J-S11045-17
2017 PA Super 121
JOSEPH M. GROSS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NOVA CHEMICALS SERVICES, INC. : No. 1408 WDA 2016
Appeal from the Order August 17, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD16-008023
BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 24, 2017
Joseph M. Gross (“Appellant”) appeals from the order entered in the
Court of Common Pleas of Allegheny County sustaining the preliminary
objections filed by Nova Chemicals Services, Inc. (“Nova”) and dismissing
his complaint with prejudice. We affirm.
We note the following pertinent facts as averred in Appellant’s
complaint:
7. Plaintiff [hereinafter “Appellant”] began employment with
Defendant [hereinafter “Nova”] as an at-will employee in or
about November 2004 and continued in such capacity of
employment in the position of Chief Pilot until May 13, 2014.
8. Appellant’s final base salary with Nova was approximately
$321,500 per year.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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9. Appellant worked with a flight crew in his capacity as Chief
Pilot; this flight crew included, among others, two other pilots.
10. The Federal Aviation Administration required two pilots for
the operation of Nova’s aircraft.
11. As Chief Pilot, Appellant was primarily responsible for the
operation of the aircraft.
12. Under [the Federal Aviation Act (FAA)], 14 CFR 91.3(a),
the pilot in command is “directly responsible for, and is the final
authority as to the operation of the aircraft.”
13. Responsibility of the aircraft includes the safety of the
aircraft and its passengers; such safety depends upon the ability
of the pilot in command to properly communicate with the flight
crew, particularly a co-pilot.
14. If a pilot does not believe that he can responsibly operate
the aircraft, he has a duty to abstain from operation of the
aircraft.
15. In or around January 2014, an employee of Nova began
making frivolous and anonymous complaints against Appellant.
16. Nova investigated each complaint and found all to be
without merit.
17. On or about March 5, 2014, employee and co-pilot Gale
Truitt and Appellant were operating a flight which, among other
passengers, included a Vice-President of Human Resources.
18. During the trip, Mr. Truitt approached the VP to ask why
no action had been taken against Appellant, revealing to all
parties that Mr. Truitt was the actor making the frivolous
complaints against Appellant.
19. After the March 5, 2014, trip, Appellant spoke with his
Human Resources contact, Denise McBride, regarding the
situation with Mr. Truitt and asked if any action would be taken
regarding the situation.
20. Ms. McBride replied that nothing would be done, and that
specifically Appellant was not to approach Mr. Truitt, as Nova
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feared an age discrimination suit if Nova took any action towards
Mr. Truitt.
21. The situation between Mr. Truitt and Appellant became
increasingly difficult. Mr. Truitt’s behavior towards Appellant
caused a breakdown in communication during flights.
22. This breakdown in communication, because of Nova
employee’s behavior, led Appellant to become increasingly
concerned for in-flight safety.
23. Appellant expressed to Ms. McBride the communication
difficulties that were experienced and the concerns he had
regarding safety.
24. Ms. McBride asked Appellant if he could continue to fly with
Mr. Truitt as a crew member; Appellant stated that for safety, he
should not be paired with Mr. Truitt.
25. Ms. McBride stated that she understood and they agreed
that this was a temporary solution.
26. Nevertheless, on April 7, 2014, Appellant and Mr. Truitt
were forced to fly together.
27. During the trip, Mr. Truitt refused to communicate
effectively with Appellant. Appellant in his assessment, as Chief
Pilot, believed that this lack of communication presented a safety
hazard and prevented Appellant from executing his duty to be
the final authority of the aircraft.
28. Appellant made several inquiries to Ms. McBride following
this April 7, 2014, flight to receive an update on the situation
with Mr. Truitt and request a permanent solution; Appellant also
reasserted his concerns regarding communication and safety.
29. Appellant never received any information regarding a
permanent solution or an update on the matter.
30. During this time Appellant also had a conversation with his
supervisor, Peter Masterman, regarding what could be done to
remedy the unsafe conditions.
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31. Mr. Masterman’s response was “I had hoped that if I
ignored this issue long enough it would go away.”
32. Appellant, in his assessment as Chief Pilot, determined
that going forward he could no longer execute his duties under
the FAA with the current conditions, as Nova continued to refuse
to address the matter.
33. In order to comply with his duties under the FAA, including
to have the final authority over the operation of the aircraft,
Appellant’s employment wrongfully terminated on May 13, 2014.
Appellant’s Complaint, filed 6/13/15, at 4-6.
