J-A10010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TODD SANT AND SUSAN SANT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
BRANDING BRAND, INC.
No. 672 WDA 2015
Appeal from the Order Entered April 23, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): C.A. No. GD-15-000219
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 16, 2016
Appellants, Todd and Susan Sant, appeal from the order sustaining the
preliminary objections filed by Appellee, Branding Brand, Inc. (“Branding”),
to their complaint claiming breach of contract and wrongful discharge of
employment. The Sants argue that the trial court erred in ruling that they
could not overcome Pennsylvania’s presumption of at-will employment, as
they alleged sufficient facts to establish the “additional consideration”
exception to the presumption. We conclude that Branding’s offer letter,
signed by Todd, stating that the employment term was “at-will,” controls,
and therefore the additional consideration exception does not apply. We
therefore affirm the trial court’s order regarding the Sants’ claims for breach
of contract and promissory estoppel. We furthermore conclude that the gist
of the action doctrine forecloses Susan’s claim for loss of consortium.
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However, we find that the trial court misapplied the law in addressing the
Sants’ claim for wrongful discharge and therefore reverse and remand for
further proceedings on the wrongful discharge claim.
Given that this appeal arises from an order sustaining preliminary
objections, the factual history of this matter is taken entirely from the
allegations in the Sants’ complaint. Todd was employed as a corporate
controller for a successful company in McLean, Virginia. He enjoyed a stable,
highly paid position that allowed him to participate in a lucrative stock
program with yearly vesting rights.
He lived in Ashburn, Virginia, with his wife, Susan, and their young
child. Susan suffers from a host of serious health issues, including
fibromyalgia, Lyme disease, Meniere’s disease, and chronic migraines. She
had lengthy histories with her treating physicians in Virginia.
In October 2013, Todd accepted an offer from Branding to become
their Vice President of Finance, a position based in Pittsburgh, Pennsylvania.
Additionally, Branding indicated that it intended to promote Todd to Chief
Financial Officer (“CFO”) when its current CFO left, which was likely to
happen in the near future. Branding extended the offer via an offer letter
that Todd subsequently signed. This letter included a paragraph regarding
term of employment.
This offer does not fix a term of your employment. You have the
right to terminate your employment at any time upon reasonable
prior notice, for any reason (or no reason), and Branding Brand
reserves the same rights.
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Upon accepting Branding’s offer, the Sants proceeded to sell their
Virginia residence at below-market price due to the time period involved.
They built a new home near Pittsburgh at substantial cost. Furthermore,
Todd sacrificed approximately $60,000 in additional vesting rights in his
former employer’s stock program.
Todd began working for Branding in late October 2013. In August
2014, he was promoted to CFO of Branding. In November 2014, he attended
Branding’s quarterly Board of Directors meeting, at which Branding’s Chief
Executive Officer (“CEO”), Christopher Mason, represented that Branding
had sold over $50,000 in recurring revenue to new clients in the third
quarter. Todd knew that Mason had already backdated those sales to the
second quarter. Apart from the backdated contracts, Todd knew that
Branding had not sold any new contracts in the third quarter.
Shortly thereafter, Todd confronted Branding’s Vice President of
Operational Reporting and Analysis, Allen Lu, regarding Mason’s
misrepresentation to the Board of Directors. Later that same day, Branding
terminated Todd’s employment without explanation.
The Sants subsequently filed a complaint asserting causes of action
sounding in breach of contract, promissory estoppel, wrongful discharge,
and loss of consortium. Branding filed preliminary objections in the form of
demurrers to all counts. After receiving briefs, the trial court sustained the
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preliminary objections and dismissed the Sants’ complaint. This timely
appeal followed.
Our standard of review where there is a challenge to the sustaining of
preliminary objections in the nature of a demurrer is well-settled. The
material facts set forth in the complaint and all inferences reasonably
deducible there from are admitted as true. See Price v. Brown, 545 Pa.
