justifiable reliance upon promises of nothing less than career

with Air Products. Respondent had ample opportunity to dispel

any false impressions. This clearly it did not do. On the

contrary, even as the Petitioner moved in, the Respondent

assured the mortgagor of an "excellent" probability of contin-

ued employment.

As aforesaid, Respondent should reasonably have ex-

pected to induce Plaintiff's reliance upon its promise. Hc not

only reasonably expected Petitioncr’s s aforesaid reliance, but

intentionally made the aforcsaid promises for the purpose of

inducing this expected action. Nor has it been denicd that the

aforesaid recruitment and representations to Plaintiff were

calculated to obtain Petitioncr as an cmploycc, thus necesst

tating the aforesaid sacrifices.

Injustice can be avoided only by enforcement of said

promises. Given that all the Petitioner allegations had been

accepted as true, the position of the trial court is in error.

II. The Trial Court erred as a matter of Law in sus-

tainining the defendant’s preliminary objections and

demmurrers to the complaint where the Petitioner pleaded a

cause of action indicating that the Respondent breached a

Covenant of Good Faith Dealing In Employment Contracts.

Count Three of the Petitioner’s Complaint statcs a

claim for damages based upon Respondent’s breach of an

implied covenant of good faith and fair dealing in his employ-

ment contract.

A numbcr of courts have held that employers are liable

in contract when they discharge "at-will" employccs in violation

of an implicd covenant of good faith and fair dealing which

thecourts imposed upon the employment contracts for public

policy reason {/2A.L.R. 4th, 560, 6a (1982); Clearly v. American

Airlines, Inc. 111 Cal. App.3d 443 (1980); Fortune v. National

11

oe ae eae

Cash Register Co. 373 Mass 96, 364 N.E.2d 1251 (1977) and

Gram v. Liberty Mutual Insurance Co. 429 N.E.2d 21;

Sup.Judj.Ct. Mass (1981)}.

The trial judge wrote that he knows of no Pennsylvania

casc permitting recovery on the basis of "implicd covenants of

good faith or fair dealing” { Appendix A, p 6). He then gocs on

to say that Federal cases considcring the issuc are to the con-

trary {Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d

Cir. 1983)}; but expresses the view that a Pennsylvania casc is

more pertinent, and sustains the demurrer to Count 2. Using

this line of reasoning, it seems that the Commonwealth of

Pennsylvania could reject any portion of Constitutional Law

not specifically argued within the State Court system, and could

ignore such law indcfinitcly by refusing to hear cases. Perhaps

even forms of slavery could be condoned under the pretext

that they had not been defined narrowly cnough to be permit-

ted as a cause of action. Clearly when there is such conflict it

balances in favor of the United States {McCulloch v. Maryland,

17 US. (4 Wheat.) 3216 (1819) 4 L.Ed. 579}.

For public policy reasons, Pennsylvania courts have a

responsibility to impose upon cmployment contracts a similar

implicd covenant of good faith and a standard tor fair dealing.

Under this count, it is argued that even if all the well docu-

mented arguments regarding breach of contract and breach of

promise arc put aside, the Respondent still had a responsibility

to act in good faith in terminating Pctitioncr’s employment.

Hence, the Respondent's Preliminary Objections to Count Two

of the Complaint should have been dismissed without mcrit. .

Contrary to statements of the trial court there is a great

number of laws and statutes that specify the nature of "fair

dealing” required by the the Constitution. The Civil Right Act

(1964 as amended in 1974) is perhaps the most prominent of

law of this kind and would also apply here. Although the

Petitioner is a Catholic of European Origin he chose not to

bring action under the pertinent portion of the Civil Rights

Act forbidding discrimination based on Religion and Nationa

Origin. This is not because discrimination did not take place;

by definition it has.

Morcover, although the Respondednt refused to an-

1?

-- hotete

swer Interrogatorics concerning the affiliations of the board

of directors, it is clear that they were (1982) all white, all male,

and disproportionatcly Anglo-Saxon Protestant. The reason

is that this Act was not invoked until now is that the

Constitution, of both the Commonwealth and the United

States, was considered to apply without requiring specificity;

i.c., the whole purpose of the Constitution centered on guar-

antecing Civil Rights. This principle was expressed by Chicf

Justice Marshall as follows: "That the people have an original

right to establish, for their future government, such principles,

as in their opinion, shall most conducc to their own happincss,

is the basis on which the whole Amcrican fabric has been

erected. The principles, thercfore, so established, are deemed

fundamental. And as the authority from which they proceed

is supreme, and can scldom act, they are designed to_be per-

manent." {Marbury v Madison, 5 U.S. (1 Cr.) 137 (1803)}. The

issue here warrants a formal review by a higher court.

Under the unique interpretation of the trial court, Air

Products - a bloodless legal entity, of a character not described

in the Constitution - is held to have even greater rights than

the Petitioner. And by whom was it cndowned with these

rights? Not the Commonwealth for it has no authority to

circumvent the Law of the Land. Apparently the trial court

has acted on its own to - if not endow - then to condone the

assumption of supericgal rights by this multinational creature.

To the extent that the Superior Courts have refused to hear

the case, it appears that they support this usurpation of power.

The reasoning in this case can be applicd from the

Original "common carricr" cascs of the latter part of the 19th

Century. As the original railroads were created to serve the

public, so also the Multinational Corporations were created to

conduct international business. Both institutions were granted

a number of priveleges to facilitate their service to the public.

In neither case was a violation of individual rights included

among those privileges. In New York Central Railroad. Co v.

Lockwood, U.S. Supreme Court, 84 U.S. (17 Wall.) 357 (1873);

the Railroad attempted to circumvent certain "basic dutics”.

In the opinion of Justice Bradlcy:

"The carricr and his customer do not stand on a footing

13

ee Fe OS A Le he EP Ne 4 en Be ne A ee

a ee

of equality. The later is only one individual of a million. He

cannot adfford to haggle or stand out and seck redress in the

courts. His business will not permit such a course. "

Similarly the non-union employce of a multinational

corporation, after he negotiates and accepts a position, also

docs not stand on an cqual footing with a creation whose

domain extends beyond national borders with an income often

in excess that of entire countrics. This creation has access to

employees from around the world and can purchase Iegal

expertise, far beyond the grasp of a private citizen. The em-

ployee, once deprived of a livelihood, can hardly wage an equal

battle in defense of his Constitutional Rights.

