author: KOURY, J.,

text:
    Reynolds Advanced Materials, Inc. v. Ely

      C.P. of Northampton County,
    No. C-48-CV-2013-3512

      John S. Harrison, for plaintiff.

      Malcolm J. Gross and Loren L. Speziale, for defendants.
    August 1, 2013
   KOURY, J.,

The parties are before the court on (1) the preliminary objections of defendants Katherine Ely (“Ely”), Andrew Edman (“Edman”), and Plus Fabrication, LLC (“Plus Fabrication”) (collectively, “defendants”) to the complaint of plaintiff Reynolds Advanced Materials, Inc. (“Reynolds”) and (2) defendants’ motion to dismiss the complaint based on the doctrine of forum non conveniens pursuant to 42 Pa.C.S.A. §5322(e). For the reasons set forth below, we find that our Court is a forum non conveniens for this action.

BACKGROUND

I. The Parties

Reynolds’s pleadings make conflicting statements about its structure and locations. Reynolds’s complaint states that “[Reynolds] is a Massachusetts corporation, authorized to do business in Pennsylvania, and has an address of 45 Electric Avenue, Brighton, MA 02135.” Compl. ¶ 1. However, exhibit B to the complaint, a contract between Reynolds and Edman, states that Reynolds is “a Texas corporation, with an address 2131 S. Harwood St., Dallas, TX 75215.” Compl., ex. B, at 1.

In an apparent effort to resolve the conflict between these documents, in Reynolds’s answer to defendants’ preliminary objections, Reynolds states that “[Reynolds] is a corporate entity, incorporated under the laws of Texas, with a principal office location of 2000 Saint John Street, Easton, Pennsylvania 18042.” Plaintiff’s answer to defendants’ preliminary objections (“answer”) ¶2. The affidavit of Sal “Trey” Bianco filed in support of Reynolds’s answer (the “Bianco affidavit”) states that “[Reynolds] is a corporate entity operating in eight (8) locations throughout the United States” and that “[e]ach location that [Reynolds] operates is a distinct corporate entity, owned wholly by myself and the other joint owner.” Aff. of Sal “Trey” Bianco (“Bianco aff.”) ¶¶2-3. Reynolds asserts that the Easton office makes management decisions for Reynolds’s business in Massachusetts, including review and approval of purchase orders, shipment of products, payment of invoices, payroll, design of products, customer lists, marketing and advertising, human relations, employee training, and technical and sales assistance. See answer ¶¶29, 32; Bianco aff. ¶¶4, 8-10. Taking these documents together, and viewing them in the light most favorable to Reynolds, it would appear that Reynolds is a Texas corporation with operations in Texas, Massachusetts, and several other locations and an administrative office in Easton, Pennsylvania.

Reynolds is owned and operated by two individuals, Bianco and Robert C. Western (“Western”), who work in Reynolds’s office in Easton. See compl. ¶12; Bianco aff. ¶¶1, 3, 9; aff. of Andrew Edman (“Edman aff”) ¶16. Defendants assert that Bianco and Western live in New Jersey. See Edman aff. ¶16. Plaintiffs have not denied this assertion.

Reynolds is a distributor for Smooth-On, Inc. (“Smooth-On”), a company that designs and manufactures rubbers, plastics, foams, and similar materials for use in a variety of applications including sculpture, restorations, prototypes and models, and special effects in motion pictures. See compl. ¶¶6-8. Eighty percent of the products sold by Reynolds are manufactured by Smooth-On. See Bianco aff. ¶5. Reynolds orders products from Smooth-On, and Smooth-On ships the products directly to Reynolds’s customers. See compl. ¶¶10-11. Smooth-On is a Pennsylvania corporation with its principal place of business in Easton, Pennsylvania. See compl. ¶9; Bianco aff. ¶5. Although Smooth-On is owned and operated by Bianco and Western, there is no corporate affiliation between Reynolds and Smooth-On. See Bianco aff. ¶7. Smooth-On is not a party to this action.

Defendants Edman and Ely are adult individuals who live in Massachusetts. See compl. ¶¶2-3; answer ¶56; Edman aff. ¶2; aff. of Katherine Ely (“Ely aff.”) ¶2. Plus Fabrication is a Massachusetts limited-liability corporation with its principal place of business in Cambridge, Massachusetts. See compl. ¶4; answer ¶56. Edman and Ely are the managers of Plus Fabrication and work in its office in Cambridge, Massachusetts. See compl. ¶¶2-3; Edman aff. ¶23; Ely aff. ¶28; Plus aff. ¶¶3-4.

II. Reynolds’s Hiring of Edman and Ely

In 2010, Edman applied for a position with Reynolds and was interviewed by Eli Mather (“Mather”) and Scott Moulton (“Moulton”) at Reynolds’s office in Brighton, Massachusetts. See Edman aff. ¶¶3, 6. On June 3, 2010, Mather sent a letter to Edman offering him a position as an Operations Support associate in Reynolds’s Brighton, Massachusetts office at a salary of $40,000 per year. See compl. ¶¶13-14, ex. A; Edman aff. ¶7. On June 6, 2010, Edman signed the offer letter. See compl. ¶¶13-14, ex. A; Edman aff. ¶8.

On June 7, 2010, Edman signed an employment agreement that provided, among other things, that he would not use or disclose any proprietary information or technology he acquired or developed during the course of his employment with Reynolds. See compl. ¶¶15-19, ex. B. There was no forum-selection clause in Edman’s employment agreement. See id., ex. B.

On June 21, 2010, Edman began his employment with Reynolds. See Edman aff. ¶9. He was later promoted to Branch Manager and oversaw operations in New York and New England. See id. ¶9.

In June 2011, after Edman was promoted to Branch Manager, he interviewed Ely for a position with Reynolds. See Edman aff. ¶10; Ely aff. ¶¶3, 6. Ely had applied to Reynolds based on the recommendation of her then-employer, Linda Ross of Linda Ross Art Studio in Boston. See Ely aff. ¶3. On June 16,2011, Edman sent Ely a letter offering her a position as a Technical and Sales Support associate in Reynolds’s Brighton, Massachusetts office at a salary of $45,000 per year. See compl. ¶20, ex. C; Ely aff. ¶7.

On June 19, 2011, Ely signed the offer letter and an employment agreement that provided, among other things, that she would not use or disclose any proprietary information or technology she acquired or developed during the course of her employment with Reynolds, compete with Reynolds or any of its related entities, solicit Reynolds’s customers for purposes at odd with those of Reynolds, solicit Reynolds’s employees to leave their employment with Reynolds, or divert any business opportunities relating to the business of Reynolds. See compl. ¶¶21-27, exs. C, D; Edman aff. ¶11; Ely aff. ¶¶8-10. In addition, Ely’s employment agreement provided that for a period of two years following termination of her employment with Reynolds, she would not, acting alone or in concert with others, be connected with any entity engaged in Reynolds’s business in competition with Reynolds anywhere in Massachusetts; solicit any customers of Reynolds with whom she had had contact in the last five years of her employment at Reynolds; or solicit any of Reynolds’s employees to leave their employment with Reynolds. See compl., ex. D. Ely’s employment agreement contained a forum-selection clause providing that she “consents to the exclusive jurisdiction and venue of the Court of Common Pleas of Northampton County, Pennsylvania.. .which shall apply Pennsylvania law.” Id. ¶28, ex. D, §4.4.

On July 11, 2011, Ely started working at Reynolds at the Brighton, Massachusetts office. See Ely aff. ¶14. She continued in that position for the next nine months. See id.

III. Reynolds’s Training of Edman and Ely

Edman and Ely each received two weeks of training on sales and products from Bianco and Western at the Easton, Pennsylvania office. See Bianco aff. ¶¶11-12; Edman aff. ¶15; Ely aff. ¶14. After Edman was promoted to Branch Manager, he went to Easton for a meeting of management and sales representatives. See Edman aff. ¶15. Neither the training sessions nor the management meeting involved any outside business activity. See Edman aff. ¶15; Ely aff. ¶14. Edman and Ely have made no other visits to Easton, Pennsylvania. See Edman aff. ¶15; Ely Aff. ¶14.

In its complaint, Reynolds asserts that at the time Edman and Ely were hired by Reynolds, they had no experience working with or selling the types of materials sold by Reynolds and designed and manufactured by Smooth-On. See compl. ¶33. Reynolds alleges that while Edman and Ely were employed by Reynolds, Reynolds taught them about the design, manufacture, and sale of Smooth-On materials and gave them valuable trade secrets relating to sales, marketing, customers, personnel, purchasing, vendors, production, costs, and profit margins. See id. ¶34-40.

Edman and Ely assert that, contrary to Reynolds’s allegations, at the time they accepted their respective positions with Reynolds, they had had substantial experience in mold making and casting and using products distributed by Reynolds. See Edman aff. ¶4; Ely aff. ¶4. In addition, Edman asserts that he had had substantial experience in sales. See Edman aff. ¶4.

