*1 Individually Jeffrey Mary Clay, as and CLAY and Wife, Appellants, Husband
v. APPLICATIONS, INC., Bjorn J. ADVANCED COMPUTER Gruenwald, Individually Advanced as President Baus, Inc., Appellees. Applications, Computer and Richard Pennsylvania. Superior Court Argued Sept. 1987. 28, 1988.
Filed Jan. Act, appellant seq., 42 Pa.C.S. 6301 et we must observe that has provide transcript dispositional hearing. us failed 462, 466, Williams, Commonwealth See: A.2d *4 Rockafellow, Lee Morrisville, D. for appellants. Monte, Jr.,
Alfred J. Doylestown, for Advanced Comput- er, appellees. Magee, Baus,
Dianne C. Doylestown, for appellee. CAVANAUGH, CIRILLO, Judge, and President Before TAMILIA, SOLE, MONTEMURO, BROSKY, DEL JOHNSON, JJ. KELLY, and POPOVICH MONTEMURO,Judge: Clay, challenge and Jeffrey Clay Mary
Appellants, Gruen- against appellees, Bjorn claims J. of their dismissal and reverse part Baus. We affirm and Richard wald of Common Pleas. County the order of the Bucks Court part damages wrong- for The filed this action to recover implied employment of an contract discharge, ful breach infliction of emotional distress. their intentional and had terminat- they alleged Bjorn Gruenwald complaint, Applications, employment Computer their with Advanced ed the sexual had rebuffed solely Mary Clay Inc. because Baus, management-level employee. of Richard a advances (1) Comput- defendants Advanced complaint
The named as Gruenwald, presi- and as er; (2) individually J. both Bjorn (3) Richard Baus. On Computer, dent of Advanced Ad- representing an both September attorney 20, 1985, Computer preliminary and Mr. Gruenwald filed ob- vanced The Clays’ complaint. preliminary objections to the jections a “motion to strike J. Gruenwald as an Bjorn contained 1 Both the “mo- individual defendant” and a “demurrer.” the “demurrer” on the same two tion to strike” and rested acted as an theories. The first was that Mr. Gruenwald had individual, in Advanced not as an dis- agent Computer, none of the charging Clays. The second was that allegations in the sufficient to state cause were objections challenged preliminary motion that 1. The also contained a jurisdiction personal of the trial court over Mr. Baus. The reasons mystery. attorney for motion remain a who filed it had this appearance Computer entered an and Mr. Gruenwald Advanced attorney acting only. was "on The motion itself indicated that the Computer Bjorn Application, J. Gruen- behalf of Advanced Inc. Moreover, 3, 1985, attorney separate wald.” on October entered an appearance particularly for Mr. Baus. We find the motion odd the dismissal of Mr. Baus as a in this case would because co-defendant only sabotaged Computer the defense of Advanced and Mr. have Gruenwald. *5 against of action Mr. if Gruenwald even he had acted as an individual. 4, 1985,
On October an attorney representing Mr. Baus also filed preliminary objections complaint. to the These contained five objections “petition “demurrers” and a rais- ing question personal of lack of jurisdiction.” “peti- challenged tion” the method by which the sheriff served Mr. process against Baus. The “demurrers” in sum de- allegations clared that in the Clays’ complaint were insufficient to state a of against cause action Mr. Baus for either wrongful discharge, breach of contract or intentional infliction of emotional distress. The trial court decided these preliminary objections together with those filed for attorney Computer Advanced and Mr. Gruenwald. 7, 1986, In an order dated April the court referred to the various preliminary objections collectively as “motions to dismiss.” The order simply granted the “motions” without subsequent however, elaboration. opinion, the court grounds First, offered three for its action. the court rea- soned that it subject jurisdiction lacked matter any over of the wrongful discharge claims Pennsylvania because the seq., 43 P.S. 951 et Act, Human Relations and Title VII of § seq., et Rights the Civil Act of 2000e U.S.C. provide the remedy grievances exclusive for arising from Second, sexual discrimination in workplace. the court concluded that the had failed in their complaint to state a cause of action for breach contract. The conclu- applied sion to apparently both Mr. Baus and Mr. Gruen- wald, although only Mr. Baus specifically challenged the sufficiency of the allegation. breach contract The order granted both “motions to dismiss” distinguishing without Moreover, between the two. parties arguments in their appeal on have assumed that the trial court meant dismiss the against contract claim Mr. Gruenwald as well as against Third, the one Mr. Baus. the court also concluded that the Clays had failed to state a cause action intentional infliction of emotional Again, ap- distress. this parently applied to both Mr. Gruenwald and Mr. Baus alike.2 *6 appeal, Clays following
On raise issues: err in dismissing wrongful 1. Did the trial court for of discharge subject jurisdic- claims want matter raised parties subject tion when none of the matter as jurisdiction ground dismissal?
