Seamon, P. v. Acker, E. ( 2015 )

J-S60032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PETER ROBERT SEAMON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ELMER KENNETH ACKER AND PATRICK J.
MCLAINE, ACKER ASSOCIATES INC.
Appellee No. 149 MDA 2014
Appeal from the Order Entered December 18, 2013
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 94-CV-4378
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 27, 2015
Appellant Peter Robert Seamon (“Employee”) appeals pro se from the
order entered in the Lackawanna County Court of Common Pleas which
granted summary judgment in favor of Appellees Elmer Kenneth Acker,
Patrick J. McLaine, and Acker Associates Inc. (“Employers”). For the reasons
that follow, we reverse the trial court’s order and remand for further
proceedings.
The relevant facts and procedural history of this appeal are as follows.
On August 19, 1992, Employee slipped and fell while in the course of his
employment with Employers. On September 16, 1992, after Employee
presented Employers with an MRI bill, Employers fired Employee. Employers
claimed they fired Employee due to his failure to comply with company
policy, including properly reporting accidents in the workplace. Although
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Employee did not officially file a Workers’ Compensation 1 claim until
November 9, 1992, he requested Employers to file a Workers’ Compensation
claim sometime before Employers’ response to this request on September
16, 1992. See Employers’ letter, dated September 16, 1992. Employee’s
request for Workers’ Compensation was granted.
On October 18, 1994, Employee filed a civil action against Employers
for wrongful discharge. On November 9, 1994, Employers filed preliminary
objections, which the court sustained on January 27, 1995. On January 31,
1995, Employee filed an amended complaint. On February 28, 1995,
Employers filed an answer and new matter to the amended complaint.
Employee filed an answer to the new matter on March 31, 1995, and filed
discovery motions on February 27, 1997, March 2, 1999, and August 9,
1999.
The Workers’ Compensation Appeal Board adds some relevant
procedural history:
On April 1, 2002, [Employers2] filed a petition for physical
examination or expert interview of Employee – Section 314
____________________________________________
1
The Pennsylvania legislature enacted the Workmen’s Compensation Act in
1915 to apply to work-related injuries in the Commonwealth. In 1993, the
legislature amended the Act to read “The Workers’ Compensation Act.” 77
P.S. § 1. For clarity, we will reference “Workers’ Compensation” throughout
this Memorandum.
2
Only Employer Acker Associates was listed as part of the proceedings
before the Workers’ Compensation Appeal Board.
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(Physical Exam Petition) alleging that it scheduled an
examination with Scott A. Krasner, M.D. and on March 21,
2002, [Employee] refused or failed to appear.[3] The
[Workers’ Compensation Judge (“WCJ”)] found that
[Employee] filed a penalty petition alleging that
[Employers were] deliberately sending his compensation
checks to an incorrect address. On April 23, 2002,
[Employee] filed a penalty petition alleging that
[Employers] submitted fraudulent evidence regarding his
average weekly wage. [Employee] also filed a modification
petition alleging fraud. On September 28, 2005,
[Employers] filed a physical exam petition alleging that
[Employee] did not appear for an examination on March
21, 2002 and requesting the WCJ order [Employee] to
attend an examination with a doctor to be named. On
October 14, 2005, [Employers] filed another physical exam
petition with similar allegations.
On November 7, 2005, the WCJ circulated a decision and
order granting [Employers’] petition and denying
[Employee’s] petitions. The WCJ concluded that because
[Employers’] last examination of [Employee] was more
than six months ago, it was entitled to an examination.
The WCJ indicated that [Employers] had recently filed a
suspension petition which would be scheduled for hearing
to determine if [Employee] failed to appear for an
examination, and if [Employee] failed to appear for the
examination or hearing, his benefits would be suspended.
[Employee] appealed.
On October 13, 2005, prior to the issuance of the
November 7, 2005 decision and order, [Employers] had
filed a suspension petition alleging that [Employee]
refused to attend an independent medical examination
([“IME”]) ordered by the WCJ in 2001.