IV. Reynolds’s Business

Edman and Ely assert that although Reynolds sells products and materials, it does not provide mold making or casting services. See Edman aff. ¶5; Ely aff. ¶25. They assert that while they were employed by Reynolds, it was standard practice for Reynolds to refer its customers to other companies that provided mold making and casting services. See Edman aff. ¶21; Ely aff. ¶25. Reynolds’s employees were prohibited from performing mold making or casting services for customers while they were employed by Reynolds. See Ely aff. ¶11. Because of this restriction, Ely asserts that once she began working for Reynolds, she stopped performing mold making and casting contract work. See id. ¶12. Although Reynolds’s employees were permitted to give customers samples of Reynolds’s materials, they were not permitted to provide molds or castings that the customers could use in their businesses or for resale. See id. ¶11.

V. Edman’s and Ely’s Departure from Reynolds

In the spring of 2012, Reynolds changed Ely’s job responsibilities and required her to travel throughout the New York and New England areas. See id. ¶16. Ely did not believe that she had adequate training or experience for her new job responsibilities, and she did not like the travel. See id. ¶18. Her superiors became critical of her job performance. See id. As a result of this conflict, on or about July 9, 2012, Ely left Reynolds. See id. ¶¶19-20.

The same month, Ely took a part-time position with Metalwerx, a nonprofit school in Massachusetts that teaches jeweliy and metalsmithing. See id. ¶¶19, 23. She also started Plus Fabrication as a sole proprietorship through which she began performing freelance mold making and casting work. See id. ¶¶23, 25. In addition, in September 2012, Ely accepted a position with Artisans Asylum in Massachusetts, where she taught night classes in mold making and casting. See id. ¶24.

In the spring of 2012, Western became critical of Edman’s job performance at Reynolds. See Edman aff. ¶¶17-18. As a result of this conflict, in December 2012, Edman left Reynolds. See id. ¶¶18-19. In January 2013, Edman took a position working for Ely at Plus Fabrication. See Edman aff. ¶20; Ely aff. ¶26.

VI. Plus Fabrication’s Business

When Ely started Plus Fabrication, she began purchasing mold making and casting supplies from Reynolds at Reynolds’s showroom in Brighton, Massachusetts. See Edman aff. ¶22; Ely aff. ¶27. However, on March 8,2013, Edman and Ely went to the Brighton showroom together to purchase supplies, and Reynolds informed them that it would no longer sell to them. See Edman aff. ¶22; Ely aff. ¶27. Reynolds provided no explanation. See Edman aff. ¶22; Ely aff. ¶27.

On March 15, 2013, Ely filed an application to register Plus Fabrication as a Massachusetts limited liability corporation. See Edman aff. ¶23; Ely aff. ¶28; Plus aff. ¶2. Edman and Ely assert that the business of Plus Fabrication is conducted in Massachusetts and other northeastern states outside Pennsylvania. See Edman aff. ¶23; Ely aff. ¶28; aff. of Katherine Ely on Behalf of Plus Fabrication, LLC (“Plus aff.”) ¶6.

VII. The Parties’ Contentions

On April 16, 2013, Reynolds commenced this action, asserting that Edman and Ely have engaged in a continuous pattern of conduct in violation of their obligations under their respective employment agreements. See compl.; answer ¶¶23-24. Reynolds alleges that Edman and Ely organized and created Plus Fabrication while they were employed by Reynolds. See compl. ¶¶41-44. Reynolds alleges that Edman and Ely emailed Reynolds’s trade secrets and other proprietary information to their personal email accounts; stole products from Reynolds and used those products for their personal benefit; attempted to recruit Reynolds’s employees; began selling products that compete with Smooth-On’s products; asked Reynolds’s customers to purchase products and services from Plus Fabrication; offered customers classes and instruction in which they used copies of materials created by Reynolds; and advised customers to terminate their relationships with Reynolds. See id. ¶¶45-55, 58.

Reynolds has asserted eight claims: interference with contractual relations against Edman, Ely, and Plus Fabrication (count I); violation of the Uniform Trade Secrets Act, 12 Pa.C.S.A. §5301 et seq., against Edman, Ely, and Plus Fabrication (count II); breach of contract against Edman (count III); and breach of contract against Ely (count IV). See id. ¶¶56-82. Reynolds seeks damages, attorneys’ fees, costs, and preliminary and permanent injunctive relief (1) enjoining defendants from communicating with Reynolds’s customers, employees, and vendors, from misappropriating, using, or disclosing Reynolds’s and Smooth-On’s trade secrets, and from receiving any benefit from the use of such trade secrets; and (2) requiring that defendants return all items containing Reynolds’s or Smooth-On’s trade secrets. See id. ¶¶56-82.

Edman and Ely acknowledge that they used Reynolds’s customer lists in performing their jobs for Reynolds but assert that they did not keep the customer lists after they left Reynolds. See Edman aff. ¶13; Ely aff. ¶¶15, 21. Edman acknowledges that he may have emailed customer lists from the Brighton, Massachusetts office to his personal email address but only because he frequently worked from home in the evenings and needed the documents to prepare his sales plans. See Edman aff. ¶13. Both Edman and Ely assert that they never received any confidential information of Smooth-On, including formulas for the products it manufactures. See Edman aff. ¶14; Ely aff. ¶22.

Edman and Ely assert that Plus Fabrication provides mold making and casting services; that Plus F abrication’s customers are generally from Massachusetts and other northeastern states and are typically referred by Edman’s and Ely’s contacts in the Boston art community, including their former colleagues at Reynolds; that Edman and Ely have not transacted any business in Pennsylvania except for recent telephone calls and emails with one company based in Pennsylvania that is not a current or former customer of Reynolds; and that those communications pertain to work that will be performed in Massachusetts. See Edman aff. ¶¶21, 24-25; Ely aff. ¶¶25, 29-30; Plus aff. ¶¶5, 8. Reynolds denies that Plus Fabrication does not do business in Pennsylvania. See answer ¶56.

Reynolds alleges that Edman and Ely had continuous and systematic contact with Bianco and Western in Easton, Pennsylvania with respect to virtually all aspects of Reynolds’s business. See answer ¶¶29, 32; Bianco aff. ¶¶4, 8-10. Edman acknowledges that he had regular telephone and email contact with Bianco and Western in the Easton office. See Edman aff. ¶18. Ely asserts that she exchanged a few emails with Bianco and Western and had a few conversations with Western, one of which took place when he visited the showroom in Brighton, Massachusetts. See Ely aff. ¶17.

Reynolds asserts that there are relevant documents at the Easton, Pennsylvania office. See Bianco aff. ¶13. Reynolds asserts that it will call additional employees to testify concerning Reynolds’s billing, invoicing, computer system, and communication. See pi. br. in opposition to def. pet. to dismiss pursuant to 42 Pa.C.S.A. §5322(e) (“pi. br.”) at 2-3. Reynolds has not identified any third party witnesses or documents outside of Massachusetts.

VIII. Defendants’ Motion To Dismiss Based on Forum Non Conveniens

On May 14,2013, defendants filed a “Petition to Dismiss Plaintiffs’ Complaint Based on Forum Non Conveniens Pursuant to 42 Pa.C.S.A. §5322(e).” Defendants argue that although Reynolds and Smooth-On have offices in Easton, Pennsylvania, most of the evidence in the case will center on the parties’ actions in Massachusetts and that Massachusetts would be a more convenient forum for the litigation. See def. br. at 5-7.

DISCUSSION

I. Appropriateness of Pennsylvania as a Forum

A. The Doctrine of Forum Non Conveniens

The doctrine of forum non conveniens is codified in Pennsylvania’s long-arm statute. See 42 Pa.C.S.A. §5322 et seq. “When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.” 42 Pa.C.S.A. §5322(e); accord Plum v. Tampax, Inc., 160 A.2d 549, 552 (Pa. 1960) (“It is well within the power of the court, in the interests of justice, to decline to exercise its jurisdiction where, upon consideration of the parties, the witnesses, the situs of the cause of action and other kindred reasons, the litigation can more appropriately be conducted in another forum.”). “Because our courts lack authority to transfer cases to the courts of our sister states, dismissal of the action is the only permissible result.” Alford v. Philadelphia Coca-Cola Bottling Co., Inc., 531 A.2d 792, 794 (Pa. Super. 1987).

B. Standard of Review

“The decision to dismiss [based on forum non conveniens\ is within the trial court’s discretion, and will not be reversed where there is no abuse of discretion.” Tyro Indus., Inc. v. James A. Wood, Inc., 614 A.2d 279, 281 (Pa. Super. 1992). “It is not enough for an appellant challenging dismissal to persuade the appellate court that it might have reached a different conclusion. If there is any basis for the trial court’s decision, the ruling will not be disturbed.” Id. at 281-82.

C. Requirements for Dismissal

“In deciding whether to dismiss a suit based on forum non conveniens, the court must consider two important factors (1) a plaintiff’s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff.” Jessop v. ACF Indus., LLC, 859 A.2d 801, 802 (Pa. Super. 2004). Here, all of the parties do business in Massachusetts and are therefore subject to jurisdiction and venue there. It has been only one year since Ely left Reynolds, and Reynolds has raised no concern that any of its claims might be barred by statutes of limitations. Thus, if the court were to dismiss this action on grounds offorum non conveniens, Reynolds would have an alternative forum available in Massachusetts. Accordingly, we must now determine whether there are “weighty reasons” sufficient to overcome Reynolds’s choice of forum in Pennsylvania.

