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HomeMy WebLinkAbout99-00471 ~.< ;~ B~ 1><'" ~~' ~ Jl~iI!~&l ~.,', .~'Jg.; O'~O'" O"'tJ ~'tJ~, ,lOl ~,.."",,~ " '.,~'J" .'~ ..."..~ ,.,'~.. '"t;:"';E-i . ,"'.0, ,,' , ," tJ ZI>< . ,'ei. >. (,- c: too: .- I.,; C\'~. 1I,J,f_"'~ (:<) ;," - f':': (1... '..,., CI( r2,i' lC) I-t:- C'. r:.!, , u. r.t .. ... I , (" ci (, , r ; <C) . ~ . "''''' ~~ 0= ;1:"., C1l ..-/ ~"" ~ '" ~ a h{ ~ P 2 G '" ;) 'J1 ~ vi '/i ::- '" Jf ("~ . tJ Z .., ~, "oj ~ I;; '"'0 , w ~ ~ f: ~ z " ,~ ~.~ ~ Iii i ~ I i .~ ~ ~ ,~ .~,S . 4' . '" ,[::l t:I o C1l H'tl '" <= III lOl"" o III '. 0 ~ :> ~ '~ e", '~ H :s ~ o tJ '-l '" '" en c.::.:' ~K' \, ~J,,;, ..', -+-. ',,~. 10. Plaintiff considered passing the GMc truck along the berm, but the benn was too narrow, and an overpass lay ahead, I!. Plaintiff, initially traveling at approximately 64 miles per hour in a maximum speed limit zone of 65 miles per hour, then immediately applied the brakes and skidded approximately 180 feet. 12, Despite the reasonableness of Plaintiffs actions, including his attempts to prevent accident, Plaintiffs tractor-trailer struck the GMC truck from the rear. 13, Following the collision, Plaintiff was able to exit Defendant's tractor-trailer without assistance, and the driver and passenger of the GMC truck, not visibly injured, were able to exit their truck without assistance. 14, A few minutes after the collision, a state police trooper from the Bowmansville State' Police barracks, Trooper Robert Willianls, arrived at the scene and asked both the driver and passenger of the GMC truck if they were injured, and both responded that they were fine. 15. After investigating the accident, Trooper Robert Williams deemed the accident "non- reportable" and decided that the incident did not the warrant the issuance of citations. A copy of 4 Dcparuncnt DISTRIBlJrlON CENTER Pagc J. of 1 POLICY NO, TITLE 101 Lurnper Policy &. Practiccs 102 Distribution Ccntcr Security Driver/Operator Incident Policy 104 Vendor Purchase of Unusablc Pallets 105 Uniform Program (Distribution Center) 106 Dairy Receiving Proccdure *107 Trailer Seal Procedure *108 Drug Testing 109 Safety Shoe Program *110 Store Rcturn Control Sheet III Pre-Employment Drug Testing 10: * = Policies that must be filcd in store manuals, HRICP.IOO Giant Food Storcs. Inc, Corporatc Poliey and Proccdurc Manual Table of Contcnts Date Aoril I. 1997 EFFECTIVE DATE 12/01/88 10/01/81 04/01/97 12/15/88 06/01/91 04/03/89 12/01/88 09/01/92 02/05/92 04/1 0/92 05/08/94 \ ille Original Effective Dale Policy No. Driver/Operator Incident Policy 01/03/83 Revision Effective Date 04/01/97 103 Page 2 of 4 POLICY/METHODOLOGY: (cont'd) Note: Since there may be incidents that arc non-preventable, but do not fall under tlle non-prevencable definition, Distribution Center management will make the decision as to whethcr an aceidcnt was noo- prevcntablc. \_/ g. Prcventable accidcnt - one in which the drivcr/opcrator failed to do evcrything reasonable to prevcnt an accident, bascd on adhering to applicablc laws and defensive driving tcchniques. This also includes performing proper pre-trip inspections to detect equipment degradation that if detected could have prevented an accident. J2. Non-chargeable and non-oreventable accidents, Associates involved in non-chargeable and non-prcventable accidents are not subject to disciplinary action, Howcver, all accidcnts must bc discussed and documented with the appropriatc supervisor and Dircctor of Distribution. Accident reports and reports of occupational injury will be fillcd out when circumstanccs warrant. v3. Chargeable and orevcntablc accidents. Disciplinary action up to and including termination will be a consideration for all chargeable accidents. Each accidcnt must be handled on a casc-bv-case basis, \\ith the seriousncss and circumstan~cs of the accident being the major consideration, Separation' will bc considcred for seriOus preventablc, , accidents resulting in bodily injury, death, major propcrty damage, or negligcnce, which includes violation of compllJ.,' policies. Steps for corrcctive action arc as follows (documentation for each occurrcncc will remain on filc pennanently): va Minor accidents: A minor accident is any accident resulting in minor damage to vehicles, company property and/or cquipment, \,...,/~ First accident - a counscling discussion and a Constructive Advice Report filed in the associate's pcrsonnel file, Ncwly hircd associatcs under probation may be tcnninated