Workers’ Compensation Appeal Board Opinion, filed September 1, 2010, at
1-2.
____________________________________________
3
Employee moved to Arizona in 1994.
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On December 23, 2005, the WCJ granted Employers’ petition for
suspension of benefits. After remanding the case to the WCJ for further
fact-finding and determining Employee did not attend the IME, the Workers’
Compensation Appeal Board affirmed the decision of the WCJ on September
1, 2010. See id. at 3-14.
In early 2011, Employee initiated further discovery requests in the
wrongful discharge action. On April 1, 2011, Employers filed a petition for
judgment of non-pros in that action based on Employee’s inaction over
several years. Employee answered the petition on April 25, 2011. On May
19, 2011, when Employee failed to appear in court, the court granted
Employers’ petition for non-pros. On June 2, 2011, Employee filed a motion
to vacate the order and appealed to the Commonwealth Court, claiming he
was not given notice of the hearing.
On July 2, 2012, the Commonwealth Court quashed Employee’s appeal
and remanded it to the trial court to determine whether Employee was given
proper notice of the hearing.4
____________________________________________
4
In its opinion, the Commonwealth Court noted that “the trial court, not
[the Commonwealth Court], is the proper forum to determine, factually,
whether [Employee’s] assertion that he did not receive notice of the May 19,
2011 hearing is true.” Commonwealth Court Opinion, filed March 14, 2012,
at 8-9. In a footnote, the Commonwealth Court proceeds to add, “if, on
remand, the trial court denies [Employee’s] petition to strike and [Employee]
takes an appeal therefrom, said appeal should be filed with the Superior
Court pursuant to Section 742 of the Judicial Code, 42 Pa.C.S. § 742.” Id.
at 9, n. 6.
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On April 9, 2013, Employers filed a praecipe for a hearing on the issue
of notice and an alternative motion for summary judgment, which is the
subject of this appeal. On December 18, 2013, the trial court granted
summary judgment to Employers. The court found no issues of material fact
and determined that Employee failed to “identify a claim for wrongful
termination.” Trial Court Order Granting Summary Judgment, filed
December 18, 2013, at 7.
On January 21, 2014, Employee filed a notice of appeal.5 The trial
court did not order Employee to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Employee did
not file one. On November 24, 2014, this Court ordered the trial court to file
an opinion pursuant to Pa.R.A.P. 1925(a) within 30 days. On January 2,
2015, the trial court submitted its December 18, 2013 order and opinion
granting Employers’ summary judgment motion in lieu of drafting a separate
Rule 1925(a) opinion.6
____________________________________________
5
Although the filing date of Employee’s notice of appeal is facially untimely,
Employee claims the court erred by not filing it upon receipt. The notice of
appeal was dated and post marked on January 15, 2014; thus we consider it
timely. See Maxton v. Philadelphia Hous. Auth., 454 A.2d 618, 620
(1982) (noting courts have power to extend statutory appeal time when
presented with fraud or some breakdown in the court’s operation); See also
Jackson ex rel. Sanders v. Hendrick, 746 A.2d 574, 577 (2000) (“equity
enjoys flexibility to correct court errors that would produce unfair results.”).
6
Because the certified record was incomplete, this Court directed the trial
court to compile a certified record pursuant to Pa.R.A.P. 1921, or copies of
the record agreed upon by both parties pursuant to Pa.R.A.P. 1924 and
(Footnote Continued Next Page)
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Employee raises the following issues for our review:
I. WHETHER IT IS CLEAR THAT THE [TRIAL COURT]
HAS MISAPPREHENDED AND/OR MISINTERPRETED
THE EVIDENCE UPON WHICH IT BASED ITS OPINION
AND ORDER, AND REACHED CONCLUSIONS
CONTRADICTED BY, OR UNSUPPORTED BY ANY
COMPETENT EVIDENCE IN THE RECORD?