The 14th Amendment to the U.S. Constitution requires

thayt we must bind this Multinational Corporation to keep its

promises and behave accerding to some minimal standard of

good faith and fair dealing. It only scems logical that this

standard be determined from the Law of the Land in which

the entity originates, and not to the arbitrary pronouncements

of local judges. Such a standard would hardly be hard to impose

or regulate because it already amply stated in the U.S

Constitution. If individual Statcs are subsevicnt to the Law of

the Land, it seems grotcsqucly inconsistent to allow undemo-

cratic structurcs of Commerce to cnjoy free reign over the

lives of individual citizens. At the very Icast it seems that the

individual should be insurcd against arbitrary harm from such

an entity and not be forced to Icave its non-democratic domain

in a worse condition then when he joincd it.

Under provision of the Employment and Income Sc-

curity Act of 1974 it is also clear that there is a standard of

good faith and fair dealing that has becn imposed on the

Corporation. It is obviously profitable for a business to con-

fiscate the pension funds of employees before they are fully

vested. Congress decided to impose a specific limit for vesting

funds, but the spirit of the law was aimcd at insuring a standard

of good faith and fair dealing. The Preamble of the Constition

binds local judges to act within such intentions.

Ill. The Trial Court erred as a matter of law in sus-

taining the Respondent’s Demurrer to the Complaint where

14

OL En BOP RI POR ON

RS ee Ea esos &

the Petitioner indicated a cause of action for retaliatory ter-

mination of his employment, because he exercised his consti-

tutional right to free speech and his contractual obligation to

monitor safety practices of this employer.

In that the issuc of good faith and fair dealing is directly

related to Public Policy, Petitioner incorporates herein argu-

ments set forth in Section II as if fully set forth at length.

1. Even assuming arguendo, that there was only an

at-will employment contract, if Petitioner can show that his

discharge violated a clear and significant public policy, a cause

of cause of action for wrongful discharge does lic {O'Neill

ARA Services, Inc., supra; Philips v. Babcock & Wilcox Tubular

Products, Division of McDermott, Inc. Pa. Super.__ 503 A.2d 36

(1986); Darlington v. General Electric, supra; Geary v. United

States Steel Corporation 456 Pa. 171, 319 A.2d 174 (1974). Any

contract, including contract at will, which is terminated for a

reason contrary to the public policy of Pennsylvania gives rise

to a claim for breach of contract {McGinley v. Burrouglis Cor-

poration 407 FSupp. 903, 911 (E.D., Pa. (1975)}.

2. An cmployer may not discharge an employee for

exercising his rights to free speech {Novosel v. Nationwide

Insurance Co. 721 F.2d 894 3d Cir, (1983)}. Pennsylvania has a

clear and substantial state public policy forbidding retaliatory

termination of employment based upon an employee's exercise

of his right to free speech and his contractual obligation to

monitor safety practices of his employer {Article I, Section 7

of the Constitution of Pennsylvania and the First Amendment

to the United States Constitution; and Novosel v. Nationwide

Insurance Co., supra}.

The Supreme Court of Pennsylvania has stated that an

employer may not intrude upon an employee's constitutional

rights by virtue of the employcr’s discharge as follows: "...there

are areas of an cmploycce’s life in which his employer has no

legitimate interest. An intrusion into one of these arcas by

virtue of the employcr’s power of discharge might plausibly

give rise to a cause of action, particularly when some recog-

nized facet of public policy is threatened. The notion that

substantive due process clevates an employcr’s privilege of

luring and discharging employces to an absolute constitutional

1S

ttt atti

EAA eee

right has long since been discredited. .." {Geary v. United States

Steel Corporation 456 Pa. 171, 184-185, 319 A.2d 174, 180

(1974)}. Here the Petitioner claims that he was discharged

based upon Pctitioncr’s insistence on carcful attention to detail

in cost cstimating for the construction of new, and existing

plants, and for his cfforts to improve the safcty at various Air

Product facilitics (Complaint, Paragraphs 45, 46 and 47).

Petitioner claims that certain recommendations would

cost large sums of moncy, thus reducing Respondent's profits

(Plaintiff's Affidavit, Paragraph 28).

In granting Respondent’s Preliminary Objections to

Plaintiff’s claim for wrongful discharge in violation of public

policy, the trial court cited a case where the discharged em-

ployees had antagonized their employers regarding safcty is-

sues. Here, there is not even claim that the Petitioner made a

nuisance of himself. Instead, Respondent attempts to cover up

its retaliatory terminati. by claiming that the discharge was

due to economic factors in accordance with gencral layoffs. In

actual fact, the alleged cconomic decline justification for the

discharge was a sham. The company had recently grown by

more than 20% in personncl; outside hiring of employees

continued, employees with Iess seniority and fewer qualifica-

tions were retained {Plaintiff's Affidavit, Paragraphs 28 and

29). There was no counscling or suggestion of poor perferm-

ance. At the time of discharge Respondent refused to even

offer a single position in the dozen different departments in

which Petitioner sought work. (Plaintiffs Affidavit, Paragraph

28). Defendant refused to Icave open a possibility of recall, or

of any type of future re-employment at any salary (Plaintiff's

Affidavit, paragraph 28; Plaintiff's Dep. p. 36-39).

Taking as truc and well-pleaded material facts as sct

fort in Plaintiff’s Complaint, as well as all inferences reasonably

deductible thercupon, Petitioner stated a cause of action for

wrongful discharge. At very Icast, doubt concerning the validity

of Defendant’s Preliminary Objections ought to have been-

resolved in favor of Petitioner {Clouser v. Shamokin Packaging

Co. 240 Pa.Super. 268, 273-74, 361 A.2d 836, 839-40 (1976) }.

16

SS ee poy a

CONCLUSION

This case strikes at the very heart of the Constitutional

form of government. The Respondent has attempted to hide

behind a facade of Free Enterprise and Duc Process, to cover

up activitics in direct contrast to Equal Opportunity and Justice.

There are valucs here reaching cven beyond this

country’s history; to Icgal principles sct forth in English Com-

mon Law during the 14th Century. The Magna Carta simply

put forth the central principle that is here questioned:

"No freeman shall be taken, ... or in any other way

destroyed... except by the lawful judgment of his peers or by

the law of the land. To no onc will we scll, to no one will we

deny or delay, right or justice."

Has this country allowed the oppressive monarch’s of

old to be replaced by the strong arm of insensitive multinational

corporations. Herc the life of the Petitioner and his family has

been destroyed by an unfair and arbitrary busincss giant. Even

if he had been granted a successful day in court, the responsible

directors of this enterprisc would probably have escaped ac-

countability. To be denicd a jury trial, in clear contravention

of the seventh amendment, hardly seems a likely way to foster

responsible behavior among those who control the nation’s

economy. Or is this the New Ordcr?.

