author: TAMILIA, Judge: CERCONE, Judge,

text:
    543 A.2d 1092
    Margaret A. MUDD, Appellant, v. HOFFMAN HOMES FOR YOUTH, INC. and Gerald W. Hagmayer.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1987.
    Filed May 6, 1988.
    Reargument Denied July 12, 1988.

      Larry B. Selkowitz, Harrisburg, for appellant.
    Bruce J. Kasten, Philadelphia, for appellees.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This case was originally commenced before the Court of Common Pleas of York County on or about May 16, 1984 with appellant’s filing of a complaint. On March 20, 1986, the court sustained appellees’ preliminary objections grounded on a question of venue and directed that the action be transferred to the Court of Common Pleas of Adams County. On April 25, 1986, appellant filed an amended complaint in Adams County along with a concurrent motion for leave to file the amended complaint, which motion was granted on May 30, 1986, leaving appellees twenty days to respond to the amended complaint. Appellees filed timely preliminary objections in the nature of a demurrer on June 19, 1986, claiming all three counts of appellant’s amended complaint failed to state a cause of action upon which relief could be granted. After argument, the trial court, by Order dated January 12, 1987, sustained appellees’ preliminary objections and granted appellant twenty days to amend its previously-amended complaint. Appellant purposely elected not to amend and by praecipe filed February 6, 1987 requested judgment in favor of appellees and against herself be entered. In response to appellant’s praecipe, the trial court entered judgment in favor of appellees and dismissed the original amended complaint on February 10, 1987. Appellant timely appeals the judgment.

Appellant claims the trial court improperly applied the proper standard of review'in evaluating all three counts of her amended complaint and, consequently, erred in sustaining appellees’ demurrer. Appellant contends her amended complaint alleges sufficient facts to state a cause of action and dismissal was improper.

In County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985), our Supreme Court set forth the proper scope of review to a challenge to the sustaining of a preliminary objection in the nature of a demurrer:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.
Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra, 436 Pa. at 291, 259 A.2d at 449.

See also Whitmer v. Bell Telephone Company of Pennsylvania, 361 Pa.Super. 282, 522 A.2d 584 (1987); Brown v. Taylor, 90 Pa.Commw. 23, 494 A.2d 29 (1985) (quoting County of Allegheny). With these principles in mind, we review appellant’s claims.

Count one of the amended complaint is an action for wrongful discharge and counts two and three are grounded on alleged breach of contract claims. Accepting as true all well-pleaded material facts in the complaint as well as all Inferences reasonably deducible therefrom, we find appellant was first employed by appellee, Hoffman Homes for Youth, Inc. (“Hoffman Homes”), in 1973 as a social worker. She alleges her terms of employment consisted of oral representations made to her as well as the provisions of Hoffman Homes’ employee personnel handbook. Appellant avers her job performance was to be reviewed annually with written evaluations and that she was promised she would be retained as long as her job performance and her written evaluations were satisfactory.

In August 1981, appellant learned that two fellow employees had delivered by mail “illicit drugs” to a child who was residing at Hoffman Homes’ York County facility. The amended complaint (paragraphs 9,10, and 11) is not clear as to whether appellant notified Hoffman Homes’ management of this incident or whether management learned of the incident on its own, but appellant avers that upon learning the two employees were merely “reprimanded” for the incident, she took it upon herself to meet with appellee Gerald W. Hagmayer, executive director of Hoffman Homes at its Gettysburg premises, and unsuccessfully attempted to persuade him to terminate their employment. At that, meeting, appellant also notified Hagmayer of other drug “problems” she had perceived on Hoffman Homes’ campus. Appellant was dissatisfied with Hagmayer’s response and contacted the Hoffman Homes’ Board of Directors directly to alert them to the alleged “drug use and child abuse” she perceived as being allegedly “tolerated” by Hoffman Homes.

Appellant avers that in direct retaliation to her actions she was reprimanded and subjected to continual harassment by Hagmayer and other co-workers acting at Hagmayer’s behest. Further, appellant avers that in direct retaliation, Hagmayer notified her on February 1, 1982 that he would fire her unless she voluntarily resigned. Subsequently, appellant was given notice of termination on March 1, 1982, to be effective April 30, 1982. In addition to averring her termination was in retaliation to her prior actions concerning the alleged drug problems, appellant avers “Hagmayer maliciously terminated her from her job at [Hoffman Homes] in April, 1982 to prevent her pension benefits from vesting, as further punishment for her having appeared before the [Hoffman Homes] Board of Directors” (Amended Complaint at paragraph 20). At the time of termination, appellant was two months short of the service requirement of ten years for vesting of pension benefits. Although appellant eventually received a hearing and review of her termination by an outside hearing examiner, the Board of Directors voted to uphold her termination and refused to grant her pension benefits.