II. WHETHER IT IS CLEAR THAT THE COURT BELOW
HAS MISAPPLIED OR MISINTERPRETED THE LAW,
OR COMMITTED ERRORS OF LAW IN REACHING ITS
DECISION, AND VIOLATED [EMPLOYEE’S] DUE
PROCESS RIGHTS AS SPECIFICALLY DOCUMENTED
IN [EMPLOYEE’S] REQUESTING DETERMINATION OF
FINALITY AND RECONSIDERATION AND
CLARIFICATION BY THE COURT TO AMEND OR
CORRECT THE INCOMPLETE DECEMBER 18, 2013
OPINION AND ORDER OF SENIOR JUDGE RICHARD
SAXTON, W/EXHIBITS?
III. WHETHER THE GRIEVOUS MISHANDLING OF
[EMPLOYEE’S] FILINGS AND THE DOCKET FILING OF
RECORD AS DOCUMENTED IN [EMPLOYEE’S]
OBJECTIONS FILED WITH THE SUPERIOR COURT
ILLUSTRATE THE NECESSITY FOR THIS COURT TO
DETERMINE WHETHER THE CASE IS SO EGREGIOUS
AS TO JUSTIFY PREROGATIVE APPELLATE
CORRECTION OF THE EXERCISE OF DISCRETION BY
THE LOWER TRIBUNAL?
IV. WHETHER [EMPLOYEE’S] DUE PROCESS RIGHTS
HAVE BEEN VIOLATED, WHERE EXAMINATION OF
THE EVIDENCE CITED BY THE COURT PLAINLY
REVEALS THAT THE COURT HAS ACTED
EGREGIOUSLY, AND WHETHER THE COURT HAS
FAILED TO CONDUCT ANY MEANINGFUL REVIEW OF
_______________________
(Footnote Continued)
Pa.R.A.P. 1923. The trial court proceeded to compile, certify and submit a
supplemental record, pursuant to Pa.R.A.P. 1926(b)(1).
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[EMPLOYEE’S] ANSWER, BRIEFS, PLEADINGS AND
EVIDENCE?
V. WHETHER [EMPLOYEE’S] DUE PROCESS HAS BEEN
VIOLATED WHERE ALL OF [EMPLOYEE’S] PLEADINGS
BEFORE THE COURT BELOW WERE MISHANDLED
AND DISMISSED WITHOUT ANY HEARINGS,
TELECONFERENCE, BRIEFS OR OPPORTUNITY FOR
[EMPLOYEE] TO BE HEARD, OR TO MAKE A RECORD,
AND THUS RENDERS IMPOSSIBLE TO DISCERN
LEGAL BASIS OR REASONING FROM THE [TRIAL
COURT]?
VI. WHETHER THE SIGNATURES ON THE FOUR ORDERS
ENTERED IN THE [TRIAL COURT], WHETHER IN INK
OR BY PHOTOCOPY[,] REFLECT TWO OR MORE
UNAUTHORIZED SIGNATORIES?
VII. WHETHER A DISMISSAL OF MOTION FOR SUMMARY
JUDGMENT MAY BE UPHELD AS VALID WHERE
LEGITIMATE DISCOVERY EFFORTS ARE NOT
PERMITTED TO BE COMPLETED, AND MORE
EGREGIOUS, DISMISSED WITHOUT DUE PROCESS?
Employee’s Brief at 1-2.
Although Employee purports to raise seven issues in his pro se
appellate brief, we need only address one issue, as it is dispositive: this
Court must determine whether the trial court abused its discretion in finding
no issues of material fact as to whether Employee’s termination was a
retaliatory discharge.
