author: MOTTO, J.,

text:
    In re Estate of Abdoe
    C.P. of Lawrence County,
    no. 10054 of 1997, O.C.A.

      Lawrence M. Kelly, for petitioner.

      David E. Henderson, for respondent.
    December 21, 1999
   MOTTO, J.,

This case is before the court on exceptions to a duly-filed master’s report. Exceptions were initially filed by Omar Abdoe, petitioner, to the estate’s first and final account and proposed decree of distribution. A master was appointed, and after a hearing, he filed his report. The report makes recommendations to the court regarding executor and counsel fees, and distribution of the decedent’s property.

The petitioner excepts to executor and attorney fees as determined in the master’s report. The petitioner also objects to the distribution of decedent’s personal property, and the manner in which the stock holdings were distributed. All exceptions are now properly before the court for disposition.

Findings and conclusions of a master may only be set aside by trial court upon finding an error in applying the law to the facts, or failure by the master to fully consider all matters required to be heard. In re Sweeney, 695 A. 2d 426, 428 (Pa. Super. 1997). Upon the trial judge’s review, the trial court has the power to accept or reject the master’s report and recommendations in whole or in part. Id. The role of the orphans’ court judge in reviewing a master’s report is similar to a review by a judge of the findings of a jury. Krepinevich Estate, 433 Pa. 78, 248 A.2d 844 (1969). With this standard in mind, the following is a discussion and disposition of all exceptions.

According to the master’s report, the decedent, Al S. Abdoe died testate on June 1, 1990. Julie Abdoe, decedent’s sister, executrix, was named executor in the will. The will, dated January 25, 1991, bequeathed all tangible personal property and residue to the decedent’s children, the petitioner, Martha Jo Jensen, and Greg Abdoe, in equal shares. The decedent’s home was devised to the executrix. To help her administer the estate, the executrix retained the assistance of Attorney S. Sanford Kantz.

I. EXECUTOR FEES

The petitioner’s first exception to the master’s report is that the executor’s fee is excessive. In the report, the master recommends that the executrix be paid $16,500. The court disagrees with the petitioner, and adopts the master’s facts and legal conclusions as set forth in the report.

Section 3537 of the Pennsylvania Probate, Estates and Fiduciaries Code sets forth the standard the court must use in establishing compensation for executors. Section 3537 states as follows:

“The court shall allow such compensation to the personal representative as shall in the circumstances be reasonable, and just, and may calculate such compensation on a graduated percentage.” 20 Pa.C.S. §3537.

An executor is entitled to reasonable and just compensation for the services he/she provides. In re Estate of Sonovick, 373 Pa. Super. 396, 541 A.2d 374 (1988). The basis for determining whether compensation is reasonable depends upon the value of the services actually rendered, and not upon some arbitrary formula. In re Estate of Geniviva, 450 Pa. Super. 54, 675 A.2d 306 (1996), alloc. denied, 546 Pa. 666, 685 A.2d 545 (1996); In re Estate of Rees, 425 Pa. Super. 490, 625 A.2d 1203 (1993); see In re Estate of Breyer, 475 Pa. 108, 119, 379 A.2d 1305, 1311 (1977). While, as a matter of convenience, compensation of a fiduciary may be arrived at by way of a percentage, the true test is always what the services were actually worth and to award a fair and just compensation thereof. Estate of Rees at 497, 625 A.2d at 1206. “[E]xecutors seeking compensation from an estate have the burden of establishing facts which show the reasonableness of their fees and entitlement to the compensation claimed.” Estate of Rees at 497, 625 A.2d at 1206. The determination of whether the executor’s fees are reasonable is left to the sound discretion of the orphans’ court, and the Superior Court will not disturb the orphans’ court determination absent a clear error or an abuse of discretion. Id. The orphans’ court also has the authority to reduce to a “reasonable and just” level those fees and commissions claimed by the fiduciary. Id.

Here, the executrix presented both testimonial and written evidence of the services she provided to the estate of the decedent. The executrix met with Attorney Kantz regularly and often. She dropped off mail at Attorney Kantz’s office and frequently met with him to sign documents and to discuss the estate. The executrix also performed the general executor duties such as being sworn in, obtaining death certificates, transferring the decedent’s titles to property, and overseeing the disposition of the decedent’s property to the beneficiaries.

A long and detailed log was presented to the master by the executrix. The log describes in detail each of the executrix’s activities and the dates she performed them. The court notes that although the executrix’s duties were not difficult, the executrix had to perform her duties with great care and diligence because the value of the estate was significant, and the executrix was responsible for handling a substantial quantity of mail and documents. If the executrix had not performed her duties in a careful manner, she could have disturbed the efficient administration of the estate.

For the reasons listed above, as well as those stated in the master’s report, the court agrees with the executor fee recommendation made by the master. The executrix has proven that a fee of $16,500 is a reasonable and just fee. Therefore, the petitioner’s first exception regarding the executor’s fee is denied.

II. ATTORNEY FEES

Petitioner next argues the attorney fee of $24,400, as recommended by the master, is excessive. The court is bound to agree.

In the case sub judice, Attorney Kantz originally set his fee at $24,440 based on a flat 5 percent calculation of the gross probate estate. In response to the petitioner excepting to the fee, Attorney Kantz prepared an itemized bill setting forth the hours he worked on the estate. The itemized bill indicates Attorney Kantz expended a total of 135.5 hours. Attorney Kantz charged $150 per hour for a total of $20,325. Attorney Kantz was paid $15,000 by the estate for his services. The amount of $6,187 of that money was paid to Attorney David E. Henderson for his services in administering the estate. Attorney Henderson’s fee is not contested.

