Hunger v. Grand Central Sanitation

HESTER, Judge:

Mark Hunger appeals from the December 9, 1994 grant of summary judgment to appellees, Grand Central Sanitation and Gary Perin. We are constrained to affirm under current precedent of this court.

Appellant instituted this action on January 26, 1993, against his former employer and Mr. Perin, who terminated appellant. The action is based upon wrongful discharge, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed an answer and new matter. After these pleadings were filed, appellees moved for summary judgment, which was granted. This appeal followed.

We first examine our standard of review in the summary judgment context. The evidence must be viewed in the light most favorable to the non-moving party, and he must be given all the reasonable inferences created by his evidence. Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995). Nonetheless, “[i]f there are no material issues of fact in dispute, and plaintiff has failed to allege facts sufficient to make out a prima facie case, as a matter of law, then summary judgment may be granted properly.” Dudley v. USX Corp, 414 Pa.Super. 160, 169-70, 606 A.2d 916, 920 (1992). Thus, where there are no credibility issues and the allegations of the appealing party, if accepted as true, fail to make out a prima facie case as a matter of law rather than as a matter of fact, summary judgment is appropriate. Id.

We therefore accept as true the following factual allegations contained in appellant’s complaint and affidavit. Appellant *579was employed by Grand Central Sanitation (“Grand Central”) on June 28, 1990, as the company’s safety director. Mr. Perm is the vice-president and owner of Grand Central. On September 7, 1991, appellant “became aware” that hazardous materials consisting of blasting caps were being deposited into garbage containers at Shu-Deb Inc. (“Shu-Deb”). Reproduced Record, (“R.R.”) at 3a. The complaint contains no averments about how appellant became aware of this information. Grand Central picked up garbage for Shu-Deb and dumped it at a dump site. Appellant knew that Grand Central was not licensed to dispose of hazardous materials at any of its dump sites and believed that it would be a violation of federal law, state law, or both if the company transported or disposed of hazardous materials. Appellant also became concerned about the safety of company employees from the danger of transporting blasting caps.

On September 9, 1991, appellant told Mr. Perm about the information he received that blasting caps were being dumped into the containers at Shu-Deb. The next day, he contacted state and local police asking for a description of blasting caps, which he never had seen. He also made arrangements to search Shu-Deb’s garbage container.

On September 12, 1991, appellant, accompanied by Pennsylvania State Police and members of the federal Bureau of Alcohol, Tobacco, and Firearms, went to search the contents of the garbage container. When appellant and police arrived at Shu-Deb, the garbage had been collected, so police located the garbage truck that had the garbage and searched it. “No hazardous materials were found.” R.R. 4a. On October 4, 1991, appellant was discharged as a result of the incident.

Appellant first alleges that his wrongful discharge claim was dismissed improperly due to the public policy exception to the doctrine of at-will employment. We examine the applicable law:

In Pennsylvania, as a general rule, no common law cause of action exists against an employer for termination of an at-will employment relationship. Krajsa v. Keypunch, Inc., *580424 Pa.Super. 230, 237, 622 A.2d 355, 358 (1993) (“an at will employee may be terminated for good reason, bad reason, or no reason at all”). Moreover, “exceptions to this rule have been recognized in only the most limited of circum- . stances, where discharges of at-will employees would threaten the clear mandates of public policy.” Id. at 237, 622 A.2d at 358....

Holewinski v. Children’s Hospital of Pittsburgh, 437 Pa.Super. 174, 178, 649 A.2d 712, 715 (1994).

The public policy exception to the at-will doctrine was recognized by our Supreme Court in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), a case remarkably similar to the one at bar. There, the plaintiff was a salesman for the defendant and criticized to company officials above his immediate supervisors the quality of the steel being produced. He was discharged even though the product later was determined to be substandard and -withdrawn from the market. Geary alleged that his termination fell within a public policy exception to the at-will doctrine since he was acting in the interest of the safety of the general public.

While the Supreme Court recognized that a public policy exception may exist under appropriate conditions, it rejected plaintiffs argument that his allegations fell within its ambit on two grounds. First, the plaintiff was not obligated statutorily to report defective products. Second, on its face, the complaint offered the existence of a plausible reason for discharge in that the plaintiff had bypassed his immediate supervisors to make the complaint.

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., 422 Pa.Super. 419, 619 A.2d 748 (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 *581employee 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, 350 Pa.Super. 183, 504 A.2d 306 (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).

We have recognized a public policy exception only in extremely limited circumstances. If an employee is fired for performing a function that he is required to perform by law, an action for wrongful discharge on public policy grounds will be allowed. See e.g., Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (employee fired for reporting a nuclear safety violation that he was required to report under federal law); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (employer fired an employee for serving on a jury; public policy was violated since people are required by law to serve on jury and since service on jury has constitutional implications).

A public policy exception to the at-will doctrine also will be found when the firing itself is a criminal activity as in Kroen v. Bedway Security Agency, Inc., 430 Pa.Super. 83, 633 A.2d 628 (1993). There, an employer fired an employee for refusing to take a polygraph test. It is illegal for a person to require, as a condition for employment or continuation of employment, that an employee take a polygraph test. 18 Pa.S.C. § 7321.