if circumstances so warrant. . Second accident (,,;thin a 24 month period of last accident) - counseling discussion with a Constructivc Advice Rcport filed, and threc day suspension from work without pay, . Third accident (\\ithin a 24 month pcriod oflast accident) - samc as second accident, cxccpt 5 days suspension from work without pay. . Fourth accident ("ithin a 24 month period of last accidcnt) - termination of employment. Vb, Serious accidents: Giant management ,,;11 detennine whethcr an accident is to be deemed as minor or serious on a case-bv-casc basis.'" Howcvcr, an accidcnt "ill be considcrcd serious if it rcsults in serious bodily injury, dcath, majo; property damagc or negligence, which includcs violation of company policies. Tcrmination \\ill be the major consideration for all serious accidents. PLII03 i I I ! I ,i I ! j 'itle Ori~inal Effective Dale Policy No. Driver/Operator Incident Policy 01/03/83 Revision Effective Date 04/01/9i 103 I'anc 3 of 4 POLlCY/METHODOLOGY: (cont'd) . First serious accident - Newly hircd associates undcr the probational)' period \\ill be tenninated. Nonnally:my associate involved in a serious accident \\ill be terminated. However, Gi:mt m:magement \\ill determine if mitigating circumstances warrant that :m associate \\ill continue employment with Gi:mt. If it is deemed an associate can continue tenure with Gi:mt :md there is a position available for which the associate is qualified, the associate may apply for the open position, Giant m:magement will determine what driving privileges, if any, will be allowed, . Secund serious accident - Mandatory tennination. 4. Traffic citations, Any traffic citation given to an associate while operating a company vehicle \\ill be handled at management's discretion using the follO\ving as a guideline, All citations must be viewed \vith concern, but the circumstances surrounding the issuing of a citation may be classified as minor or serious and to what degree the driver had control over the incident. For example, if a driver is cited for driving overweight or if the registration has expired, this citation may not be counted against the associate's record. Management will make a detennination on whether a dri\'er should be held responsible for a citation as defined under this policy, General guidelines to distinguish between a minor :md serious offense are as follows: a, Some examples of minor citations: Not having your license with you while driving, and failure to nOli!}' state of address change, b, Some examples of serious citations (which are generally moving violations, but not limited only to moving violations): failure to obey traffic device, driving through red signal, exceeding the posted speed limit. unsafe lane changing, reckJessdriving, follO\ving vehicle too closely. c. Minor citations \vill be handled on a case-by-case basis, but the minimum action taken for minor citations \\ill be the submission of a Constructive Advice Report, d. Serious citations \\ill be handled as follows: . First offense (within 12 months): Constructive Advice and 3 day suspension, . Second offense (within 12 months of previous citation): Constructive advice and a 5 day suspension. . Third offense (\\ithin 12 months of previous citation): Te~tion at management's discretion. 5, Unsafe drivinl!!irresponsible driving. Ifa report is received by management from a credible source regarding a driver operating a company vehicle in an unsafe or irresponsible manner, management will conduct an investigation to determine what action should be taken, Ifit is believed the report has merit, the Director of Distribution will decide 01: the appropriate response; at a minimum., a Constructive Advice Report \\ill be submitted. However, if deemed serious credible reports can be handled in the same manner as citations in paragraph 4 (above), PLII03 J.E TERRY ASSOCIATES, INC. Pennsylvania Independent Multi-Line Adjusters 1'.0, Box 219 333 E. Luneaster Ave. Suite 202 \Vynnewood.PA 19096 New Jersey !