2. Do either the Human Pennsylvania Relations Act or Rights
Title VII Civil Act of 1964 bar common wrongful discharge tort actions for law cases that alleged discriminating? arise from sex initiative, 3. Did the trial court act on its own rather on the preliminary objections actually than raised by parties, when it dismissed the breach contract and intentional infliction emotional distress claims Mr. against Gruenwald and Mr. Baus?
4. Did the trial court err in concluding Clays in their complaint
failed to state causes of action against Mr. Mr. Gruenwald and Baus for breach of contract and infliction intentional of emotional dis- 3 tress? address these We will issues order. Clays
The contend that the trial court could sponte sua raise lack of subject jurisdiction matter as a ground disagree. for dismissal. A necessarily We court agency theory 2. The trial court did not address the that Mr. Gruen- preliminary objections. wald offered in his Nor did it address Mr. allegations concerning process. Baus’ service of Clays actually questions 3. list seven issues “statement of brief, "argument” involved" section of their brief. The however, section of their only part. Pennsylvania Appellate consists of one Rule of 2119(a) requires appellant argu- Procedure to divide his or her many parts questions argued.” ment “into as as there are to be This is only appellants not the rule that counsel for the in this case has ignored. Appellants’ 124(a)(4), Brief also fails to conform to Pa.R.A.P. 2118, 2111(a)(5), 2116(a), 2119(c) 2172(a)(4). We should not lightly flagrant disregard countenance such of our rules. This court quash appeal can or dismiss an if defects in the brief are “substantial.” Although See Clays’ Pa.R.A.P. 2101. the numerous defects in the brief impeded appeal, justice have review of this the interests of judicial economy weigh against summary dismissal. A review of the us, however, "argument" section of the brief convinces that the issues, have raised four not seven. 504
has the
to determine on its own
authority
initiative whether
See Hanik v.
controversy.
it has
to decide a
jurisdiction
352,
Pennsylvania Power
Pa.Super.
308
We nonetheless that neither with seq., et Act, Human Relations 43 951 Pennsylvania P.S. § 1964, Rights nor Title VII of the Civil Act of U.S.C. 2000e, deprives the trial court of jurisdiction over discharge Clays’ wrongful Clays causes of action. had sought wrongful discharge against each relief for each of complaint the three defendants. Their offered three theo- First, in support ries of these claims. maintained discharge that their “violated” the of this “public policy” Second, charged that the defendants they Commonwealth. Third, acted “malice.” indicated they the defend- “implied good ants an covenant of faith and fair breached dealing.”4 Although the trial court in its mentioned opinion Pennsylvania recognized 4. courts have a cause of action in tort for (1) wrongful discharge discharge in two kinds of cases: when the (2) clearly "public policy" some articulable contravenes when the by discharge specific employee. was motivated intent to harm the 171, Geary Corp., See v. United States Steel A.2d 174 319 (1974); Gillespie Joseph’s University, Pa.Super. v. St. 355 513 A.2d (1986); Tourville v. Inter-Ocean Ins. (1986); Manor, Inc., McCartney A.2d 1263 v. Meadowview 353 Pa.Su- Electric, per. Darlington v. General it “good dealing” specifically, appears faith and fair only “statutory any concluded that remedies” exclude “tort have wrongful discharge, regardless action” for of the cause In concluding, so the trial court has underlying theory. the Human Relations Act and Title VII of the misconstrued Rights Act. Civil provides 962 of the Human Relations Act
Section part as follows:
(b) (c), Except provided nothing as con- subsection repeal supersede tained in this act shall be deemed to or provisions existing of the or hereafter any any adopted ordinance, municipal charter or of municipal any law this to discrimination relating Commonwealth because of race, color, creed, sex, religious ancestry, age, national origin handicap or or as to acts disability, but declared section procedure unlawful five of this act the herein shall, provided invoked, when and the be exclusive final action, civil, any determination therein shall exclude other criminal, grievance complain- or based on the same of the ant concerned. complainant such institutes ac- any If tion based on such grievance resorting without to the act, procedure provided subsequent- in this he may herein____ ly procedure resort to the (c) discrimination, involving cases a claim of a if act, invokes the procedures set this forth right individual’s in the courts action (1) Commonwealth shall not If be foreclosed. within one *8 year