The Petitioner has sct forth the reasons that he be-

lieves the Respondent has breached a contract, broken his

promises, gencrally failed to deal in good faith, and not met its

obligation in terms of safety practices. It is therefore requested

that this honorable Court grant Certiorari.

Respectfully submitted,

W. Victor Made}, pro se

September 19, 1988

17

Ne eee ee ra rerma™”"—

APPENDICES: OPINIONS AND ORDERS

A.

COURT OF COMMON PLEAS OF LEHIGH COUNTY

CIVIL ACTION- LAW

W. VICTOR MADEJ, Plaintiff v. AIR PRODUCTS AND

CHEMICALS, INC., Defendant {No. 84-C-1960

EE

ORDER

NOW, this 6 day of December, 1985, after argument and for the

reason expressed in the accompanying opinion,

IT IS ORDERED that the defendant’s demurrer to Counts I and

III is denied.

IT IS FURTHER ORDERED that defendant’s demurrer to

Counts II and IV is sustained. AND IT IS FURTHER ORDERED

that defendant shall file answer within twenty (20) days from the date

of this order.

BY THE COURT:

JOHN E. BACKENSTOE, PJ.

B.

COURT OF COMMON PLEAS OF LEHIGH COUNTY

CIVIL ACTION- LAW

W. VICTOR MADEJ, Plaintiff v. AIR PRODUCTS AND

CHEMICALS, INC., Defendant {No. 84-C-1960

eK

ORDER

.@ AND NOW this 10 day of December, 1986, upon consideration

of the motion for summary judgement filed by the defendant , Air

Products and Chemicals, Inc., and after oral argument on the matter,

IT IS HEREBY ORDERED that said motion is GRANTED.

BY THE COURT:

JOHN E. BACKENSTOE, PJ.

18

A&B

Cc.

COURT OF COMMON PLEAS OF LEHIGH COUNTY

CIVIL ACTION- LAW

W. VICTOR MADE], Plaintiff v. AIR PRODUCTS AND

CHEMICALS, INC., Defendant {No. 84-C-1960

*¢

APPEARANCES:

CHARLES R. OSINSKI, ESQUIRE On behalf of the Plamtiff

Steven A. Bergstein, Esquire, with him FRANK, FRANK and

PENN, and RICHARD H. ALBERT, ESQUIRE,

On behalf of the Defendant.

***

OPINION

JOHN E. BACKENSTOE, PJ.

Before us are the preliminary objections of defendant Air Prod- )

ucts and Chemicals, Inc. to plaintiff's complaint to which it has de-

murred to all four counts. For the following reasons, the demurrer to

counts II and I'V is sustained.

We are mindful that in ruling upon a demurrer, the court must as-

sume that all factual averments in the complaint and all reasonable

inferences therefrom are true. Savitz v.Weinstein, 395 Pa. 173, 149

A.2d 110 (1959). Moreover, to sustain preliminary objections in the

nature of a demurrer, it must clearly appear that, upon the facts a-

verred, the law: will not permit a recovery. Pike County Hotels Corp.

v. Kiefer, 262 Pa.Super, 126, 396 A.2d 677 (1978). With these guide-

lines in view, we turn to the facts alleged in this case.

The complaint alleges that plaintiff was employed in 1979 as an

engineer with a corporation in West Virginia when he was recruited

for possible employment by defendant. Pursuant (allegedly) to prom-

ises of rapid advancement and excellent opportunity, Plaintiff re-

signed from his job and accepted defendant's offer to work as a cost

engineer at an annual salary starting at $24,000.00 per year. Thereaf-

ter, defendant relocated to Lehigh County where he began working

for defendant in June of 1979. Plaintiff received yearly salary increas-

es in June of 1980, 1981 and 1982, the latest of which was based on

his promotion to Senior Cost Engineer. In August 1982, defendant

notified plaintiff that he was to be terminated effective November 12,

1982. After his termination, plaintiff received cight wecks severance

pay, but he was unable to secure other employment until June 1983.

19

SE ee a

In bringing this action, plaintiff has raised four counts in his com-

plaint. Count I is based on the breach of an alleged oral year to year

employment contract. Count II alleges that by its termination of

plaintiff without good cause, defendant breached its implied covenant

of good faith and fair dealing in its employment contract with Plain-

tiff, Count III is based on the doctrine of promissory estoppel while

Count IV essentially alleges that the termination was a wrongful dis-

charge because it violated public policy.

As a basis for its demurrer to Count I, defendant asserts that the

said count alleges employment for an indefinite period which, under

Pennsylvania law, raises the presumption that the contract was termi-

nable at the will of either party. That an employment contract not

specifying a Cefinite duration of employment is presumed to be ter-

minable at will is well established in this Commonwealth. Slonaker v.

p.G. Publishing Co., 338 Pa. 292, 13 A.2d (1940). The plaintiff may o-

vercome this presumption by showing the intent of the parties that

the contract last for some definite period of time or for a reasonable

time or by showing that the plaintiff employee gave consideration to

the defendant-employer in addition to the employee's normal servic-

es, such as sacrificing other employment opportunities. McNulty v.

Borden, Inc., 474 FSupp. 1111 (E.D. Pa. 1979), (applying Pennsylva-

nia law). Contrary to defendant's assertion, plaintiff asserts that

Count I clearly alleges in paragraphs 16 and 20 that the subject em-

ployment was under an oral agreement on a year to year basis. In sup-

port of this claim, plaintiff alleges that he was to be paid an annual

salary and that he thereafter received yeariy salary increases in June

of 1980, 1981 and 1982. In response, defendant cites Trainer v. Laird,

320 Pa. 414, 183 A.40 (1936) for the proposition that no presumption

arises that the hiring of an employee was for a fixed period even where

the hiring was for compensation computed at so much per day, week,

month, quarter or year. This is so because the agreed upon figure

merely fixes the rate of compensation for the time of employment.

Id. at 416, 183 A. at 41. Nevertheless, the Supreme Court has also

stated the following rule:

... [I]n determining whether an employment contract is

for a definite term,: ’... it is the intention of the parties

which is the ultimate guide, and, in order to ascertain

that intention, the court may take, into consideration

the surrounding circumstances, the situation of th -

parties, the objects they apparently have in view, and

the nature of the subject matter of the agreement.’

Slonaker v. PG. Publishing Co., 338 Pa. 292, 296, 13

A.2d 48 (1940); Lubrecht v. Laurel Stripping Co., 387

Pa. 393, 396, 127 A.2d 687 (1956). See also:

20

Weidman v. United Cigar Stores, Co., 223 Pa. 160,

161, 72 A. 377 (1909).

Gillian v. Consolidated Foods Corp., 424 Pa. 407,227 A.2d 858 (1967).