Attorney fees in an estate are to be based on the reasonable value of the service actually rendered. Estate of Rees at 497, 656 A.2d at 1206; Dorsett v. Hughes, 53 Pa. Super. 129, 509 A.2d 369 (1986). Attorneys seeking compensation from an estate have the burden of establishing facts which show the reasonableness of their fees and entitlement to the compensation claimed. Estate of Sonovick at 400, 541 A.2d at 376 (1988). The court has the authority to reduce to a “reasonable and just” level those fees and commissions claimed by counsel. Id. at 399, 541 A.2d at 376. The test for determining the appropriateness of a fee for legal services in an estate is reasonableness. Dorsett, 353 Pa. Super. 129, 509 A.2d 369. Primarily, the responsibility for passing upon the reasonableness of counsel fees rests with the auditing judge. Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967).

In In re Estate of Preston, 385 Pa. Super. 48, 560 A.2d 160 (1989), an attorney and executor calculated their fees based on a fixed fee schedule. The court found the use of the schedule for the purpose of setting fees was clearly proscribed. Compensation for the administration of an estate cannot be awarded based simply upon a percentage basis. Id. An inquiry must be made by the orphans’ court into the reasonableness of fees and commissions disbursed. The court ultimately held that egregious error is committed when a court awards commissions and fees simply on a percentage basis without inquiry into the reasonableness of the compensation. Id.

In the instant case, the master correctly found, in accordance with Estate of Preston, that Attorney Kantz’s bill based upon the 5 percent flat fixed fee was improper. The proper method to be employed by the court to calculate attorney fees in an estate case is to determine the reasonable value of the services actually rendered. Estate of Rees at 497, 656 A.2d at 1206.

The issue of what is a fair and reasonable attorney fee in an estate case can sometimes be a delicate and difficult question. The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed, the character of the services rendered, the difficulty of problems encountered, the importance of the litigation, the value of the property in question, the degree of responsibility involved, whether the fund involved was “created” by the attorney, the professional skill of the attorney rendering services, the standing of the attorney in her profession, the results the attorney was able to obtain, and the ability of the estate to pay a reasonable fee. LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968). See Estate of Bruner, 456 Pa. Super. 705, 691 A.2d 530 (1997); In re Estate of Burch, 402 Pa. Super. 314, 586 A.2d 986 (1991).

Here, the facts contained within the record indicate that the type of work performed by Attorney Kantz was basically administrative in nature. Attorney Kantz was required to identify stocks owned by the decedent at the time of his death. It was Attorney Kantz’s duty to either locate the stock certificates or prepare forms necessary to replace the stock certificates. There were a total of 10 lost stock certificates.

According to his itemized bill, Attorney Kantz prepared letters testamentary, spoke to the executrix on the telephone, checked and reviewed documents, met with a stockbroker, and performed the general services of an attorney retained to help administer an estate. Attorney Kantz wrote letters to the petitioner’s attorney, and met with the petitioner and executrix on numerous occasions as well.

Although the value of the estate is significant, $488,805.45, it was not complicated or procedurally involved. The only real difficulty encountered in the case was that some of the decedent’s stock certificates owned by the decedent at the time of his death were lost. Attorney Kantz had to determine which stock certificates were missing and then he had to replace them. In order to replace the stock certificates, Attorney Kantz was required to fill out a basic application to send to the corporation along with some informational documents. No fund was created by Attorney Kantz, and he was aided by the executrix in administering the estate.

The master suggests that the behavior of the petitioner in the administration of the estate is a significant factor in setting the attorneys’ fee. The court does not agree.

After a close reading of the testimony at the master’s hearing and a detailed review of the record, the court cannot agree with the master that the acts of the petitioner provides strong justification for the attorney’s fee. The petitioner contacted Attorney Kantz often and was a bit intrusive into the details of the estate administration. On two occasions, the petitioner told Attorney Kantz that he would attempt to locate the missing stock certificates, and both times the petitioner delayed in informing Attorney Kantz regarding the results of the search.

The court notes that the petitioner’s acts did not substantially interfere with the administration of the estate. The petitioner’s intrusiveness is best characterized as that of a beneficiary son concerned over the administration of his father’s estate. An attorney must many times come into contact and deal with the children and beneficiaries of a decedent on whose estate he works. As a result, the court will not give as great weight to the petitioner’s behavior as the master did in setting the attorney’s fee.

A fee based upon an itemized bill is not in and of itself necessarily proper. It is questionable to automatically assume a lawyer’s efforts and time are always worth his hourly rate. Estate of Burch at 318-19, 586 A.2d at 988. In Homer Trust, 10 Fiduciary Rep.2d 382, 383 (O.C. Chester Cty. 1990), the court stated: “[I]t has long been recognized that time alone does not measure the value of services, nor hourly rate the quality.” The determination of reasonable compensation to an attorney for an estate is not relegated to a clock and computer. Estate of Burch at 318-19, 586 A.2d at 988. The time expended does not replace the test of reasonableness, and while time involved is a factor in setting a fair and reasonable fee, it is only one of several factors set forth in LaRocca.

Attorney Kantz is a skilled lawyer of good standing in the community, but the court cannot justify a $150 per hour bill for Attorney Kantz’s services, especially in light of the nature of the work he performed. It is of significance that Attorney Kantz did not prepare the inheritance tax return, nor did he prepare the final account and audit. Those services were performed by Attorney Henderson. Attorney Kantz’s duty was primarily to determine and/or replace the decedent’s stock certificates.

In performing his duty, Attorney Kantz charged the estate first for $24,400 based on the 5 percent flat fee calculation. Attorney Kantz then charged the estate for 135.5 hours at $150 in lieu of the $24,400 amount. In his itemized bill, Attorney Kantz charged the estate 30.5 hours at $150 per hour solely to determine the stocks and investments held by the decedent at the time of his death. Attorney Kantz then logged 23 hours at $150 per hour to prepare the forms to replace the stock certificates. As for telephone calls, Attorney Kantz charged the estate $3,712.50 for an indeterminable number of telephone calls to the executrix which the executrix herself testified usually lasted “a couple of minutes.”

Attorney Kantz’s bill did not state the charges with particularity. Instead, many hours appearing on the bill are grouped together. For example, Attorney Kantz has charged the estate for nine hours for “mise, calls with client for 1996” and for five hours at $150 for “mise, calls with client for 1997.”

