J-A19021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL J. BUKOVINSKY, II IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
G4S SOLUTIONS, LISA HENNICK, AND
RAYMOND BROCK
Appellees No. 1260 WDA 2014
Appeal from the Order July 14, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 13-006228
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 14, 2015
Appellant Paul J. Bukovinsky, II appeals pro se from the order entered
in the Allegheny County Court of Common Pleas, which denied Appellant’s
motion to strike, granted G4S Solutions’, Lisa Hennick’s, and Raymond
Brock’s (“Appellees’”) preliminary objections to Appellant’s complaint, and
dismissed Appellant’s complaint with prejudice. We affirm.
The relevant facts and procedural history of this appeal are as follows.
Appellant worked for Appellees as a security officer from November 25, 2011
until September 2012. Appellees issued several notices to Appellant
regarding his poor performance, including failing to sign site visitors in and
out and watching movies and sleeping on the job. On September 24 or 28,
2012, Appellees conducted a meeting with Appellant and terminated his
J-A19021-15
employment, although Appellant claims not to have been aware of his
termination at this time.1
On December 10, 2012, the office of Unemployment Compensation
(“UC”) issued a notice of determination, finding the last day of Appellant’s
employment was September 24, 2012, and determining that he was
ineligible for benefits. The notice informed Appellant that his last day to
appeal the determination was December 26, 2012. On December 18, 2012,
Appellant filed a notice of appeal. On January 9, 2013, the UC Board of
Review conducted a hearing and issued a “Referee’s Decision/Order”
affirming the determination of the service center and denying Appellant
benefits.
On April 10, 2013, Appellant filed a complaint against Appellees for
wrongful termination, but mailed the complaint to Appellees instead of
properly having the sheriff serve it. Because they were not properly served,
Appellees did not respond to the complaint. Appellant moved for summary
judgment on September 25, 2013. The court conducted a hearing on
____________________________________________
1
The exact date of Appellant’s termination is disputed. Although not
mentioned in his complaint, in his brief Appellant contends that he informed
his supervisor about a car accident in which he was involved on September
21, 2012. He then assumed that he was on medical leave pursuant to the
Family Medical Leave Act. Appellant admits to attending a meeting on
September 28, 2012 about his poor work conduct. He alleges “Skip” was
going to call him. He claims he was not notified of his termination until
December 10, 2012, when he received an order from the unemployment
office.
-2-
J-A19021-15
February 10, 2014, which Appellees did not attend. The court granted
summary judgment in favor of Appellant as to liability but not damages.
Appellees then filed a motion to dismiss Appellant’s complaint and
preliminary objections on February 11, 2014. On March 10, 2014, Appellees
filed a motion for reconsideration of the February 10, 2014 order. The next
day, Appellees filed a notice of appeal. This Court quashed the appeal as
interlocutory. 415 WDA 2014. On May 15, 2014, the court granted
Appellees’ motion for reconsideration and vacated the February 10, 2014
order.2
On July 14, 2014, the court granted Appellees’ preliminary objections
that were filed February 11, 2014 and dismissed Appellant’s complaint with
prejudice. On August 1, 2014, Appellant filed a notice of appeal. The court
did not order, and Appellant did not file, a Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues for our review:
1. THE CASE LAW THAT WAS PRESENTED WAS FROM A
RULING FROM THE UNITED STATES SUPREME COURT AND
OTHER APPEAL COURTS WAS NOT UNHELD[?]
____________________________________________
2
In the May 15, 2014 order, the trial court specifically stated that
“[Appellees] acknowledge proper service of the complaint.” Trial Court
Order, filed May 15, 2014. Appellant should consider himself very fortunate
the court did not dismiss his complaint for improper service. Because
Appellees acknowledged proper service of the complaint on May 15, 2014,
they could have properly filed preliminary objections within 20 days of the
order, or before June 4, 2014. Thus, we consider Appellees’ preliminary
objections, filed February 11, 2014, timely.
-3-
J-A19021-15
2. AFTER A JUDGE REVIEWS A COMPLAINT FOR THE SOLE
REASON TO DECIDE IF THEY WILL GRANT AN IN FORMA
PAUPERIS PETITION AND THEY GRANT IT CAN THAT SAME
JUDGE DISMISS THE CASE FOR NOT FILING THAT SAME
COMPLAINT WITHIN THE STATUTE OF LIMITATIONS FOR
FILING THAT COMPLAINT IF THEY HAVE DECIDED THE
COMPLAINT WAS BEING FILED IN A TIMELY MANNER?
3. CAN PRELIMINARY OBJECTIONS BE FILED IN RESPONSE
TO A MOTION?3
4. ONCE THE DEFENDANTS RECEIVE A NOTICE TO
DEFEND ALONG WITH THE COMPLAINT FILED IN THE
COURT OF COMMON PLEAS DO THEY HAVE TO
RESPOND EVEN IF THEY DON’T BELIEVE A PRO SE
LITIGATE CAN FILE SUCH A COMPLAINT?