In her first count for wrongful discharge, appellant avers her discharge violated the Hoffman Homes’ personnel policies and the public policy of Pennsylvania, specifically citing the Child Protective Services Law, 11 P.S. § 2201 et seq., in paragraph 13. On appeal, in addition to the Child Protective Services Law, appellant claims appellee’s actions violated public policy enunciated in various other federal and state laws regarding unlawful use of drugs (appellant’s brief at 14-15), however, no mention of these laws were made in the amended complaint. Appellant also claims that count one avers Hoffman Homes discharged her with specific intent to harm her.

As we recently stated in Reilly v. Stroehmann Brothers Company, 367 Pa.Super. 411, 532 A.2d 1212 (1987):

The well-settled rule in Pennsylvania is that: ‘[a]bsent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.’ Geary v. United States Steel Corporation, 456 Pa. 171, 175, 319 A.2d 174, 176 (1974); Betts v. Stroehmann Brothers, 355 Pa.Super. 195, 512 A.2d 1280 (1986); Banas v. Mathews International Corporation, 348 Pa.Super. 464, 502 A.2d 637 (1985). The at-will presumption, uniquely present in employment contracts, is that an employment agreement is presumptively terminable at will by either party; meaning, an employee may leave a job for any or no reason and an employer may discharge an employee for any or no cause. Greene v. Oliver Reality, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987); Darlington v. General Electric, 350 Pa.Super. 183, 504 A.2d 306 (1986).

However, our courts have recognized a cause of action for wrongful discharge for at-will employees beginning with the seminal case of Geary, supra, in which the Supreme Court acknowledged that if the discharge was made with a specific intent to harm the employee or if the discharge was contrary to public policy an action will lie. Tourville v. Inter-Ocean Insurance Company, 353 Pa.Super. 53, 508 A.2d 1263 (1986), allocatur denied, 514 Pa. 619, 521 A.2d 933 (1986); see Darlington, supra.

We agree with the trial court that appellant’s amended complaint does not support a discharge violative of public policy. Because appellant did not include the federal and state laws regarding illegal drugs cited to in her brief in the amended complaint, we will not address their possible application, but we do recognize a public policy exists prohibiting activity involving illegal drugs and controlled substances. Appellant asserts in paragraph 13 that her actions of going to the Board of Directors were in accordance with her fulfilling her moral and professional duties as a social worker and in accordance with the legal duties imposed upon her by the Child Protective Services Law, supra. As did the plaintiff in Geary, appellant by-passed her immediate superiors and pressed her views to higher officials. We find the Supreme Court’s analysis in Geary to control here. “The praiseworthiness of [appellant’s] motives does not detract from [Hoffman Homes’] legitimate interest in preserving its normal operational procedures from disruption.” Geary, supra 456 Pa. at 183, 319 A.2d at 180. As in Geary, the amended complaint discloses a plausible and legitimate reason for appellant’s termination, i.e. the preservation of normal management operating procedures. Appellant was not dismissed for seeking the disclosure and punishment of the improper actions of co-workers, but with respect to public policy grounds was terminated for pursuing the matter outside normal management operating procedures. This alone cannot give rise to a non-statutory cause of action for wrongful discharge. By appellant’s averments the alleged harassment and retaliatory actions did not occur until after appellant went outside normal operating procedures leading us to conclude that no public policy mandate was violated because the complained of actions were not in response to appellant’s attempts of fulfilling her duty, but instead were a direct result of her method of reporting the co-workers activities and seeking what she deemed to be appropriate action regarding them.

Turning now to appellant’s claim that her termination was performed with specific intent to harm her, we disagree with the trial court’s conclusion that the amended complaint does not support a wrongful discharge action on that ground. Accepting, as we must all well-pleaded material facts in the complaint as true, we find the assertions set forth in paragraph 20, where appellant claims her termination was done in order to prevent her pension benefits from vesting, clearly avers a specific intent on the part of Hoffman Homes to harm appellant. Such an allegation meets both the “disinterested malevolence” and “ulterior purpose” criteria the Supreme Court in Geary intended as guidance. Tourville, supra 353 Pa.Super. at 56-58, 508 A.2d at 1265-6. Discharging an employee to prevent the vesting of pension benefits demonstrates a malicious desire to harm that will give rise to an action for wrongful discharge. Reviewing the sustaining of a demurrer does not require us to speculate or consider the merits of appellant’s claim and we do not do so at this time.