In consideration of the foregoing factors, especially that most of the work performed by Attorney Kantz was principally administrative in nature, the court cannot justify an hourly rate of $150 per hour; rather, the court finds that the reasonable services provided by Attorney Kantz are valued at $100 per hour. Attorney Kantz expended 135.5 hours administering the estate. Therefore, Attorney Kantz is entitled to attorney fees in the amount of $13,550.

Attorney Henderson’s payment of $6,187 is uncontested and must be paid by the estate. The total attorney fees due, therefore, are the amount that Attorney Kantz is entitled ($13,550) plus Attorney Henderson’s payment ($6,187), equaling $19,737.

III. DISTRIBUTION IN KIND

The petitioner next argues that he has the right to accept in kind any stocks which are included in the estate so long as there is no objection from the other beneficiaries. The court cannot agree and adopts the conclusions and recommendations of the master.

The petitioner, during the course of the administration of the estate, requested AT&T and Lucent stocks in kind. However, the executrix had sold the stocks for distribution to the beneficiaries.

Article Four of the decedent’s will states as follows:

“In addition to the power conferred by law, my executor shall have the discretionary power to retain for distribution in kind, without duty of diversification, all property owned by me at my death, or to sell any part of such property, upon such terms as my executor shall deem advisable .... ” (emphasis added)

A plain reading of the decedent’s will shows that it was the decedent’s intent to give the executrix the power to liquidate the stocks and distribute the proceeds. The executrix had no duty to retain the assets for distribution in kind. Petitioner cites no law in his brief supporting his contention that he be entitled to an in-kind distribution of the stock certificates, and the court is not persuaded by his argument.

In conclusion, the petitioner did not show cause for the court to order the stock be distributed in kind. The master’s factual and legal findings are adopted, and the petitioner’s exception is denied.

IV. DISPOSITION OF PERSONAL PROPERTY

For his final exception, the petitioner argues that the executrix did not properly dispose of the decedent’s personal property. The court does not agree, and adopts the factual and legal findings as set forth in the master’s report.

In his will, the decedent leaves all tangible personal property to his surviving children to be divided amongst them as they may agree, or in the absence of such agreement, as the executrix shall determine. The record indicates that much of the decedent’s personal property was left inside his residence, to which the executrix had a key. The executrix allowed each of the decedent’s three children to enter the residence and retrieve personal property as they chose. After the children went to the residence on numerous occasions to take the decedent’s personal property, few items remained. The remaining items all had either a de minimis value or no value at all, and the executrix donated the items to charity.

An executor, as a fiduciary of the estate, “is required to use such common skill, prudence and caution as a prudent man, under similar circumstances, would exercise in connection with the management of his own estate.” Lohm Estate, 440 Pa. 268, 273, 269 A.2d 451, 454 (1970).

Although the executrix could have been more careful in itemizing the property and controlling entry into the residence, her actions were understandable. The beneficiaries were children of the decedent, and the beneficiaries’ aunt, the executrix, was the decedent’s sister. As an aunt, to not permit the decedent’s own children into the house of their father would certainly have caused unnecessary family discord. Once the beneficiaries all had ample opportunity to take whichever property they chose from the residence, the executrix could assume that the few, valueless items remaining were not wanted by the beneficiaries and were abandoned.

In conclusion, the court adopts the findings of fact and law made by the master. The items left in the home by the children were abandoned and had no value. The executrix exercised the skill and prudence that a common person would have used under similar circumstances. Therefore, the petitioner’s exception is denied.

ORDER

And now, December 21, 1999, exceptions to the supplemental master’s estate hearing report having been filed and argued, after consideration of the argument of counsel and briefs filed on behalf of the parties, it is ordered, adjudged and decreed as follows:

(1) Petitioner’s exception 1 regarding the executor’s fee is denied. The total fee of the executrix, Julie Abdoe, is fixed at $16,500.

(2) Exception 2 regarding attorneys’ fees is granted in part. The attorney fee of Attorney S. Sanford Kantz is fixed at $13,550 for services he provided to the estate. The fee of Attorney David E. Henderson is fixed at $6,187. Total attorney fees in the case are therefore fixed at $19,737.

(3) Exception 3 is denied. The executrix’s disposition of the personal property of the decedent was proper. The remaining items of decedent’s personal property not taken from his residence by the beneficiaries had no value and was abandoned.

(4) Exception 4 is denied. The beneficiaries have no right to an in-kind distribution of the decedent’s stock.

(5) The first and final account and proposed decree of distribution of the executrix, as modified by the terms of this order, are hereby confirmed absolutely, and distribution shall be made in such manner as to conform with the account and modifications contained herein.

      . The executrix submitted an inheritance tax return which first calculated her fee at $24,400. The fee was computed on a flat 5 percent calculation of the gross estate.

      . The schedule used by the attorney and executor in arriving at fees was that recommended by the attorney general’s office.


source: Caselaw Access Project

author: WALKER, P.J.,

license: Public Domain

text:
    Denton v. Nguyen

      C.P. of Fulton County,
    no. 52 of 1996-C.

      Robert F. Claraval, for plaintiffs.

      Stephen E. Moore, for defendant Nguyen.

      Joseph A. Ross, for defendant State Farm Mutual Insurance Co.
    March 21, 2000
   WALKER, P.J.,

FACTUAL AND PROCEDURAL HISTORY

On November 27, 1994, the plaintiffs and defendant Drur Phouc Philip Nguyen were involved in a car accident. At the time of the accident, Nguyen was employed by defendant General Motors Corporation. As a fringe benefit for its employees, GM maintained a “car pool” which allowed employees to borrow its vehicles for personal use. Nguyen, who did not own his own vehicle, had borrowed a vehicle from GM to use during his trip to visit his parents over the Thanksgiving weekend. Nguyen was driving this GM car at the time of the accident.

As a result of the accident, plaintiffs filed suit on March 25,1996. With regard to GM, plaintiffs alleged that GM had negligently entrusted its vehicle to Nguyen or that GM is liable under the theory of respondeat superior. A pretrial conference was held on August 26, 1999. The trial was originally scheduled to begin on February 7, 2000. Due to a scheduling problem, jury selection is now scheduled for April 24, 2000. The trial in this matter is now scheduled to begin on May 31, 2000.