The determination of the terms of a disputed oral contract pursuant

to the parties’ intention is the exclusive function of the jury as a ques-

tion of fact. McCormack v. Jermyn, 351 Pa. 161, 40 A.2d 477 (1945).

In O'Neill v. ARA Services, Inc., 457 ESupp. 182 (. 978), the

defendant's (plaintiff's former employer) contended that plaintiff's

ecomplaint failed to state a cause of action for breach of contract be-

cause the oral employment agreement did not specify employment

for a definite time period and as such was terminable at will by either

party for any reason. Plaintiff O’Neill alleged that he left his former

employment and worked for ARA for two years in reliance on the

promise that he would be transferred to a management position af-

ter two years. He also alleged other assurances under the oral agree-

ment such as promises of a specific rate of pay and an official title.

The court noted that "[i]f these allegations were established at trial, it

would not be unreasonable for a trier of fact to conclude that the par-

ties intended plaintiff's employment in management to extend for a

reasonable time.” O’Neill at 185. The court refused to grant the mo-

tion to dismiss “without giving [plaintiff] an opportunity to prove the

existence of facts and circumstances which together may show a defi-

nite employment contract.” O'Neill at 186. Similarly, in Vogue v. Na-

tional Rolling Mills, 72 Pa.D.&D.2d 335 (1974), the court on a mo-

tion for a new trial found that there were additional facts and circum-

stances present apart from the quotation of annual remuneration that

could have supported the jury’s finding that the contract was for a

fixed duration. Specifically the plaintiff Vogue had resigned from a

position in another state and moved his family to Pennsylvania to

work for defendant. Discussions between the parties as to bonuses

were based on annual salary figures, the position in question was in

management and there was a three-month probationary period in-

volved.

The allegations in the instant case are comparable to those of the

plaintiffs in O’Neill and Vogue. The plaintiff herein alleges that he

was recruited by defendant while working for another employer in a

different state. He alleges various promises and assurances reiative

to promotion and a yearly salary based on yearly objective perform-

ance reviews. Plaintiff further avers that he resigned from his job out

of state and moved to Allentown after accepting defendant's offer of

employment. Like the plaintiff in Vogue, the position of plaintiff

herein was a responsible one with a substantial salary. If these alle-

gations are established at trial, it is possible that the trier of fact could

conclude that the parties intended plaintiff's employment to be on a

21

year to year basis. Accordingly, the demurrer to Count J is denied be-

cause in our view the plaintiff should have the opportunity to prove

the existence of facts and circumstances which together may show a

definite employment contract.

In support of its demurrer to Count II, defendant argues that

there is no cause of action at present in Pennsylvania for breach of an

implied covenant of good faith and fair dealing in an employment

contract. The courts of a number of other states have held that em-

ployers could be liable in contract where they discharged "at-will" em-

ployees in violation of a implied covenant of good faith and fair deal-

ing which the courts imposed upon the employment contracts for rea-

sons of public policy. Annot. 12 A.L.R. 4th, 560, §sa (1982) (and cases

cited therein). Nonetheless, neither the research of the parties here-

in nor ours has disclosed any Pennsylvania cases whatsoever permit-

ting such a cause of action. Federal cases considering the issue are to

the contrary. For example, in Novosel v. Nationwide Insurance Co.,

721 F2d 894 (3d Cir. 1983) (applying Pennsylvania law), the court

noted the absence of any state cases on the Subject and refused to

fashion a common law just cause standard that would be based pri-

marily on the critical treatment afforded to "at-will" discharges by le-

gal commentators. Even more to the point is Wolk v. Saks Fifth Av-

enue, Inc., 728 F2d 221, 225 (3d Cir. 1984) (applying Pennsylvania

law) wherein the court affirmed a dismissal of a similar claim and

noted that "there is no indication that the Pennsylvania courts have

as yet fashioned or indicated their intention to fashion a uniform just

cause required for all discharges." Based on our view that no cause

of action exists in Pennsylvania for breach of an implied covenant of

good faith and fair dealing in employment contracts, we are con-

strained to sustain the demurrer to Count II.

By its demurrer to Count III of the complaint, defendant argues

that plaintiff has failed to state a cause of action based on promisso-

ry estoppel. Our Supreme Court has recognized that a promise which

the promisor should reasonably expect to induce action or forbear-

ance of a definite and substantial character on the part of the prom-

isee and which does induce such action or forbearance is binding if in-

justice can be avoided only by enforcement of the promise. Murphy

and Slota v. Burke, 454 Pa. 391, 311 A.2d 904 (1973) saccord, DiSan-

te v. Russ Financial Co,, 251 Pa.Super. 184, 380 A.2d 439 (1977). The

basis of defendant’s demurrer is the assertion t: vt plaintiff has failed

to allege a specific promise of employment for a definite time on

which he relied. It is clear that the doctrine of promissory estoppel is

restricted to cases where a promise is made. Fried v. Fisher, 328 Pa.

497, 196 A. 39 (1938). Paragraph No. 5 of the complaint alleges that

during defendant’s recruitment of plaintiff, the former promised "ear-

~ ant Cn Seta ES

ly responsibility, rapid advancement, and excellent opportunities for

continued personal career growth and development at Air Products."

Paragraph No. 37 alleges that plaintiff was promised continuing ca-

reer opportunities, that defendant would implement a computerized

career profile system, that defendant would use techniques of man-

agement by objective and that there were assurances of promotion

and job security. We believe that the alleged promises are clear e-

nough so that defendant is aware of the charges against it and is thus

able to formulate a defense. The case of Charles v. Crestview Prop-

erties, 15 Pa. D.&C.2d 568, 71 Dauph. at 172 (1959) supports our de-

cision. In Charles, the court said that "[t]o set forth the exact words

of the [oral] promises would be to require plaintiffs to definitely plead

their evidence. This they need not do." Charles, 15 Pa.D.&,.2d at 570,

71 Dauph. at 174. v.aintiff has alleged several promises which he

contends induced him to action of a definite and substantial charac-

ter. In our view the said allegations sufficiently state a cause of ac-

tion to reserve the decision on this issue for the trial judge after hear-

ing the evidence. Accordingly, the demurrer to Count III is denied.

Lastly, defendant has demurred to Count IV of the complaint

which alleges that plaintiff's discharge constitutes a violation of pub-

lic policy. Although the general rule in Pennsylvania is that employ-

ment contracts not specifying a specific duration of the relationship

are presumed terminable at will, Slonaker, supra, dicta from the Su-

preme Court’s decision in Geary v. United States Steel Corporation,

456 Pa. 171, 319 A.2d 174 (1974) has been interpreted to mean that a

plaintiff who was an “at-will” employee may have a cause of action for

wrongful discharge but only where the employer is motivated by a

specific intent to cause harm to the employee or where a clear man-

date of public policy is violated by the discharge. O’Neill, supra. Not-

withstanding the recognition that such a cause of action exists, sever-

al courts have emphasized that the so-called public policy exception

is extremely narrow. See Boresen v. Rohm & Haas, Inc., 526 ESupp.