D. Factors To Be Considered in Evaluating Plaintiff’s Chosen Forum

“In determining whether ‘weighty reasons’ exist so as to overcome the plaintiff’s choice of forum, the trial court must examine both the private and public interest factors involved.” Jessop, 859 A.2d at 803. The private factors a court must consider include (1) the relative ease of access to sources of proof; (2) availability of compulsory process for attendance for unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) possibility of a view of the premises, if a view would be appropriate to the action; and (4) all other practical problems that make trial of a case easy, expeditious, and inexpensive. See id. The public factors a court must consider include (1) administrative difficulty for the court created when “litigation is piled up in congested centers instead of being handled at its origin”; (2) the burden of jury duty, which “ought not to be imposed upon people of a community that has no relation to the litigation”; and (3) the extent to which the court will be required to apply the law of a foreign state. See id at 803-04. It is not necessary for the defendant to show that the plaintiff’s chosen forum is “oppressive and vexatious to the defendant,” the standard for transfers between counties. See Engstrom, 855 A.2d at 56 & n.7. The court need only consider the private and public factors and, exercising its discretion, determine the most appropriate forum. See id. at 56.

Even where the plaintiff is a resident of Pennsylvania, the plaintiff’s choice of a Pennsylvania forum will be overcome if the private and public factors weigh strongly in favor of dismissal. See Tyro, 614 A.2d at 281 (although plaintiff construction subcontractor did business in Pennsylvania and construction proj ect at issue had occurred in Pennsylvania, dismissal was proper where none of the parties was incorporated in Pennsylvania, the contracts and breaches thereof had occurred outside Pennsylvania, “virtually all witnesses” resided outside Pennsylvania, foreign state’s law applied, and Pennsylvania tax dollars would be spent on a litigation with “only tangential contacts” to Pennsylvania).

E. Application of the Private and Public Factors in the Instant Matter

As more fully set forth below, the court has weighed the private and public factors in the instant matter and concluded that Pennsylvania is an inconvenient forum. Here, as in Tyro, although Reynolds does business in Pennsylvania, Reynolds is not incorporated in Pennsylvania, none of the other parties is a resident of Pennsylvania, the contracts and alleged breaches thereof occurred outside Pennsylvania, virtually all of the significant witnesses reside outside Pennsylvania, and if the matter were litigated here, Pennsylvania tax dollars would be spent on a litigation with only tangential contacts to Pennsylvania.

1. Private Factors

Plaintiff asserts, “Litigation in a Massachusetts forum would be equally inconvenient, if not more so, than litigating in Northampton County, Pennsylvania, because the burden would simply be flipped.” PL br. at 6. We disagree.

In this matter, there will likely be few witnesses from Pennsylvania other than Bianco, Western, and Moulton. Although Reynolds asserts that it will call additional employees to testify to Reynolds’s billing, invoicing, computer system, and communication, such testimony will have only modest impact on the case. The parties’ most intense focus will be on Reynolds’s allegations that Edman and Ely stole trade secrets and solicited Reynolds’s customers and employees. Both sides will likely seek to prove their contentions by calling third party witnesses. If this matter is litigated in Massachusetts, the only witnesses who will need to travel there will be Reynolds’s own employees from the Easton office, and Reynolds has the power to compel them to do so. By contrast, if the matter is litigated in Pennsylvania, there will be third-party witnesses from Massachusetts who will need to travel to Pennsylvania and whom the defendants do not control.

First, both sides will likely seek testimony from Reynolds’s current and former employees in the Brighton, Massachusetts office to establish (1) the type of work that was performed there; (2) the type of training that was given to Reynolds’s employees; (3) whether Edman and Ely attempted to recruit any of those employees; and (4) whether any of those employees saw evidence that Edman and Ely were planning to start their own business, stealing products from Reynolds, or attempting to misappropriate Reynolds’s proprietary information or solicit its customers. Most of these witnesses presumably live and work in Massachusetts.

Second, both sides will likely seek testimony from Edman’s and Ely’s friends and colleagues in the Boston art community, including witnesses from their educational institutions and other employers, to establish (1) whether Edman and Ely gained their current knowledge and expertise before they went to work for Reynolds or as a result of being trained by Reynolds; and (2) whether Edman and Ely obtained their current customers by seeking referrals from their own contacts or by using Reynolds’s customer lists. Ely asserts that she worked for three other employers, Linda Ross Art Studio, Metalwerx, and Artisans Asylum, all of which are in Massachusetts. Although Edman did not identify his previous employers, both Edman and Ely assert that they have had no contact with Pennsylvania other than their brief initial visits to Reynolds’s offices in Easton. Thus, witnesses from their educational institutions and other employers likely will not come from Pennsylvania.

Third, both sides will likely seek testimony from current and former customers of both Reynolds and Plus Fabrication to establish (1) whether customers consider Reynolds and Plus Fabrication to be in the same business; (2) whether customers believe that they could obtain the same services from Reynolds and Plus Fabrication; (3) whether customers saw evidence that Edman and Ely were planning to start their own business while they were still employed by Reynolds; (4) whether Edman and Ely solicited Reynolds’s customers; (5) whether Plus Fabrication’s current customers were referred by Edman’s and Ely’s contacts in the Massachusetts art community; (6) whether the services Plus Fabrication provides to its customers were corporate opportunities that could have been presented to Reynolds; (7) whether Edman and Ely stole products from Reynolds and used those products at Plus Fabrication; (8) whether Edman and Ely have recommended that their customers buy products that compete with Smooth-On’s products; and (9) whether ideas and projects that Plus Fabrication has implemented for its customers were taken from Reynolds or developed independently. Edman and Ely assert that Plus Fabrication conducts its business in Massachusetts, that its customers generally come from Massachusetts and other northeastern states, and that they have had contact with only one prospective customer based in Pennsylvania. Thus, the majority of these witnesses will likely come from Massachusetts and not from Pennsylvania.

Fourth, both sides will likely seek testimony from competitors of Reynolds and Plus Fabrication to establish (1) whether those competitors consider Reynolds and Plus Fabrication to be in the same business; (2) whether Reynolds’s allegedly proprietary information is in fact proprietary or is generally known in the industry; (3) whether the services offered by Plus Fabrication could be performed by Reynolds; and (4) whether Plus Fabrication could perform those services without Reynolds’s allegedly proprietary information. Based on the asserted locations of Plus Fabrication’s customers, most of the witnesses from competitors of Plus Fabrication and Reynolds will likely come from Massachusetts or other states and not from Pennsylvania.

As the foregoing makes clear, both Reynolds and defendants will likely prove their cases largely through the testimony of third-party witnesses, the vast majority of whom will likely come from Massachusetts, or at least outside Pennsylvania. Even if there is a procedure in Massachusetts that would permit the parties to compel such witnesses to provide testimony for a trial in Pennsylvania, the parties would either be required to pay for the witnesses’ travel and hotels or forego the impact of live testimony. The defendants in this case are not corporations or wealthy individuals but people of modest means and sophistication who likely cannot afford the expense of transporting numerous witnesses to Pennsylvania. In addition, the difficulties of scheduling testimony under these circumstances would prolong the litigation and place administrative burdens on the court. Thus, the court finds that the private factors here overwhelmingly favor dismissal.

2. Public Factors

Reynolds asserts that this matter should be litigated in Pennsylvania, because defendants’ conduct has impacted the business of both Reynolds and Smooth-On, and the courts of Pennsylvania “have a strong interest in enforcing agreements for the benefit of their business entities.” PI. Br. at 7. We disagree.

First, Smooth-On’s residence is irrelevant, because Smooth-On had no agreement with defendants and is not a party to this action.

Second, Reynolds’s claim to being a “Pennsylvania business entity” is somewhat attenuated. Reynolds is a Texas corporation with operations in Texas and seven other locations throughout the United States, and its owners reside outside of Pennsylvania. Reynolds’s only claim to being a “Pennsylvania business entity” is the presence of one administrative office in Easton. By contrast, Reynolds has a showroom and sales force in Massachusetts and serves numerous customers in that state. In addition, Reynolds entered into contracts with residents of Massachusetts that were executed and performed in that state. Thus, the conduct of both Reynolds and defendants has had a significantly greater impact in Massachusetts than in Pennsylvania.

Third, a party has no absolute right to bring an action in the Pennsylvania courts simply because it does business in Pennsylvania. See Tyro Indus., Inc. v. James A. Wood, Inc., 614 A.2d 279, 281 (Pa. Super. 1992). Reynolds is in the same position as the plaintiff in Tyro, i.e., it is not incorporated in Pennsylvania but merely does business in Pennsylvania, among other places, and the court in Tyro found that such a plaintiff’s choice of forum was insufficient to overcome the burden and inconvenience of trying a case in which most of the parties and witnesses were located elsewhere. See id.

This case has only a limited connection to Pennsylvania. Due to the number of out-of-state witnesses, hearing the matter in Pennsylvania would result in protracted proceedings. Thus, like the court in Tyro, we conclude that maintaining this matter in Pennsylvania would unduly burden the Pennsylvania Court by requiring the expenditure of tax dollars on a case with only “tangential contacts” to Pennsylvania. 614 A.2d at 282.