Commission, after the filing complaint of a with the the Commission dismisses the or has not en- tered into a conciliation the agreement complain- to which 183, (1986). yet recognize, The courts have to however, "implied a cause of action in tort for breach of an covenant good dealing.” “implied suggests of faith and fair The term covenant” theory support that the would better a cause of action on contract. fact, phrase “good dealing" the faith and fair derives from the Restate- (Second) (1981) ment of Contracts 205 and Section 1-203 of the § Code, Uniform Commercial 13 Pa.C.S.A. 1203. Nonetheless both Clays appear the and the trial court to have treated this “breach" as a theory support wrongful discharge claim. We offer no opinion wrongful discharge here the on merits of the claims because the trial court never reached the issue. 506 com- notify so the must party,
ant
the Commission
is
complainant
a notice the
receipt of such
On
plainant.
in the courts of common
bring an action
to
shall be able
to freedom
right
on the
based
pleas of
Commonwealth
this act.
granted by
from discrimination
(b)
added).
962(b)
(c)
Subsection
(emphasis
43 P.S. §
aggrieved party an elec-
affords the
plainly
provision
this
pursue
to
relief
opt
The
can
either
party
of remedies.
tion
or
pursue
Relations Act
to
whatever
the Human
under
available,
actions.
including “civil”
See
are
other avenues
Inc.,
137,
Pa.
409 A.2d
487
Transportation
v. Central
Fye
Darby Twp.,
v. School District
Daly
or her
elects his
party
Once
252 A.2d
su-
Fye,
becomes exclusive. See
path
the chosen
remedy,
Assembly
judicial
did not intend
bar
The General
pra.
sought
It
workplace.
in the
for discrimination
remedies
allowing
person
undesirability
“the
rather to address
relief.”
different actions for
to commence several
aggrieved
4.5
962 therefore
Id.,
140, 409 A.2d at
Section
487 Pa. at
an administrative
from
both
pursuing
prevented
not,
It did
present
in the
case.
remedy
judicial
and a
to choose at the outset be-
however,
right
foreclose their
Relations Commission.
courts or the Human
tween the
Assem
Moreover,
(c), which the General
subsection
afford
rights
expands
added to Section
bly
of discrim
(b).
alleged
victim
It allows
byed
subsection
he or she has
though
relief even
judicial
ination to seek
If the
her
remedies.
to invoke his or
administrative
elected
the Human
relief from
has
obtained
aggrieved party
he or she can then
year,
within one
Relations Commission
Avenue,
F.2d 221
upon
court relied
Wolk v. Saks
5. The trial
Fifth
law, however,
(3rd Cir.1984).
interpretation of state
A federal court’s
Sims,
S.Ct.
v.
442 U.S.
this court. See Moore
does not bind
2371,
(“state
(1979)
principal expositors
are the
courts
507 action, “in of the Commonwealth.” the courts pursue an Commission, v. Human Relations Baker See (1985). suggestion to the Despite appellees’ (c) right not condition the does contrary, subsection filing of a upon in all discrimination cases relief judicial Human Relations Commission. with the complain- to those only its own terms applies by provision avenue and have have elected the administrative ants who reading other of Section would Any not relief. obtained language of the Act. The plain us to distort require not the trial deprive Relations Act therefore does Human wrongful discharge Clays’ over the jurisdiction court actions. litigants is exclusive to under holding
In that relief in Act, part previous overrule our deci- necessarily we Manufacturing Kensington Householder v. sion Householder, (1987).6 A.2d 461 ground on the that her sought damages to recover appellant of a against physi- had discriminated her because employer A the trial court’s panel upheld of this court disability. cal preempted Act tort ac- finding that the Human Relations on discrimination. As wrongful discharge tions for based clear, the trial court erred our decision herein makes deciding jurisdiction. not to exercise Act thwart Rights
Nor does Title VII of the Civil in this case. The United States jurisdiction exercise ago a decade Supreme Court established over “[d]es design comprehensive and its as a pite range Title VII’s discriminating em problem for the of invidious solution deprived is not ployment, aggrieved clearly individual limited to Title VII possesses remedies he and is not other Express Railway Johnson v. in his search relief.” Inc., Agency, 1716, 1719, 454, 459, 421 U.S. 95 S.Ct. Johnson Our research indicates L.Ed.2d proposition if Human also stands for the that even 6. Householder remedy, Pennsylvania Act does not afford the exclusive Relations wrongful discharge recognize do not a cause of action for Courts handicap on discrimination. based *10 continues to reflect the Title law under VII. None of the cases cited the by trial court indicate otherwise.