1230 (E.D. Pa. 1980) affirmed 723 F2d 1445 (applying Pennsylvania

law); Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611

(1980). The Superior Court in Yaind! attempted tn provide an ana-

lytical framework work for determining whether the factual allega-

tions in an employee’s complaint are sufficient to state a cause of ac-

tion by holding that the court

must weigh several factors, balancing against the [employce’s]

interest in making a living, his employer’s interest in running

its business, its motives of discharging [the employee] and its

manner of effecting the discharge, and any social interests or

public policies that may be implicated in the discharge.

Yaindl, 281 Pa.Super. at 577, 422 A.2d at 620. More recently, the Su-

23

7

=

'

.

perior court modified this balancing test by suggesting a two prong

test of first discerning whether any public policy is threatened by the

discharge and second, considering that even when an important pub-

lic policy is involved, an employer may discharge an employee if he

has separate, plausible and legitimate reasons for doing so. Cisco v.

United Parcel Services, Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984).

In the instant case, plaintiff alleges that he was never given the

actual reason for his termination but he avers that it resulted from

“his outspokeness and careful attention on the issues of safety in cost

estimating for the construction of new plants and existing plants" as

well as "his efforts for improving the safety at various Air Products fa-

cilities [which] were ignored in the interests of lower costs."!_ More-

over, plaintiff “alleges that his failure to ‘buckle under’ in the name

of lower estimates and misdirected teamwork infuriated his superiors

and led to his termination."

Several cases are similar factually to the instant case and are thus

helpful in working through the Cisco analysis. For example, the plain-

tiff in Geary alleged that the defendant company had wrongfully dis-

charged him because he had complained to high company officials

that the company’s product was unsafe and constituted a serious dan-

ger to potential users. The Supreme Court affirmed the dismissal of

plaintiff’s complaint. Geary, supra. The court said the following:

The most natural inference from the chain of events recited

in the complaint is that Geary had made a nuisance of himself,

and the company had discharged him to preserve administrative

order in its own house ...The praiseworthiness of Geary’s

motives does not detract from the company’s legitimate

interest in preserving its normal operational procedures

from disruption. 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 appellant; is the best way to achieve this result.

On balance, whatever public policy imperatives can be

discerned here seem to militate against such a course. Geary

v. United States Steel Corp., 456 Pa. at 183; 319 A.2d at 180. -9

Similarly, in Yaindl v Ingersoll-Rand Co., 281 Pa.Super. 560, 422

A.2d 611 (1. $0), the plaintiff-employee’s criticism of the manufactur-

ing process of his employer apparently antagonized one of his supe-

riors to the point that plaintiff was ultimately discharged, allegedly

without cause. for pointing out safety hazards, the Superior Court af-

firmed the granting of summary judgment to the defendant-employer.

1. Complaint - paragraphs 45 and 46

2. Complaint - paragraph 47

24

The court noted that no clear public policy was threatened by the

plaintiff's discharge. Id . at 580, 422 A.2d at 621.

Finally, in Adams v. Budd Co., 583 ESupp. 711 (E,D. Pa. 1984)

(applying Pennsylvania law), the plaintiff-employee was discharged

after pointing out numerous defects in the rail cars manufactured by

his employer and in so doing antagonized his immediate supervisor.

In granting summary judgment to the defendant-employer, the court

noted that "Pennsylvania does not . ~cognize a public policy exception

for pointing out defects in a company product..." Adams at 716.

Accordingly, since it appears clear that a rmination for pointing

out safety hazards concerning one’s employer or its products is not a

violation of public policy, we are compelled to hold that Count IV of

the instant complaint fails to state a cause of action. The demurrer

to Count IV is sustained.

COURT OF COMMON PLEAS OF LEHIGH COUNTY

CIVIL ACTION- LAW

W. VICTOR MADEJ, Plaintiff v. AIR PRODUCTS AND

CHEMICALS, INC., Defendant {No. 84-C-1960

* KH

APPEARANCES:

CHARLES R. OSINSKI, ESQUIRE

On behalf of the Plaintiff

STEVEN A. BERGSTEIN, ESQUIRE, with him FRANK,

FRANK, PENN, & BERGSTEIN, PC. and RICHARD H. ALBERT,

ESQUIRE,

On behalf of the Defendant.

*AKK

OPINION

JOHN E. BACKENSTOE, PJ.

Before this court is the defendant’s motion for summary judg-

ment. For the reasons discussed herein, we grant the defendant’s mo-

tion.

Summary judgment may only be granted where "the pleadings,

depositions, answers to interrogatories, and admissions on file, to-

gether with the affidavits, if any, show that there is no genuine issuc

as to any material fact and that the moving party is entitled to judg-

ment as a matter of law.” Pa. R.C.P. 1035(b). On a motion for sum-

mary judgment, the court must not decide any issucs of fact. Its sole

25

function is to determine whether there are any genuine issues of fact

to be tried. Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 141,

476 A.2d 928, 931 (1984); Weiss v. Keystone Mack Sales, Inc., 310 Pa.

Super. 425, 430, 456 A.2d 1009, 1011 (1983). In considering a motion

for summary judgment, the court must examine the record in the light

most favorable to the party opposing the motion, resolving all doubts

as to the existence of genuine issues of material fact in favor of the

non-moving party. Mattia v. Employers Mutual Companics, 294 Pa.

Super. 577, 579, 440 A,2d 616, 617 (1982); Lehigh Electric Products

Co. V. Pa. Nat, Mutl Casualty Ins, Co., 257 Pa, Super. 198, 203, 390

A.2d 781, 783 (1978). A summary judgment should only be granted

where the case is clear and free from doubt. Weiss, supra, at 430, 456

A.2d at 1011, Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super, 497,

500, 450 . ..2d 36, 38 (1982). With these guidelines in mind, we turn to

the facts alleged in this case.

Plaintiff, W. Victor Madej, was employed in 1979 as an engineer

with a corporation in West Virginia when he was recruited for possi-

ble employment by the Defendant, Air Products and Chemicals, Inc.

According to the plaintiff, he resigned his job and accepted defendant's

offer to work as a cost engineer at an annual salary starting at

$24,000.00 per year pursuant to promises of rapid advancement and

excellent opportunity. Thereafter, the defendant relocated to Lehigh

County where he began working for the defendant in June of 1979.

