McLaughlin v. Gastrointestinal Specialists, Inc.

NIGRO, Justice,

dissenting.

I respectfully dissent, as I believe that there is sufficient basis for Appellant’s wrongful discharge claim to proceed.

I disagree with the majority position that no public policy of the Commonwealth is violated when an employee is discharged for lodging safety complaints to his or her employer. The majority states that this Court declares the public policy of the Commonwealth by looking to Pennsylvania precedent, constitution and statutes. Yet, the majority overlooks the existence of Pennsylvania law which precisely prohibits the conduct that Appellee engaged in. The Pennsylvania Health and Safety Act, 43 P.S. §§ 25-1 et seq., specifically provides that: “All establishments shall be so constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection for the life, limb, health, safety, and morals of all persons employed therein.” 43 P.S. § 25-2(a). Particularly relevant to the case sub judice, section 25 — 2(e) states:

All toxic and noxious dusts, fumes, vapors, gases, fibers, fogs mists or other atmospheric impurities, created in connection with any manufacturing process, emitted into or disseminated throughout areas where persons are employed in such quantities as, in the opinion of the [Department of Labor and Industry], would injure the health of employes or create other dangerous conditions, shall be removed at the point of origin, or where this is impractical, personal protective devices shall be provided and worn by persons subjected to such hazards.

43 P.S. § 25-2(e). The Commonwealth’s public policy providing for safe work environments for its citizens could not be more clearly stated.

The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, 660(c) (“OSHA”), states in its declaration of purpose and policy:

(b) The Congress declares it to be its purpose and policy ... to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions.

29 U.S.C. § 651(b)(1). Moreover, the regulations supplementing OSHA specifically provide that “discharge of, or discrimination against, an employee because the employee has filed any complaint * * * under or related to this Act * * * is prohibited by section 11(c).” 29 C.F.R. § 1977.9(a). Plainly, the underlying policies of both the Pennsylvania Health and Safety Act and OSHA are to promote safe working environments for employees.

The Commonwealth’s public policy dictating safe work environments for employees as provided for in the Pennsylvania Health and Safety Act, together with the stated purposes of OSHA and the policy stated in the regulations supplementing OSHA, provide a sufficient basis for Appellant’s allegation of a public policy violation.¹ For these reasons, I respectfully dissent.

Justice-ZAPPALA joins in this dissenting opinion.

1 . Though Appellant broadly phrased her claim of a public policy violation, I find that it was sufficient to survive the preliminary objection stage of the litigation.