-Iome Offiee March 13, 1998 (610) 649,5134 Delaware 1.800.243.7238 Fax: (6tO) 649.5664 ,Reference: D/L: Our file: Ernest Morris vs, Giant Foods 1-15-98 98-1-246-83 Dear Mr, McKnight: ASSIGNMENT: This report serves to acknowledge our receipt of this assignment to investigate the accident of 1-15-98 on the Pennsylvania Turnpike involving Giant Foods' driver, Ernest Morris. ACCIDENT FACTS: On the date of Thursday, 1-15-98 at approximately 7:30 A.M" Mr, Ernest Morris was traveling alone and driving a Giant Foods tractor-trailer westbound on the Pennsylvania Turnpike near milemarker 288.1. The truck was carrying only wooden pallets and bales of cardboard, no groceries, The weather was clear, with no precipitation evident, Mr, Morris was traveling in the right of the two lanes of travel. In this area there are concrete barriers separating the eastbound from the westbound lanes, and a shoulder on the right side--wide enough for a parked vehicle. There are no exit ramps nor pull-off parking areas in the vicinity where this accident occurred, According to theon-board computer on Mr. Morris's truck, he was traveling no more than 64 miles per hour prior to this accident, The accident occurred just past the Bowmansville State Police barracks, The milemarker 288.1 is located about 50 feet west of the Panorama Road bridge overpass to the Turnpike, lJ' '"':1.1 IF'!., ~28l. ~ YEARS i? ~ ,'~ ~Mt:.. SERW,\'G TIlt: /S'>USTR)' A 1990 GMC truck with a hydraulic lift in the back was also in the right lane ahead of Mr. Morris. This truck had one driver and one passenger and had no hazard lights nor brake lights on prior to this accident, Upon spotting this vehicle ahead of him, Mr, Morris applied his brakes and skidded approximately -2- 180 feet, striking milemarker 288,1 overpass, the GMC truck in the rear approximately at just west of the Panorama Road bridge Mr, Morris was able to exit his truck on his own. The driver and passenger were not visibly injured and were able to exit their vehicle on their own, A state police trooper from the Bownamsville State Police barracks arrived at the scene within a few minutes and spoke with all individuals involved. The officer who responded to the scene was Trooper Robert Williams, Badge #6222, Trooper Williams did not write up any citations for any of those involved. He also deemed the accident as non-reportable in that no ambulance was required and no towing was required directly from the scene. Both vehicles were driven further down the turnpike and stopped at a resting area, where information was exchanged, The trooper asked the other driver and passenger if they were O.K, Both responded that they were fine, An EMT responded to the scene soon after and also asked Mr, Morris and the other two individuals if they were O.K. Both the driver and the passenger of the other vehicle refused to sign a paper stating that they refused treatment. Therefore, an ambulance was called and both were taken to the closest hospital. In the meantime, Mr, Morris awaited a tow truck to transport his damaged truck, (The truck's radiator was damaged in that it was punctured by the hydraulic lift located on the back of the claimant vehicle.) while Mr. Morris was waiting, the other driver and passenger came back to their car and drove away without any assistance, A tow truck arrived soon afterwards and towed Mr, Morris's truck from the scene, SCENE INVESTIGATION: Enclosed please find several scene photographs of the accident area at Milemarker 288,1 on the Pennsylvania Turnpike near the Bowmansville State Police barracks. As a vehicle travels west on the Turnpike, there is a slight curve after the Panoram~ Bridge Road overpass, Prior to and after the bridge, the road is basically straight and level. There is a concrete barrier separating the west from the east bound lanes of traffic on the Turnpike, On the right there is a shoulder area with enough room for a vehicle to be parked, and it is possible that a vehicle could have pulled from this area prior to a truck approaching the bridge area, The maximum speed limit on the Turnpike in this area is 65 miles per hour, The minimum speed limit in this area is 40 miles per hour. -3- CLAIMANT INFORMATION: The driver of the claimant J. Nankn of the Bronx, New had one identified male accident, vehicle was identified as Bhoowan York, date of birth 11-20-63, He passenger at the time of this The vehicle Mr. Nankn was driving was a 1990 GMC 4000 truck with a hydraulic lift, The truck is used to haul chickens and had empty crates on board at the time, New York license plate 7S732AJ. Mr, Nankn's insurance was identified as All City Insurance, with policy #2120155030. There was approximately $5,000 to $6,000 worth of damage caused to the claimant's truck. Both claimants were taken to Hershey Medical Center, reporting minor injuries, Initially they told both Mr. Morris and the police officer that they were O,K. After an EMT responded to the scene, they said they would need to be taken