5. IF DEFENDANTS FAIL TO RESPOND TO A COMPLAINT
DO THEY HAVE THE RIGHT TO PRESENT A DEFENSE A
YEAR LATER?
6. ARE EMPLOYERS PROTECTED FROM LAWSUITS FOR
WRONGFUL TERMINATION IF THEY VIOLATE THE CIVIL
RIGHTS ACT, FAIR LABOR STANDARDS ACT, THE
WHISTLEBLOWER ACT, AND THE OSHA ACT OF 1970?
7. IS IT A 14TH AMENDMENT VIOLATION UNDER THE
EQUAL PROTECT CLAUSE FOR THE TRIAL COURT TO
TAKE AN ATTORNEY’S WORD OVER EVIDENCE
BECAUSE THEY ARE ATTORNEYS?
8. IF IT IS SHOWN THAT THE DEFENDANTS HAVE
FALSIFIED LEGAL DOCUMENTS TO A GOVERNMENT
AGENCY CAN THEY BE CREDIBLE WITNESS?
9. IS IT A 6TH AMENDMENT VIOLATION TO NOT ORDER
A DEFAULT JUDGMENT WHEN THE DEFENSE HAS NOT
UPHELD THE PENNSYLVANIA CIVIL PROCEDURES?
____________________________________________
3
Questions 4-15 are indented as if they are subsections of question 3.
-4-
J-A19021-15
10. SHOULD THE COURT TAKE INCONSIDERATION A
LITIGATES COLLEGE DEGREE THEY MAY HAVE IN LAW?
11. CAN EMPLOYERS PLEAD “AT WILL DOCTRINE” IF
THEY HAVE VIOLATED THE EMPLOYEE’S CIVIL RIGHTS?
12. CAN AN EMPLOYER TERMINATE AN EMPLOYEE TO
MAKE A SPOT FOR A FAMILY MEMBER TO TAKE THEIR
PLACE?
13. IS IT A 6TH AMENDMENT VIOLATION FOR THE
COURTS TO PROLONG PROCEEDINGS IF THE DEFENSE
HASN’T UPHELD PENNSYLVANIA CIVIL PROCEDURES
WHILE THE PLAINTIFF HAS?
14. IS A FINAL COURT ORDER VALID IF THE ORDER IS
FROM ANOTHER JURISDICTION?
15. CAN THE APPELLEES STATE THAT THE COMPLAINT
WAS NOT FILED TIMELY IF THEY FRAUDULENTLY
CONCEALED THE TERMINATION DATE FROM THE
APPELLANT?
Appellant’s Brief at 8 (verbatim).
In his combined issues, Appellant argues that the trial court erred by
granting Appellee’s preliminary objections and dismissing his complaint with
prejudice.4 Appellant challenges both the procedural and the substantive
aspects of the trial court’s decision. Specifically, he claims his complaint was
timely, Appellee’s preliminary objections were untimely, the trial court failed
to review the case law he presented, and the trial court erred by failing to
rule he had a cause of action against Appellee. He claims he is entitled to
____________________________________________
4
We note that Appellant fails to separate his issues into separate sections in
the body of his brief in violation of Pa.R.A.P. 2119.
-5-
J-A19021-15
relief on the theory of wrongful termination, and in addition under the
Occupational Safety and Health Act (“OSHA”) and the Whistleblower Act.
We disagree.
“This Court reviews a trial court’s decision sustaining or overruling
preliminary objections for an error of law.” O'Donnell v. Hovnanian
Enterprises, Inc., 29 A.3d 1183, 1186 (Pa.Super.2011). “In so doing, [the
Court] employ[s] the same standard as the trial court, to wit, all material
facts set forth in the [] Complaint and inferences reasonably drawn
therefrom are admitted as true." Knight v. Springfield Hyundai, 81 A.3d
940 (Pa.Super.2013). “Preliminary objections which seek the dismissal of a
cause of action should be sustained only in cases in which it is clear and free
from doubt that the pleader will be unable to prove facts legally sufficient to
establish the right to relief.” Richmond v. McHale, 35 A.3d 779, 783
(Pa.Super.2012).
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),
appeal denied, 681 A.2d 178 (Pa.1996) (internal citations omitted). Public
-6-
J-A19021-15
policy exceptions to the at-will employment doctrine, however, have been
permitted in only 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, 670 A.2d at 175-76.
Regarding Appellant’s OSHA claim, our Supreme Court observed:
We recognize that the Superior Court and some federal
courts have assumed by implication that sole reference to
federal statutes could form the basis for a claim for
wrongful discharge in violation of the public policy of this
Commonwealth. In Field v. Philadelphia Electric
Company, 565 A.2d 1170 ([Pa.Super.]1989) and Sorge
v. Wright's Knitwear Corp., 832 F.Supp. 118, 121
(E.D.Pa.1993)[,] the courts indeed hold that the public
policy set forth in a federal statute, including OSHA,
announced a clear and significant policy of Pennsylvania.
