dissenting.
With due deference to the opinions of my colleagues on the trial and appellate benches, I respectfully dissent. In my opinion this case involves an issue of substantial public importance which requires a change in the law currently existing in Indiana in such cases,1 as did Justice Hunter (retired) and Judge Ratliff in Campbell v. Eli Lilly & Co. (1981), Ind., 421 N.E.2d 1099 (trams. denied) (Hunter, J., dissent ing), and (1980), Ind.App., 418 N.E.2d 1054.
No case cited by the majority applies with specificity to this one. The distinguishing factors are these:
1. Romack by his twenty-five years of training with the Indiana State Police, including his training in nuclear accident, SWAT team, bomb disposal, and similar security procedures made him uniquely qualified for the position he filled with PSI,
2. He had "lifetime employment" with the Indiana State Police,
*7773. He was recruited by PSI to fill a position uniquely requiring a person possessing precisely the skills and abilities he had developed over his twenty-five years with the Indiana State Police,
4. He advised PSI he would leave his present position only if the new job offered the same permanency of employment, advancement and benefits, and
5. Upon that basis he was told by PSI he would have "permanent employment" if he came to work for PSI. (R. 296-297).
It was upon this state of affairs he terminated his employment with the Indiana State Police and began work for PSI as its Operations Security Supervisor at the Marble Hill nuclear generating plant construction site. No case cited by the majority parallels the facts of this one. Although Ohio Table, 424 N.BE.2d 144 at first blush appears analogous, it is not. There, the secretary sought the employment, ie. she answered a help wanted advertisement in a newspaper. Ohkio Table is instructive, however. Discussing the emerging rules, Judge Garrard said:
* * * (2) The relinquishment by the employee of an existing job, business, or profession, without more, will not impose [a permanent employment] requirement.
Ohio Table, 424 N.E.2d at 146. Earlier, Judge Garrard acknowledged the existence of cases in foreign jurisdictions "where the employee was induced to surrender an existing 'permanent' employment and the employer was made expressly aware that he was unwilling to do so except for permanent employment." Id.
Was Romack an Employee at Will?
In my opinion this case follows the line of cases noted by Judge Garrard in Okio Table. Romack was recruited by PSI because he was uniquely qualified to perform the job of operation security manager.
The majority opines Romack was no more than an employee at will, noting: (1) Romack's contract with PSI was not for a definite time or fixed duration, (2) he was under no obligation to continue his employment with PSI, (8) there was no contract for permanent employment because there was no consideration in addition to the services contracted to be rendered, and (4) leaving one job to accept another job does not constitute a detriment to the employee. Therefore, they opine, Romack failed to show any independent consideration or any detrimental elements required to elevate an employee terminable at will to one whom can be fired only upon good cause being shown.
I disagree, believing Romack's termination of employment with the State Police under the conditions presented here constitutes sufficient detriment to him. Therefore, the independent consideration requirement needed to elevate him above the terminable at will status has been met in this case. Accordingly, PSI must have had good cause to terminate Romack before it could terminate him without liability, under these facts.
In Mortin v. Federal Life Ins. Co. (1982), 109 Ill.App.3d 596, 65 Ill.Dec. 148, 148, 440 N.E.2d 998, 1008, the Court of Appeals of Illinois stated:
[The general rule of additional consideration is a misconception. It is actually a rule of convenience to be applied if the parties' intent regarding the permanent nature of employment is not clear. If the parties' intention is clearly manifested there is no requirement for "additional" consideration. Nee also, Hilen v. Tappin's, Inc. (1951), 16 N.J.Super. 58, 88 A.2d 817, 818-19.
In Collins v. Parsons College (1973), Towa, 208 N.W.2d 594, a college professor was recruited from one university to another and promised the tenure and full professorship he held at his former university, along with the $25,000 salary and bonuses. After one year, the university reneged on the deal and only offered him $15,000. The university claimed it had the right to terminate the contract as one at will because Collins had the right to do the same. In rejecting this traditional position, the Supreme Court of Iowa stated:
*778Collins points to his surrender of his tenured position at Wisconsin State University to accept this position, to the knowledge of Parsons College. The evidence shows that he had good academic credentials as well as experience in teaching, and evidently the college believed he would lend stature to its staff. The college appeared eager to get him and was aware that he was surrendering a secure position to accept its offer. Onee Collins left Wisconsin, he lost his tenure there. Did his surrender of that position constitute consideration for the agreement of Parsons College?