On February 3, 2000, plaintiffs, for the first time, served GM with interrogatories and a request for production of documents. The discovery requests concern GM’s policies in providing the vehicle to Nguyen. They also seek specific information about what happened to the vehicle after the accident. GM filed a motion for a protective order, arguing that the plaintiffs were attempting to raise a products liability claim on the eve of trial. Alternatively, GM argues that the discovery requests are duplicative of the discovery directed to Nguyen.

DISCUSSION

“There are no hard-and-fast rules as to how a motion for a protective order is to be determined by the court. Whether to grant or deny the motion and what kind or kinds of protective orders to issue are matters that lie within the sound judicial discretion of the court. . . .” Hutchison v. Luddy, 414 Pa. Super. 138, 144, 606 A.2d 905, 908 (1992).

In the present case, the accident giving rise to the litigation occurred on November 27,1994. This lawsuit was filed on March 25,1996. A pretrial conference was held on August 26, 1999. The trial in this matter was originally scheduled to begin on February 7,2000, However, the trial is now scheduled to begin on May 31, 2000, with jury selection scheduled to take place on April 24, 2000.

Plaintiffs served GM with interrogatories and a request for production of documents for the first time on February 3, 2000. Some of the discovery requests concern GM’s policies in providing a vehicle to Nguyen. Because the accident occurred five and one-half years ago and the lawsuit was filed four years ago, plaintiffs had a sufficient opportunity to serve GM with these discovery requests prior to the trial being scheduled. Because the trial ’in this matter is scheduled to begin in approximately five weeks, plaintiffs waited too long to serve GM with the discovery requests concerning GM’s policies in providing a vehicle to Nguyen.

Furthermore, 39th Jud.Dist.C.R. no. 39-212.2 states that “[n]o pretrial conference shall be scheduled until all pretrial motions, petitions, answers and objections have been disposed of, discovery is completed and the case is ready for trial.” There was a pretrial conference on August 26,1999. Therefore, all discovery should have been completed as of August 26,1999. Because plaintiffs did not serve the supplemental discovery requests on GM until February 3, 2000, the discovery requests are untimely. It should be noted that this trial was originally scheduled for February 7, 2000. Presumably, plaintiffs were prepared to proceed with the trial without these supplemental discovery requests if the trial had begun as originally scheduled.

With regard to the discovery requests about what happened to the vehicle after the accident, these discovery requests are also untimely for the reasons noted above. They are also irrelevant. This case concerns the accident that occurred on November 27, 1994, and GM’s decision to provide a vehicle to Nguyen. This lawsuit does not involve an issue regarding what happened to the vehicle after the accident. Therefore, these discovery requests are irrelevant as well as untimely.

ORDER

March 21, 2000, after consideration of defendant’s motion for a protective order, plaintiffs’ answer, and the briefs submitted to the court, defendant’s motion for a protective order is granted. Plaintiffs’ supplemental request for production of documents and plaintiffs’ supplemental interrogatories addressed to General Motors Corporation are stricken.


author: STALLONE, J.,

text:
    Dougherty v. Muhlenberg Township Civil Service Commission

      C.P. of Berks County,
    no. 99-6424.

      Leonard N. Herb, for petitioner.

      Eugene C. LaManna, for respondents.
    June 13, 2000
   STALLONE, J.,

The petitioner, Corporal Thomas R Dougherty, has been employed by the Muhlenberg Township Police Department for the past 21 years. On October 3,1998, Sergeant Todd A. Graeff of the Muhlenberg Township Police Department filed a written complaint against Corporal Dougherty with Kirk Trate, who at that time was deputy chief of the Muhlenberg Township Police Department, which contained four separate allegations of misconduct: (1) discourtesy; (2) insubordination; (3) conduct unbecoming an officer; and (4) noncompliance with departmental orders. These allegations arose out of incidents which had allegedly occurred on August 13,1998 and September 30,1998. This complaint, as we now know, sets forth not only the specific allegations of misconduct against Corporal Dougherty, but also the evidence which allegedly supported those allegations.

After receiving the complaint, Deputy Chief Trate ordered Sergeant Herbert B. Roth of the Muhlenberg Township Police Department to conduct an internal investigation of the matter. Upon completing his investigation, Sergeant Roth prepared and signed a one-half page document which is captioned as a “Notification of complaint,” and summarizes the four allegations of misconduct against Corporal Dougherty but does not cite any of the evidence set forth in Sergeant Graeff’s October 3, 1998 complaint. The “Notification of complaint” reads as follows:

“Corporal Thomas P. Dougherty... Muhlenberg Twp. P.D.
“You are hereby notified that a complaint has been received concerning an incident in which you are alleged to have been involved. The details of the complaint are as follows:
“that you were unwilling to obey lawful departmental orders, policies and directives. This occurred when you were asked to conduct traffic checks and to comply with directives regarding foot patrols, security checks and patrol checks. Furthermore you were insubordinate in your contact and interaction with Sergeant Todd A. Graeff who was supervising your work shift. You also violated the courtesy provisions of the department Rules of Conduct in that you used insulting, profane and demeaning language in your interaction with Sergeant Graeff.”

At a meeting held on October 21,1998, Sergeant Roth and Robert Flanagan, chief of police of the Muhlenberg Township Police Department, served the “Notification of complaint” on Corporal Dougherty and asked him to sign it. Corporal Dougherty refused to do so because Chief Flanagan did not grant his request for a copy of Sergeant Graeff’s October 3, 1998 complaint, citing an unwritten policy of the Muhlenberg Township Police Department not to provide a copy of a written complaint to the subject of an ongoing investigation when the subject has not given either a statement or other response to the subject matter of a complaint. Corporal Dougherty made the same request of Sergeant Roth on December 8, 1998, but his request was again refused for the same reason.