Although the court refused to exercise jurisdiction over the causes of action in tort for wrongful discharge, it addressed the breach of contract and intentional infliction of emotional distress claims on their merits. The court in effect sustained a demurrer favor of Mr. Gruenwald and Mr. Baus on both claims. In their appeal, brief on Clays suggest that the court acted initiative, on its own in response rather than to the preliminary objections actual- ly parties. filed We disagree.
A court certainly cannot sustain a demurrer in
party
favor of a
that has not demurred. See Luitweiler v.
530,
Corp.,
(1974).
Northchester
456 Pa.
We
that Pa.R.C.P.
requires
parties “to state specifically
grounds
relied
upon”
any preliminary objection and
Mr.
Gruenwald and Mr.
Baus were far from
specific
this case. Use of boilerplate
allegations defeats the primary purpose
pleading
under
simply challenges
7. A
sufficiency
demurrer
to
Burd,
against
demurring
state a cause
party.
of action
See Sinn v.
On the
agree
we
with the court that the
Clays failed to state causes of action against Mr. Gruen-
wald and Mr. Baus for breach of contract and intentional
infliction of emotional
In reviewing
complaint,
distress.
regarded
we have
all well-pleaded facts as true and have
given the
Clays
benefit of all favorable inferences that
fairly
we would
deduce from these facts.
Mazzagatti
See
266,
v.
512
Everingham,
(1986);
Pa.
In support claim, of their breach of contract Clays alleged Computer Advanced them hired “on a regular full time purpose basis for the of long-term employ ment and career The Clays allege advancement.” also they “accepted positions offered” and “ceased ... look ing for gainful other employment” in upon reliance “oral
510 statements of the Defendant corporation.” More specifical- ly, they claimed that several months after they began working for Advanced Computer they informed Mr. Gruen- plan wald of their to purchase a new home. Mr. Gruen- wald, according to the Clays, only encouraged the purchase represented but that “there were no problems job security.” Clays insist that these facts are sufficient to “implied show an in fact” employment con- They tract. apparently believe that this “contract” over- comes the presumption of at-will employment. We dis- agree.
Pennsylvania
long
courts have
recognized the rule that an
employer may discharge his or her employees at any time
any
reason,
or no
absent
or
statutory
contractual
provision to the contrary. See Geary v. United States
171,
Corp.,
Steel
(1974);
Nevertheless, as any law, hoary principle of at-will rule has spawned judicial exceptions. The dis- charged employee can now seek relief through an action in tort wrongful for discharge. A discharge is “wrongful”
511
or
public policy
clearly-articulable
a
transgresses
it
when
See
employee.
to harm the
intends
employer
when
Tourville v.
Corp., supra;
Steel
v. United States
Geary
supra.
wrongful
Ins.
In
to the
addition
Inter-Ocean
can,
defeat
action,
always,
as
employee
discharge
contract
that he or she
establishing
presumption
at-will
at will.
other
one terminable
than
employment
for an
ed
recognized that
increasingly have
states
in our sister
Courts
employ
as
arise from such sources
can
kind of contract
this
Woolley v.
e.g.,
See
ee handbooks.
Hoffman-LaRoche
v. McGraw-
Weiner
Inc., 99 N.J.
1257
284, 491 A.2d
Inc., 458, 443 N.E.2d
Hill
457 457 N.Y.S.2d
N.Y.2d
Corp., supra,
Matthews Int’l
Banas v.
See also
(1982).
(Beck,
502-03,
J.
502 A.2d at
Ct. at
Pa.Superior
court, however,
re
has
dissenting).