II. Effect of the Forum Selection Clause in Ely’s Contract

Reynolds argues that Ely’s case must be heard in Pennsylvania because she signed an employment contract in which she consented to application of Pennsylvania law and the exclusive jurisdiction of the Pennsylvania courts. See pi. br. at 7. We disagree.

A forum selection agreement should be enforced “where such agreement is not unreasonable at the time of litigation.” Churchill Corp. v. Third Century, Inc., 578 A.2d 532, 536 (Pa. Super. 1990). “An agreement is unreasonable where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff’s ability to pursue its cause of action.” Id. A forum selection agreement will be deemed unreasonable and disregarded where, as here, enforcement would be unduly burdensome and the party seeking to enforce the agreement does business in the forum where the other party is located. See Morgan Trailer Mfg. Corp. v. Hydraroll, Ltd., 759 A.2d 926, 930-31 (Pa. Super. 2000). (“We find it particularly compelling that [the party seeking to enforce the forum selection agreement] now has a division in [the other party’s forum] and thus has a local base of operations.”).

Here, the court finds that enforcement of the forum selection clause in Ely’s employment contract would be unreasonable. First, Ely has had no contacts with Pennsylvania other than one training session and a few telephone calls and emails with principals in the Easton office. Second, as discussed above, it would be unduly burdensome for Ely to transport the evidence and witnesses in this case from Massachusetts to Pennsylvania. Third, Reynolds has a showroom and sales force in Massachusetts, alleges injury that occurred in Massachusetts, and will likely call numerous witnesses from Massachusetts. Thus, under the authorities cited above, it would be unreasonable to allow Reynolds to enforce the forum selection clause in Ely’s employment agreement and compel her to litigate this case in Pennsylvania. Indeed, it would appear that the only reason Reynolds seeks to litigate the matter in Pennsylvania is to increase the burden for Ely.

In addition, the court has already determined that the claims against Edman should be tried in Massachusetts. The evidence against Edman and Ely is essentially the same. If the claims against Ely were tried separately in Pennsylvania, the parties would be required to conduct two essentially identical trials, and there would be a risk of inconsistent verdicts. Avoidance of duplicative and inconsistent proceedings is a valid basis to dismiss an action based on the doctrine offorum non conveniens. See Tyro, 614 A.2d at 283 (“New York is the only forum where all original parties may participate and avoid a duplicative lawsuit.”). Thus, in the interest of judicial efficiency and economy, the court holds that the forum selection clause in Ely’s contract should be disregarded and that Reynolds’s complaint should be dismissed.

Wherefore, we enter the following:

ORDER OF COURT

And now, this 1st day of August, 2013, upon consideration of the motion of defendants Katherine Ely (“Ely”), Andrew Edman (“Edman”), and Plus Fabrication, LLC (“Plus Fabrication”) (collectively, “defendants”) to dismiss the complaint of plaintiff Reynolds Advanced Materials, Inc. (“Reynolds”) based on the doctrine of forum non conveniens pursuant to 42 Pa.C.S.A. §5322(e) and the briefs and arguments thereon, it is hereby ordered and decreed that defendants’ motion is granted, and plaintiffs’ complaint is dismissed. Defendants’ preliminary objections to the complaint are denied as moot.

      . In this case, application of foreign law is a neutral factor. Massachusetts law will likely apply to the claims against Edman, because his contract was executed and performed in Massachusetts, and his alleged tortious conduct and theft of trade secrets occurred in Massachusetts. On the other hand, Pennsylvania law may apply to the claims against Ely, because her employment agreement provides for application of Pennsylvania law. As a result, regardless of which state’s forum is chosen, the court in that state will likely be required to apply the other state’s law to some of the claims before it.


source: Caselaw Access Project

author: WILLIAMSON, J,

license: Public Domain

text:
    O’Connor v. Huth
    C.P. of Monroe County,
    No. 2656 CIVIL 2013

      Joshua B. Goldberg, for plaintiffs.

      Joseph Pulcini, Jr., for defendant.
    August 9, 2013
   WILLIAMSON, J,

This matter comes before us on a motion for judgment on the pleadings filed by Douglas E. Huth (hereafter, “defendant”), requesting this court to dismiss Charlotte O’Connor’s (hereafter, “plaintiff’) complaint, Plaintiff commenced this action by filing a writ of summons on March 30, 2012. On June 8, 2012, plaintiff filed a complaint against defendant and named Jeffrey M. Huth as an additional defendant. The complaint contained two counts. Count I was a negligence claim against Jeffrey M. Huth, which alleged he operated a motor vehicle, in which the plaintiff was a passenger, in an unsafe manner and caused a dangerous collision. Count II alleges that Douglas E. Huth was negligent in entrusting the vehicle to Jeffrey Huth, knowing that he was an incompetent driver, or in the alternative, that Jeffrey Huth was an agent of Douglas Huth.

On June 29, 2012, defendant filed preliminary objections to plaintiff’s complaint. On August 7, 2012, this court issued an order dismissing Jeffrey M. Huth as a defendant, striking count I from the complaint, and overruling defendant’s demurrer to count II of the complaint. On September 4, 2012, defendant filed an answer with new matter. On September 24, 2012, plaintiff filed her reply to defendant’s new matter. On June 25, 2013, defendant filed the motion for judgment on the pleadings that is currently in front of this court. On August 1, 2013, plaintiff filed her answer to the motion. Both parties filed briefs. Oral argument on this matter was held on August 5, 2013. The pleadings are now closed and we are ready to dispose of defendant’s motion for judgment on the pleadings.

DISCUSSION

Motions for judgment on the pleadings are governed by the Pennsylvania Rules of Civil Procedure. Rule 1034 states:

(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be proper on the pleadings.

In ruling on a motion for judgment on the pleadings, the court must consider all of the pleadings and responsive pleadings filed by the moving and non-moving parties, including the complaint, answer, new matter, and reply to new matter. Herman v. Stern, 213 A.2d 594 (Pa 1965). The underlying purpose of amotion for judgment on the pleadings is to allow the court to conduct an overall examination of the legal sufficiency of the pleadings in order to determine if judgment should be entered prior to trial. Bensalem Township School Dist. v. Commonwealth, 544 A.2d 1318 (Pa. 1988). The standard of review in such a motion is identical to that of a demurrer. Id. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994).

Plaintiff argues that the motion for judgment on the pleadings is premature because no discovery has been conducted by either party, and no discovery scheduling order has been requested or implemented such that either party has failed to meet any discovery deadlines. Plaintiff’s reasoning for this argument is that without discovery, it is impossible to determine the negligence of the defendant or if there was an agency relationship between the defendant and the driver of the vehicle. It should be noted that plaintiff does not cite to any case law in her brief in support of her position.

It appears that plaintiff has mistaken the judgment on the pleadings standard for a summary judgment standard. If this were a motion for summary judgment, plaintiff’s argument that the motion is premature would be correct. However, as cited above, judgment on the pleadings is an examination of the legal sufficiency of the pleadings. Bensalem Township, supra. As stated in Pa.R.C.P. 1034, judgment on the pleadings is appropriate after the relevant pleadings have closed. There is no allegation that the relevant pleadings have not closed. Therefore, the present motion is not premature.

Defendant argues that the remaining averments in plaintiff’s complaint are legally insufficient to state a claim for negligent entrustment or an agency claim. Defendant is basically arguing that because the plaintiff does not have the driver of the motor vehicle involved in the case as a party, plaintiff’s negligent entrustment action cannot succeed. We disagree.

“An entrustor’s liability is not dependent on, derivative of, or imputed from the entrustee’s actual liability for damages.” Christiansen v. Silfies, 667 A.2d 396, 400 (Pa. Super. 1995). In order to be successful in a claim for negligent entrustment, the entrustee must be found to be causally responsible for the ensuing harm. Id.

In this case, defendant’s liability based upon negligent entrustment is not dependent on, derivative of, or imputed from Jeffrey Huth’s actual liability for damages. The facts alleged in paragraphs 3, 4, and 5 of the complaint, if true, allow the fact-finder to make the determination that Jeffrey Huth was causally responsible for the accident without him being a named defendant. The fact-finder need not determine whether Jeffrey Huth was negligent, merely that he was causally responsible. To do so, Jeffrey Huth need not be a party. Accordingly, plaintiff’s negligent entrustment claim is legally sufficient and survives the instant motion for judgment on the pleadings.

However, plaintiff’s averment of agency shall be stricken from the complaint. In paragraph 11 of the complaint, plaintiff avers the following:

11. Alternatively, Plaintiff believes and therefore avers that Defendant, Jeffrey M. Huth, at the time and place of the collision was operating said vehicle as an agent of Defendant, Douglas E. Huth.

Compl. at ¶ 11.

Regarding the sufficiency of an allegation of agency in a complaint, the Pennsylvania Superior Court has said:

While it is unnecessary to plead all the various details of an alleged agency relationship, a complaint must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description and (2) set forth the agent’s authority, and how the tortuous acts of the agent either fall within the scope of that authority, or, if unauthorized, were ratified by the principal.

Alumni Ass’n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d 1095, 1100 n.2 (Pa. Super. 1997). In this case, looking at the complaint as a whole, plaintiff’s allegations are insufficient to state a claim of agency. There are no allegations that meet the second prong of the above requirements for allegations of agency in a complaint. Therefore, paragraph 11 of the complaint is stricken.