The plaintiff received yearly annual salary increases in June of 1980,

1981 and 1982, the latest of which was based on his promotion to Sen-

ior Cost Engineer. In August of 1982, the defendant notified the plain-

tiff that he was to be terminated effective November 12, 1982. After

his termination, the plaintiff received eight weeks severance pay, but

he was unable to secure other employment until June of 1983.

A four count complaint was subsequently filed by the plaintiff a-

gainst the defendant. On December 6, 1985, this Court sustained the

defendant’s preliminary objections in the nature of a demurrer to two

of the four counts in the complaint. Thereafter, the defendant filed

an Answer and New Matter to which the plaintiff filec a Reply. Dis-

covery was conducted and thereafter the defendant filed this motion

for summary judgment on Counts IJ and III of the plaintiff's com-

plaint.

Count I of the plaintiff,s complaint is based on the breach of an

alleged oral year to year employment contract. The plaintiff contends

that his employment at Air Products was not "at-will" and that his dis-

charge was in contravention of an oral employment contract entered

into at the time he was hired.

An employment contract of indefinite duration is deemed to be

terminable at will for any cause or no cause. Price v. Confair, 366 Pa.

26

538, 542, 79 A.2d 224, 226 (1951); Slonaker v. P.G. Pub. Co., 338 Pa.

292, 296, 13 A.2d 48, 50 (1940), "[A]bsent a statutory or contractual

provision, the employer’s right to hire and fire is virtually absolute."

O'Neill v. ARA Services, Inc., 457 F Supp. 182, 186 (E.D. Pa. 1978).

The first issue we must address is whether the discharged employ-

ee has overcome the at-will presumption by presenting evidence

which, when viewed in the light most favorable to him as the non-

moving party, shows that he and Air Products contracted for some-

thing other than at-will employment. For the reasons discussed be-

low, we find that the plaintiff has failed to overcome the at-will pre-

sumption.

The Superior Court of Pennsylvania recently discussed this issue

on facts similar to the case at bar, In Darlington V. General Electric,

Pa. Super. , 504 A.2d 306 (1986), the plaintiff alleged that his dis-

charge violated an employment contract entered into at the time he

was hired which provided that the term of his employment was to be

for a reasonable length of time. Darlington contended that the total-

ity of circumstances surrounding his hiring envinced the parties’ in-

tent that the employment was to be for a reasonable length of time.

The factors Darlington relied upon included his recruitment by Gen-

eral Electric, the fact that he surrendered his former position to work

at General Electric, the fact that he was hired to fill a professional

position, and the fact that he was hired to work on long-term govern-

ment projects. The Superior Court rejected Darlington’s argument

noting that "[d]efiniteness is required to overcome the at-will pre-

sumptions,” Darlington, supra. at, 504 A.2d at 312.

Where there is no language in the contract relevant to termina-

tion of an employee, "then by implication [the employer and employ-

ce] have almost invariably supplied a term allowing either party to

terminate at will." Id. citing E. A. Farnsworth, Contracts 532 (1982).

"Courts are highly reluctant to make definite that which the parties

themselves failed to do." Darlington, supra, at i 504 A.2d at 312.

As in Darlington, the plaintiff herein claims he was hired under

an employment contract which he maintains was on a year-to-year

basis. In support of his argument, the plaintiff points to certain docu-

ments, including highlights of employee benefit programs for salaried

employees, the 1978 Air Products Annual Report and a performance

planning and appraisal guide. However, nothing in ‘ese documents

constitutes a contract of employment nor is there any indicia of any

promise by Air Products of a definite duration of employment.

The plaintiff further contends that the promise of a year-to-year

agreement was implied through the procedure of annual salary in-

creases, annual employce revicws, and annual objectives for employ-

ees. The partics’ own interpretation of a contract, as shown by their

27

acts and declarations, “will ordinarily be adopted by the court." Dar-

lington, supra. at- 504 A.2d at 313, citing Armstrong v, Standard Ice

Co., 129 Pa. Super, 207, 213, 195 A. 171, 173 (1937). However, in the

case at bar, Air Products’ annual reviews, objectives etc., may be read-

ily accounted for by something other than a desire to adhere to an ex-

isting contract. This action is simply too indefinite to support such an

interpretation. "Reliance on the vague and conclusory statements

contained in the material of record is insufficient as a matter of law

to establish a specific term of employment." Rogers v. International

Business Machines Corporation, 500 FE Supp. 867, 869 (W.D. Pa.

1980). Adams v. Budd Co., 583 F Supp. 711, 714 (E.D. Pa. 1984). In

light of the fact that the contract itself afforded no inference that the

employment was not to be terminable at wiil, we find that the plain-

tiff has established nothing more than conclusory allegations in sup-

port of his contention of a year-to-year agreement, See, Darlington,

supra, at ,504 A.2d at 313-14 distinguishing Lubrecht v. Laurel Strip-

ping Company, 387 Pa. 393, 127 A.2d 687 (1956).

The plaintiff also maintains that there was sufficient additional

consideration present which by itself, was sufficient to overcome the

at-will presumption, He argues that he had to move his family from

West Virginia in order to accept employment at Air Products. This

move, he contends resulted in significant economic losses to him.

Pennsylvania courts recognize that contracts for an indefinite pe-

riod can be brought out of the at-will presumption by a showing that

the employee gave his employer consideration other than the servic-

es for which he was hired. See Lucacher v. Kerson, 158 Pa. Super.

438, 45 A.2d 245 (1946). When sufficient additional consideration is

present, courts infer that the parties intended that the contract will

not be terminable at-will. Darlington, supra. at ,504 A.2d at 314; Hu-

guet v. Foodsales, Inc., 19 Pa, D. & C.3d 376 (1980). A court will find

additional consideration when an employee affords his employer a

substantial benefit other than the services which the employee is hired

to perform, or when the employee undergoes a substantial hardship

other than the services which he is hired to perform. Darlington, su-

pra, at , 504 A.2d at 315. In the case at bar, we do not believe that

the plaintiff rendered sufficient additiorfl consideration to overcome

the at-will presumption.

The _ Darlington court cites Lucacher v. Kerson, 148 Pa.Super.