Appellant’s remaining claims concern the demurrer as to counts two and three for breach of contract. In both counts, appellant avers that the personnel policies embodied in Hoffman Homes’ employee personnel handbook constitute an employment agreement between the parties. Simply put, appellant claims appellees intended to be contractually bound by the terms and conditions of the handbook. In Reilly, supra 367 Pa.Super. at 415, 532 A.2d at 1214, we stated that in order for a handbook to be construed as a contract it “must contain unequivocal provisions that the employer intended to be bound by it, and, in fact renunciated the principle of at-will employment.” We find no such provisions in the instant handbook and find that appellant is an at-will employee.

Additionally, we find neither an express or implied “just cause” provision in the handbook as spoken of in Banas, supra 348 Pa.Super. at 483-84, 502 A.2d at 647-648. Our summary of the law in Reilly supra, 367 Pa.Superior Ct. at 417, 532 A.2d at 1215, is directly applicable in the present case:

In Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, [108] 466 A.2d 1084, 1085 (1983), we held that an employer’s ‘unilateral act of publishing its policies’ in an employee handbook ‘did not amount to the “meeting of the minds” required for a contract’ when ‘[t]he terms of the handbook were not bargained for by the parties and any benefits conferred by it were mere gratuitous.’ See Muscarella v. Milton Shoe Manufacturing Company, Inc., 352 Pa.Super. 158, [162] 507 A.2d 430, 432 (1986) (‘[I]t is well established that failure to adhere to a company personnel policy does not create a cause of action for breach of an employment contract’); Darlington, supra (quoting Richardson with approval). In Martin v. Capital Cities Media, Inc., 354 Pa.Super. 199, [210-214] 511 A.2d 830, 836-38 (1986), we affirmed our holding in Richardson when concluding that a handbook should not be accorded contractual significance, stating that:
We believe that the holding in Richardson, supra, is more in keeping with the philosophy of the at-will presumption than is the line of cases finding contractual significance in handbooks. And, we might add, it is more in keeping with our analysis in Darlington, supra, wherein we cautioned against further burdening of the judicial process with expanding the bases for recovery in this field. Richardson held that handbooks are not contracts because they lack consideration. We need not analyze whether there is consideration here because we find that a reasonable employee in appellant’s position would not have understood that in distributing the handbook, the employer intended to be legally bound.
We also believe that cases which find contractual significance in handbooks have bypassed an important inquiry. Before we can decide whether there is a valid offer and acceptance with the distribution of a handbook, a threshold question must be asked: With the distribution of the handbook, does the at-will employee reasonably understand that the employer intended to alter the pre-existing at-will status?
In analyzing an employer’s publication and distribution of an employee handbook, we should not necessarily presume that the employer intended to alter the previous existing contractual relationship between the parties; nor should we assume that the employee believed that the handbook was a legally binding instrument____
... [I]n deciding whether the employer newspaper intended to recontract with all employees who received the handbook, we must ask whether the employment handbook evidences an intent that it became a legally binding contract that replaces the pre-existing at-will status. This is a question of interpretation and is therefore left to the court.

Reading the handbook provisions as a whole, we do not believe a reasonable person in appellant’s position would have interpreted it as converting appellant from an at-will employee to an employee with an indefinite contract who could never be dismissed without objective cause. Therefore, we affirm the sustaining of the demurrer as to the counts two and three of the amended complaint.

Accordingly, we affirm in part and reverse in part and remand for further proceedings consistent with this Opinion. We affirm the trial court’s sustaining of a demurrer as to the amended complaint’s count one argument concerning a cause of action for wrongful discharge violative of public policy and reverse the sustaining of a demurrer as to the count one claim that the discharge was performed with specific intent to harm. Further, we affirm the granting of the demurrer as to counts two and three. In view of appellant’s earlier election not to file a second amended complaint, but electing to appeal, and considering that from the face of the complaint already once-amended, any further attempt to amend would be unavailing, we do not grant appellant an opportunity to further amend her amended complaint.

Affirmed in part, reversed in part and remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

Concurring and Dissenting Opinion by CERCONE, J.

CERCONE, Judge,

concurring and dissenting:

I cannot accept the view set forth in the majority’s decision that this court is incapable of affording relief to a responsible employee for an arbitrary and retaliatory discharge from employment when that employee sought to perform a basic duty implicit in her office as a social worker at the Hoffman Homes for Youth. I therefore dissent.

For more than nine years appellant Margaret Mudd was employed by Hoffman Homes as a social worker. On February 1, 1982 she was informed by the agency’s executive director Gerald Hagmayer that he would fire her unless she voluntarily resigned. Mudd did not resign and, subsequently, she was given notice of termination on March 1, 1982, to be effective April 30, 1982. The majority now holds, while admitting a public policy interest in prohibiting activity involving illegal drugs and controlled substances, that the mere fact that Hoffman Homes alleged “a plausible and legitimate reason for appellant’s termination, i.e. the preservation of normal management operating procedures” is sufficient to uphold the lower court’s grant of appellees’ preliminary objections. I am unable to agree that the appellees’ claimed interest in “normal operating procedures” is of sufficient weight to supersede what I perceive to be facts which raise a clear mandate of public policy interest.

