Geary v. United States Steel Corp.

Dissenting Opinion by

Mr. Justice Roberts:

I cannot accept the view implicit in the majority’s decision that today’s jurisprudence is so lacking in awareness and vitality that our judicial process is incapable of affording relief to a responsible employee for an arbitrary and retaliatory discharge from employment. I dissent.

For fourteen years appellant George B. Geary served the United States Steel Corporation as a salesman. Abruptly, on July 13, 1987, he was summarily discharged without cause or notice. The majority now holds “that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.” I am unable to agree that this case presents only “a plausible and legitimate reason for terminating” Geary’s employment or that “no clear mandate of public policy” has been violated.

In the particular circumstances of this case, appellant’s discharge demonstrates the arbitrary dismissal power exercisable by an employer. The managers of this publicly-held corporation determined that George B. Geary should be dismissed because he called to the attention of his superiors that the steel pipe manufactured by his employer and which Geary was required to sell was a defective and dangerous product. *186His suggestion that the unsafe steel pipe be withdrawn from the market to protect both the public from danger and his employer from liability was in complete harmony with his employer’s best interest. Nevertheless, Geary was discharged.

As a salesman, Geary was required to know intimately the products he was selling. He represented United States Steel and it was expected that he would be alert to protect his employer’s reputation. Likewise, it was natural that he would seek to shield himself and his employer from the consequences of a dangerous product. When he correctly recognized that the defective steel pipe had strong potential for causing injury and damage, he immediately notified his superiors. His reward for loyalty was dismissal. Of course, had Geary not informed his superiors of the defective product, he may well have been discharged for his failure to do so.

Geary’s assessment of the danger of the steel pipe was correct, since after his notification, the corporation removed the steel pipe from the market.1 On these pleadings, it is manifestly clear that the employer realized Geary was right and that its interest lay in withdrawing from the market the dangerous product. Despite Geary’s candor in seeking within the corporate family to advance the corporation’s best interest, his employer fired him.

*187There is no doubt that strong public policies of this Commonwealth have been offended by Geary’s discharge. First, the product asserted by appellant to be defective was, after appellant notified his superiors, withdrawn from the market. The manufacture and distribution of defective and potentially dangerous products does not serve either the public’s or the employer’s interest. Our courts have granted relief to those injured by defective merchandise. E.g., Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). See Restatement (Second) of Torts § 402A (1965). The majority, however, fails to perceive that the prevention of injury is a fundamental and highly desirable objective of our society.

Second, appellant as an employee was “subject to a duty to use reasonable efforts to give his [employer] information which is relevant to affairs entrusted to him, and which, as the [employee] has notice, the [employer] would desire to have and which can be communicated without violating a superior duty to a third person.” Restatement (Second) of Agency § 381 (1958). Had Geary refrained from notifying his superiors of the defective product, he could have been discharged for violating this duty to come forward with information. No responsible policy is served which permits an employee to be discharged solely for obeying his legal duty to communicate information to his superiors. Indeed, the policy underlying this duty to communicate is frustrated by denying Geary the opportunity to present his case to the court.

The majority admits, as it must, that precedents barring a cause of action for wrongful discharge are “scant” and that “economic conditions have changed radically” since the date of the only Pennsylvania case on point. Henry v. Pittsburgh & L.E.R.R., 139 Pa. 289, *18821 A. 157 (1891). Unlike the majority, I believe tbe time has surely come to afford unorganized employees an opportunity to prove in court a claim for arbitrary and retaliatory discharge.

The majority concedes the employment relationship is a proper subject for judicial action. Still, it refuses to afford Geary the opportunity to establish his claim of wrongful discharge. The majority justifies its refusal to act by assuming that to recognize a cause of action on the facts alleged will unleash “an increased case load and . . . thorny problems of proof,” and by further assuming that these problems will plague our judicial system. The majority’s thinking is nothing more than an unarticulated fear of the mythological Pandora’s bos. Not only are both assumptions unwarranted, but the majority fails to perceive the realities of twentieth century industrial organization. The reality is that recognizing a cause of action for wrongful discharge in these circumstances will help to check a serious menace in our society, the arbitrary dismissal power of employers.

The genius of the common law is that the case-by-case analysis permits opening and closing of the door to the courtroom. “[I]n view of the fact that from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and, particularly, to the new relations between employers and employes, as they arise.” Holden v. Hardy, 169 U.S. 366, 387, 18 S. Ct. 383, 386 (1898). In my judgment, the assertion that appellant should be denied relief because his case represents the opening wedge of a theory which might produce further litigation is an inappropriate judicial consideration. Niederman v. Brodsky, 436 Pa. 401, 412-13, 261 A.2d 84, 89 (1970).