Courts are divided on such a question, some holding yes and some no....
After considering the question, we think the better rule to be that an employee who gives up other employment to accept an offer of a permanent job provides independent consideration-at least, when as here the employment surrendered was itself permanent and the new employer is aware of the facts. (Citations omitted).
The result is that the college agreed to employ Collins permanently and at the salary and increments promised to 1971, and that Collins provided consideration for the agreement of the college.
208 N.W.2d at 599. Collins is analogous to the present case because the employer knew the employee would not have given up the prior secured position but for the assurance of receiving the same protections in the new job. See Moody v. Bogue (1981), Iowa App., 310 NW.2d 655, 659; Rowe v. Noren Pattern and Foundry (1979), 91 Mich.App. 254, 288 N.W.2d 713, 715; see also Scott v. Lane (1982), Ala., 409 So.2d 791, 794; Rabago-Alvares v. Dart Industries, Inc. (1976), 55 Cal.App.3d 91, 96, 127 Cal.Rptr. 222.
The continuity of views expressed in these cases lead me to the conclusion an employer cannot arbitrarily fire an employee when (1) the employer knows the employee had a former job with assured permanency (or assured non-arbitrary firing policies) and (2) was only accepting the new job upon receiving assurances the new employer could guarantee similar permanency. I believe good cause must be shown in order to terminate such an employee under these circumstances without lability. So long as the recruited employee is performing the job he was sought out to do, there must be some good reason to fire him, apart from the whim of the employer. Following my review of the record, I do not believe firing an employee for refusing to turn his back and ignore safety violations at Marble Hill constitutes good cause.
Constructive Froud
For the reasons espoused above, I believe Romack had a viable cause of action based upon constructive fraud, in addition to others. He was lured from his former position by assurances of, permanent employment. He was fired for competently performing the precise job he was hired to do. Such action by PSI is not only unconscionable, it also strikes at the heart of a problem constructive fraud was meant to address. In Eby v. York Division, Borg Warner (1988), Ind.App., 455 N.E.2d 623, Judge Miller said:
Constructive fraud consists of most of the same elements as actual fraud: material representation of past or existing facts (constructive fraud includes promissory facts, too), which representations are false and cause a reliance upon such representation to the detriment of the one so relying. The major distinction between the two types of fraud is that actual fraud is intentional or reckless deception whereas constructive fraud provides a remedy on more equitable grounds by refusing to sanction behavior which procures an unconscionable advantage to one party over another regardless of the intent. This distinction of course, not only eliminates the element of intentional behavior from actual fraud but adds another element: in addition to finding a detriment to the promisee, we must also find an advantage to the *779promisor. (Emphasis in original). (Citations omitted).
455 N.E.2d at 628.
There is no question PSI received an advantage upon acquiring the expertise Ro-mack possessed. Romack's change in employment under these circumstances does constitute substantial independent consideration as well as a detriment to him. Certainly the law does not give sanctuary to PSI's behavior in promising Romack permanent employment, only to reneg on the deal and fire him not for dereliction of duty but for performing his job too well.
Retaliatory Discharge
There is clearly established public policy supporting Romack's claim for retaliatory discharge. He was hired by PSI to be the Operation Security Manager at Marble Hill, a nuclear power plant subject to licensing and regulation by the Nuclear Regulatory Commission pursuant to the Atomic Energy Act. 42 U.S.C. § 2011-2284. Romack was a safety expert. He was recruited because he possessed the caliber of expertise required for the position. He found problems with the plant's safety and security and reported these problems to his superiors. Because he would not lower his standards and ignore the safety problems with which he had been hired to deal, he was fired.