437, 45 A.2d 245 (1946), for the proposition that additional consider-

ation will be regarded as sufficient when the new employee must un-

dergo a substantial hardship such as moving his family to take the new

position. Although we agree that the plaintiff like the defendant in

Lucacher underwent a substantial hardship when he moved to take a

new position, we believe the instant case is distinguishable and justi-

28

fics a different holding. In Lucacher, the plaintiff moved from New

York to Philadelphia in order to take a job with the defendant. Pur-

suant to an oral agreement, the plaintiff was to be "permanently em-

ployed" at a salary of $85.00 a weck commencing Aprik 10, 1944. The

plaintiff worked for three days and on the fourth day he was dismissed

from his employment. The court found that the plaintiff had over-

come the at-will presumption and the contract of employment was

enforceable. In the case at bar, Madej moved from West Virginia to

Pennsylvania pursuant to an oral agreement of employment for an

indefinite duration. Madej worked for Air Products for almost three

and one half years before he was discharged. During this time he did

receive salary increases and he was promoted, We believe the differ-

ent agreement and the differing lengths of employment are signifi-

cant. Lucacher relocated when he was promised "permanent" em-

ployment. He worked for three days and was dismissed on the fourth.

After working for more than three years for Air Products in Pennsyl-

vania under a general employment agreement, Madej cannot now, in

Our judgment, say that moving to take the job constitutes a substan-

tial hardship sufficient to overcome the at-will presumption. We,

therefore, do not find that Madej has shown sufficient additional con-

sideration to overcome the at-will presumption.

Since the plaintiff,s employment at Air Products was "at-will," his

discharge was not a contravention of the oral employment contract

entered into at time he was hired. We, therefore, grant Air Products’

motion for summary judgment on Count I of the plaintiff’s complaint.

Count III of the plaintiff's complaint is based on the doctrine of

promissory estoppel. A promise which the promisor should reasona-

bly expect to induce action or forbearance of a definite and substan-

tial character on the part of the promisee and which does induce such

action or forbearance is binding if injustice can be avoided only by en-

forcement of the promise. Murphy, et al. v. Burke, et al., 454 Pa. 391,

397, 311 A.2d 904, 908 (1973). The plaintiff has alleged several prom-

ises which he contends induced him to action of a definite and sub-

stantial character. In support of this contention the plaintiff refers to

several documents. The plaintiff contends that these documents show

that Air Products promised "early responsibility, rapid advancement,

and excellent opportunities for continued personal career growth and

development at Air Products," among other things. We find these

Statements are more promotional in nature than promissory. The

doctrine of promissory estoppel is restricted to cases where a prom-

ise is made. Fried v. Fisher, 328 Pa. 497, 196 A. 39 (1938). After re-

viewing all the documents referred to by the plaintiff, we believe that

no promises were made by Air Products to the plaintiff. We, there-

fore, grant Air Products’ motion for summary judgment with respect

to Count III of the plaintiff’s complaint.

29

iS

ae a ee eee

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 00112 Philadelphia 1987

J. 38015/87 (1 of 5 page original)

W. VICTOR MADEJ, Appellant vs.

AIR PRODUCTS & CHEMICALS, INC., Appelice

Appeal from the Order of the Court of Common Pleas

of Lehigh County, Civil at No. 84-C-160.

JUDGMENT

ON CONSIDERATION WHEREOE it is now here ordered and

adjudged by this Court that the judgment of the Court of Common

pleas of LEHIGH County be, and the same is hereby AFFIRMED.

BY THE COURT:

Signature of PROTHONOTARY

Dated: - November 5, 1987

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 00112 Philadelphia 1987

J. 38015/87 (2 of 5 page original)

W. VICTOR MADEJ, Appellant VS.

AIR PRODUCTS & CHEMICALS, INC., Appelice

Appeal from the Order of the Court of Common Pleas

of Lehigh County, Civil at No. 84-C-1960.

BEFORE: MONTEMURO, KELLY and CERCONE, JJ.

MP:) FILED Nov 5 1987

MEMORANDUM:

This is an appeal from an Order granting appellee’s motion for

summary judgment in an action grounded upon a claim of wrongful

discharge.

In 1979, allegedly as a result of enticements such as rapid ad-

vancement and excellent opportunity, appellant resigned his job in

West Virginia and relocated with his family to Allentown, Pa. to as-

sume employment with appellee, foregoing other employment possi-

30

bilities to do so. In 1982, after yearly salary increments and a promo-

tion, appellant’s employment was terminated resulting in the instant

action. !

Preliminarily we note that appellant’s complaint contains ’ four

courts stating causes of action for: (1) breach of year to year employ-

ment contract; (2) breach of an implied covenant of good faith and

fair dealing; (3) promissory estoppel, and (4) violation of public poli-

cy. However, the order granting summary judgment from which this

appeal lies refers only to counts 1 and 3. Appellee’s successful demur-

rer to the remaining counts 2 and 4, generated no appeal.' There-

fore, of four(4) issues presented to this court, which substantively

track the counts of the comp!aint, only two(2) are properly before us.

Ordinarily, an Order disinissing only some counts of a multi-count

complaint is interlocutory and unappealable. Leach v. Hough, Pa.,

507 A.2d 848 (1986). The rationale for this rule is the avoidance of

piecemeal litigation, since it is assumed that the remaining counts

may still be tried. Here the remaining counts have also been dis-

missed, albeit on different grounds, and the litigator is out of court al-

together, rendering the partial summary judgment order final and ap-

pealable. We may therefore address the issues to which the summary

judgment refers. The standard for determining whether a grant of

summary judgment is appropriate in any given case is by now a famil-

iar one, and was recently reiterated in Martin v. Capitol Cities Media,

Inc.,Pa.Super. -, , 511 A.2d 830, 834 (1986):

Summary judgment may be granted if the pleadings,

deposition, answers to interrogatories and admission

on file, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment

as a matter of law. Williams v. Pilgrim Life Insurance Co.,

306 Pa. Super. 170, 452 A.2d 269 (1982); Scheetz v.

Borough of Lansdale, 64 Pa. Cmiwlth.Ct. 24, 438 A.2d

1048 (1982). It is basic that summary judgment may be

entered only in a case that is clear and free from doubt.

Dunn v. Teti, 280 Pa. Super. 399, 421 A.2d 782 (1980);

Tom Morello Consstruction Co. v. Bridgeport Federal

Savings & Loan Association, 280 Pa. Super. 329, 421

A.2d 747 (1980).

Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 45, 489 A.2d

828, 831 (1985).

1 Although the Orders sustaining the preliminary objections and

granting the summary judgment respectively were entered on the

same day, appellant’s notice of appeal refers only to the latter.

31

ii as

The threshold inquiry in this case is the nature of appellant’s stat-

us, that is, whether his employment was at-will. Veno v. Meredith, Pa.

Super. , 515 A.2d 571 (1986). Darlington v. Gencral Electric, 350

Pa. Super. 183, 504 A.2d 306 (1986). Where the contract is of indefi-

nite duration, the presumption is that it is terminable at will. Pracc

v. Confair, 366 Pa. 538, 79 A.2d 224 (1951).