Employee argues that Employers terminated him in retaliation for filing
a Workers’ Compensation claim. Employers, however, claim that they
properly terminated his employment for failure to comply with work
procedures. Specifically, Employers allege in their brief that Employee “was
fired for continuing not to follow the company dictated rules about having his
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supervisor sign his notice of injury, as he had done in the past.” Employers’
Brief at 7. Employers contend that the “undisputed and incontrovertible”
fact that the Workers’ Compensation claim was not filed until November 9,
1992, after Employee had already been fired, precludes the possibility that
Employee’s termination of employment was retaliation for a Workers’
Compensation claim. Employee, however, directs us to two letters from
Employers to Employee, both dated September 16, 1992. The first letter
reads:
Dear Peter,
After review of your handwritten note, which I received on
my desk today and consulting our lawyer and insurance
company, I will submit your claim to Workman
Compensation for their review.[7] I will notify them
that you did not report your injury to your supervisor or
have any written documentation of your injury till six (6)
days later when you attached a note to the back of your
time sheet, unsigned by a supervisor and not dated. I will
tell them that in the past two (2) times of your reporting
an injury, you had a supervisor sign your reports both
times ((5-5-92) and (6-13-91).
Sincerely,
Peggy McLaine
The second letter reads:
Dear Peter,
____________________________________________
7
Emphasis added.
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This is notification of your termination from Acker
Associates at the end of this business day (September 16,
1992), due to your numerous violations of office
procedures and your lack of proper work attitude.
We will notify the Pennsylvania Higher Education
Assistance Agency that you are no longer employed by us,
and they will have to make other arrangements to garnish
your pay.[8]
Both letters are in the supplemental record, attached to Employee’s
“Brief and Statement of Facts in Opposition to [Employers’] Motion for
Summary Judgment.” We now determine whether the trial court erred in
granting summary judgment in favor of Employers.
“Our scope of review of a trial court’s order granting or denying
summary judgment is plenary[.]” Vazquez v. CHS Professional Practice,
P.C., 39 A.3d 395, 397 (Pa.Super.2012) (quoting Krapf v. St. Luke's
Hospital, 4 A.3d 642, 649 (Pa.Super.2010)). “[W]e apply the same
standard as the trial court, reviewing all the evidence of record to determine
whether there exists a genuine issue of material fact.” Harber Philadelphia
Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1103
(Pa.Super.2000), appeal denied, 782 A.2d 546 (Pa.2001). “We view the
record 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. Only where there is no genuine issue as to any material
____________________________________________
8
Although this letter is not signed, Peggy McLaine admits to writing it.
Unemployment Compensation Hearing, October 29, 1992, at 6.
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fact and it is clear that the moving party is entitled to a judgment as a
matter of law will summary judgment be entered.” Caro v. Glah, 867 A.2d
531, 533 (Pa.Super.2004) (citing Pappas v. Asbel, 768 A.2d 1089, 1095
(Pa.2001), cert. denied, 536 U.S. 938, 122 S. Ct. 2618, 153 L. Ed. 2d 802
(2002)). Further:
Summary judgment is proper “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.” Pa.R.C.P. 1035.2. Thus, a record that supports
summary judgment will either (1) show the material facts
are undisputed or (2) contain insufficient evidence of facts
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury.
[Grandelli v. Methodist Hosp., 777 A.2d 1138, 1143
(Pa.Super.2001)]. (citing Pa.R.C.P. 1035.2 Note). “Upon
appellate review, we are not bound by the trial court's
conclusions of law, but may reach our own conclusions.”
Grandelli, supra at 1144. The appellate Court may
disturb the trial court’s order only upon an error of law or
an abuse of discretion. Caro, supra.
Nat'l Cas. Co. v. Kinney, 90 A.3d 747, 752-53 (Pa.Super.2014).
Generally, in Pennsylvania, there is no common law cause of action
against an employer for termination of an at-will employment relationship.
Krajsa v. Keypunch, Inc., 622 A.2d 355, 358 (Pa.Super.1993) (“an at will
employee may be terminated for good reason, bad reason, or no reason at
all”). An exception to this general rule may exist where the termination of
the at-will employment “threaten[s] the clear mandates of public policy.”
Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 175 (Pa.Super.1996)
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(internal citations omitted). Public policy exceptions to the at-will
employment doctrine, however, have been permitted in very limited
circumstances. Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511,
515 (Pa.2005). We observe:
To state a public policy exception to the at-will-
employment doctrine, the employee must point to a clear
public policy articulated in the constitution, in legislation,
an administrative regulation, or a judicial decision.