On January 12, 1999, Chief Flanagan provided Corporal Dougherty with an undated and unsigned copy of a two-page document captioned “Internal investigation,” and asked Corporal Dougherty to respond to it: However, this document merely contained a series of general statements describing Corporal Dougherty’s conduct subsequent to the filing of Sergeant Graeff’s October 3, 1998 complaint and did not refer either to Corporal Dougherty by name or to any evidence allegedly supporting, the misconduct charges against him. Interestingly, there is also a two-page document in the record captioned as a “General investigation report” dated December 8,1998, which contains a partial summary of the evidence allegedly supporting the allegations of misconduct as contained in the complaint against Corporal Dougherty but which, like the October 3, 1998 written complaint, was never provided to Corporal Dougherty.

On January 13, 1999, Corporal Dougherty informed Chief Flanagan in writing that he could not respond in writing or otherwise to the charges of misconduct because he had not yet been given a copy of Sergeant Graeff’s October 3, 1998 complaint, and that none of the documentation which he had received up to that time stated what he allegedly said and when he allegedly said it. Immediately thereafter, Corporal Dougherty met with Deputy Chief Trate for a “question and answer” session about the charges, after which Deputy Chief Trate reduced his questions and Corporal Dougherty’s answers to them to a writing. In addition, that same day, notwithstanding his requests and the fact that he still had not received a copy of Sergeant Graeff’s written complaint, Corporal Dougherty submitted a three-page written response to the “Internal investigation” report provided to him the preceding day by Chief Flanagan.

On January 15, 1999, Corporal Dougherty appeared for a “pre-disciplinary hearing” before Chief Flanagan. The record indicates that the only thing that occurred at this time was that Chief Flanagan gave Corporal Dougherty the opportunity to: “verbally communicate to this officer or submit a to/from letter to this writer [Chief Flanagan] setting forth any facts that would benefit him with the final decision and determine any disciplinary action taken .

Corporal Dougherty stated that he had nothing to add to what was already communicated to Chief Flanagan.

On January 20,1999, Chief Flanagan issued a written decision suspending Corporal Dougherty without pay effective immediately until January 23, 1999. Corporal Dougherty requested a hearing before the Muhlenberg Township Civil Service Commission, which thereafter affirmed the suspension by decision dated June 9,1999. Corporal Dougherty has now filed a petition for review with this court of common pleas, in which he contends that: (1) the civil service commission erred as a matter of law in concluding that, as a tenured public employee, he was accorded sufficient procedural due process rights before being suspended; and (2) the civil service commission’s findings of fact are not supported by substantial evidence.

In Pennsylvania, the standard of review of a local agency decision is well settled. Where, as here, a complete record was developed before the local agency, the reviewing court must affirm the decision unless it is determined that an error of law was committed or that material findings of fact are not supported by substantial evidence. Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129, 137-38, 674 A.2d 1056, 1060 (1996). For the reasons which follow, we agree with Corporal Dougherty’s argument relative to the procedural due process issue and, therefore, we need not reach his second argument challenging the civil service commission’s findings of fact.

In the action at bar, the. township does not dispute the fact that, under applicable law, Corporal Dougherty was entitled to some minimum amount of due process prior to being suspended. See brief of Muhlenberg Township at p. 3. The issue, however, is whether Corporal Dough-erty in fact received that.due process.

The minimum essential requirements of due process in cases involving the suspension or termination of tenured public employees are clear. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, 506 (1985), which is the leading case in this area of the law, the United States Supreme Court stated that, before a tenured public employee can be suspended or terminated:

“The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”

We have no hesitancy in finding that Corporal Dougherty was given written notice of the charges inasmuch as the record reveals that he was served with the “Notification of complaint” which restated each of the allegations of misconduct set forth in the written complaint. ' Similarly, there is no doubt that Corporal Dougherty had sufficient opportunity to present his side of the story,' as he was permitted to submit a three-page letter, as well as other materials, to Chief Flanagan on at least two separate occasions, and had the opportunity to provide further information at the “pre-disciplinary hearing” held on January 15, 1999.

However, we understand Loudermill to require disclosure not only of the allegations supporting a particular charge, but also of the evidence which supports those allegations in order for the employee to have a fair opportunity to respond to the charges filed against him. Id. at 506-507. The “Notification of complaint” provided to Corporal Dougherty merely sets forth the allegations of misconduct, but does not include any evidence which allegedly supports those charges, including dates or times, as confirmed by the following testimony of Deputy Chief Trate before the Muhlenberg Township Civil Service Commission:

“Q: Does it [Notification of complaint] say anything in relationship to when that occurred?
“A: As to whether it has dates, no, it does not.
“Q: Does it say, specifically, what Sergeant Graeff accused him of doing or not doing?
“A: It does say, Furthermore, you were insubordinate in your contact with Sergeant Graeff who was supervising your work shift.
“Q: But it doesn’t say how he was insubordinate?.
“A: It doesn’t say how. It doesn’t say, specifically, on what shift.” N.T., civil service commission hearing, April 8, 1999, p. 76.

Rather, the only place where that evidence appears is in Sergeant Graeff’s October 3, 1998 complaint, which Corporal Dougherty was not permitted to review until after he was suspended, as is obvious from the following testimony of Deputy Chief Trate at the same civil service commission hearing:

“Q: Is it your understanding that Corporal Dougherty was not entitled to see this written complaint filed by the supervisor, Sergeant Graeff?
“A: At that point in our investigation, it’s our policy that he is not entitled to see it. He is given the opportunity to know that there are charges against him. He is given administrative warnings which is the next exhibit in our book, exhibit 4. And then he is given an opportunity to make a statement in writing relative to what was presented to him on the notice of the complaint.” N.T., civil service commission hearing, April 8,1999, pp. 76-77.