In an amended complaint, dismissed by the order now on appeal, Mudd alleged in paragraph 9:

When Mrs. Mudd learned about this drug-related incident, she became very alarmed that an act of child abuse had occurred at HHY. [emphasis added]

At paragraph 13, she alleged:

When Mrs. Mudd contacted the HHY Board of Directors, she did so in fulfillment of her moral and professional duties as a social worker and in accordance with the legal duties imposed upon her by the Pennsylvania Child Protective Services Law, Act of November 26, 1975, P.L. 438, No. 124, § 1, 11 P.S. 2201 et seq.

By setting forth these concerns, Mudd was pleading the public policy issues which she would later be required to prove at trial. The majority concludes that because appellant did not state relevant federal and state laws regarding illegal drugs it would not address their possible application. I find no authority which requires a party to plead relevant statutory authority, in a complaint, to raise an issue of public policy and, therefore, I disagree with the majority’s conclusion that this aspect of the public policy debate should be disregarded. As to Mudd’s claim of duty pursuant to the Child Protective Services Law, the majority frames the public policy issue in terms of Mudd’s failure to abide by internal operating procedures rather than reviewing the public policy issue in terms of the alleged child abuse.

In Yaindl v. Ingersoll-Rand Company, Inc., 281 Pa.Super. 560, 422 A.2d 611 (1980), a panel of this Court was called upon to review an action for wrongful discharge and stated:

It is enough to note that in appraising the propriety of the lower court’s order dismissing appellant’s claims, we must weigh several factors, balancing against appellant’s interest in making a living, his employer’s interest in running its business, its motive in discharging appellant and its manner of effecting the discharge, and any social interests or public policies that may be implicated in the discharge.

Id., 281 Pa.Superior Ct. at 577, 422 A.2d at 620. In order to “overcome the employer’s interest in running a business, the employee must show a violation of a clearly mandated public policy which ‘strikes at the heart of a citizen’s social right, duties, and responsibilities.’ ” Turner v. Letterkenny Federal Credit Union, 351 Pa.Super. 51, 55, 505 A.2d 259, 261 (1985) (quoting Novosel v. Nationwide Insurance Company, 721 F.2d 894, 899 (3d Cir.1983)). The more important the public policy implicated in the discharge, the more difficult it will be for the discharging employer to assert a sufficient separate and legitimate business reason to justify the discharge.

As was stated in Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984), “The sources of public policy [which may limit the employer’s right of discharge] include legislation; administrative rules, regulation, or decision; and judicial decision.” Id., 328 Pa.Superior Ct. at 306, 476 A.2d at 1343 (quoting Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72, 417 A.2d 505, 512 (1980)). Accord Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980) (as a result of the public policy against unnecessarily stigmatizing former offenders, Criminal History Record Information Act, 18 Pa.C. S.A. § 9125(b), a public employer could not deny a former offender employment on the. basis of a prior conviction for which the offender had been pardoned, unless the conviction was reasonably related to fitness to perform the job sought); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386 A.2d 119 (1978) (due to the importance of trial by jury in our legal system, an employer could not discharge an employee because the employee accepted service on a jury) (citing cases from sister states); Molush v. Orkin Exterminating Co., Inc., 547 F.Supp. 54 (E.D.Pa.1982) (former employee who alleged that he underwent a polygraph examination, pleaded valid cause of action for tortious discharge under public policy embodied in Pennsylvania anti-polygraph statute, 18 Pa.C.S.A. § 7321).

The precise extent to which the employer’s interest in running his business is limited by considerations of public policy cannot be stated but must be worked out on a case-by-case basis. In the case sub judice, the majority has merely looked to the fact that the pleadings show the employer had a plausibly legitimate reason for the discharge without weighing that interest against the public policy considerations at stake.

I would find that appellant’s allegation of suspected child abuse raises, per se, public policy implications which must be explored beyond the pleading stage. My primary concern in this case is that we have not heard Ms. Mudd’s testimony nor reviewed and considered her evidence. In this situation, we cannot conduct the required balancing test on the basis of the pleadings only.

Further, I would find that the Child Protective Services Law provides evidence of legislative intent to protect individuals who fulfill their obligation to take steps necessary to prevent the continuance of suspected child abuse.