ORDER

And now, this 9th day of August, 2013, upon consideration of defendant’s motion for judgment on the pleadings, the same is granted in part and denied in part. Paragraph eleven (11) of plaintiff’s complaint is hereby stricken. Defendant’s motion to dismiss plaintiff’s negligent entrustment claim is denied.

      . As noted in the procedural history, Jeffrey Huth is no longer a defendant in this case. Plaintiff, however, has not amended her complaint, but instead has filed an answer to defendant’s new matter.


author: WILLIAMSON, J.,

text:
    Kish v. Bangia

      C.P. of Monroe County,
    No. 2709 CIVIL 2013

      Gary S. Figore, for plaintiff

      Thomas Gerolo, for defendant
    August 14, 2013
   WILLIAMSON, J.,

Plaintiff commenced this action by filing a complaint on April 3, 2013. On May 3, 2013, defendants filed preliminary objections to the complaint. On May 7, 2013, plaintiff filed an amended complaint. On May 13,2013, defendants filed the instant preliminary objections to the amended complaint, in which they argue that plaintiff has failed to sufficiently plead facts which would entitle her to an assessment of punitive damages. Both parties filed briefs, and oral argument was heard on June 28, 2013. We are now ready to dispose of the preliminary objections.

This case is a wrongful death and survival action. Plaintiff alleges that defendants had been selling bath salts to decedent when they knew, or should have known, that he was making inappropriate use of the bath salts in a harmful way. On July 28, 2011, while allegedly high on bath salts purchased from defendants, decedent held family members hostage in his own home, set the home on fire, and was subsequently shot and killed in a firelight with the Pennsylvania State Police.

DISCUSSION

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Defendants’ preliminary objections ask this court to strike allegations of recklessness from the amended complaint and preclude her from seeking punitive damages. Defendants’ preliminary objection is, in essence, a demurrer. Defendants argue that the words used in the complaint fail to support a claim of recklessness against them. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994).

The Pennsylvania Supreme Court, in Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (2012), used the Restatement (Second) of Torts definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. The Restatement (Second) of Torts defines “reckless disregard” as follows:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Id. at 1200-1201, citing Restatement (Second) of Torts §500 (1965).

The amended complaint alleges that defendants are the owners and/or operators of a Sunoco Gas station and Unimart mini-market located in Gilbert, Pennsylvania. It is further alleged that defendants sold decedent bath salts, knowing that the substance was used in a manner not consistent with its intended use. Plaintiff alleges that defendants conspired to sell the substance with reckless disregard for decedent’s health. It is alleged that on numerous occasions prior to decedent’s death, decedent’s family asked defendants to stop selling him bath salts.

In support of their preliminary objections, defendants cite Phillips v. Cricket Lighters, 883 A.2d 439 (Pa. 2005). In Phillips, a young child used a lighter to ignite a fire that caused his death and the death of several family members. Id. at 442. The Pennsylvania Supreme Court held that the defendants’ conduct was not so outrageous as to support an award for punitive damages. Id. at 447. In reaching that conclusion, the Phillips court reasoned that even though Cricket Lighters knew the dangers posed by young children with lighters, and knew that their subsequent conscious decision to not sell lighters with safety features could result in injury, there was not a showing of sufficiently reckless disregard or evil motive that could justify jury consideration of punitive damages. Id.

The facts in Phillips are analogous to the facts in the instant case. In both cases, the plaintiffs alleged that the defendants sold a product with knowledge that it was used illegally. Also in both cases, the defendants are alleged to have known that the product could be used in a manner that caused harm. Applying the Pennsylvania Supreme Court’s reasoning in Phillips to the facts of this case, plaintiff’s allegations do not show that defendants’ actions were sufficiently reckless, or that defendants had an evil motive that could justify jury consideration of punitive damages. While a jury may find that defendants’ actions were negligent, their actions do not, under Phillips, rise to the level of outrageousness that allows the assessment of punitive damages.

Plaintiff argues that Phillips was decided on an appeal from summary judgment, and is therefore irrelevant to the instant preliminary objections. We disagree. Phillips held that a set of facts was not sufficient to rise to a level of punitive damages. The facts alleged in this case, taken as true, are substantially similar to the facts in Phillips and therefore demand similar reasoning.

Finally, we must note the substantial policy concerns in allowing a consumer who buys a product sold legally for an intended use to claim punitive damages against the seller. Many products can be harmful when intentionally used in a different manner than intended. Punishing the seller of those products outside the normal course of negligence damages is not in accord with the legal and policy principals of the Commonwealth of Pennsylvania. Furthermore, we do not see how the sale of a legal item, even with knowledge of a harmful use by the purchaser, can rise to a level of outrageous behavior as contemplated in assessing punitive damages when the seller has no way of knowing the certainty of the use or actions thereafter of the purchaser. Accordingly, defendants’ preliminary objections are sustained. We issue the following order.

ORDER

And now, this 14th day of August, 2013, it is hereby ordered that defendants’ preliminary objections are hereby sustained. Plaintiff’s request for punitive damages, as well as allegations of defendants’ recklessness shall be stricken from the amended complaint.


author: HODGE, J.,

text:
    McDonough v. McDonough

      C.P. of Lawrence County,
    No. 10050 of 2012, C.A.

      Stephanie T. Anderson, for plaintiff.

      Paula J. Cialella, for defendant.
    August 27, 2013
   HODGE, J.,

Before the court for disposition is a motion for reconsideration of this court’s April 19, 2013 order of court.

The plaintiff, Edward Joseph McDonough (hereinafter, “husband”), and the defendant, Lynn F. McDonough (hereinafter, “wife”), were married on January 13, 1995, and they separated September 3, 2009. Husband initiated the instant action by filing a complaint in divorce on January 17, 2012. Wife’s counsel entered her appearance on January 27, 2012 by filing an acceptance of service form, wherein counsel acknowledged receipt of husband’s complaint in divorce on behalf of wife.

Husband filed an affidavit and waiver of notice of intention to request entry of a divorce decree, pursuant to §3301(d) of the Divorce Code on October 3, 2012. An affidavit of service of husband’s affidavit and waiver was filed a week later on October 10, 2012. Wife was served with a §3301(d) affidavit on October 5, 2012. Husband then filed an affidavit of plaintiff’s notice of intention to request entry of a divorce decree on February 26, 2013. A praecipe to transmit the record was subsequently filed by husband on March 18, 2013, and a final decree in divorce was entered by this court on March 20, 2013.

From this case’s conception on January 17, 2012, wife did not file an answer or counter-claim to husband’s complaint. Wife did not raise economic claims or seek alternative relief with the court. Wife did file a notice to resume prior surname following the entry of the divorce decree on April 4, 2013. Subsequently, on April 19, 2013, wife filed a petition nunc pro tunc For bifurcation. In her petition, wife alleged that the parties had ongoing discussions regarding a resolution of their economic issues. Wife stated that although she did not object to the entry of a divorce decree, it was not her intention to forego her claims for economic relief.

This court denied wife’s petition nunc pro tunc for bifurcation, and wife timely filed a motion for reconsideration. Argument was held on wife’s motion for reconsideration on June 5, 2013, and the petition is presently before the court for a determination.

In order to consider untimely-filed economic claims, the divorce decree must be either opened or vacated. Justice v. Justice, 612 A.2d 1354, 1357 (Pa. Super. 1992). Petitions to open the decree must be filed within 30 days. Id. (citing 42 Pa.C.S.A. §5505). During this 30-day period, the court holds wide discretion to modify or rescind its decree. Justice, 612 A.2d at 1357. “The trial court’s broad discretion is lost, however, if the court fails to act within 30 days. After this 30-day period, an order can only be opened or vacated if there is fraud or some other circumstance so grave or compelling as to constitute extraordinary cause justifying intervention by the court.” Id. (citations omitted).

In her argument to the court, wife contends that her petition for bifurcation was filed within thirty days from the entry of the divorce decree, and the court had broad discretion to act on her petition, without requiring proof of intrinsic fraud or new evidence. Husband alternatively argues that wife’s motion for reconsideration is outside the time limitations of 42 Pa. C.S.A. §5505, and the divorce decree is final.

After considering the parties’ arguments, the court finds that while wife filed a petition nunc pro tunc for bifurcation within thirty days of the divorce decree being entered, wife did not file a petition to open or vacate the decree. Furthermore, wife’s underlying petition nunc pro tunc for bifurcation failed to assert grounds which would warrant opening the decree pursuant to 23 Pa. C.S.A. §3332. The reasons set forth in wife’s petition nunc pro tunc, for bifurcation are economic in nature and do not establish sufficient justification to vacate the decree in divorce. Wife’s motion for reconsideration is therefore denied.

The court will enter the following order of court affirming the order entered on April 19, 2013 denying wife’s petition nunc pro tunc for bifurcation.

ORDER OF COURT

And now, this 27th day of August, 2013, with this matter being before the court on a motion for reconsideration with Stephanie T. Anderson, Esquire, appearing and representing the plaintiff, Edward Joseph McDonough, and with Paula J. Cialella, Esquire, appearing and representing the defendant, Lynn F. McDonough, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. Defendant’s motion for reconsideration is denied.