The Supreme Court of Illinois addressed this national public policy in Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 872. There, an employee was discharged in retaliation for his refusal to work at a nuclear facility while the operations were being conducted in violation of Nuclear Regulatory Commission regulations. The court stated:
Plaintiffs have alleged that William Wheeler was discharged in violation of a clearly mandated public policy.... The protection of the lives and property of citizens from the hazards of radioactive material is as important and fundamental as protecting them from crimes of vio-lenee, and by the enactment of the legislation cited, Congress has effectively declared a clearly mandated public policy to that effect.
92 Ill.Dec. at 566, 485 N.E.2d at 877.
Our courts have addressed the employment at will doctrine public policy dilemma. In Campbell v. Eli Lilly & Co. (1980), Ind.App., 413 N.E.2d 1054, our First District held an employee was without a cognizable claim for retaliatory dismissal where the employer allegedly fired him for reporting the dangerous and lethal effects of company-manufactured drugs to his superiors.
Judge Ratliff, dissenting in part, believed the employee should have a cause of action premised upon the policy of protecting the public from dangerous drugs. He stated:
[I] would extend the protection of the "public policy exception" to grant a right of action for damages to any employee at will whose wrongful and retaliatory discharge contravenes clearly established public policy.... In my view, if the discharged employee could establish that he was dismissed in retaliation for the exercise of any right or duty granted or required by such strong public policy, he should recover damages.... The appropriate remedy, in my view, as supported by the cases and commentary cited herein, is a tort action for damages. Giving such a right of action for damages would serve as a deterrent to retaliatory discharge and would promote the very same strong and compelling public policy which the retaliatory discharge would violate.
413 N.E.2d at 1067.
Justice Hunter, dissenting to the denial of transfer (Compbell v. Eli Lilly & Co. (1981), Ind., 421 N.E.2d 1099), also questioned blind adherence to the employment at will doctrine in cases where public policy interests are involved, stating:
Rarely in the law do we confront such compelling cireumstances for the re-examination of an existing legal principle.... Here, the rule operates to deny Campbell any recourse in law, even *780though his actions which allegedly prompted his discharge served a vital public interest defined by statute-the protection of the public from dangerous drugs. See generally, 21 U.S.C. § 301 et seq. (1972). Assuming the veracity of Campbell's allegations, the refusal of the law to recognize his retaliatory discharge as actionable is repugnant.
421 N.E.2d at 1100.
Justice Hunter added:
Our continued inflexible application of the rule, however, not only neuters the internal check which the aware employee inherently supplies, but also ultimately deprives the government of information concerning goods or conduct potentially injurious to the public welfare. It is these dubious ramifications which should not be countenanced, as well as the callous treatment which the rule permits to be foisted on the citizen who, in good faith, acts on the principle of civic duty or the mandates of a professional ethical code.
421 N.E.2d at 1101.
Reviewing the facts here in concert with the insightful opinions of Justice Hunter and Judge Ratliff, there is a strong public policy concern in not silencing employees at nuclear power plants who become aware of conditions having the potential to create a nuclear disaster. If our State policy is to the contrary, I believe it must be changed for the benefit of us all. By offering no form of recourse to an employee who is fired for refusing to turn his back on safety violations, we not only do a misdeed to similarly situated employees, we also do a horrendous disservice to the public.
Punitive Damages
If Romack's allegations of safety violations at the nuclear facility are true, I believe this case presents a situation where punitive damages may be legitimately claimed. Punitive damages may be awarded where a serious wrong, tortious in nature, has been committed in an instance in which the public interest would be served by the deterrent effect punitive damages would have on the conduct of the wrongdoer or parties similarly situated. Rose Acre Farms, Inc. v. Cone (1986), Ind.App., 492 N.E.2d 61, 70. I find the public interest would clearly be served by deterring those who operate nuclear facilities from firing employees who properly perform their jobs and report safety violations.
Accordingly, I would deny PSI's motion for summary judgment and permit Romack to have his day in court.
. I find the words of Thomas Jefferson particularly applicable to the factual situation presented here. Engraved on the interior walls of the Jefferson Memorial in our nation's capitol are four inscriptions based upon the writings of Jefferson, describing the chief principles of his beliefs. The fourth one reads:
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.