We also note that, in his testimony before the civil service commission, Chief Flanagan attempted to justify this policy on the basis that an investigation of the type involved in this case is “administrative” and not criminal in nature. N.T., civil service commission hearing, April 8,1999, pp. 88-89. However, we see no basis for this distinction anywhere in Loudermill. ■

Therefore, we are unable to conclude that Corporal Dougherty was given an explanation of the employer’s evidence against him. For that' reason, the township’s failure to provide Corporal Dougherty with a copy of Sergeant Graeff’s October 3,1998 complaint at any time prior to his suspension did not comport with the minimum procedural due process requirements set forth in Loudermill and made his “pre-disciplinary hearing,” as well as the civil service commission’s decision dated June 9,1999, which affirmed the suspension, essentially meaningless.

Finally, let us say that there is no question that a police officer is expected to conduct himself in such a way that he or she brings honor and respect to the law, which the officer is sworn and duty-bound to uphold. There is also no question that the public properly demands adherence to standards by law enforcement officers which are somewhat higher than those applied in many other professions. However, as the Commonwealth Court of Pennsylvania stated in Cerceo v. Darby, 3 Pa. Commw. 174, 183, 281 A.2d 251, 255 (1971):

“We cannot allow the law to be ignored and the rights of individuals to be abrogated at the hands of a seemingly justified municipal government and an administrative agency. Government and its agencies owe the same fidelity as to officers to hew to the letter of the law. Government and its agencies can only engender public trust and confidence when their acts and orders are lawful and in a spirit of justice.”

And so, for these reasons, we enter the following attached order.

ORDER

And now, June 13,2000, upon consideration of the petition for review filed by the petitioner, Corporal Thomas R Dougherty, and the response thereto filed by respondent, Township of Muhlenberg, it is hereby ordered as follows:

(1) The June 9,1999 decision of respondent, Muhlen-berg Township Civil Service Commission, is reversed, thereby rendering null and void the suspension of the petitioner, without pay, for the four-day period between January 20, 1999 and January 23, 1999; and

(2) Back pay and benefits for that four-day period shall be paid by respondent, Township of Muhlenberg, to the petitioner no later than 30 days from the date of this order.

      . He has been a corporal for 15 of those 21 years.

      . This document is marked as “attachment 1” in the certified record filed with this court.

      . This document is marked as “attachment 3” in the certified record filed with this court.

      . This document is marked as “attachment 7” in the certified record filed with this court.

      . This document is a part of “attachment 7” in the certified record filed with this court.

      . This document is marked as “attachment 8” in the certified record filed with this court.

      . This document is marked as “attachment 9” in the certified record filed with this court.

      . This document is marked as “attachment 10” in the certified record filed with this court.

      . This statement appears in a written memorandum prepared by Chief Flanagan of what transpired at this hearing, which is marked as “attachment 12” in the certified record filed with this court.

      . See n.9, supra.

      . This document is marked as “attachment 11” in the certified record filed with this court.

      . As part of his suspension, Corporal Dougherty was required to turn in his badge, identification card and weapon, and was ordered not to identify himself as a police officer or take any official action during that four-day period.

      . The request for a hearing was made on Corporal Dougherty’s behalf by Detective Dean R. Patton, president of the Muhlenberg Township Police Labor Organization.

      . The record discloses that this was one of the six issues presented for decision at the civil service commission hearings. N.T., civil service commission hearing, pp. 11-12. The civil service commission addressed this procedural due process issue in its June 9, 1999 decision.

      . All italic language in this opinion is for emphasis only.

      . Hearings on this matter were held before the civil service commission on April 8, 1999 and April 12, 1999.


text:
    Watters v. Watters

      C.P. of Lawrence County,
    no. 10242 of 1999, C.A.

      Norman A. Levine, for plantiff.

      Gabriel P. Cilli, for defendant.
    November 22, 1999
   MOTTO, J.,

This case is before the court for disposition following the completion of custody hearings. This custody dispute relates to the two children born to the marriage of the parties, Brittany Joan Watters, bom July 9, 1986, and Donald R. Watters III, bom March 6, 1989. Although both children are the subject of these proceedings, the principal issue presented in the case is whether primary physical custody of Donald R. Watters III, should be transferred from the plaintiff, Connie L. Watters, to the defendant, Donald R. Watters Jr., which would thereby bring about a separation of the siblings, as Mother has heretofore had primary physical custody, of both children.

The parties are husband and wife, having been married on March 30, 1985. The children who are the subjects of these proceedings were bom to the marriage of the parties. Neither party has any other children and the marriage was a first marriage for both parties.

Father is approximately 45 years of age and in good health. Mother is approximately 41 years of age and in general good health, except that she has suffered from understandable stress relating to the breakup of the marriage between the parties, as a result of which she utilizes medication to help her sleep and address nervousness and mild depression.

The parties are not divorced but are undergoing divorce litigation.

During the marriage, up until Father left the marital bedroom and took up residence in the basement of the marital home in February of 1999, the parties cooperated with each other in parenting the children. Father was the primary breadwinner for the family, working five days a week, daylight hours, in the business of selling and installing cemetery memorials, a family-owned business. Mother did not work outside of the home after the birth of Brittany and was the primary caretaker for the children. The parties lived together in an attractive home and provided a very comfortable lifestyle for the children.

The lives of the parties and the children changed drastically in February of 1999 when Father decided to move to the basement of the home, thereby effectuating a separation between Father and Mother, while living under the same roof. Prior to separation, Brittany had become distant with Father. Once separation occurred, with Father living in basement, each child became separately entrenched with a relationship to one parent. Brittany became entrenched with Mother and Donald became entrenched with Father. While living in the basement, Father became more involved in his relationship with Donald. At the same time, Brittany grew farther away from Father and closer to Mother.

Donald became isolated from Mother. When he would arrive home from school, he would spend his evening exclusively with Father in the basement. He began to imitate Father relative to his relationship with Mother, including imitating insulting behavior that Father would display to Mother.

Father left the marital residence in April of 1999 under a temporary order entered as a result of a petition for protection from abuse filed by Mother. Since that time, Father has not returned to the residence, but has taken up residence with his parents, who live in an ample home a short distance from the marital home. Since Father left the marital home, Mother has continued to live in the marital home and Father continues to live in his parents’ home.