Jacques v. Akzo International Salt, Inc., 619 A.2d 748
([Pa.Super.]1993). Furthermore, the stated mandate of
public policy, as articulated in the constitution, statute, or
judicial decision, must be applicable directly to the
employee and the employee’s actions. It is not sufficient
that the employer’s actions toward the employee are
unfair. Reese v. Tom Hesser Chevrolet-BMW, 413
Pa.Super. 168, 604 A.2d 1072 (1992) (fact that employer
required employee, as condition of continued employment,
to reimburse it for losses attributable to action of
employee may have been unfair but did not violate law;
therefore, employee failed to state public policy exception
to doctrine of at-will employment); Darlington v.
General Electric, 504 A.2d 306 ([Pa.Super.1986) (no
public policy exception to at-will employment doctrine
found even though employee was discharged unfairly in
that he was not afforded the opportunity to defend himself
against allegations of accounting irregularities).
Hunger, supra. at 175-76.
Pennsylvania recognizes a cause of action for retaliatory discharge for
filing a Workers’ Compensation claim as a public policy exception to the at-
will employment doctrine. Shick v. Shirey, 716 A.2d 1231, 1237-38
(Pa.1998) (some internal citations omitted). In Shick v. Shirey, our
Supreme Court held that “a cause of action exists under Pennsylvania law
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for wrongful discharge of an employee who files a claim for workers’
compensation benefits.” Id. at 38. The Court explained:
[The] historical balance would be disrupted if the employer
could terminate an employee for filing a workers’
compensation claim. As the Supreme Court of Indiana
stated in its decision in Frampton v. Central Indiana
Gas Company, 260 Ind. 249, 297 N.E.2d 425 (1973),
which recognized a cause of action for retaliatory discharge
for filing such claims:
The [Indiana Workmen’s Compensation] Act creates
a duty in the employer to compensate employees for
work-related injuries (through insurance) and a right
in the employee to receive such compensation. But
in order for the goals of the Act to be realized and for
public policy to be effectuated, the employee must
be able to exercise his right in an unfettered fashion
without being subject to reprisal. If employers are
permitted to penalize employees for filing workmen’s
compensation claims, a most important public policy
will be undermined. The fear of being discharged
would have a deleterious effect on the exercise of a
statutory right. Employees will not file claims for
justly deserved compensation-opting, instead, to
continue their employment without incident. The
end result, of course, is that the employer is
effectively relieved of his obligation.
[Frampton, supra.] at 427. This analysis applies as well
to Pennsylvania’s Workers’ Compensation Act.
Shick, supra. At 1237-38.
In the instant case, Employers’ motion for summary judgment alleged
Employee “failed to set forth a legally cognizable cause of action for wrongful
discharge.” Employers’ Motion for Summary Judgment at 3. Indeed,
Employee would not have a cause of action against Employers for his
termination from at-will employment unless it was a violation of public
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policy, such as retaliation for filing a Workers’ Compensation claim.
Although Employers contend that the “undisputed and incontrovertible” fact
that the Workers’ Compensation claim was not filed until after Employee had
already been fired precludes the possibility that Employee’s termination of
employment was a retaliation in violation of public policy, a fact finder could
conclude from the timing of Employee’s termination on the same date as he
placed them on notice of his intent to file a Workers’ Compensation claim,
that the firing was indeed retaliatory and a violation of public policy. See
Shick, supra. Therefore, viewing the evidence in the light most favorable
to Employee, as we must under our proper standard of review, Employers’
contention regarding their reason for termination is not “undisputed and
incontrovertible.” Thus, the cause for Employee’s termination presents an
issue of material fact. For this reason we find that the trial court erred in
granting summary judgment.9 See Harber, supra.; Caro, supra.
____________________________________________
9
Based on this determination, we need not address Employee’s remaining
claims.
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Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.10
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2015
____________________________________________
10
In light of our disposition, Employee’s various motions pertaining to the
record are dismissed as moot.
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