This
concurring and
of
contractual modification
recognize
to
refused
peatedly
parties’
expression
a clear
rule absent
the at-will
Meredith,
Capital
v.
supra;
v.
Martin
intent. See Veno
Electric,
Media, Inc.,
v. General
supra; Darlington
Cities
supra.
employ
to
unique
is not
at-will
clarity
The need
must
to enforce a contract
A
who wishes
party
ment cases.
clarity
specifically,
element of that contract
plead every
alleged contract
is oral.
when the
particularly important
is
Snaith,
v.
450,
In April, appellant purchased when and his wife home, Meredith, employer, co-signed his Mr. both the disclosure statement and demand note in the sum of $5,400.00. Appellant further testified that Mr. Meredith him, said to both the same age, going “We’re we’re both together, making now, to retire we’re not a lot but we’ll make it later on. I want you your raise children here. I go want them to to the school. I want to retire Moreover, together.” appellant turned job down other opportunities throughout his employment including one from his former offer employer he made known to —an Mr. Meredith.
Veno,
100,
supra,
Pa.Superior
Ct. at
515 A.2d
579.
at
concluded
We
that the statements of the employer were
“broad,” “vague”
“aspirational.”
did
They
suggest
“that
parties contemplated
a definite duration for the
employment.” Id.
Certainly
same is true of the very
similar statements that Mr. Gruenwald presumably made on
Moreover,
behalf of Advanced
in
Computer
this case.
in
Veno,
to give
we declined
contractual effect to the employ-
Id.,
ee’s refusal of “other job opportunities.”
357 Pa.Supe-
101,
rior Ct. at
515 A.2d
recognized
at 580. We
that when
an employee furnishes sufficient “additional consideration”
beyond that
parties contemplated
which the
in their employ-
ment agreement,
cannot
employer
discharge the em-
ployee without
cause.”
“just
Id. See also Lubrecht v.
393,
Laurel
Stripping
Electric,
Darlington
recog-
v. General
We also
supra.
nized, however, that this kind of “additional consideration”
must either confer a “substantial benefit” on the employer
or
employee
burden the
with a
hardship.”
“substantial
Veno,
supra,
Pa.Superior
Ct. at
The Restatement imposes Torts against liability outrageous who extreme and “[o]ne intentionally recklessly conduct or causes severe emotional provision distress to another.” This reflects the law D Pennsylvania. See ’Ambrosio v. Pennsylvania National (1981); Mut. Ins. Cas. Tien, Reimer 514 A.2d *15 Nissenbaum, Seidner, v. Rudolph Pa.Super. Jones & 377, (1976). (d) Comment under Section 46 the of conduct that crosses type describes the “extreme and threshold: outrageous” outrageous
Extreme and The conduct. cases thus far decided found liability only have where the defendant’s outrageous. conduct has been extreme and It has not enough the been that defendant has acted an intent criminal, which is tortious or or even that he has intended distress, to inflict emotional or even that his conduct has ‘malice,’ been characterized or a degree aggravation of plaintiff punitive which would entitle the to damages Liability another tort. has found only been where the character, conduct has so in outrageous been and so in degree, go beyond extreme as to all possible bounds of and to in decency, be intolerable a civilized community. the in Generally, case is one which the recitation the average facts to an community member would arouse his against actor, resentment and him lead exclaim, “Outrageous!” D
See also ’Ambrosio v. Pennsylvania National Mut. Cas. Milne, Ins. supra; Lazor v. 346 Pa.Super. A.2d 369 This standard plainly anticipates outrages far beyond indignities and that insensitivity too often taint our The daily Clays lives. have failed to allege such extreme conduct. Clays’ allegations
8. We need not support consider whether the would indicated, wrongful discharge. a claim for As we have the trial court wrongful discharge did not reach on the merits because it believed subject jurisdiction that it lacked matter over such claims. of sexual the seriousness do not underestimate We exclude the Nor do we workplace. in the harassment circumstances, sexual that, different under possibility infliction for intentional a claim support could harassment and the General Congress Both distress. of emotional discrimination that invidious recognized have Assembly agree, we Although we workplace. belong does to Mr. Gruenwald attributed find that the conduct cannot in a intolerable utterly and “atrocious Mr. Baus was community.” civilized acted however, the trial court that suggest,