Herein, appellant notes that it is illegal to transport hazardous materials without a license. We agree. However, appellant admitted in his complaint that no blasting caps were discovered. Thus, appellees did not violate the law. If appellant had observed a deliberate violation of the law, reported it *582to proper authorities, and was fired, then the reasoning of Kroen may have been applicable. There is no indication that this occurred herein.

In this case, appellant’s actions were premature. He provides no specifics about how he “became aware” that blasting caps were being dumped. R.R. at 3a. He fails to indicate the capacity of the person who informed him of this, the nature of his investigation into substantiating the reliability of the information, and why it was necessary to inform state and federal law enforcement officials about the situation immediately.

Our disposition of this case may have been different if appellant discovered that his employer was deliberately transporting hazardous materials after being told of the situation. That is not what occurred, regardless of appellant’s concern with the public safety. The source of appellant’s “awareness” of the alleged illegal activities is completely unsubstantiated. Furthermore, his employer’s criminal intent is not established. At most, one of the employer’s customers allegedly was dumping illegal explosives.

We also are guided herein by Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355, 358 (1993), where we examined Pennsylvania’s Whistleblower’s Law, 43 Pa.C.S. §§ 1421, et seq. That act provides that persons may not be discharged from a public body for reporting to an appropriate body instances of waste, mismanagement, or violations of the law. In that case, an employee of a private employer alleged that he had been terminated for reporting illegal activities of his employer. We held that no cause of action for wrongful discharge existed because the Whistleblower’s Law does not apply to private employers.

The reasoning of Krajsa controls this case. Appellant argues that he was fired for reporting a violation of the Solid Waste Management Act. He concedes that he was not under a statutory duty to report the alleged violation. Appellant’s brief at 14. Under Krajsa, a firing which resulted solely due to an employee’s decision to report his employer’s illegal *583activities is not actionable. The firing must be specifically prohibited bjr statute.

Furthermore, the Supreme Court in Geary held that if reasonable grounds for the firing are apparent on the face of the complaint, a wrongful discharge action will be dismissed. Herein, we concur with the trial court’s conclusion that appellant’s actions, as set forth in the complaint, provided a reasonable basis for his firing:

[T]he complaint itself leaves open for implication separate, plausible and legitimate reasons for the plaintiffs termination. An employer, under the facts presented, may wish his safety director to treat a potential violation of waste management laws differently. The scenarios are abundant. The safety director could have addressed the issue to the customer first; could have personally inspected the refuse before it was dumped into the employer’s truck; and he could have advised the employer to refuse the offending waste.

Trial court opinion, 12/9/94, at 16-17. We agree with the trial court that appellant’s overzealous decision to treat the information he received as para-military matter was grounds for termination. By immediately bringing in state and federal officials after “becoming aware” of a possible violation of the law, appellant embarrassed his employer and his employer’s customer.

We next discuss whether appellant has stated a claim for intentional infliction of emotional distress. As indicated in Field v. Philadelphia Electric Co., supra, a cause of action for intentional infliction of emotional distress will lie where the dictates of section 46 of the Restatement (Second) of Torts are satisfied. That section provides:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

*584Thus, at the onset, the defendant’s conduct must be extreme and outrageous. Paraño v. O’Connor, 433 Pa.Super. 570, 641 A.2d 607 (1994). The definition of outrageous conduct also is set forth in the Restatement:

d. Extreme and outrageous conduct.
The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s [sic] feelings are hurt.

Restatement (Second) of Torts § 46 comment d.

The fact that appellant was fired for embarrassing his employer and a customer is not shocking or outrageous. It hardly is an atrocity which no civilized society can tolerate.

Furthermore, a plaintiff pleading the existence of emotional distress must substantiate that he actually suffered the claimed distress with expert medical confirmation. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d *585988 (1987). There must be objective proof, with competent medical evidence, for a plaintiff to proceed with a claim for intentional infliction of emotional distress. Kazatsky v. King David Memorial Park, Inc., supra; Fewell v. Besner, 444 Pa.Super. 559, 664 A.2d 577 (1995). In this case, appellant cursorily has alleged that he suffered bodily harm due to his firing but failed to oppose the summary judgment motion with medical evidence supporting this claim. For that reason alone, the trial court’s dismissal of this count was proper.

Finally, appellant argues that the trial court improperly dismissed his claim for negligent infliction of emotional distress. A cause of action for negligent infliction of emotional distress exists in only two circumstances: 1) where a close family member experiences a contemporaneous sensory observance of physical injuries being inflicted on another family member, Krysmalski v. Tarasovich, 424 Pa.Super. 121, 622 A.2d 298 (1993); or 2) where the plaintiff nearly experiences a physical impact in that he was in the zone of danger of the defendant’s tortious conduct, Kazatsky v. King David Memorial Park, Inc., supra. Clearly, neither situation exists herein. A plaintiff cannot recover for emotional upset where there is no physical impact involved in the case at all. Id. Such is the case at bar.

Order affirmed.

BECK, J., files a concurring opinion.