*189It would, however, be misleading to imply that docket considerations alone account for the majority’s reticence. “Of greater concern [to the majority] is the possible impact of such suits on the legitimate interests of employers in hiring and retaining the best personnel available.” The instant case itself illustrates the fallacy of this argument. If the existence of the tort of wrongful discharge in these circumstances (assuming, as we must, the truth of all facts alleged) will keep employees like George Geary on corporate payrolls, both the employer’s and the public’s interest will have been served. Affording relief for arbitrary and retaliatory discharge in no way impinges upon the employer’s right to discharge for cause. That difficult line-drawing may be involved is of no great moment, since courts are daily confronted with the task of separating wheat from chaff.2

*190As professor Lawrence E. Blades has noted, “[t]he industrial revolution made an anacronism of the absolute right of discharge by destroying the classical ideal of complete freedom of contract upon which it is based.” Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1418 (1967). Further, although a single nineteenth-century Pennsylvania case3 stated that an employer can dismiss an employee with or without cause, it does not necessarily follow that this right is absolute and unrestrained. “[T]he word right is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.” American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S. Ct. 499, 500 (1921) (Holmes, J.).

It is public policy which here qualifies the “right.” See id. at 359, 41 S. Ct. at 501. When a seemingly-absolute right or the conditions of an existing relationship are contrary to public policy then a court is obligated to qualify that right in light of current reality. See Burne v. Franklin Life Insurance Co., 451 Pa. 218, 301 A.2d 799 (1973). Here, the employment relationship, as the majority and Geary’s employer view it, clashes with the public’s interest in keeping dangerous products from being sold and used.

The Supreme Court of Indiana has recently provided a discharged employee an opportunity to prove a claim for wrongful and retaliatory discharge. Frampton v. Central Indiana Gas Co., 297 N.E. 2d 425 (Ind. 1973).4 There, the plaintiff was dismissed *191after she filed a claim for workmen’s compensation. The Indiana court observed that “[i]f employers are permitted to penalize employees for filing workmen’s compensation claims, a most important public policy will be undermined.” 297 N.E.2d at 427. A California court similarly recognized a cause of action for wrongful discharge where the employee had been dismissed after he refused to commit perjury. Petermann v. Teamsters Union, 174 Cal. App. 2d 184, 344 P.2d 25 (1959).5

The principle underlying these decisions should apply to the present case. Contrary to the majority’s assertion, society’s interest in protecting itself from dangerous products manifestly presents a mandate to the court to recognize a cause of action for wrongful discharge. That a loyal and responsible employee should be summarily and without cause or notice discharged for complying with his duty to communicate relevant information to his superiors provides further justification for affording appellant an opportunity to present his claim. That appellant was discharged without *192cause for doing that which, had he failed to do, he would have been subject to dismissal with cause amply demonstrates the illogic of the majority’s refusal to recognize in these circumstances a cause of action for wrongful discharge

Our society has long been apprehensive of the arbitrary dismissal power of employers, and has sought through various solutions to remedy the problem.6 To countervail employers’ dismissal power, unions were created.7 Congress has sought to safeguard certain classes of employees from wrongful and capricious discharges.8 And our Legislature has decided that certain state employees must be guarded from the abuses of arbitrary discharge.9

*193Yet, under the majority’s view, unorganized employees remain unprotected. Here, Geary’s discharge is directly contrary to the societal interest in preventing injury due to defectively-manufactured products. See Restatement (Second) of Torts § 402A (1965). Moreover, Geary was dismissed for simply fulfilling his duty to notify his superiors of a potentially dangerous situation. See Restatement (Second) of Agency § 381 (1958). The majority, however, refuses to recognize a cause of action in these particular circumstances. In my view, this Court should take this first step and protect Geary and unorganized employees from arbitrary and retaliatory discharges.

“The judiciary has not been reluctant to expand the meaning of constitutional provisions in order to protect the individual from governmental oppression. It is something of a paradox that the courts have so far displayed no similar bent for invention and improvisation when it comes to protecting individuals, particularly in their highly vulnerable status as employees, from the private establishments upon which they are becoming increasingly dependent. Instead, there has been a blind acceptance of the employer’s absolute right of discharge. This outmoded doctrine lias been supported by technical principles of contract law.” Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1435 (1967).

Courts are duty-bound to fashion remedies for the changing circumstances of economic and social reality. And it is far too late in the day for this Court to indulge itself by fictionalizing that the doctrine of free*194dom of contract justifies insulation of an employer’s arbitrary and abusive exercise of his power of discharge.

The majority concedes, as it must, that tort law is uniquely suited for judicial action. Further, it cannot be denied that prevention of injuries is a substantial, clear, and compelling objective of our society. See Restatement (Second) of Torts § 402A (1965); cf. Restatement (Second) of Agency § 381 (1958).

This Court should, in my view, fulfill its societal role and its responsibility to the public interest by recognizing a cause of action for wrongful discharge where the dismissal offends public policy.10 George B. Geary has presented just such a case.

The orders of the Superior Court and the Court of Common Pleas of Allegheny County should, in my judgment, be reversed.