Appellant argues that the at-will presumption is overcome in his

case because the parties’ intention was that the contract was to be on

a year-to-year basis, that is of specific duration. 1n support of his con-

tention, appellant relies upon certain documents, e.g., appellec’s

Annual Report, its performance appraisal guide, and certain yearly

procedures, such as salary increases and employee reviews. Howev-

er, all of the materials cited point simply to an accounting methodol-

ogy which is neither unique to appellee, nor translatable into a status

definition for appellant. In short, it does not offer a temporal cer-

tainty to the relationship between the parties. As the trial court point-

ed out:

Where there is no language in the contract relevant to termina-

tion of an employee, ’then by implication [the employer and employ-

ee] have almost invariably supplied a term allowing either party to

terminate at will.’ [Darling] citing E.A. Farnsworth, Contracts 532

(1982). Courts are highly reluctant to make definite that which the

parties themselves failed to do.’ Darlington, supra. at , 504 A.2d at

312. Trial Court Op. at 4.

Appellant also maintains that his move from West Virginia to

Pennsylvania and its attendant inconveniences provided sufficient ad-

ditional consideration to overcome the at-will presumption citing in

support Lucackcr v. Kerson, 158 Pa. Super. 437, 45 A.2d (1946). In

Lucacker, the appellant relocated pursuant to an oral agreement

which provided that that he was to be "permanently employed." His

‘permanency’ lasted only 3 days. Herein appellant’s dismissal oc-

curred 3% years after the transfer and without the promise of perma-

nency. During this period appellant received salary increases and a

promotion. The analogy with Lucacker is therefore tenuous indeed.

The appellant herein by his relocation, and by the foreclosure of oth-

er employment possibilities available at the time of his acceptance of

appellee’s offer, has not demonstrated a “substantial” hardship be-

yond what is normally the case in professional advancement. Dar-

lington, supra; Veno, supra. In short, appellant has failed, by any of

his arguments, to overcome the at-will presumption.

Corollary to appellant’s major claim, is the argument that the trial

court usurped the fact-finding responsibility of a jury by interpreting

(adversely) appellant’s proofs of the alleged year-to-year contract.

Since this argument presumes the persuasiveness of the documents

32

in exempting appellant from the at-will rule, its reasoning is some-

what circular. Moreover, it is unsupported by of record evidence de-

serving of jury consideration. Compare Ross v. Montour Railroad

Co.,- Pa. Super.-, 516 A.2d 29 (1986).

Appellant next challenges the summary disposition of his case

based on promissory estoppel. He argues that genuine issues of ma-

terial fact exist regarding his detrimental reliance on appelice’s al-

leged promises of a “career” (read permanent) position. This simply

restates appellant's earlier claim using different documents. The

court found the particular materials here referred to as promotional

| rather than promissory in nature, and that ihe promise essential to

| promissory estoppel had not been established. We sce no reason to

disagree.

Order affirmed.

33

> Midceatcs Sieiininn. inal

(State Seal)

Supreme Court of Pennsylvania

Eastern District

June 27, 1988

iRLENE FE LACHMAN, Esq. PROTHONOTARY 468 CITY HALL

(RICK TASSOS, DEPUTY PROTHONOTARY PHILADELPHIA, PA 19107

(215 ) 560-6370

Victor Madej

5 Birch Circle a

entown, Pa 18103

RE: W. Victor Madej, Petitioner v.

Air Products and Chemicals, Inc.

No. 950 E.D. ALLOCATUR DOCKET 1987

Dear Mr. Madej :

This is to advise you that the following Order has been endorsed

on your Petition for Allowance of Appeal, filed in the above captioned

matter:

"June 22, 1988.

DENIED.

Per Curiam”.

Very truly yours,

(Signature)

Marlene F Lachman, Esquire

Prothonotary

/ma

cc: Steven A. Bergstein, Esquire

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I served a true and correct copy of

the foregoing document upon the following person(s) by depositing

same in the United States Mail, regular, first-class mail, postage pre-

paid, addressed as follows:

Honorable John E. Backenstoe

President Judge, Court of Common Pleas

Lehigh County Courthouse

Sth & Hamilton Streets

Allentown, Pa 18101

Steven A. Bergstein, Esquire

Frank, Frank, Penm & Bergstein, P.C.

931 Hanlilton Mall

P.O. Box 419

Allentown, Pa 18105

W. Victor Made;j

DATED: 31 October 1988

EEE Ne

in exempting appellant from the at-will rule, its reasoning is some-

what circular. Moreover, it is unsupported by of record evidence de-

serving of jury consideration. Compare Ross v. Montour Railroad

Co.,- Pa. Super.-, 516 A.2d 29 (1986).

Appellant next challenges the summary disposition of his case

based on promissory estoppel. He argues that genuine issues of ma-

terial fact exist regarding his detrimental reliance on appellee’s al-

leged promises of a “career” (read permanent) position. This simply

restates appellant’s earlier claim using different documents. The

court found the particular materials here referred to as promotional

rather than promissory in nature, and that the promise essentiai to

promissory estoppel had not been established. We see no reason to

disagree.

Order affirmed.

2 —_ee7Hms

(State Seal)

Supreme Court of Pennsylvania

Eastern District

June 27, 1988

.RLENE FE LACHMAN, Esq. PROTHIONOTARY 468 CITY IIALL

RICK TASSOS, DEPUTY PROTIIONOTARY PHILADELPIIIA, PA 19107

(215 ) 560-6370

Victor Madej

‘5 Bir Circle

entown, Pa 18103

RE: W. Victor Madej, Petitioner v.

Air Producis and Chemicals, Inc.

No. 950 E.D. ALLOCATUR DOCKET 1987

Dear Mr. Made}:

This is to advise you that the following Order has been endorsed

on your Petition for Allowance of Appeal, filed in the above captioned

matter:

"June 22, 1988.

DENIED.

Per Curiam”.

Very truly yours,

(Signature)

Marlene F. Lachman, Esquire

Prothonotary

/ma

cc: Steven A. Bergstein, Esquire

BEST AVAILABLE COPY

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I served a true and correct copy of

the foregoing document upon the following person(s) by depositing

same in the United States Mail, regular, first-class mail, postage pre-

paid, addressed as follows:

RNR ee

Honorable John E. Backenstoe

President Judge, Court of Common Pleas

Lehigh County Courthouse

Sth & Hamilton Streets

Allentown, Pa 18101

Steven A. Bergstein, Esquire

Frank,,Freank, Penm & Bergstein, P.C.

931 Hanlilton Mall

P.0. Box 419

Allentown, Fa-18105

PARLIN PEEL BO RRR HORE xn"

+ W. Victor Made}

DATED: 31 October 1988

a

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