216, 221, 680 A.2d 1149, 1151 (1996). “The question presented by the
demurrer is whether, on the facts averred, the law says with certainty that
no recovery is possible. Where a doubt exists as to whether a demurrer
should be sustained, this doubt should be resolved in favor of overruling it.”
Id. (citation omitted).
On appeal, the Sants first argue that the trial court erred in concluding
that Todd was an at-will employee of Branding. While the Sants expend
significant effort in arguing whether they have overcome the at-will
presumption, we note that this case does not involve a presumption. Rather,
there is a written contract in the form of the signed offer letter. An
incomplete agreement can still be judicially enforced so long as the intent to
contract is clear and “there is a reasonably certain basis upon which a court
can provide an appropriate remedy.” Helpin v. Trustees of the University
of Pennsylvania, 969 A.2d 601, 610-611 (Pa. Super. 2009) (citation
omitted). Deficiencies in the terms of the agreement can be remedied
through reference to the actions taken by the parties during the course of
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the contract. See id. Though explicitly incomplete, neither party contends
that there was no intent to contract, and thus, the offer letter represents the
best evidence of the parties’ intentions on the terms contained within it. See
Commonwealth ex rel. Kane v. UPMC, 129 A3d 441, 463 (Pa. 2015).
We therefore begin our review by considering the meaning and effect
of the signed offer letter. We must construe it as we would construe any
other contract. Interpretation of a contract poses a question of law and our
review is plenary. See Charles D. Stein Revocable Trust v. General Felt
Industries, Inc., 749 A.2d 978, 980 (Pa. Super. 2000). “In construing a
contract, the intention of the parties is paramount and the court will adopt
an interpretation which under all circumstances ascribes the most
reasonable, probable, and natural conduct of the parties, bearing in mind the
objects manifestly to be accomplished.” Id. (citation omitted).
To give effect to the intent of the parties, we must start with the
language used by the parties in the written contract. See Szymanski v.
Brace, 987 A.2d 717, 722 (Pa. Super. 2009). Generally, courts will not
imply a contract that differs from the one to which the parties explicitly
consented. See Kmart of Pennsylvania, L.P. v. M.D. Mall Associates,
LLC, 959 A.2d 939, 944 (Pa. Super. 2008). We are not to assume that the
language of the contract was chosen carelessly or in ignorance of its
meaning. See id.
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Where the language of the contract is clear and unambiguous, a court
is required to give effect to that language. See Prudential Property and
Casualty Ins. Co. v. Sartno, 903 A.2d 1170, 1174 (2006). Contractual
language is ambiguous “if it is reasonably susceptible of different
constructions and capable of being understood in more than one sense.”
Hutchison v. Sunbeam Coal Co., 519 A.2d 385, 390 (Pa. 1986) (citation
omitted). “This is not a question to be resolved in a vacuum. Rather,
contractual terms are ambiguous if they are subject to more than one
reasonable interpretation when applied to a particular set of facts.” Madison
Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100, 106 (Pa. 1999)
(citations omitted).
“Courts have consistently held that, under Pennsylvania law, the
existence of a disclaimer expressly disavowing any intent to contract are
sufficient to retain the at-will presumption.” Braun v. Wal-Mart Stores,
Inc., 24 A.3d 875, 943 (Pa. Super. 2011) (quoting McGough v. Broadwing
Communications, Inc., 177 F.Supp.2d 289 (D.N.J. 2001)). Here, the offer
letter explicitly stated that the employment relationship would be at-will.
Todd signed the offer letter. He then worked for Branding for over a year.
The parties thus explicitly provided for an at-will employment. There is
simply no opportunity or need to apply the presumption. We therefore
conclude that the additional consideration exception has no relevance to the
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facts alleged by the Sants. The trial court properly sustained the preliminary
objection to this claim.
Similarly, we conclude that the Sants’ second challenge, to the trial
court’s ruling on their claim for promissory estoppel, is unavailing. The Sants
explicitly condition this argument on their assertion that Todd was not an at-
will employee. See Appellants’ Brief, at 26. We have already concluded
otherwise. Accordingly, the Sants’ second argument merits no relief.