Section 4 of the Child Protective Services Law provides in pertinent part:

(a) Any persons who, in the course of their employment, occupation, or practice of their profession come into contact with children shall report or cause a report to be made in accordance with section 6 [11 P.S. § 2206] when they have reason to believe, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child.
(b) Whenever any [social worker] is required to report ... in his capacity as a member of the staff of a ... public or private institution, school, facility, or agency, he shall immediately notify the person in charge of such institution, school, facility or agency, or the designated agent of the person in charge. ...
(d) Any person who, under this section, is required to report or cause a report of suspected child abuse to be made and who, in good faith, makes or causes said report to be made and who, as a result thereof, is discharged from his employment or in any other manner is discriminated against with respect to compensation, hire, tenure, terms, conditions or privileges of employment, may file a cause of action in the court of common pleas of the county in which the alleged unlawful discharge or discrimination occurred for appropriate relief. ...

11 P.S. § 2204.

While it appears that this Act may have relieved Ms. Mudd of any legal obligation to take further action after informing Hagmayer of her concerns, it does not restrict her from making her complaint or allegation at a higher level. At the pretrial stage, there is neither evidence of an internal policy outlining complaint procedures nor evidence that Ms. Mudd’s complaints caused substantial disruption to the operating procedures of Hoffman Homes. The firing of a social worker who acts in good faith to fulfill her ethical and professional obligations raises a question of great public import.

Contrary to the majority’s assertion, society’s interest in protecting the children placed in the protective custody of a public or private agency manifestly presents a mandate to the court to allow Ms. Mudd to proceed past the pleading stage. I write with full recognition of the weight the courts of this Commonwealth have accorded to an employer’s interest in controlling its workforce. However, in balancing that interest against society’s interest in doing its utmost to protect our precious future citizens I can reach no other conclusion than that this Court should, at the least, recognize a cause of action based on the allegations contained in appellant’s complaint. Undoubtedly we will be asked to review this case again after a record has been made. That would be the proper time to balance the competing interests in question here. In my judgment, the order of the Court of Common Pleas of Adams County should be reversed and this case remanded for trial on all claims.

      . The amended complaint does not state what recommendation the outside hearing examiner gave to the Board of Directors.

      . Appellant’s reliance on the Child Protection law as justification of her actions cannot prevail. Her duty ended when she reported the suspected abuse to her employer. Section 2204(b) provides:
      [A] member of the staff ... shall immediately notify the person in charge of such institution, school, facility or agency____ Upon notification, such person in charge or his designated agent, if any, shall assume the responsibility and have the legal obligation to report or cause a report to be made in accordance with section 6. (Emphasis added)

      . In Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 539 A.2d 1298 (1988), this court sustained the trial court’s denial of plaintiffs petition to remove nonsuit after plaintiff had an opportunity to present all its proferred evidence in its case in chief. In Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980), this court affirmed the grant of summary judgment motion, in defendant’s favor, following a review of the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits which supported the determination that there were no issues of material fact.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    543 A.2d 1100
    George S. FULMER, and Eva Fulmer his wife, Appellants, v. DUQUESNE LIGHT COMPANY, a corporation, Appellee, v. RUST CHIMNEY, INCORPORATED, a subsidiary of Union Boiler Company, Appellee. George S. FULMER and Eva Fulmer, his wife, Appellees, v. DUQUESNE LIGHT COMPANY, a corporation, v. RUST CHIMNEY, INCORPORATED, a subsidiary of Union Boiler Company, Appellant. George S. FULMER and Eva Fulmer, his wife, Appellees, v. DUQUESNE LIGHT COMPANY, a corporation, Appellee, v. RUST CHIMNEY, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1987.
    Filed May 5, 1988.
    Reargument Denied July 6, 1988.

      John F. Becker, Pittsburgh, for George and Eva Fulmer.
    Kathy K. Condo Caritis, Pittsburgh, for Duquesne Light.
    Avrum Levicoff, Pittsburgh, for Rust Chimney.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

George Fulmer was an employee of Rust Chimney. He fell and was seriously injured while working inside a smokestack at the Elrama Power Station, which was owned and operated by Duquesne Light Company. Fulmer filed an action against Duquesne Light to recover for his injuries. Duquesne Light caused Rust Chimney to be joined as an additional defendant. The basis for such joinder was an express agreement by Rust Chimney to indemnify Duquesne Light for injuries occurring to employees of Rust Chimney while they worked on the premises of Duquesne Light. The only exception, according to the agreement, was in a case where the injuries to an employee were caused by the sole negligence of Duquesne Light. At trial, the court instructed the jury to apportion negligence among all the parties, including plaintiff’s employer, Rust Chimney. The jury found that (1) Fulmer’s causal negligence was twenty (20%) percent, (2) Duquesne Light’s causal negligence was twenty (20%) percent, and (3) Rust Chimney’s causal negligence was sixty (60%) percent. The jury determined Fulmer’s damages to be $112,549.90 and awarded his wife the sum of $20,000.00 for loss of consortium. The trial court molded the verdict and recorded it against Duquesne Light in the amount of $90,039.92 for Fulmer and in the amount of $16,000.00 for his wife, with indemnification to be made by Rust Chimney to Duquesne Light. Post-trial motions were denied, delay damages were added, and judgments were entered. The trial court also directed that Rust Chimney pay seventy-five (75%) percent of Duquesne Light’s counsel fees. Fulmer and Rust Chimney have appealed; they contend that a new trial is necessary. Fulmer also complains about the award of delay damages, and Rust Chimney complains about the order directing the payment of counsel fees to Duquesne Light.