The matter of law concluding as a precipitously disagree. inadequate. We were allegations in the first finder, must determine court, not the fact be reasonably can actor’s conduct instance “whether recov- permit as to outrageous as so extreme regarded 200, 514 Tien, Pa.Super. at supra 356 v. ery.” Reimer Stores, 346 Dept. v. Zayre Dawson A.2d 569. See also Milne, supra; A.2d 648 Lazor (b). (Second) Torts comment Restatement reasons, portion we reverse foregoing For *16 dismissed, subject lack of for which trial court’s order and Gruenwald against Bjorn claims the jurisdiction, matter that affirm wrongful discharge. We Baus for Richard of contract the claims for breach dismissed portion which of emotional distress. intentional infliction and part. affirmed in part in and reversed Order dissenting opinion TAMILIA, J., concurring and files J., CAVANAUGH, joins. in which TAMILIA, dissenting: Judge, concurring as, I the fully concur with separately I while write merits in an prevail cannot on the appellants majority disagree I wrongful discharge, respectfully action for Human Relations Pennsylvania the view that majority the the and Title of Civil (P.H.R.A.), seq. 43 P.S. 951 et VII Act provide do not seq. 2000e et Act U.S.C. Rights for remedy wrongful discharge the exclusive based on in place, sexual discrimination the work even when couched as a tort claim.
From appellants’ reasoning, the it is evident that the only to them has to complaint actionable available do with sexual place. harassment in the work The majority has concluded wrongful discharge that a action may pursued, despite be the categories fact that sexual discrimination is one of the Act, In by analysis covered P.H.R.A. its in a reading 962(b), literal of section majority focuses on the invoked, words “when be and the final exclusive determina- complainant such insti- ...”, sentence, tion [sic] “If tutes action based on any grievance such without [sic] resorting procedure act, to the in provided this he [sic] ” may subsequently resort to the procedure herein 962(c), invokes in ... and subsection [sic] “if procedures act, set this right individual’s forth of action in the courts of the Commonwealth shall not be foreclosed.” at Majority Slip Op. (emphasis added in so, majority Opinion). In it doing concludes the P.H.R.A. provide did not exclusivity remedy sexual discrimi- nation cases.
The majority cites to Daly v. School District Darby Twp., (1969) 434 Pa. 252 A.2d in holding that a party remedies; can choose alternative additionally, “[o]nce the party elects his or her remedy, path the chosen becomes exclusive.” Majority Slip Op. at 1380 citing Fye v. Central Inc., Transportation 409 A.2d Daly, appellant was not a party original decision by School Board to resolve a racial discrimination mat- and, therefore, ter protect her action to her constitutional rights denied an action of the Board Human Relations Commission was not “invoked” within the mean- ing (Section of section five. 5 of the Human Relations Act *17 955.) as amended is 43 P.S. § Reliance on Fye equally is dubious as that case held that once the proceeding invoked, P.H.R.A. was even when the then party withdrew the proceeding, she prohibited was in say on to dicta in It went case court. instituting a from the other did not withdraw Assembly the General that the nature depending upon might be available that remedies injury sustained. of the of invoking procedure the complainant
Prior to
remedy for
seeking any other
from
Act was barred
this
without
and this rule was
grievance,
of the asserted
redress
the
to section
of
1974 amendment
By the
exception.
in
included
Act,
exception
a narrow
was
Relations
Human
12(c)
that
the
provided
Section
exclusivity.
rule of
the
under the
invoking
procedure
complainant
of a
rights
courts,
to the
foreclosed from resort
not be
P.H.R.A. would
(1)
filing
of a
after
year
“if within
not
Commission,
complaint or has
the Commission dismisses
complain-
to which the
agreement
into a conciliation
entered
(Section 12(c) of the Human Relations
party____”
ant is a
962(c).)
is 43 P.S.
Act as amended
most
Nix
significant
I find
is that
Justice
reading
Fye, supra,
In
to
response
years experience Assembly the willing was only provide carefully two defined situations. This history provides no for a judicial finding basis of an implicit intent to the legislative extend unam- expressly biguous perimeters 12(c) the of exceptions. terms the Id., 487 409 at Pa. at A.2d 5. It that appear would the and, worst, firm Supreme Court was on at exclusivity vague- permissible as to the suits outside the P.H.R.A.