Next, the Sants contend that the trial court erred in sustaining the
preliminary objection to their wrongful discharge claim. Pursuant to a
wrongful discharge claim, an otherwise at-will employee may seek redress
from his former employer if he can establish that the employer (1) required
him to commit a crime, (2) prevented him from complying with a duty
imposed by statute, or (3) discharged him despite being specifically
prohibited from doing so by a statute. See Hennessy v. Santiago, 708
A.2d 1269, 1273 (Pa. Super. 1998). The Sants assert that Branding
discharged Todd when he refused to engage in a conspiracy to misrepresent
the company’s earnings to investors.
In their complaint, the Sants assert that Mason, Branding’s CEO,
misrepresented the company’s revenue to the company’s board of directors.
See Complaint, filed 1/6/15, at ¶¶ 21-24. If true, these facts would establish
that Mason had committed a crime. See 18 Pa.C.S.A. § 4107(a)(8).
Furthermore, the Sants have pled that Todd was CFO, and admit that he
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knew that Mason’s statements were false and misleading. Thus, he could
have arguably been subject to criminal charges as an accomplice or a
conspirator. Finally, the Sants have pled that Todd was discharged because
he notified the company’s vice president of operational reporting analysis of
the misrepresentations.
Given our standard of review, we must accept these pleadings as true.
Viewed as true, these pleadings establish that Todd was discharged for
refusing to expose himself to criminal liability. The Sants have thus pled
sufficient facts to survive a demurrer to this claim, and the trial court erred
in sustaining the preliminary objection.
Finally, the Sants contend that the trial court erred in sustaining the
preliminary objection to Susan’s claim for loss of consortium. The trial court
held that loss of consortium claims require a physical injury to a spouse, and
therefore the Sants’ assertion of purely emotional injuries to Todd were
insufficient as a matter of law. We need not reach the precise issue identified
by the trial court, however, as we conclude that the loss of consortium claim
is barred by the gist of the action doctrine. See The Brickman Group, Ltd.
v. CGU Insurance Company, Inc., 865 A.2d 918, 928 (Pa. Super. 2004)
(“We are not bound by the trial court’s rationale, and may affirm on any
basis.”).
Pennsylvania courts have long recognized the gist of the action
doctrine, which operates to keep breach of contract and negligence claims as
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separate and distinct causes of action. In essence, the doctrine draws a line
between tort actions, which are based upon breaches of duties imposed as a
matter of social policy, and contract actions, which are based upon breaches
of duties imposed by mutual consensus. See Pittsburgh Const. Co. v.
Griffith, 834 A.2d 572, 581-582 (Pa. Super. 2003). The doctrine’s purpose
is to maintain the distinction between the theories of breach of contract and
tort, and it precludes a plaintiff from recasting ordinary breach of contract
claims into tort claims. See Bash v. Bell Telephone Co. of Pennsylvania,
601 A.2d 825, 829 (Pa. Super. 1992).
The application of the doctrine is an issue of law. See e-Toll, Inc. v.
Elias/Savion Advertising, Inc., 811 A.2d 10, 15 (Pa. Super. 2002). Here,
while the Sants have raised a public policy exception to the otherwise at-will
employment relationship, the gist of the action is clearly contractual in
nature. Absent the employment agreement, Branding would have no duties
to the Sants. Tort remedies are thus precluded in this action, and the trial
court properly sustained the preliminary objections to Susan’s claim for loss
of consortium.
In summary we conclude that the trial court properly sustained
Branding’s preliminary objections to the Sants’ claim based upon additional
consideration, promissory estoppel, and Susan’s claim for loss consortium.
However, we conclude that the trial court erred in dismissing the Sants’
claim for wrongful discharge, as the facts pled by the Sants, if true, would
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entitle them to relief. We therefore affirm the order in part, reverse in part,
and remand for further proceedings consistent with this memorandum.
Order affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
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