The principal argument made by Fulmer is that the trial court erred when it instructed the jury to include Rust Chimney, the employer, in the jury’s apportionment of causal negligence in the action brought by Fulmer against Duquesne Light. We agree with Fulmer that this was improper and that a new trial, therefore, is necessary.

It is beyond cavil in this Commonwealth that an employer may not be joined as an additional defendant in an action by an injured employee against a third party tortfeasor on grounds that he is liable to his employee on the cause of action alleged or on grounds that he is jointly or severally liable with the defendant thereon. The rule bars the joinder of an employer for the purpose of apportioning negligence. See: Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983). See also: Hall v. Goodman Co., 310 Pa.Super. 465, 456 A.2d 1029 (1983); William Harter and Cleaver Brooks v. Yeagley, 310 Pa.Super. 449, 456 A.2d 1021 (1983); Kelly v. Carborundum Co., 307 Pa.Super. 361, 453 A.2d 624 (1982), aff'd, 504 Pa. 238, 470 A.2d 969 (1984). This result is mandated by section 303 of the Pennsylvania Workmen’s Compensation Act which provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death____
(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

Act of June 2, 1915, P.L. 736, art. Ill, § 303 as amended by the Act of December 5, 1974,' P.L. 782, No. 263, § 6, 77 P.S. § 481. By virtue of this section, an employer may not be held liable to his employee in a common-law tort action and may not be found jointly liable with a third party tortfeasor. Where liability for indemnification or contribution to the third party tortfeasor is provided by contract, however, the employer may become liable to the third party on a cause of action based on contract. In such event, the third party tortfeasor may cause the employer to be joined as an additional defendant in the employee’s third party action under Pa.R.C.P. 2252(a). Szemanski v. Vulcan Materials Co., 272 Pa.Super. 240, 415 A.2d 92 (1979). See also: Nechwedowich v. Great Atlantic and Pacific Tea Co., Inc., 300 Pa.Super. 152, 446 A.2d 275 (1982); Gallagher v. Transport Pool, Inc., 281 Pa.Super. 188, 421 A.2d 1212 (1980). In reaching this conclusion the Court in Szemanski v. Vulcan Materials Co., supra, reasoned:

The joinder of the employer as an additional defendant in an action brought by an employee against a third party is barred by Section 303(b) of The Pennsylvania Workmen’s Compensation Act, as amended by the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. 481(b). See: Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977). See also: Potts v. Dow Chemical Company, 272 Pa.Super. 323, 415 A.2d 1220 (1979).
However, Section 303(b) of The Pennsylvania Workmen’s Compensation Act, does not bar an action by the third party against the employer if “liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.”
When Pa.R.C.P. 2252(a) is given a broad interpretation, it seems clear that defendant’s cause of action against an indemnitor, although not the same cause of action alleged by the plaintiff, is related to it. Without the occurrence or transaction which brings about defendant’s liability to plaintiff, there can be no obligation upon the additional defendant to indemnify defendant. Therefore, it can be said with assurance that defendant’s cause of action against the additional defendant arises, at least in part, from the same occurrence upon which the plaintiff’s cause of action is based.

Id. 272 Pa.Super. at 243-245, 415 A.2d at 93-94 (footnote omitted).

In the instant case, Rust Chimney had agreed with Duquesne Light, inter alia, as follows:

INDEMNIFICATION—To be responsible for and to protect, indemnify and save the Company harmless from and against the payment of any and all sums of money (including the actual expense of litigation) by reason of any accidents, injuries or damages to persons or property (including, but not limited to, injuries and damages to the contractor, its employees and property, and the Company, its employees and property) which may happen or occur upon or about said work, or arise by reason thereof from a cause not attributable to the sole negligence of the Company. In the event that any such accident, injury or damage should result from or be caused by the joint or concurrent negligence of the Company and the Contractor, contribution shall be enforceable between the parties; provided, however, that the failure of the Company to warn the Contractor [or] its employees or any other person of any defect in any pole or any other electric facility or pressurized steam line or any attachments thereto, whether latent or patent, and whether known to the Company or not, shall not be construed as negligence on the part of the Company.