2. The order of court issued on April 19, 2013 is affirmed and incorporated by reference as though fully set forth herein.

3. The prothonotary shall properly serve notice of this order of court upon plaintiff’s counsel, Stephanie T. Anderson, Esquire, and upon defendant’s counsel, Paula J. Cialella, Esquire.


author: MCCOY, J.,

text:
    HS v. CS

      C.P. of Lycoming County,
    No. 10-20,185

      Kymberly Best, for plaintiff.

      Michael Morrone, for defendant.
    August 28, 2013-
   MCCOY, J.,

ORDER

And now, this 28th day of August, 2013, after argument held on August 19, 2013, in regard to the exceptions filed by husband to the order of the Family Court hearing pfficer dated May 16, 2013, at which time husband was present with his counsel, Michael Morrone, Esquire, and wife was present with her counsel, Kymberly Best, Esquire.

Counsel for husband filed exceptions to the Family Court hearing officer’s order for alimony pendente lite dated May 16, 2013. The Family Court hearing officer notes that wife filed a petition for alimony pendente lite on February 11, 2013. The first hearing on the matter was held on April 5, 2013, and an interim order was entered by the Family Court hearing officer on April 8, 2013. The interim order scheduled a follow-up hearing on May 14, 2013. After the follow-up hearing, a final order was entered on May 16, 2013. Counsel for husband thereafter timely filed exceptions on June 12, 2013 to the order for alimony pendente lite dated May 16, 2013.

In his first exception, husband argues that the Family Court hearing officer erred in utilizing defendant’s most recent paystub to calculate his year-to-date income instead of averaging his income over a period of time as husband’s pay fluctuates and is unpredictable. In the interim order of April 8, 2013, the hearing officer determined husband’s monthly net income to be $5,163.51. This was based upon a year-to-date paystub dated March 28, 2013. The order, however, goes on to indicate that husband testified he would no longer be working over the road because of the long hours and that his employer gave him the option of working over the road or locally. The hearing officer indicated that before reducing husband’s income based solely upon the testimony, she requested to see paystubs documenting the change and scheduled a follow-up hearing for May 14, 2013. Husband was ordered to bring all paystubs received after March 28, 2013 to the hearing.

At the time of the hearing on May 14, 2013, husband presented three new paystubs. The paystub of April 12, 2013, included 18 hours of overtime pay, the paystub of April 26, 2013, included 32 hours of overtime pay, and the paystub of May 10, 2013, included 1 hour of overtime pay. The Family Court hearing officer found the testimony of husband’s terminal manager, MR, to be not credible as it was confusing, contradictory and obviously intended to help husband decrease his alimony pendente lite payments. The hearing officer also found that husband admitted that he had blatantly lied about the issue of decreasing his over the road at the time of the April hearing. The Family Court hearing officer further found that it appears that husband’s pay fluctuates and is unpredictable and therefore used his most recent paystub to calculate his year-to-date income. The Family Court hearing officer found husband’s year-to-date income based upon a paystub of May 10, 2013, to be $4,609.97 per month. This is the income that the hearing officer utilized to determine husband’s alimony pendente lite obligation. The hearing officer indicated that as it appears husband’s pay fluctuates and is unpredictable, that the most appropriate thing was to use husband’s most recent paystub to calculate his year-to-date income. The hearing officer went on to indicate that if husband’s income actually decreases in a manner that is substantial and continuing, he could file a petition to modify the order.

Based upon the findings made by the hearing officer in both the April 8,2013, order and May 16,2013, order, the Family Court hearing officer does not find that the hearing officer erred in utilizing husband’s year-to-date paystub to calculate his monthly net income. Exception number 1 is therefore denied.

Husband’s second exception is that the hearing officer erred in not utilizing wife’s full-time wages from her prior employer, which he alleges she terminated voluntarily. In the interim order entered on April 8, 2013, the master conducted a significant analysis of wife’s income and earning capacity. The master felt that there was no evidence that wife quit her job to affect her payment of alimony pendente lite. The hearing officer further found that wife mitigated her lost income by obtaining another full-time job. Based upon the thorough analysis conducted by the hearing officer, the Family Court hearing officer does not find the hearing officer erred in utilizing wife’s actual earnings to calculate her monthly net income. Exception number 2 is therefore denied.

Husband’s last exception is that the Family Court hearing officer erred in not giving husband credit for the mortgages, taxes and insurance he pays on the marital residence. At the time that the interim order was entered on April 8, 2013, husband only provided testimony concerning the monthly mortgage payment. There was no information given as to the cost of home owner’s insurance or taxes. In the interim order entered on April 8, 2013, the master indicated that husband was requesting a mortgage contribution which was contested by wife. The master further found that neither party was living in the marital residence and that husband’s brother was staying there at no charge because his brother had provided $6,000.00 to keep the residence out of foreclosure. The master calculated the mortgage contribution and determined based upon the calculation that husband was not entitled to a mortgage contribution, even if she were to find husband eligible for one under the circumstances. Husband was advised that if he wished to bring evidence of the taxes and home owner’s insurance at the time of the follow-up hearing, the master would re-calculate the mortgage contribution. At the time of the follow-up hearing on May 16, 2013, husband failed to present any additional documentation on the taxes and home owner’s insurance in regard to the marital residence. At the time of the follow-up hearing, the master failed to address whether or not husband was entitled to a mortgage contribution. As the master found in the interim order entered on April 8, 2013, neither party is residing in the marital residence and, in fact, husband’s brother is currently residing in the marital residence. Rule 1910.16-6(e) provides for an obligee to contribute towards the mortgage “if the obligor is occupying the marital residence and the mortgage payment exceeds 25% of the obligor’s monthly net income (less any amount of support).” Based upon the monthly net incomes determined by the master in the final order entered on May 16, 2013, the mortgage payment does exceed 25% of husband’s monthly net income once his alimony pendente lite obligation has been reduced from his monthly net income. However, as husband is not residing in the marital residence which is a specific requirement of Rule 1910.16(e), husband is not entitled to a mortgage contribution as an offset to his alimony pendente lite award. As husband is not entitled to a mortgage contribution based upon the circumstances in this case, husband’s exception number 3 is dismissed.


author: NEW, J.,

text:
    Madziva v. Philadelphia Hous. Auth.

      Amber M. Racine, Daniel Bencivenga and Harold Goodman, for plaintiff.

      Robin Amanda Yudkovitz and Andrew Kenis, for defendant.
    September 3, 2013
   NEW, J.,

Plaintiff Simbarashe Madziva has appealed the order of this court dated June 6, 2013, sustaining the Philadelphia Housing Authority’s preliminary objections and dismissing plaintiff’s complaint. For the reasons discussed herein, this court respectfully requests the order be affirmed on appeal.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff Simbarashe Madziva (hereinafter “plaintiff’) commenced this employment/wrongful discharge action against defendant Philadelphia Housing Authority (hereinafter “defendant” or “PHA”) by way of complaint on February 25, 2013, alleging violations of his constitutional right to self-defense and substantive and procedural due process rights. The underlying facts of this litigation are as follows.

Plaintiff was hired by defendant as an asset property manager in January, 2009. In connection with this position, plaintiff oversaw the management of more than 300 housing units and assisted PHA residents in obtaining housing unit transfers. On August 29, 2011, a resident came to defendant’s Philadelphia office and demanded a housing transfer. When plaintiff requested the resident to calm down, the resident allegedly grabbed plaintiff around the waist, digging her nails into his side. The resident’s son also is alleged to have struck plaintiff at this time. In response to the attack, plaintiff freed himself. The resident and her son were removed from the office by a PHA trainee, but returned shortly thereafter with officers from the Philadelphia Police Department. Plaintiff declined to press charges against the resident and was later informed, based upon the police investigation and report, he was not charged with any misconduct.

On October 5, 2011, approximately six (6) weeks after the incident, defendant suspended plaintiff without pay for ten (10) days and recommended his employment be terminated for fighting in violation of PHA’s Human Resource Manual under which fighting is a Class IV Major Infraction, which warrants termination regardless of whether the employee was the aggressor or was acting in self-defense.

Plaintiff requested a hearing to challenge the disciplinary actions imposed against him. defendant did not respond to plaintiff’s request. After the ten-day suspension, defendant did not reinstate plaintiff and did not pay him any wages. On October 31,2011, plaintiff sent an e-mail to defendant, requesting a hearing. A hearing was scheduled for November 15, 2011, which lasted fifteen (15) minutes and included testimony from plaintiff and his supervisor. On December 2,2011, defendant’s hearing officer, Karen Williamson, upheld plaintiff’s suspension and recommendation for termination on the following reasoning:

In reviewing the Policy, Fighting is a Class IV Major Infraction, which warrants termination. The Policy makes no exception for defending yourself under the fighting policy. In fact, the Policy as written appears to specifically state that whether the employee was the aggressor or acting in self-defense makes no difference in the determination. The PHA Police investigation report clearly sets forth that there was pushing and shoving between [Plaintiff] and [the resident]. I am therefore bound to uphold the Notice of Suspension with a Recommendation for Termination.

Plaintiff’s supervisor thereafter issued a final notice for termination of plaintiff’s employment from PHA effective immediately on December 5, 2011. After filing for unemployment benefits, the Pennsylvania Department of Labor and Industry concluded plaintiff was not responsible for the August 29, 2011 incident.