to a hospital. NON-PREVENTABLE DETERMINATION: Mr, Morris has claimed that he made every effort to prevent this accident from occurring, He was traveling at a safe speed of 64 miles per hour, in the right hand lane, under normal weather conditions, He has been an experienced truck driver for the past fifteen years, driving an lS-wheeler for the past 12 years, During that time he has found to be at fault for no accidents and has received no traffic violations while driving a truck, He has driven for Giant Foods for the past two years and has a clean driving record, Furthermore, Mr. Morris has nothing to gain by getting into this accident and only everything to lose. It was viewed at the accident scene immediately following the accident that there were skidmarks of approximately lS0 feet leading to the impact area, Many of these skidmarks were found to be located near or O~ the center lines of the roadway, suggesting that Mr, Morris made an attempt to move to his left but another vehicle was already in the process of passing him, It was also determined earlier that roughly 51,4 feet of skidmarks could be made per second at Mr, Morris's speed of 64 miles per hour, However, if the brakes were applied causing ISO feet of skidmarks, Mr, Morris's speed would have dropped, Because the speed would have dropped, the amount of time before impact would have been considerably longer than the 1 to 2 seconds he was said to have only taken avoidance action before impact. ?2 C") ~ ~c z F; (f. ::)<1" UJtc;. c>=: Qt~) ::c u;ii: H-:T~ ...: 0> "J-- -;-,5= g,-: " 'D :~t:f4 f' u'l:::: ~_..1 <t;... 'fiz ~L1.! t::l ;,t, ill u.. :C lLl iDa. t-- ..... ~f~ u. m :::::> Cl a' U '. >- C") r.:: ~ t-' a, z LLlQ 3~ C)~ u::"'< :r.; ()~ ~~, od ... 0>' --.,.~ c;: ~ ::s~ Wf.l. '---' lCd5 u::~ CO W ,U ClJo.. u.. 2 U- en 0 :::l '" 0 99-471 CIVIL 456 Pa. 171, 175,319 A.2d 174, 176 (1974). See also Brozovich v. Dugo, 651 A.2d 641, 643 (Pa. Cmwlth. 1994). The presumption of at-will employment may be rebutted if ''the employee provided additional consideration apart from the detriments commensurate with those incurred by all manner of salaried professionals." Brozovich at 643. "The employer's privilege to dismiss an employee with or without cause is not absolute, however, and may be qualified by the dictates of public policy." Shick v. Shirey. 552 Pa. 590, 595, 716 A.2d 1231, 1233 (1998). Public policy is set by a virtual unanimity of opinion in the community and establishes a policy for what is just and right related to public health, safety, morals, and welfare, Shick at 600, 716 A.2d at 1235-36 (citations omitted). Pennsylvania courts have recognized the following examples of public policy trumping the presumption of at-will employment: (1) a cause of action in wrongful discharge existed because public policy was violated where employee terminated for filing for unemployment compensation, a statutory right'; (2) a violation of public policy occurred where employment was conditioned upon taking a polygraph test even though Pennsylvania law expressly prohibits such a condition on 1 Hiahhouse v. Averv Transport, 443 Pa, Super. 120,660 A,2d 1374 (1995). 4 99-471 CIVIL employment2; (3) public policy was violated where employee denied employment based upon a conviction that had been pardoned despite the fact that such action was impermissible under the Pennsylvania Constitution3; and (4) employee had a cause of action for wrongful discharge because employment terminated for serving jury duty, a violation of public policy because of the existence of the statutory requirement to serve jury duty4. In the case at bar, plaintiff is not able to overcome the presumption that his employment with defendant was at-will. Nothing has been pled claiming that plaintiff provided any additional consideration to defendant beyond that which ordinary employees provide. Therefore, defendant's privilege to terminate plaintiff for any or no reason remained intact. Plaintiff does not claim that his firing was in violation of public policy. Plaintiff's complaint alleges that he was wrongfully discharged because defendant incorrectly characterized the January 15, 1998 accident and, therefore, failed to follow the provisions set out in Policy 103, Although Policy 103 clearly states that employees are not subject to discipline for non-chargeable and non-preventable 2 Kroen v. Bedwav Sec. Aoenev, Ine" 430 Pa. Super, 83, 633 A.2d 628 (1993). 3 Hunter v, Port Authoritv. 277 Pa. Super. 4, 419 A,2d 631 (1980). 