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HomeMy WebLinkAbout97-5479 civilWINIFRED RUTH IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 97-5479 CIVIL MERCK-MEDCO CIVIL ACTION Defendant IN RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER~ P.J., HESS~ AND GUIDO, JJ. ORDER OF COURT AND NOW, j~t,'~ ( I '/-- , 2000, after consideration of the briefs submitted by both parties, the facts of record, and the applicable law, defendant's motion for summary judgment as to plaintiff's wrongful discharge claim is denied, and defendant's motion for summary judgment as to plaintiff's claim for negligence is granted. By the Court, John R. Fenstermacher, Esquire Mark K. Emery, Esquire 5115 East Trindle Road Mechanicsburg, PA 17055 Michael D. Pipa, Esquire 3401 North Front Street PO Box 5950 Harrisburg, PA 17110-0950 S. Leigh Jeter, Esquire Seyforth, Shaw, Fairweather & Geraldson 55 East Monroe Street Suite 4200 Chicago, IL 60603 WINIFRED RUTH IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 97-5479 CIVIL MERCK-MEDCO CIVIL ACTION Defendant IN RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER~ P.J.~ HESS~ AND GUIDO~ JJ. OPINION HOFFER, P.J.: At issue in this civil case is a motion for summary judgment made by the defendant, Merck-Medco. Defendant Merck-Medco Rx Services of Pennsylvania, LLC, is a Pennsylvania Corporation. (Complaint para. 2). Plaintiff Winifred Ruth began her employment with defendant in 1988. (Complaint para. 3). Plaintiff became a union member of both the local chapter and the AFL-CIO chapter of the Oil, Chemical and Atomic Workers International Union. (Complaint para. 4). The union is the collective bargaining unit for unionized employees of defendant. Union members are provided protection from termination without just cause, the right to union representation at the time of termination, and an appeal process to overturn an unfair termination. (Complaint paras. 26-28). In 1990, Plaintiff's supervisor, John Paine, requested plaintiff to relinquish her union status (Ruth affidavit, para. 4, Favinger affidavit). Plaintiff contends that the reason given for the request was to allow defendant to add another non- union employee to her division. (Ruth affidavit, para.4, Favinger affidavit). Plaintiff alleges that she was not provided any consideration to relinquish her union status. (Ruth affidavit, para. 6). Plaintiff alleges that she continued to be provided the exact same benefits, including salary, sick leave, and vacation days, as union employees were provided under their collective bargaining agreement. (Ex. 6, Ruth supplemental affidavit). Plaintiff worked with another employee, Darcy Messimer, in the same division. (Ruth affidavit, para. 7). According to plaintiff, the defendant was aware that Messimer had a tendency to be confrontational with other employees, exhibiting behavior such as screaming at coworkers, throwing items, and acting irrationally. (Complaint para. 10). On April 18, 1997, plaintiff was approached by her immediate supervisor, Sheldon Eisen, and was instructed to attend a meeting with Messimer. (Complaint para.9). Plaintiff alleges that Messimer became abusive towards Ruth in the meeting. (Complaint para. 11). Plaintiff returned to her cubicle and sat down at her desk. (Complaint para. 12). Plaintiff alleges that Messimer then came towards plaintiff and blocked the entrance to her cubicle, telling plaintiff that she would not move. (Complaint para. 13). Plaintiff alleges that as Messimer continued to verbally assault plaintiff, she moved toward plaintiff. (Complaint para. 14). Plaintiff alleges that she extended her right arm in self-defense when Messimer violently grabbed plaintiff's right arm, causing injury to plaintiff. 2 (Complaint para. 15). Plaintiff further alleges that Eisen, her supervisor, was in the room during the altercation and that she had asked him to call security, but he did not. (Complaint para. 16). Later that day, plaintiff was called to the office of Maura Snow, Human Resources Manager, and was fired. (Complaint, para. 17). Plaintiff was advised that she was being fired due to a physical altercation with a co-worker, and such altercation constituted "gross misconduct." (Complaint para. 20). Subsequently, Messimer was charged by the Upper Allen Police Department with, and pled guilty to, harassment. (Complaint, para. 23). Plaintiff now brings two counts against defendant; a count of wrongful discharge, and a count of negligence for failure to provide and maintain a safe work environment. Discussion Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. 3 "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial." Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). Additionally, the record must be examined in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot News, 544 Pa. 93, 93-94, 674 A.2d 1038, 1041 (1996). The Pennsylvania Supreme Court has held that a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Ertel v. Patriot-News Company, 544 Pa. 93, 93-94, 674 A.2d 1038, 1042 (1996). Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Plaintiff's first claim is that defendant wrongfully discharged her. Plaintiff alleges that she had been a union member until 1990, at which time her manager, Favinger, was directed by his superior(s) to change plaintiff's union status to make room for another employee. Plaintiff acquiesced to this request, allegedly not realizing that she was relinquishing her union status, which afforded her a certain level of job protection. The essence of plaintiff's wrongful discharge claim is that she incurred the detriment of the loss of protection afforded to union employees, making room for defendant to hire another employee, and thereby 4 provided a substantial benefit to defendant. Plaintiff alleges that as a result of this arrangement, she was not an at-will employee. Plaintiff claims loss of income and loss in value of benefits. Defendant counters that plaintiff was an at-will employee when she was fired. Defendant claims that there is no genuine issue of material fact as to whether plaintiff was an at-will employee. However, plaintiff has averred that she did not consider herself an at-will employee at the time she was fired. (Ruth depo., 204-205). Pennsylvania law presumes that all employment is at-will, and therefore, an employee may be discharged for any reason or no reason. Luteran ¥. Loral Fairchild Corp., 455 Pa. Super. 364, 370, 688 A.2d 211, 214. Except in rare instances, discharge will not be reviewed in a judicial forum. Id. The burden of overcoming the presumption and proving that one is not employed at-will rests squarely with the employee. Id. 