On February 25, 2013, plaintiff commenced this four-count complaint pursuant to Article I, Section 1 of the Pennsylvania Constitution. Under each count, plaintiff seeks compensatory damages, including, “but not limited to, an award of back pay, together with prejudgment interest; reinstatement; an award of front pay to the extent reinstatement is not feasible; and award of non-economic compensatory damages....”

On April 3,2013, defendant filed preliminary objections in the nature of a demurrer, alleging plaintiff, an at-will employee, did not enj oy a property right to his employment with PHA, and thus, is not entitled to due process prior to disciplinary action being issued against him. Plaintiff responded on April 24, 2013. By court order dated June 6, 2013, this court sustained defendant’s objections and dismissed plaintiff’s complaint.

Plaintiff filed this timely appeal on June 24, 2013. Plaintiff was not directed to file a Pennsylvania Rules of Appellate Procedure 1925(b) statement of errors complained of on appeal, but provided the following statement of questions involved to the Commonwealth Court of Pennsylvania:

1. [D]id the Philadelphia Housing Authority violate Simbarashe Madziva’s constitutional right to self-defense by suspending and terminating his employment in violation of Article 1, §1 of the Pennsylvania Constitution?
2. [D]id Mr. Madziva forfeit his constitutional right to self-defense and his right to substantive and procedural due process by virtue of his at-will employment with the Philadelphia Housing Authority?
3. [Wjhether the Philadelphia Housing Authority is equitably estopped from denying Mr. Madziva the fair hearing procedures that it promised him in its Employee Handbook?

LEGAL ANALYSIS

The “scope of review from a trial court’s order[] granting preliminary objections is limited to determining whether the trial court committed legal error or abused its discretion.”

A demurrer can only be sustained where the complaint clearly is insufficient to establish the pleader’s right to relief. A preliminary objection in the nature of a demurrer admits as true all well-pled material, relevant facts and every inference fairly deducible from those facts. The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. 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 upon which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.

I. Defendant Did Not Violate Plaintiff’s Constitutional Right

The first issue plaintiff presents on appeal is whether PHA violated plaintiff’s constitutional right to self-defense pursuant to Article 1, §1 of the Pennsylvania Constitution by suspending and terminating his employment. In addressing this issue, it is undisputed plaintiff was an at-will employee, and his suspension and termination of employment was in accordance with PHA’s policy, which defines fighting as a punishable offense and as a basis for termination.

Pennsylvania law is “abundantly clear that, as a general rule, employees are at-will, absent a contract, and may be terminated at any time, for any reason or for no reason.” Moreover, “[a]n individual employed by a local agency is an at-will employee and does not enjoy a property right in her employment unless she has an expectation of continued employment guaranteed by contract or statute.”

Plaintiff admits he is an at-will employee, but he claims this litigation is not based upon his wrongful discharge but rather upon violations of his constitutional and due process rights. Notwithstanding the fact plaintiff seeks, inter alia, compensatory damages for back pay and reinstatement, plaintiff’s constitutional claims are without merit.

“Self-defense is a basic right, recognized by many legal systems from ancient times to the present day[.]” In District of Columbia v. Heller, the United States Supreme Court held individual self-defense is the “central component’ of the Second Amendment right to keep and bear arms. The United States Supreme Court concluded citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”

Thus, although it appears that self-defense is a right in- and-of itself, it is not discussed independent of the Second Amendment right to bear arms in self-defense. The instant litigation does not involve a violation of plaintiff’s right to bear arms for the lawful purpose of self-defense. Instead, plaintiff maintains his constitutional right to self-defense was violated when his employer, in compliance with its Human Resources Manual, discharged plaintiff for fighting on company premises.

Plaintiff’s complaint would likewise fail under the public policy exception to the general at-will employee doctrine. Despite the fact some states recognize the right to self-defense as a substantial public policy exception in the at-will employment context under their state constitution, Pennsylvania has specifically rejected the individual right of self-defense as a public policy exception to the at-will employee doctrine.

As noted above, Pennsylvania law generally holds “a common-law cause of action for wrongful termination is not recognized in Pennsylvania for an at-will employee.” “An exception to this general rule has been recognized in the very limited circumstances, where allowing an employer to discharge an at-will employee would threaten a clear public policy.” Pennsylvania courts act on a “case-by-case basis....[and] have carved very narrow exceptions to the at-will rule.” “It is generally accepted that to be actionable, the asserted public policy must be one which is already articulated in law or a constitutional provision.” “To justify application of the public policy exception, the employee must point to a clear public policy articulated in the constitution, statutes, regulations or judicial decisions directly applicable to the facts in the cases; it is not sufficient that the employer’s action toward an employee is unfair.”

Thus, “[a]n employer has no right to discharge even an at-will employee if the firing would contravene a clear public policy or if it is effected with the specific intent to harm the employee.” However, an employer may discharge an employee “[ejven when an important public policy is in volved... if the employer has a separate plausible and legitimate reason for the discharge.”

The Pennsylvania Superior Court examined a similar issue as present here in Scott v. Extracorporeal, Inc., where the plaintiff-employee was discharged for violating the company’s policy regarding fighting. On appeal, the Superior Court of Pennsylvania held the employee’s discharge in alleged self-defense for fighting on the employer’s premises did not violate public policy. In concluding the “discharge lies beyond our power to remedy,” the Scott court found “no public policy [was] implicated by the discharge.”

The Pennsylvania Superior Court explained:

Nevertheless, it is clear that the employer held her at least partially accountable for the disturbance. We may not deny the employer the right to dismiss due to its subjective evaluation that the employee behaved disruptively. The moral fairness of the firing is simply beyond our power to review. We surely do not condone discharges which are by any objective measure unfair; however, in the context of the facts of this case, the public policy asserted by appellant — the right to exercise self-defense — strikes entirely too near the employer’s legitimate interest in discharging employees it perceives to be disruptive. To reverse on this basis would have the unwise effect of transferring to the judicial forum the duty of evaluating the propriety of management decisions.

Thus, the Superior Court of Pennsylvania found self-defense was articulated neither in law or in a constitutional provision.

Instantly, defendant suspended and terminated plaintiff for “fighting” on company premises in violation of defendant’s policy. Defendant held plaintiff partially responsible for the fight. Pursuant to Scott, plaintiff’s right to exercise self-defense does not surpass defendant’s legitimate interest in discharging employees it perceives to be disruptive.

Therefore, even assuming, arguendo, plaintiff established PHA violated a clear public policy in connection with his discharge, defendant still had a separate, plausible and legitimate reason to discharge him, prohibiting plaintiff relief under his asserted claims.

II. Defendant Did Not Violate Plaintiff’s Substantive or Procedural Due Process Rights.

Next, plaintiff claims defendant’s policy, which includes acts of self-defense within the meaning of fighting, violates his procedural and substantive due process rights. Regarding his procedural due process rights, plaintiff argues he “was entitled to a variety of pretermination and post-termination processes” under PHA’s disciplinary process.

“Substantive due process is the esoteric concept interwoven within our judicial framework to guarantee fundamental fairness and substantial justice, and its precepts protect fundamental liberty interests against infringement by the government.” “[F]or substantive due process rights to attach there must first be the deprivation of a property right or other interest that is constitutionally protected.”

Procedural due process of law “requires that an individual is entitled to adequate notice of the charges against him and an opportunity to be heard.” “Adequate notice, for procedural due process purposes, requires at a minimum that notice contain a sufficient listing and explanation of the charges against the individual.” Similar to substantive due process, “procedural due process applies only to deprivation of a property interest or a liberty interest protected by the Fourteenth Amendment.” “The state law governs a determination of whether one has a property interest in continued employment.”

Thus, to maintain a claim for substantive or procedural due process of law in Pennsylvania, the plaintiff must first establish he had a property interest in his employment. However, the law of this Commonwealth is clear that, “[a]n individual employed by a local agency is an at-will employee and does not enjoy a property right in her employment unless she has an expectation of continued employment guaranteed by contract or statute.” Further, our Commonwealth Court held: “[Pjublic employees in Pennsylvania are employees-at-will subject to summary dismissal for a good reason, a bad reason or no reason at all, unless the legislature explicitly confers tenure as an integral part of a comprehensive governmental scheme.”

Here, plaintiff admits he is an at-will employee of a local Commonwealth agency. Accordingly, plaintiff does not enjoy a property right to his employment with PHA to maintain a claim for violation of his substantive or procedural due process rights.

However, plaintiff argues PHA’s Human Resource Manual establishes a disciplinary policy under which plaintiff, an at-will employee, is entitled to pre- and post-termination processes. According to plaintiff, this policy induced a reasonable expectation of a fair and impartial hearing. Further, plaintiff contends this policy requires his disciplinary action be supported by just cause.

In Scott, the Superior Court of Pennsylvania rejected a similar argument where the plaintiff employee argued the employee handbook, given to her when she commenced her employment, contained a “just cause” provision to preclude the employer from discharging her at-will. In finding the handbook did not contain, either expressly or by clear implication, a “just cause” provision, the Pennsylvania Superior Court explained: “A handbook is enforceable against an employer if a reasonable person in the employee’s position would interpret its provisions as evidencing the employer’s intent to supplant the at-will rule.”