In his Complaint, Appellant charged Nova with one count of wrongful
termination in the nature of constructive termination. Specifically, the
Complaint averred that Nova’s refusal “to address communication issues led
to unsafe flight conditions and rendered [him] unable to comply with his
duties under the FAA to be the final authority on the aircraft.” Id. at ¶ 37.
“Compliance with a duty under FAA regulations and in-flight safety are
clearly public policy mandates in the best interest of the public health and
safety[,]” the Complaint continued. Id. at ¶ 42.
Additionally, Appellant posited that Nova’s refusal to approach Truitt
because Truitt was eligible to file an age-based discrimination suit amounted
to disparate treatment that “contravene[ed] public policy legislation, on both
a state and federal level, which prohibits an employer from treating an
employee differently on the basis of age.” Id. at ¶ 40. This discriminatory
action against Appellant, he claimed, further prevented him from performing
his duty to be the final authority on the aircraft under the FAA undermining
public safety concerns regarding in-flight safety. Id. at ¶ 41.
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Nova filed Preliminary Objections to Appellant’s Complaint on July 7,
2016, in the nature of a demurrer. Appellant filed a Brief in Opposition on
August 10, 2016. After entertaining oral argument, the trial court sustained
Nova’s Preliminary Objections and dismissed Appellant’s Complaint. This
timely appeal followed.
Appellant presents the following questions for our review:
I. DID THE HONORABLE TRIAL COURT COMMIT AN
ERROR OR ABUSE OF DISCRETION BY GRANTING
THE CLAIM OF A DEMURER [SIC] AND DISMISSING
THE CASE WHEN THERE WERE THEORIES OF LAW
AND FACT UNDER WHICH THE APPELLANT COULD
HAVE RECOVERED?
II. DID THE HONORABLE TRIAL COURT ERR OR ABUSE
ITS DISCRETION BY MAKING FACTUAL
DETERMINATIONS IN DECIDING TO GRANT THE
CLAIM OF A DEMURER AND DISMISS THE CASE?
Appellant’s brief at 5-6.1
Initially, we set forth our standard of review:
[O]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
____________________________________________
1
We note that Appellant has not challenged the trial court’s dismissal of his
age-discrimination claim.
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deducible therefrom. 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. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Freundlich & Littman, LLC v. Feierstein, 2017 PA Super 40 (Feb. 23,
2017) (quoting Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012)
(internal citations omitted)).
This Court has explained the requirements of a wrongful termination
claim raised by an at-will employee:
[A]n action in the Court of Common Pleas is appropriate
for a wrongful termination claim that is based on a violation of
public policy. The Pennsylvania Supreme Court held that an
employee has a common law action for wrongful discharge
where there is a clear violation of public policy in the
Commonwealth. McLaughlin v. Gastrointestinal Specialists,
Inc., [561 Pa. 307], 750 A.2d 283 (Pa. 2000). In McLaughlin,
the court discussed the types of cases where an employee could
file a claim for wrongful discharge. The court noted “that the
exception to the employment at-will rule should be applied in
only the narrowest of circumstances.
***
The [McLaughlin C]ourt also observed that, “as a general
proposition, the presumption of all non-contractual employment
relations is that it is at-will and that this presumption is an
extremely strong one. An employee will be entitled to bring a
cause of action for a termination of that relationship only in the
most limited of circumstances where the termination implicates a
clear mandate of public policy in this Commonwealth.” Id.
Roman v. McGuire Mem'l, 127 A.3d 26, 31–32 (Pa.Super. 2015).
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In Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009), the
Pennsylvania Supreme Court expounded on the role of our courts in
declaring public policy in this Commonwealth:
In our judicial system, the power of the courts to declare
pronouncements of public policy is sharply restricted. Mamlin
v. Genoe (City of Philadelphia Police Beneficiary Ass'n),
340 Pa. 320, 17 A.2d 407, 409 (1941). Rather, it is for the
legislature to formulate the public policies of the Commonwealth.
The right of a court to declare what is or is not in accord with
public policy exists “only when a given policy is so obviously for
or against public health, safety, morals, or welfare that there is a
virtual unanimity of opinion in regard to it.” Mamlin, 17 A.2d at
409. Only in the clearest of cases may a court make public
policy the basis of its decision. Id. To determine the public
policy of the Commonwealth, we examine the precedent within
Pennsylvania, looking to our own Constitution, court decisions,
and statutes promulgated by our legislature. McLaughlin, 750
A.2d at 288; Hall v. Amica Mutual Ins. Co., 538 Pa. 337, 648
A.2d 755 (1994); Lurie v. Republican Alliance, 412 Pa. 61,
192 A.2d 367 (1963); Mamlin, 340 Pa. 320, 17 A.2d 407.
Weaver, 975 A.2d 555, 563 (2009).
