Michael A Smyth v The Pillsbury Company C A NO 95 5712 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA January 18 1996 Decided January 23 1996 FILED For MICHAEL A SMYTH PLAINTIFF HYMAN LOVITZ SIDNEY L GOLD LOVITZ GOLD P C PHILA PA For THE PILLSBURY COMPANY DEFENDANT STEVEN R WALL MORGAN LEWIS BOCKIUS PHILA PA MEMORANDUM OPINION AND ORDER WEINER J JANUARY 18 1996 In this diversity action plaintiff an at will employee claims he was wrongfully discharged from his position as a regional operations manager by the defendant Presently before the court is the motion of the defendant to dismiss pursuant to Rule 12 b 6 of the Federal Rules of Civil Procedure For the reasons which follow the motion is granted A claim may be dismissed under Fed R Civ P 12 b 6 only if the plaintiff can prove no set of facts in support of the claim that would entitle him to relief ALA Inc v CCAIR Inc 29 F 3d 855 859 3d Cir 1994 The reviewing court must consider only those facts alleged in the Complaint and accept all of the allegations as true Id Applying this standard we find that plaintiff has failed to state a claim upon which relief can be granted Defendant maintained an electronic mail communication system e mail in order to promote internal corporate communications between its employees Complaint at P 8 Defendant repeatedly assured its employees including plaintiff that all e mail communications would remain confidential and privileged Complaint at P 9 Defendant further assured its employees including plaintiff that e mail communications could not be intercepted and used by defendant against its employees as grounds for termination or reprimand Complaint at P 10 In October 1994 plaintiff received certain e mail communications from his supervisor over defendant s e mail system on his computer at home Complaint at P 11 In reliance on defendant s assurances regarding defendant s e mail system plaintiff responded and exchanged e mails with his supervisor Id At some later date contrary to the assurances of confidentiality made by defendant defendant acting through its agents servants and employees intercepted plaintiffs private e mail messages made in October 1994 Complaint at P 12 On January 17 1995 defendant notified plaintiff that it was terminating his employment effective February 1 1995 for transmitting what it deemed to be inappropriate and unprofessional comments FN1 over defendant s e mail system in October 1994 Complaint at PP 13 14 As a general rule Pennsylvania law does not provide a common law cause of action for the wrongful discharge of an at will employee such as plaintiff Borse v Piece Goods Shop Inc 963 F 2d 611 614 3d Cir 1992 Paul v Lankenau Hospital 524 Pa 90 93 569 A 2d 346 348 1990 Geary v United States Steel Corp 456 Pa 171 319 A 2d 174 1974 Pennsylvania is an employment at will jurisdiction and an employer may discharge an employee with or without cause at pleasure unless restrained by some contract Henry v Pittsburgh Lake Erie Railroad Co 139 Pa 289 297 21 A 157 157 1891 See also Johnson v Resources for Human Development Inc 843 F Supp 974 979 E D Pa 1994 Brown v Hammond 810 F Supp 644 645 E D Pa 1993 An employer s right to terminate an at will employee is virtually absolute Yetter v Ward Trucking Corp 401 Pa Super 467 585 A 2d 1022 1991 However in the most limited of circumstances exceptions have been recognized where discharge of an at will employee threatens or violates a clear mandate of public policy Borse 963 F 2d at 614 Clay v Advanced Computer Applications 522 Pa 86 88 559 A 2d 917 918 1989 If discharge of at will employee threatens clear mandates of public policy there is a cause of action against the employer Geary supra A clear mandate of public policy must be of a type that strikes at the heart of a citizen s social right duties and responsibilities Novosel v Nationwide Insurance Co 721 F 2d 894 899 3d Cir 1983 This recognized public policy exception is an especially narrow one Burkholder v Hutchinson 403 Pa Super 498 589 A 2d 721 724 1991 To date the Pennsylvania Superior Court has only recognized three such exceptions First an employee may not be fired for serving on jury duty Reuther v Fowler Williams Inc 255 Pa Super 28 386 A 2d 119 1978 The Reuther court cited the Pennsylvania constitution as well as the Pennsylvania statutes in concluding that the necessity of having citizens freely available for jury service is just the sort of recognized facet of public policy alluded to by our Supreme Court in Geary 386 A 2d at 121 Second an employer may not deny employment to a person with a prior conviction Hunter v Port Authority of Allegheny County 277 Pa Super 4 419 A 2d 631 1980 The Hunter court relied on federal court decisions as well as Pennsylvania statutes and Pennsylvania court decisions before concluding that the defendant violated the Pennsylvania constitution and the deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders 419 A 2d at 636 n 5 And finally an employee may not be fired for reporting violations of federal regulations to the Nuclear Regulatory Commission Field v Philadelphia Electric Company 388 Pa Super 400 565 A 2d 1170 1180 1989 That court held that the alleged discharge was against public policy because federal law required the employee to report violations and he was an expert in the area and there was no evidence that he bypassed any internal chain of command 565 A 2d at 1180 As evidenced above a public policy exception must be clearly defined See also McGonagle v Union Fidelity Corp 383 Pa Super 223 556 A 2d 878 885 1989 appeal denied 525 Pa 584 575 A 2d 114 1990 Unless an employee identifies a specific expression of public policy violated by his discharge it will not be labelled as wrongful and within the sphere of public policy The sources of public policy can be found in legislation administrative rules regulation or decision and judicial decisions Absent legislation the judiciary must define the cause of action in case by case determinations Borse 963 F 2d at 619 n 6 3d Cir 1992 quoting Cisco v United Parcel Services Inc 328 Pa Super 300 306 476 A 2d 1340 1343 1984 Krajsa v Keypunch Inc 424 Pa Super 230 622 A 2d 355 358 1993 see also Smith v Calgon Carbon Corp 917 F 2d 1338 1344 3d Cir 1990 cert denied 499 U S 966 113 L Ed 2d 660 111 S Ct 1597 1991 A clear mandate of public policy is embodied in a constitutionally or legislatively
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