The view will proposed by majority open every the dis- charge, where may alleged, discrimination be to court re- on a wrongful discharge theory rights view for were which This by created the P.H.R.A. will undermine the stated act, purpose present litigation flood of a and deny the administrative the process legislature which is decided the most effective means to deal with a ill permeates social our many aspects of society.
I believe the court trial was correct in relying on Wolk v. (3rd Ave., Cir.1984) Saks 728 221 F.2d which held that Fifth wrongful each case of discharge based on violation public policy, .Pennsylvania courts failed to find viola of public and, tion policy therefore, cognizable common remedy, law there where existed some alternative form of (3rd Sola v. Lafayette College, F.2d 40 relief. Cir.1986), circuit, although third cognizant of Fye, su opted pra, according respect for for the administrative procedures by Pennsylvania established legislature and to recognize refused a new cause of action designed to further Pennsylvania policies. anti-discrimination In Car ney Pennsylvania Commission, Human Relation Pa.Cmwlth. (1979), A.2d 760 the Commonwealth Court held the Act did provide remedies alternative court, but that the P.H.R.A., combined was the remedy and P.H.R.A. must pursued be condi as a prerequisite tion to an accrual of a right of in the action Pennsylvania courts. In Householder v. Kensington Mfg. 360 Pa.Super. (1987), A.2d 461 Court this these precedents followed in holding that an action for of a handi- on discrimination discharge, based wrongful P.H.R.A. by barred person, was capped within the not “invoked” action was supra, In Daly, and, therefore, In this permissible. section five meaning is one permit would majority case, which the action clear, out in 955). pointed It is as (§ five section created *19 exclusivity the open intended to legislature that the Fye, to necessary avoid degree to the only of the P.H.R.A. aspect ac- several different to commence aggrieved an allowing ways a there are a number Obviously for relief. tions under the relief, including proceedings seek party may Act, and local Rights the Civil Act of Federal § It section 962.1. pursuant to ordinances Human Relations involved if the sexual harassment arguable that is even charges could assault or criminal civil touching exposure, or the P.H.R.A. exclusivity under by barred filed and be be to right is a find that while there would majority facts, discharge, under these wrongful for bring an action nor would wrongful discharge prevail, cannot for the action an action for “emotional distress”. support allegations the discrimination, form of sexual All remains is some that and, therefore, totally of the P.H.R.A. is a creation which 962(b). The hold- majority clause of exclusivity within actions for permits and alternative ing requires necessarily (and so categories), all other sexual discrimination discharge, to wrongful be long they captioned as are Pennsylvania in or before the either the courts brought propounded The exceptions Relations Commission. Human law, P.H.R.A., Act and the case in view of the my to the to the case. It must be remembered never intended this be title to the P.H.R.A. was the Fair predecessor act, curtail discrim- and its intent was to Employment Labor discharge in place. wrongful in the Since ination work contract, on and no is founded breach Pennsylvania contract, outside of is available for discrimination remedy for outside of discrimination is the basis termination where contract, the sole is under the P.H.R.A. Indeed remedy a merits, majority, on by the review of this case stand taken our courts very stringent of the view wrongful discharge cases, a proceeding would indicate un- P.H.R.A., only der is the proceeding. effective circumstances, remand, upon Under these I am at loss may as to what the trial court do other than to dismiss to a cause of action. failure state Now that appellants prevail under wrongful discharge theory, cannot their they also from precluded might are been an what have effective powers action under the P.H.R.A. The to Human given Relations Commission are enough require broad reem- ployment, payment wages other specifically back and discrimination, tailored relief to deal with when no relief be would available a civil action. The and expertise investigative powers provide superior of the Commission for ascertaining validity vehicle of the claim assur- and be done and ing justice preventing repetition wrongful by the I employer. behavior the majority believe gone has astray, Supreme unless until Court otherwise, upon issue, holds direct consideration of this we precedent should not reverse the so well established. *20 CAVANAUGH, J., joins. A.2d McLAIN,
Margaret as Executrix of the Estate of John T. McLain, Deceased, Margaret McLain, Individually, and Douglas McLain, Appellants, and CO., ARNEYTOWN TRUCKING INC. Robert J. Houghton Trucking George Cannel Co. and Shifflett, Appellees. Superior Pennsylvania. Court
Argued Oct. 1987.
Filed Feb. 1988.