The court entered a temporary custody order affording Mother primary physical custody but providing for Father to have liberal partial custody. However, Brittany refuses to have anything to do with Father, will not visit with him nor go on any partial custody with Father, and will not talk to him either in person or by telephone. Brittany is completely estranged from Father and is entirely supportive of Mother in the divorce case, placing total blame on the father. Although Father is hurt by Brittany’s attitude towards him, he does not take any affirmative action to attempt to repair the relationship between him and Brittany.

On the other hand, Donald is completely supportive of Father, blames Mother for the divorce, and he, like Brittany, does not wish his parents to reconcile.

Donald has exhibited tremendous animosity towards Mother. Donald has stated to Mother “I will burn you and I hate you.” Donald is defiant towards Mother and refuses to be directed by her. Donald has complained to Father and to school authorities that Mother has physically abused him. Donald very clearly expresses his extreme desire to reside primarily with Father and minimally visit with Mother. Donald portrays Father in a totally positive light while portraying Mother in a very negative light.

Donald and Father share a common interest in sporting activities. Donald is athletic and enjoys sports. Father has also had a history of being involved in athletics and maintains that interest by coaching sporting teams in which Donald participates.

Both parties have been concerned with the schooling of the children and both parents have been involved in the children’s homework. However, Donald does not see Mother as being supportive of his athletic interests nor able to share or participate in those interests as does Father.

The parties and the children were evaluated by Dr. Michael Stern, a court-appointed psychologist.

Dr. Stern testified as a witness in this case and concluded that both of the parties have attempted to influence the children to side with them against the other parent and have inappropriately discussed issues with the children in an attempt to get them to reject the other parent in favor of them. Dr. Stern acknowledges that Donald’s relationship with Mother has deteriorated and that, since separation, each of the children’s loyalties to a specific parent have become more entrenched. The relationship between Brittany and Father has deteriorated to the point that Brittany refused to be with Father even during the evaluation process. Mother has a difficult time managing and directing Donald because of his attitude towards her. However, each parent views the relationship with the one child who has sided with him and her in a positive manner with normal challenges.

Dr. Stem recommended that each of the children be allowed to live with the preferred parent. In support of that recommendation, Dr. Stem noted that the children would be able to attend the same school and that it was not unusual for children at these ages to begin to share interests with the parent of the same sex. Dr. Stern concludes that Brittany is convinced of and has aligned herself with Mother’s position regarding Father and, at the same time, Donald is convinced of and has aligned himself with Father’s position regarding Mother. Dr. Stern further concludes that if either of the children were required to live with the nonpreferred parent, the probability of behavioral and emotional problems would increase.

It is noteworthy that Dr. Stem had the opportunity to reinterview the parties and the children within a matter of a few weeks prior to the first custody hearing. As a result, he was able to testify whether the conclusions that he reached as a result of the initial evaluation leading to a report concluded in June of 1999 were still valid. Dr. Stern confirmed that as a result of his ability to reinterview the parties and the children, that his conclusions continued to be valid.

Although Mother testified that there has been recently drastic improvement in the behavioral problems relating to Donald, she does acknowledge that he continues to desire to please Father. Donald testified and the court has observed that Donald continues to be unrelenting in his desire to reside primarily with Father and in portraying Mother in a negative fashion.

In custody disputes, the controlling question and paramount concern of the court is the best interest of the child, and all other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well-being. See generally, Warren v. Rickabaugh, 410 Pa. Super. 431, 600 A.2d 218 (1991); McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992); Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1991); In re Donna H., 412 Pa. Super. 205, 602 A.2d 1382 (1992); Dorsey v. Freeman, 438 Pa Super. 236, 652 A.2d 352 (1994).

The parents of a child begin a custody dispute on an equal footing and there are no presumptions in favor of either parent, as the court must make its determination based solely on the particular facts and circumstances of each case. The scale initially is weighed equally as to each parent; when the scale is tipped in favor of one of the parents, the other must come forward with evidence to reverse the balance. Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 692 (1993).

Where a child has a preference, such preference, although not controlling, is a factor to be considered so long as it is based upon good reasons; in assessing the weight to be accorded the child’s preference, the child’s maturity and intelligence are to be considered with increased weight being accorded the preference as the child grows older; where no reason, or a very inadequate reason for the preference is given for the child’s choice, the court may choose to give no weight to that preference. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992).

The strong policy of the law is that unless compelling reasons indicate otherwise, siblings should be raised together. Cyran v. Cyran, 389 Pa. Super. 128, 566 A.2d 878 (1989). In order to meet the compelling reason standard, one must demonstrate that it is clearly necessary to separate the siblings. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983).

In the case of E.A.L. v. L.J.W., 443 Pa. Super. 573, 662 A.2d 1109 (1995), the court declared that the policy which favors raising siblings together is only one factor that the court must consider in child custody determinations and it is not controlling. Ultimately, it is what is in the children’s best interests that must control, and that in certain cases, the children’s best interests are best served by a custody order that brings about their separation. See Mahoney v. Mahoney, 354 Pa. Super. 585, 512 A.2d 694 (1986).

In the case sub judice, the court accepts and agrees with the conclusion of the court-appointed psychologist, Dr. Stern, that primary physical custody of each child should be awarded to the preferred parent of each child. The court accords great weight to the findings and recommendations of the psychologist who has performed the custody evaluation in this case. A trial judge is required to consider uncontradicted expert testimony. See Murphey v. Hatala, 350 Pa. Super. 433, 504 A.2d 917 (1986). However, the court’s own assessment is consistent with the recommendations and conclusions of Dr. Stern.

Brittany is closely bonded to Mother and is completely alienated from Father. Donald is closely bonded to Father and views being in his primary custody as an event which would make him “the happiest kid in the world,” according to his own testimony. It may very well be that Donald has been heavily influenced by Father and the paternal grandparents. Nevertheless, the court is required to focus at this point on what is in the best interest of Donald. His attitude towards mother and his strong preference for Father, with whom he shares common interests, is not likely to change by forcing him to live, against his wishes, with Mother. It is more likely that if Donald is required to remain in the primary care of Mother, that the problems between them will continue to grow and Donald will become more resentful, thus increasing the disciplinary problems that Mother has encountered with Donald. Therefore, the court finds that there exists compelling reasons to separate the siblings in this case given the stated preference of each of them and the specific problems that each child has towards the nonpreferred parent.