Similarly, in Martin, the Pennsylvania Superior Court rejected the plaintiff’s argument the handbook evidenced an intent to convert those employees who received it into employees who could only be discharged for an objective “just cause.” The Martin court stated:

Appellant had been hired as an at-will employee. To now hold that the handbook allowed her discharge only for just cause would, in effect, convert her into an employee with a contract for an indefinite term who could be fired only for objective just cause. This would be a modification of immense proportions. For such an extreme modification of a preexisting contract, we would require a clear statement of an intent to so modify. We do not believe a reasonable person in the appellant’s position would have read this handbook provision as converting her from an at-will employee to an employee with an indefinite contract who could never be discharged without objective just cause.

As in Martin, the subject handbook does not contain a clear indication defendant, as plaintiff’s employer, intended to overcome the at-will presumption. Although neither party has presented this court with the subject handbook, plaintiff states the applicable provision classifies fighting, regardless of whether the employee was the aggressor or acting in self-defense, as warranting termination.

Plaintiff does not dispute self-defense fits under the definition of fighting in PHA’s policy, a punishable offense. However, plaintiff argues PHA’s policy creates an irrebutable presumption that acts of self-defense are always cause for suspension and termination, and “the policy provides no means for properly contesting this presumption through a fair hearing and appeal in violation of [Plaintiff’s] right to procedural due process of law.”

As plaintiff noted, an at-will employee, such as himself, is entitled to no relief, i. e., pre-termination and post-termination processes, pursuant to defendant’s disciplinary policy with respect to fighting. A reasonable employee, including plaintiff, would understand this provision to mean defendant is free to decide whether a discharge is appropriate. Further, a reasonable person would not read this handbook provision as converting him from an at-will employee to an employee with an indefinite contract who could never be discharged without just cause.

Plaintiff was discharged based upon defendant’s believe he was involved in a fight. Regardless of whether plaintiff acted in self-defense, it is clear defendant held him partially accountable for the disturbance as evidenced by defendant’s hearing officer’s decision, upholding plaintiff’s suspension and recommendation for termination.

Plaintiff, therefore, didnothave areasonable expectation of continued employment in his employment. Rather, he was an at-will employee subject to summary dismissal and did not have a property interest or a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.

III. Defendant Is Not Equitably Estopped from Denying Plaintiff the Fair Hearing Procedures in

Defendant’s Employee Handbook

Last, plaintiff claims defendant is equitably estopped from denying him the fair hearing procedures set forth in the Employee Handbook based upon its failure to comply with the written policies regarding due process rights in the event of a proposed suspension or termination from employment.

“Equitable estoppel is a doctrine of fundamental fairness designed to preclude a party of depriving another of the fruits of a reasonable expectation when the party inducing the expectation knew, or would have known, that the other would rely.” However, equitable estoppel has been affirmatively rejected by Pennsylvania appellate courts as an exception to the at-will rule. “[T]he doctrine of equitable estoppel is not an exception to the employment at will doctrine. An employee may be discharged with o[r] without cause, and [Pennsylvania] law does not prohibit firing an employee for relying on an employer’s promise.”

Plaintiff’s argument defendant is equitably estopped from denying him the fair hearing procedures promised to him in its employee handbook is therefore irrelevant in determining whether plaintiff has a protectable property interest in his employment. Plaintiff was suspended and discharged pursuant to his violation of defendant’s policy, making fighting a punishable offense. Defendant’s suspension and ultimate termination of plaintiff’s employment did not violate any constitutional or procedural or substantive due process rights.

CONCLUSION

Wherefore, for the reasons stated above, it is respectfully requested the court’s order dated June 6, 2013 be affirmed on appeal.

      . Palmer v. Bartosh, 959 A.2d 508, 512 n. 2 (Pa. Cmwlth. 2008) (citing Higby Develop., LLC v. Sartor, 954 A.2d 77 (Pa. Cmwlth. 2008)).

      . Id. (internal citations omitted).

      . Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 396, 658 A.2d 333, 335 (1995) (citations omitted); see also Davenport v. Reed, 785 A.2d 1058, 1063.

      . Pavonarius v. City of Allentown, 157 Pa. Cmwlth. 116, 121, 629 A.2d 204, 207 (1993) (citing Gough v. Borough of Norristown, 66 Pa. Cmwlth. 401, 403, 444 A.2d 839, 840 (1982)).

      . McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 (2010).

      . District of Columbia v. Heller, 554 U.S. 570, 599 (2008) (held that the Second Amendment protects the right to keep and bear arms for purposes of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home).

      . Id. at 630.

      . In his response to preliminary objections, plaintiff argued his termination was not in violation of a public policy, as to trigger the public policy exception to the general rule. However, in his questions raised on appeal, plaintiff argues his suspension and termination are directly contrary to Pennsylvania’s long-standing public policy that a person cannot be terminated from employment on a basis that infringes his constitutional rights.

      . Compare Scott v. Extracorporeal, Inc., 376 Pa. Super. 90, 545 A.2d 334, 342 (Pa. Super. 1988) (finding discharge of company employee acting in alleged self-defense during fight on company premises did not violate public policy, and thus, not an exception to the at-will doctrine) with Cocchi v. Circuit City Stores, 2006 WL 870736 (N.D. Cal. Apr. 3, 2006) (The United States District Court of the Northern District of California recognized a right not to be fired based upon California Constitution’s self-defense provision as a public policy exception to the at-will employee doctrine) and Feliciano v. 7-eleven. Inc., 559 S.E.2d 713 (W. Va. 2001) (West Virginia Court of Appeals held, when an at-will employee has been discharged for employment based upon his exercise of self-defense in response to imminent, lethal danger, such right of self-defense constitutes a substantial public policy exception to the at-will employment doctrine and will sustain a cause of action for wrongful discharge).

      . Davenport, 785 A.2d at 1063 (citing Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346 (1990)).

      . Id. at 1063 (citations omitted); see also Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998) (termination for filing a claim for workers’ compensation benefits is a public policy exception to the general at-will doctrine); Raykovitz v. K Mart Corp., 445 Pa. Super. 378, 665 A.2d 833 (1995) (termination in retaliation for employee seeking unemployment benefits is a public policy exception to the general at-will doctrine); Reuther v. Fowler & Williams, Inc., 225 Pa. Super. 28, 386 A.2d 119 (1978) (termination for missing work for jury duty is a public policy exception to the general at-will doctrine).

      . Scott, 376 Pa. Super, at 106, 545 A.2d at 341-42.

      . Id. at 106, 545 A.2d at 342.

      . Davenport, 785 A.2d at 1063 (citing Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 670 A.2d 173 (1993), appeal denied, 545 Pa. 664, 681 A.2d 178 (1996)).

      . Scott, 376 Pa. Super, at 95, 545 A.2d at 336.

      . Davenport, 785 A.2d at 1064 (citing Geary, supra).

      . Scott, 376 Pa. Super, at 108, 545 A.2d at 342.

        . Id at 107, 545 A.2d at 342.

      . Id. at 108, 545 A.2d at 342-43 (internal citations and quotation omitted).

      . Plaintiff’s complaint (hereinafter “pl.’s compl.”), ¶19.

      . Khan v. State Bd. of Auctioneer Examiners, 577 Pa. 166, 183, 842 A.2d 936, 946 (2004) (internal citation and quotation omitted).

      . Id.

      . Palmer, 959 A.2d at 514-15 (citation omitted).

        . Id.

      . Davenport, 785 A.2d at 1062 (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)).

      . Id. (citing Bishop v. Wood, 426 U.S. 341 (1976)).

      . Pavonarius, 157 Pa. Cmwlth. at 121, 629 A.2d at 207 (citing Gough, supra).

      . Davenport, 785 A.2d at 1063 (citations omitted).

      . Pl.’s compl. at1fl[19, 51.

      . Id.

      . Scott, 376 Pa. Super, at 97, 545 A.2d at 337. The “Standards of Behavior and Conduct” section provided violations of certain enumerated offenses “can result in immediate suspension or termination.” Id. Included in the list were: “Fighting, horseplay, intoxication, gambling, and disorderly, immoral or unlawful conduct on Company property.” Id.

      . Id. (noting the most recent trend in Pennsylvania was not to find the lack of a bargained-for exchange a bar to enforcing handbooks against employers.)

      . Martin, 354 Pa. Super, at 215, 511 A.2d at 838.

      . PL’s complaint at ¶¶5, 17-18, 34.

      . Plaintiff’s statement of questions involved, ¶2.

      . Pl.’s compl. at ¶30. Karen Williamson, the PHA Hearing Officer, stated in relevant part: “The PHA Police Investigation report clearly sets forth that there was pushing and shoving between Madziva and [the resident].” Id.

      . Department of Commerce v. Casey, 154 Pa. Cmwlth. 505, 519-20, 624 A.2d 247, 254 (1993) (citing DeFrank v. County of Greene, 50 Pa. Cmwlth. 30, 412 A.2d 663 (1980)).

      . Stumpp, 540 Pa. at 397, 658 A.2d at 336.

      . Id. (citing Paul, 524 Pa. at 95, 569 A.2d at 348).