A demurrer to a complaint admits as true all well-pleaded facts and all inferences reasonably deducible from them, but not any conclusions of law. Reardon v. Wilbur, 441 Pa. 551, 554, 272 A.2d 888, 890 (1971) ; Clevenstein v. Rizzuto, 439 Pa. 397, 400-01, 266 A.2d 623, 624-25 (1970) ; Hoffman v. Misericordia Hospital, 439 Pa. 501, 503-04 267 A.2d 867, 868 (1970). Therefore, at this stage of the pleadings this Court is bound to accept as true Geary’s aUegation that the steel pipe was in fact withdrawn from the market by U. S. Steel.

To support its argument that the legitimate interests of employers in hiring and retaining the best personnel available would be compromised by granting appellant an opportunity to prove his elaim of wrongful discharge, the majority quotes extensively from Blades, Employment at Wills vs. Individual Freedom : On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404, 1428-29 (1967). It is true that Professor Blades speaks of the problems of proof and the potential for unjustified suits if a cause of action for wrongful discharge is recognized by the courts. However, Professor Blades unqualifiedly endorses the idea of a cause of action for wrongful discharge. Immediately following that portion of his article quoted by the majority (see note 13 of majority opinion), Professor Blades concludes. “But this argument [that there should be no judicial review of an employer’s necessarily subjective evaluation of higher-echelon employees], when viewed against the strong interest in protecting the freedom and integrity of all employees, has force only if the sanctity of the normal right of discharge would be seriously impaired by unfounded claims of employer coercion. The problem of proof is not insurmountable, for there are a number of evidentiary techniques available to the courts by which the genuineness of a claim might be reasonably guaranteed and serious in*190fringement of the employer’s normal right of discharge avoided.” Blades, supra at 1429.

Henry v. Pittsburgh & L.E.R.R., 139 Pa. 289, 21 A. 157 (1891).

An analogous situation is presented by recent accomodations to the near-absolute right of landlords to evict tenants. The United *191States Court of Appeals for the District of Columbia has held that “while the landlord may evict for any legal, reason or for no reason, at all, he is not, we hold, free to evict in retaliation for his tenant’s report of housing code violations to the authorities.” Edwards v. Habib, 397 F.2d 687, 699 (D.C. Cir. 1968).

The majority attempts to distinguish Petermann v. Teamsters Union, 174 Cal. App. 2d 184, 344 P.2d 25 (1959), and cases following it by asserting that recovery has been limited to instances in which an explicit declaration of public policy has been made by the legislature. For this proposition, the majority cites Montalvo v. Zamora, 7 Cal. App. 3d 69, 86 Cal. Rptr. 401 (1970) ; Patterson v. Philco Corp., 252 Cal. App. 2d 63, 60 Cal. Rptr. 110 (1967) ; Glenn v. Clearman’s Golden Cock Inn, Inc., 192 Cal. App. 2d 793, 13 Cal. Rptr. 769 (1961) ; Mallard v. Boring, 182 Cal. App. 2d 390, 6 Cal. Rptr. 171 (1960). Though this statement may not be factually inaccurate, it in no way precludes this Court from noticing and acting upon dictates of public policy whether the Legislature has or has not yet acted.

See generally Blades, Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 Colum. L. Rev. 1404 (1967).

See American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 209, 42 S. Ct. 72, 78 (1921). “A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment Union was essential to give laborers opportunity to deal on equality with their employer.”

E.g., The Automobile Dealer Franchise Act of 1956, 15 U.S.O. §§ 1221-25 (1970).

See Act of August 27, 1963, P.L. 1257, §§ 1-31, 71 P.S. §§ 741.3 to .1005 (Supp. 1973), amending Act of August 5, 1941, P.L. 752.

The Civil Service Act provides that “[n]o regular employe in the classified service shall be removed except for just cause.” 71 P.S. § 741.807 (Supp. 1973). A regular employee is one “who has been appointed to a position in the classified service in accordance with this act after completing his probationary period.” Id. § 741.3(h). Classified service is defined to include all positions (other than certain managerial-type employees and unskilled laborers, id. § 741.3(c)) in enumerated departments of the state. Id. § 741.3(d)(1)-(15).

*193The Civil Service Act further requires that every state employee covered by the Act be given notice of “any personnel action taken with respect to him,” id. § 741.950, and that he be provided an opportunity to appeal to and appear publicly before the Civil Service Commission. Id. § 741.951.

The Supreme Court of New Hampshire recently limited employers’ arbitrary dismissal power by recognizing a contractual cause of action for a malicious breach of a contract of employment at will. Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. 1974), announced after the filing of this ease, involved a suit by Olga Monge against her employer for breach of an at-will employment contract. Monge claimed her discharge was caused by the harassment of her foreman, whose hostility resulted from her refusal to go out with him. The jury found in her favor and the Supreme Court of New Hampshire affirmed on liability but remanded on damages. In doing so that court reasoned: “In all employment contracts, whether at will or for a definite term, the employer’s interest in running his business as he sees fit must be balanced against the interest of the employee in maintaining his employment, and the public’s interest in maintaining a proper balance between the two.” 316 A.2d at 551. The holding of the New Hampshire Supreme Court was explicit. “We hold that a termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not the best interest of the economic system or the public good and constitutes a breach of the employment contract”