Hence, in those cases an employee could bring a claim for
-7-
J-A19021-15
wrongful discharge based on that federal statute. In
addition, some state jurisdictions have held that the public
policy of the state could be found within the OSHA
provisions prohibiting a retaliatory discharge for filing an
OSHA complaint. Also, in Kulch v. Structural Fibers,
Inc., 78 Ohio St.3d 134, 677 N.E.2d 308 (1997)[,] the
highest court in Ohio found that OSHA could form the basis
for a wrongful discharge claim. However, this view is not
uniform.[5]
McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 289
(Pa.2000).
The Whistle Blower statute provides in relevant part:
§ 1422. Definitions
The following words and phrases when used in this act
shall have the meanings given to them in this section
unless the context clearly indicates otherwise:
“Appropriate authority.” A Federal, State or local
government body, agency or organization having
jurisdiction over criminal law enforcement, regulatory
violations, professional conduct or ethics, or waste; or a
member, officer, agent, representative or supervisory
employee of the body, agency or organization. The term
includes, but is not limited to, the Office of Inspector
General, the Office of Attorney General, the Department of
the Auditor General, the Treasury Department, the General
Assembly and committees of the General Assembly having
the power and duty to investigate criminal law
____________________________________________
5
“OSHA…provide[s] specific remedies for corporate retaliation against
employees who participate in any action to carry out the purpose of the
federal statutes. The statutory remedies are exclusive: they provide for the
filing of a complaint with the Secretary of Labor and there is no private right
of action.” Braun v. Kelsey-Hayes Co., 635 F. Supp. 75, 80 (E.D. Pa.
1986) (emphasis added) (internal citations omitted).
-8-
J-A19021-15
enforcement, regulatory violations, professional conduct or
ethics, or waste.
“Employee.” A person who performs a service for wages
or other remuneration under a contract of hire, written or
oral, express or implied, for an employer.
“Employer.” A public body or any of the following which
receives money from a public body to perform work or
provide services relative to the performance of work for or
the provision of services to a public body:
(1) An individual.
(2) A partnership.
(3) An association.
(4) A corporation for profit.
(5) A corporation not for profit.
* * *
“Public body.” All of the following:
(1) A State officer, agency, department, division, bureau,
board, commission, council, authority or other body in the
executive branch of State government.
(1.1) The General Assembly and its agencies.
(2) A county, city, township, regional governing body,
council, school district, special district or municipal
corporation, or a board, department, commission, council
or agency.
(3) Any other body which is created by Commonwealth or
political subdivision authority or which is funded in any
amount by or through Commonwealth or political
subdivision authority or a member or employee of that
body.
43 Pa.C.S. § 1422 (emphasis added).
-9-
J-A19021-15
Appellant’s complaint was timely whether he was terminated on
September 14 or December 10 of 2012 because he filed his complaint on
April 10, 2013, which was within the two-year statute of limitations period
for a wrongful employment action based on an alleged public policy
exception. See 42 Pa.C.S. § 5524.6 However, in the light most favorable to
Appellant, his complaint fails to articulate a cognizable cause of action.
Appellees employed Appellant “at-will,” and reserved the right to fire
him at any time, for any reason. No contract prevented Appellee from
terminating Appellant’s employment. Further, Appellees’ “Discipline” policy
states as grounds for immediate dismissal: “Any other reason that the
company feels, in its sole discretion, warrants termination.” Discipline
Policy, pp. 33-34. Appellant’s allegations that Appellees’ warnings were
issued to him for the wrong reasons are of no consequence because
Appellees were entitled to terminate Appellant’s employment for any or no
reason at all, without warning him.
Appellant cannot articulate any public policy exception to the at-will
employment doctrine. Even if he was fired to make room for one of the
Appellees’ family members, as he claims, this is not a public policy
exception.
____________________________________________
6
As previously discussed, Appellees’ preliminary objections were also timely.
- 10 -
J-A19021-15
Appellant did not file an OSHA claim and OSHA does not provide a
private right of action. Appellant wrote an email to the G4S corporate office
that stated:
[T]here is no fire extinguisher in the shack and secondly
the light plant is malfunctioning it will turn off then back on
it has been causing shorts and because of that it blew up
the microwave and almost started a fire this light plant
needs repaired or replaced as soon as possible please it is
very dangerous and I don’t want anybody to get hurt I
hope you can help I tried keven ice [sic] but nothing was
done he called me back but was asleep getting ready for
the night shift and after I returned his call I never heard
anything back.
“Unsafe condition” email addressed to Larrymcevoy@consolenergy.com,
dated May 1, 2012.
Not only is this not an OSHA claim, but it was written on May 1, 2012,
and Appellant was terminated in September or December of 2012. He does
not articulate how the two events were related.
Appellant’s Whistleblower claim is also meritless. Appellees are a
private company, not “public bodies” as defined by the statute. Further,
Appellant’s bald allegation that he was not promoted because he is male
lacks foundation and was not raised in his complaint.
Even if all of Appellant’s allegations were true, the claims raised in his
complaint did not articulate any cognizable causes of action. Therefore, the
court properly granted Appellees’ preliminary objections and dismissed
Appellant’s complaint, with prejudice.
Order affirmed.
- 11 -
J-A19021-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2015
- 12 -