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. Id. An employee may overcome the presumption of at-will employment by affording his employer a "substantial benefit" other than the services which the employee is hired to perform, or by undergoing a substantial hardship other than the services which he is hired to perform. Luteran, 455 Pa. Super. at 374, 688 5 ^.2d at 216. Evidence that the employee "gave up" something tends to show that additional consideration was given. Id. at 217. When additional consideration is present, courts infer that the parties intended that the contract not be terminable at will. Darlington v. General Electric, 350 Pa. Super. 183, 199, 504 ^.2d 306, 314 (1986). Or, if the parties did not actually so intend, then fairness requires that the employer, who has been given the additional consideration, cannot terminate the employment without just cause. Id, at 314- 315. Plaintiff contends that she has provided a substantial benefit to her employer that constitutes sufficient additional consideration to overcome the at- will presumption. Specifically, plaintiff avers that in acquiescing to her employer's revocation of her union status, thereby allegedly allowing the employer to hire an additional employee, she gave up a benefit and subsequently underwent hardship. The question before us is whether the plaintiff has provided "evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." In other words, has plaintiff provided any evidence of whether permitting her employer to revoke her union status is a substantial benefit that may overcome the presumption of at-will employment? Upon examination of the record, we find that plaintiff has provided such evidence. Plaintiff has testified that she was a member of the Union. (Ruth affidavit, para. 3). Plaintiff has also testified that union members are provided 6 protection from termination without just cause, the right to union representation at the time of termination, and an appeal process to overturn an unfair termination. (Plaintiff's Exhibit 2, portions of Collective Bargaining Agreements). Plaintiff has also offered evidence that defendant requested that she relinquish her union status so that defendant could hire an additional employee. (Ruth affidavit, para. 4). Based upon the record, we find that the evidence presented by plaintiff requires the issue of whether plaintiff gave additional consideration to her employer to be submitted to a jury. Keeping in mind that "it is a question' of fact whether, in a given case, an employee has given additional consideration sufficient to rebut the at-will presumption," Scullion v. EMECO Industries, Inc., 398 Pa. Super. 294, 298, 580 A.2d 1356, 1358 (1990), app. denied, 527 Pa. 625, 592 A.2d 45 (1991), this court is not in a position to grant summary judgment on the factual issue of whether plaintiff gave her employer a substantial benefit sufficient to overcome the at-will presumption. As the court in Scullion aptly stated, "the question of the intent of contracting parties is generally a jury question." Id. Plaintiff's second claim is that defendant was negligent in failing to provide and maintain a safe work environment. Plaintiff charges that defendant knew, or reasonably should have known, of Messimer's propensity to act violently, and should have taken steps to protect employees from Messimer. Plaintiff alleges that due to defendant's failure to take such steps, plaintiff suffered physical 7 injuries at the hands of Messimer, as well as damages incurred as a result of plaintiff's discharge. Where a plaintiff can prove that the employer knew, or in the exercise of ordinary care, should have known of the necessity for exercising control of the employee, an employer may be held liable. See Hutchison v. Luddy, 1999 WL 1062862, at *5 (Pa. Nov. 24, 1999). To prevail on her negligence claim, plaintiff must establish that: (1) Messimer had a propensity for violent behavior; (2) defendant knew or should have known of Messimer's propensity to behave violently; and (3) defendant did nothing to prevent plaintiff from suffering harm as a result of this propensity. Costa v. Roxborough Memorial Hospital, 708 A.2d 490, 496 (Pa. Super. Ct. 1998); Heller v. Patwil Homes, Inc., 713 A.2d 105, 107-08 (Pa. Super. Ct. 1998); Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968). However, we find that plaintiff can establish none of these elements. In the case of Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968), the plaintiff claimed that he was severely injured by one of the employer's security guards and that the company should have known of the security guard's propensity for violence because the employee had been seen pushing drunken persons out of a bus terminal, banging his night stick on walls and doors of the terminal, grabbing and pushing terminal employees in "horseplay," jabbing a porter in the back with his night stick, striking the feet of persons sleeping in the terminal, and pushing persons out of the terminal by 8 pushing them in the back with his stick. Dempsey, 246 A.2d at 422-23. Despite this evidence, the Pennsylvania Supreme Court affirmed the dismissal of the plaintiff's complaint and entered judgment in favor of his employer. The court held that "while [the employee's] conduct was inexcusable and his tactics toward ... his fellow employees left much to be desired, such conduct did not show a propensity ... which was vicious or dangerous and which indicated that he intended to inflict injury upon others." Id., at 423. Plaintiff has not produced any evidence that Messimer had a propensity for violent behavior. Although plaintiff claims that Messimer exhibited "erratic and confrontational" behavior, plaintiff has adduced no evidence of physical violence against others by Messimer prior to the April 18, 1997, incident. Plaintiff alleges that Messimer "was known to engage co-workers by getting directly face-to-face with them while yelling," and that defendant knew of this tendency. Plaintiff also claims that defendant failed to protect her when Eisen ordered the security officers to leave the area. However, the behavior exhibited by Messimer does not rise to the level of conduct that would put defendant on notice that Messimer had the propensity to cause physical harm to other employees. Only in cases where the employer knew, or should have known, that the employee had a propensity for the behavior in question may the employer be held liable. Hutchison v. Luddy, 1999 WL 1062862, at *5 (Pa. Nov. 24, 1999). Additionally, the fact that defendant immediately terminated both Messimer and plaintiff for engaging in a physical altercation at work tends to prove that 9 defendant acted to protect its employees from violence. For the above reasons, defendant's motion for summary judgment as to plaintiff's claim of negligence is granted.