Appellant argues that his Complaint pled facts that, if believed, proved
Nova constructively discharged him for reasons violating Pennsylvania public
policy. He points to his averment that Nova jeopardized the safety of the
aircraft and passengers by requiring Appellant to fly with a co-pilot who
refused to communicate properly with him. An employment decision that
impedes the responsible operation of an aircraft in this Commonwealth
implicates public safety under the FAA and, accordingly, violates
Pennsylvania public policy manifest in legislation implementing the FAA,
Appellant argues. Specifically, Appellant asserts in his brief that the
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Pennsylvania General Assembly has effectively declared a chief pilot’s
responsibilities under FAA rules to be public policy of this Commonwealth
though the enactment of 74 Pa.C.S.A. 5301, which requires that all rules
and regulations under this part shall be construed consistently with their
federal counterparts found in the FAA.2
In the trial court’s opinion, however, the “public policy exception” to
the general prohibition against claims asserting wrongful at-will employment
termination did not apply in the present case, as Appellant could point to no
Pennsylvania public policy implicated by Nova’s conduct. See Trial Court
Opinion 10/27/16 at 3. Appellant, instead, relied strictly on a federal
statutory duty—FAA regulation, 14 CFR 91.3(a), the pilot in command is
“directly responsible for, and is the final authority as to the operation of the
aircraft[,]” and in so doing failed to claim that public policy of Pennsylvania
was at stake, the trial court determined.
In support of its decision, the trial court invoked the rationale
expressed in our Supreme Court’s decision in McLaughlin. In McLaughlin,
the plaintiff/appellant claimed her employer discharged her in retaliation for
bringing an OSHA3-based safety complaint—substantiated with a laboratory
test result confirming that an office air sample contained excessive amounts
____________________________________________
2
74 Pa.C.S.A. § 5301 is more fully described infra.
3
Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651, 660(c).
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of a toxic chemical stored in the office—to her employer’s attention. Despite
the safety implications raised in her underlying complaint, the Court affirmed
the Superior Court order upholding the sustaining of preliminary objections
and the dismissal of the action because the complaint failed to point to any
Pennsylvania public policy implicated by her employer’s alleged violation of
OSHA. The Court reasoned:
We believe that it is a mistake to baldly point to a federal statute
or administrative regulation and, without more, proclaim this as
the public policy of the Commonwealth, such that every violation
of any federal code, or statute becomes the basis for seeking a
common law remedy against an employer.
As our previous jurisprudence has shown, this Court has
steadfastly resisted any attempt to weaken the presumption of
at-will employment in this Commonwealth. If it becomes the law
that an employee may bring a wrongful discharge claim pursuant
to the “public policy” exception to the at-will employment
doctrine merely by restating a private cause of action for the
violation of some federal regulation, the exception would soon
swallow the rule. While, of course, this Commonwealth cannot
enact laws that contravene federal law, we are not required to
override our longstanding policy regarding common law at-will
employment and thus provide a common law remedy for
wrongful discharge simply because Congress provides a federal
statutory remedy to be brought in a federal forum. Rather, we
hold that a bald reference to a violation of a federal regulation,
without any more articulation of how the public policy of this
Commonwealth is implicated, is insufficient to overcome the
strong presumption in favor of the at-will employment relation.
McLaughlin, 750 A.2d at 290.
Here, Appellant argues his case is distinguishable from McLaughlin
because his Complaint alluded to Section 5301, “Authority of department,”
which provides in relevant part that the Pennsylvania Department of
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Transportation “shall promulgate and enforce regulations . . . and other laws
relating to aviation, airports and air safety within this Commonwealth.” 74
Pa.C.S.A. § 5301(a). The section further provides that “all rules and
regulations promulgated by this department under authority of this part shall
be consistent with and conform to the Federal statutes and regulations
governing aeronautics.” 74 Pa.C.S.A. § 5301(d). See Appellant’s brief at
15.