In an attempt to give effect to this agreement to make contribution and/or indemnity, the trial court directed the jury to apportion the negligence of George Fulmer (plaintiff), Duquesne Light (defendant), and Rust Chimney (additional defendant). This was error.

The Comparative Negligence Law, at 42 Pa.C.S. § 7102(b), provides for the apportionment of damages among “all defendants against whom recovery is allowed.” In the instant case, recovery is not allowed by plaintiff against Rust Chimney, for Rust Chimney was plaintiffs employer and Rust Chimney’s liability to its employee is determined exclusively by the Workmen’s Compensation Law. When the trial court nevertheless directed the jury to include Rust Chimney in its apportionment, it violated the instruction of the Comparative Negligence Law. When it molded the verdict to require Duquesne Light to pay eighty (80%) percent of plaintiffs damages, it compounded its error. By molding the verdict as it did, the trial court allowed plaintiff to recover from Duquesne Light not only for Duquesne Light’s negligence but also for Rust Chimney’s negligence. As we have seen, however, Rust Chimney is not a party against whom recovery can be allowed. Therefore, its negligence should not have been considered in determining Duquesne Light’s liability to the plaintiff.

Fulmer contends, and we agree, that his common-law action for damages was brought against Duquesne Light alone, and he was entitled to have liability determined and damages apportioned between himself and Duquesne Light without any consideration being given to the fault of his employer. Although Duquesne Light was permitted to join Rust Chimney as an additional defendant in order to litigate, as between contracting parties, Rust Chimney’s liability to Duquesne Light for indemnity or contribution, this joinder should not have been allowed to impair Fulmer’s substantive claim against Duquesne Light. The trial court, by directing the jury to include Rust Chimney in its apportionment of negligence, prevented a correct determination of Fulmer’s claim against Duquesne Light. This claim involved issues of negligence and contributory negligence, and the apportionment of fault was limited to the respective faults of Fulmer and Duquesne Light.

Rust Chimney’s liability to indemnify or make contribution to Duquesne Light will arise only if Fulmer obtains a verdict allowing recovery against Duquesne Light. The liability for indemnification or contribution arises by contract and is separate and apart from Duquesne Light’s liability, if any, to Fulmer. These potential liabilities are the subjects of separate causes of action and can readily be tried separately. In recognition that they arise from a common occurrence, however, Pa.R.C.P. 2252(a) permits the indemnitor under a contract of indemnity to be joined as an additional defendant in the third party action against the indemnitee. The rule, however, does not require such joinder; it merely permits it. When such a joinder is effected, the substantive rights of the parties must be determined precisely as if the plaintiffs claim against the defendant and the defendant’s claim against his indemnitor had been tried separately. It was in recognition of such a reality that this Court, in Beary v. Pennsylvania Electric Company, 322 Pa.Super. 52, 469 A.2d 176 (1983), suggested that better practice would dictate bifurcation, i.e., that evidence pertaining to the additional defendant’s agreement to indemnify be deferred until after the liability of the defendant to the plaintiff has been determined. Id., 322 Pa.Superior Ct. at 62, 469 A.2d at 181.

In the instant case, Fulmer requested bifurcation. The trial court denied Fulmer’s motion. In view of the confusion resulting at trial as a result of the trial court’s incorrect instructions regarding the apportionment of negligence, it seems clear that the refusal to bifurcate was an abuse of discretion. If the cause of action for indemnification and/or contribution had been tried after tort liability between Fulmer and Duquesne Light had been determined, this confusion and the incorrect result which it produced would have been avoided.

The trial court’s misapprehension regarding the separate nature of the two causes of action also led to an incorrect judgment requiring Rust Chimney to indemnify Duquesne Light for seventy-five (75%) percent of the eighty (80%) percent of plaintiff’s damages caused by the negligence of both Duquesne Light (20%) and Rust Chimney (60%). The effect was that plaintiff was able to recover damages caused by the joint fault of his employer and the third party; and the employer was required to indemnify the third party as though it had been liable for negligence to its employee. In this manner, the employer’s non-liability to its employee was avoided. The tort action should have produced an apportionment of causal negligence between Fulmer (the plaintiff) and Duquesne Light (the alleged, third party tortfeasor). After this had been determined, the liability of Rust Chimney should have been determined separately in accordance with the terms of its agreement to indemnify Duquesne Light.