4 Reuther v. Fowler & Williams, Ine" 235 Pa. Super. 28, 386 A.2d 119 (1978). 5 99-471 CIVIL accidents, the discretion to determine whether an accident is non-chargeable is left solely in the hands of defendant's Distribution Center management. Under Policy 103, characterizing an accident as chargeable or not is a decision left to the police or the Distribution Center management. Plaintiff claims that defendant's investigation of the accident was not thorough enough, in light of the trooper's characterization of the accident as non- reportable, to allow defendant to terminate plaintiff's employment. As discussed above, plaintiff's employment with defendant was at-will and the provisions of Policy 103 did not alter the fact that defendant maintained the right to terminate plaintiff, its at-will employee, for any or no reason. Plaintiff cannot overcome the presumption of at-will employment. No violation of public policy occurred when plaintiff was terminated from his job. Accordingly, plaintiff has failed to state a cause of action for wrongful discharge upon which relief can be granted. Therefore, defendant's Preliminary Objection, in the form of a demurrer to count one of plaintiff's complaint, is granted. Breach of Contract Plaintiff further alleges that the termination of his employment was carried out by defendant in breach of an employment contract between the parties that was created by Policy 103. Plaintiff argues that Policy 103 transformed his 6 99-471 CIVIL employment from at-will into a contractual relationship, to be terminated only upon violations of defendant's stated employment policies. As stated above, employment in Pennsylvania is presumed to be at-will, absent a statutory or contractual provision to the contrary. Gearv v. U.S. Steel, 456 Pa. 171,319 A.2d 174 (1974). In order to rebut the presumption of at-will employment, a party must establish one of the following: (1) an agreement for a definite duration; (2) an agreement specifying that the employee will be discharged for just cause only; (3) sufficient additional consideration; or (4) an applicable recognized public policy exception. Luteran v. Loral Fairchild Coro., 455 Pa. Super. 364, 370, 688 A.2d 211, 214 (1997). Plaintiff, in the case at bar, has not pointed to an agreement for a definite duration, additional consideration, or a violation of public policy as evidence to rebut the presumption of at-will employment. Plaintiff relies solely on Policy 103 to claim that defendant could not terminate his employment absent just cause, as defined in Policy 103. Plaintiff claims that the handbook, in which Policy 103 is found, created a binding contract between the parties, even though it was issued unilaterally by defendant. The policy also allowed defendant to unilaterally change any or all provisions of the policy. Furthermore, the policy does not include an express provision stating that employees may only be terminated for just cause. 7 99-471 CIVIL A handbook is enforceable against an employer if a reasonable person in the employee's position would interpret its provisions as evidencing the emploYElr's intent to supplant the at-will rule and be bound legally by its representations in the handbook. The handbook must contain a clear indication that the employer intended to overcome the at-will presumption. We have held that it is for the court to interpret the handbook to discern whether it contains evidence of the employer's intention to be bound legally. Luteran at 371,688 A.2d at 214-15 (citations omitted). Plaintiff cannot overcome the presumption of at-will employment. Policy 103 includes no clear indication of defendant's intent to create a contractual relationShip with plaintiff and supplant the at-will rule. Policy 103 merely reflects defendant's company policy of promoting the reporting of accidents and presents proposed methods for dealing with accidents and subsequent discipline.5 Defendant issued the policy and maintained the right to unilaterally change its provisions. Nothing has been pled and no evidence can be pointed to that supports plaintiff's allegation that he can be terminated only for just cause. Plaintiff has failed to state a cause of action for breach of contract. Therefore, defendant's demurrer to count two of 5 Even if a binding contract was formed, defendant followed the provisions of Policy 103 when it conducted an investigation and used its permissible discretion to determine that plaintiff's employment was to be terminated. 8