Initially, we note that Appellant’s Complaint invokes Section 5301 only
in its “Jurisdiction and Venue” section, wherein it indicates that the trial
court has personal jurisdiction over Nova under Section 5301 because Nova
conducts business in the Commonwealth of Pennsylvania. See Complaint, at
¶ 4. The Complaint, otherwise, points only to the Federal Aviation Act, at 14
CFR 913(a), as the source of public policy requiring a chief pilot to be the
final arbiter of safety issues arising during a flight. There is no averment or
suggestion elsewhere that the public policy of this Commonwealth, through
Section 5301 or any other means, mirrors this federal policy. In this regard,
therefore, we discern no divergence between the present Complaint and the
one in McLaughlin.
Even if we concluded that Appellant’s Complaint framed Section 5301
as a source of Pennsylvania public policy implementing 14 CFR 913(a), we
would reject this position as a misstatement of the law. To the extent that
our decision in this regard involves statutory construction of Section 5301,
we apply the following principles:
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Our task is guided by the sound and settled principles set forth
in the Statutory Construction Act, including the primary maxim
that the object of statutory construction is to ascertain and
effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing
that end, we are mindful that “[w]hen the words of a statute are
clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). Indeed, “[a]s a general rule, the best indication of
legislative intent is the plain language of a statute.” In reading
the plain language, “[w]ords and phrases shall be construed
according to rules of grammar and according to their common
and approved usage,” while any words or phrases that have
acquired a “peculiar and appropriate meaning” must be
construed according to that meaning. 1 Pa.C.S.1903(a).
However, when interpreting non-explicit statutory text,
legislative intent may be gleaned from a variety of factors,
including, inter alia: the occasion and necessity for the statute;
the mischief to be remedied; the object to be attained; the
consequences of a particular interpretation; and the
contemporaneous legislative history. 1 Pa.C.S. § 1921(c)[.]
Notwithstanding the primacy of the plain meaning doctrine as
best representative of legislative intent, the rules of construction
offer several important qualifying precepts. For instance, the
Statutory Construction Act also states that, in ascertaining
legislative intent, courts may apply, inter alia, the following
presumptions: that the legislature does not intend a result that
is absurd, impossible of execution, or unreasonable; and that the
legislature intends the entire statute to be effective and certain.
1 Pa.C.S. § 1922(1), (2). Most importantly, the General
Assembly has made clear that the rules of construction are not
to be applied where they would result in a construction
inconsistent with the manifest intent of the General Assembly. 1
Pa.C.S. § 1901.
Green v. Pennsylvania Prop. & Cas. Ins. Guar. Ass'n, --- A.3d ----,
2017 PA Super 73 (Mar. 21, 2017) (quoting Commonwealth v. Wilson,
111 A.3d 747, 751 (Pa.Super. 2015) (citation omitted)).
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Section 5301 of Title 74, Part III, “Aviation,” plainly states only that all
rules and regulations promulgated by the Department of Transportation
relating to aviation “shall be consistent with and conform to the Federal
statutes and regulations governing aeronautics.” 74 Pa.C.S.A. § 5301(d).
Appellant, however, has identified no such promulgated rule in this
Commonwealth addressing the subject matter or duty expressed in 14 CFR
913(a).
The General Assembly could have written Section 5301 to provide that
in the absence of a Pennsylvania legislative or regulatory counterpart to any
FAA rule or regulation, the FAA rule or regulation controls. Section 5301
does not say this, however. Instead, it confines application of the Section
5301(d) conformity clause to those DOT aviation rules and regulations
actually promulgated. We construe this language, therefore, to establish
that statutorily-created public policy pertaining to aviation may derive only
from the promulgated rules and regulations of this Commonwealth.
Precedent confines the scope of “public policy” of the Commonwealth
in this context to “our own Constitution, court decisions, and statutes
promulgated by our legislature.” Weaver, supra (emphasis added). The
federal duty expressed in 14 CFR 913(a) does not reflect a rule or regulation
promulgated by the Department of Transportation, nor has our General
Assembly enacted a law requiring DOT to promulgate a discrete rule or
regulation that requires conformity with 14 CFR 913(a). Accordingly, we
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discern no public policy of this Commonwealth within the FAA statutory duty
cited in Appellant’s Complaint.
Order is Affirmed.4
Judge Ransom joins the Opinion.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
____________________________________________
4
Given our determination that Appellant failed, as a matter of law, to
implicate a public policy exception to the prohibition against a wrongful
termination claim in the at-will employment context, we need not address
his second issue charging the trial court with making factual determinations
not properly resolved at preliminary objections.
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