Rust Chimney argues, in any event, that the indemnity agreement is invalid because it is contrary to public policy. Relying on decisions of the Supreme and Superior Courts in Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953) and Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149 (1971), it argues that a party may not exculpate himself from liability for violations of statutes or regulations designed to protect public health or safety. The indemnity agreement is invalid and unenforceable, Rust Chimney contends, because it sought to shift liability from Duquesne Light to Rust Chimney for the former’s violations of state safety regulations. We disagree. The indemnification clause in the agreement between Duquesne Light and Rust Chimney does not require Rust Chimney to indemnify Duquesne Light or make contribution unless it was negligent. It is not liable to make indemnification if Duquesne Light was solely negligent in causing Fulmer’s injuries. Moreover, the agreement does not have the effect of defeating plaintiff’s recovery, as was the case in Boyd and Warren City Lines. The indemnification agreement in the instant case neither shifted liability for a violation of statute nor diminished the statutory safeguards which Fulmer was entitled to receive. The agreement did not violate public policy.

Rust Chimney has also argued that the indemnification clause in its agreement with Duquesne Light can have no application to injuries caused to plaintiff by defective conditions existing on Duquesne Light’s premises prior to commencement of the repair work. It is correct, as Rust Chimney contends, that the extent of liability under an indemnity agreement is determined by the intent of the parties. It is also correct that such an agreement is to be construed strictly against the party seeking its protection and is to be limited in scope to matters expressly covered therein. 18 P.L.E., Indemnity § 4. This agreement, as we have already observed, does not require Rust Chimney to indemnify Duquesne Light in the event that the plaintiff was injured solely because of Duquesne Light’s negligence. However, the evidence was such that a jury could find—and in fact did find—that Rust Chimney had also been negligent in causing the plaintiff’s injuries. For this negligence, a jury could find, Rust Chimney was liable to Duquesne Light for indemnification or contribution.

Rust Chimney has also argued that the trial court erred when it refused to instruct the jury on the difference between primary and secondary liability. There is no merit in this contention. Rust Chimney’s liability to Duquesne Light, if it exists, will be by virtue of its express agreement to indemnify Duquesne Light and not because it was secondarily liable to the plaintiff for the injuries which plaintiff sustained. Cf. Banks Tower Communications Ltd. v. Home Insurance Co., 590 F.Supp. 1038, 1040 (E.D.Pa.1984) (“indemnity is recognized only between parties who are either primarily and secondarily liable to each other, or who have an express contract which provides for it”). Because Duquesne Light was claiming indemnity from Rust Chimney pursuant to an express agreement therefor, the trial court did not err when it refused to charge the jury on primary and secondary liability.

Rust Chimney has argued finally that the trial court failed to instruct the jury adequately regarding the duty of care required of Rust Chimney. We have already determined that the trial court erred when it required the jury to determine and apportion Rust Chimney’s negligence in Fulmer’s claim for damages. If, upon remand, the trial of Fulmer’s claim against Duquesne Light is completed before the jury considers Duquesne Light’s claim against Rust Chimney for indemnification, the court’s instructions regarding the separate claims will be different than during the first trial. Therefore, we find it unnecessary to review further in this appeal the court’s instructions regarding the duties and potential liability of Rust Chimney.

Fulmer has also complained about the trial court’s instructions to the jury on the issue of negligence. Fulmer alleged in his complaint that Duquesne Light was negligent in selecting Rust Chimney as its contractor, in failing to provide adequate lighting and/or guardrails inside the smokestack, and in failing to ascertain that Rust. Chimney had taken precautions to make the workplace safe for its employees. In order to determine whether the trial court’s instructions contained error, we must review the trial court’s instructions in their entirety, against the background of the evidence presented. Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984).

We reject Fulmer’s attempt to use Section 424 of the Restatement (Second) to impose upon Duquesne Light an absolute duty to guarantee that an independent contractor will take all safeguards and precautions to prevent injury to the contractor’s employees. Duquesne Light’s smokestack was in need of repair; it engaged Rust Chimney, an independent contractor, to do the work. Duquesne Light was not thereafter required to supervise the contractor and/or ascertain that the contractor had taken maximum precautions to provide its employees with working conditions that were absolutely safe. See: Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963). See also: Brletich v. United States Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971); Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970); Grace v. Henry Disston & Sons, Inc., 369 Pa. 265, 85 A.2d 118 (1952).

With respect to the remainder of the trial court’s instructions pertaining to the duty of care owed by Duquesne Light to its contractor’s employees, our examination discloses statements of legal principles which are eminently correct and amply instructive. There is not to be found in those instructions any basis for awarding a new trial.

There remain the issues of the delay damages awarded to Fulmer and the counsel fees awarded to Duquesne Light. Because the matter must go back to the trial court for a new trial, these issues will be reconsidered at that time. Any review of delay damages and counsel fees by this Court at the present time would be premature. Therefore, we decline at this stage of the proceedings to render an advisory opinion regarding the circumstances under which such damages may properly be awarded.

Reversed and remanded for a new trial. Jurisdiction is not retained.

KELLY, J., concurs in the result.

      . This rule provides:
      Rule 2252. Right to Join Additional Defendants
      (a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

      . See: 77 P.S. § 481(a).