Separation of Brittany and Donald is a legitimate consideration in this case for the additional reasons that Brittany is three years older than Donald, has a separate group of friends, does not share many common interests with Donald and, furthermore, although Donald and Brittany are fond of each other, they are not extremely close. Their lack of closeness is understandable considering the difference in their.ages, interests and the difference in their individual attitudes towards their parents. In any event, despite the fact that they may be living in separate homes, they will have ample opportunity to continue their sibling relationship in school, and by allowing for a liberal partial custody schedule so that Donald may continue to spend a good deal of time with his mother and sister.

In concluding that Donald should be in the primary physical custody of Father, the court is not in any way finding that Mother has any specific shortcomings that necessitate a change in custody. In fact, it appears to the court that Mother has been dedicated to the children and is an exemplary homemaker.

The deterioration of the family unit in this case has been especially tragic considering that it has led to each of the two children not only taking sides, but taking opposite sides between the parents. As tragic as this situation is, the court can only deal with the circumstances as they exist. The court cannot make a custody decision based upon which parent may have been responsible for the breakdown of the family unit; or, who is more culpable in causing or promoting conflict between the parties and the children. The court can only decide such issues based upon what is in the best interest of the children. Here, the court has concluded that it would be more harmful to Donald to force him to remain in the primary care of Mother than to allow him to have his stated preference where the credible evidence in the case, both in terms of expert testimony and the other evidence in the Case, points to Donald having a better opportunity to flourish and live a happier childhood if allowed to be in the primary physical custody of Father, with liberal partial custody with Mother.

The court shall enter a separate order consistent with this opinion.

ORDER

And now, November 22,1999, following the completion of custody hearings, it is ordered, adjudged and decreed as follows:

(1) Primary physical custody of Brittany Joan Watters is awarded to the plaintiff, Connie L. Watters.

(2) Primary physical custody of Donald R. Watters III is awarded to the defendant, Donald R. Watters Jr.

(3) The parties shall have shared legal custody of the children.

(4) As to each child, the out-of-custody parent shall have partial custody of the children on alternate weekends from Friday after school, or 10 a.m. if school is not in session, until Sunday at 6 p.m. Weekend partial custody shall be exercised in such a manner so that the children are always together on each weekend, if Brittany were to participate in the weekend partial custody. In addition, the plaintiff shall have partial custody of Donald each and every Tuesday from after school, or 10 a.m. if school is not in session, until 8:30 p.m., and every other Thursday, specifically the Thursday that precedes the weekend on which the plaintiff does not have partial custody, from after school, or 10 a.m. if school is not in session, until Friday when school starts or until 5 p.m. if school is not in session.

(5) During the summer months, the plaintiff shall have a period of three weeks of summer partial custody of Donald which may be in addition to her regular weekend partial custody and consecutive therewith; provided, however, that such weeks must be exercised on a nonconsecutive basis as to each week of summer partial custody. The plaintiff shall give notice to the defendant, in writing, of the three weeks during which she will exercise partial custody by May 15 of each year. Defendant shall have the right to retain Donald for two nonconsecutive weeks of uninterrupted summertime custody, with notice of such weeks to be given by May 15 of each year. In the event of conflict, in even-numbered years, plaintiff’s preference shall control, and in odd-numbered years, defendant’s preference shall control.

(6) Brittany shall not be compelled to go with the defendant during his periods of partial custody with Brittany, but she shall be encouraged to do so.

(7) The parties shall alternate the holidays of Thanksgiving Day, New Year’s Day, Memorial Day, Fourth of July and Labpr Day, with the plaintiff to have the children for the holiday of Thanksgiving Day, with the times of custody or partial custody on such holidays to be from 10 a.m. until 8 p.m. Furthermore, in odd-numbered years, plaintiff shall have the children from Christmas Eve Day at 12 noon until Christmas Day at 12 noon and the defendant shall have the children from Christmas Day at 12 noon until December 26 at 12 noon. Holiday custody shall take precedence over regular and summer custody and partial custody.

(8) The plaintiff shall be responsible for all transportation connected with the exercise of her right of partial custody; provided, however, that she may send a designated representative to effectuate the transportation.

(9) Neither party shall remove the children from the jurisdiction of Lawrence County with the intent of permanently changing the residence of the children without the written consent of the other party or an order of court.

(10) The parties shall abide by the terms of the attached appendix to custody order, which is incorporated herein and made a part of this order of court.

(11) The effective date of this order shall be Wednesday, December 1, 1999, and plaintiff’s first weekend of partial custody with Donald shall be the weekend of December 3,1999; therefore, plaintiff’s first weeknight visitation period shall be Tuesday, December 7,1999. Until December 1, 1999, the parties shall continue to comply with the existing order of court dated May 14,1999, and any other order that is presently in effect between the parties.

(12) Each party shall have reasonable telephonic access to the child who is not in his or her primary physical custody, on a daily basis, but without being disruptive to the household of the custodial parent.

(13) The plaintiff, Connie L. Watters, and the child Donald R. Watters III, shall continue to engage in counseling and the defendant, Donald R. Watters, Jr., shall participate in such counseling as requested or recommended by the counselor. The parties are encouraged to involve Brittany in the counseling session with the goal of improving the relationship between Brittany and the defendant.

(14) The prothonotary shall exit a copy of this order to Norman A. Levine, Esquire, and Gabriel R Cilli, Esquire.

       This appendix will not be reproduced in this publication.


author: NEALON, J.,

text:
    Nazar v. Clark Distribution Systems Inc.

      C.P. of Lackawanna County,
    no. 99-CV-5174.

      Christina T. Novajosky and Mary D. Walsh-Dempsey, for plaintiff.

      Elizabeth A. Maguschak, Brian F. Jackson and Schaun D. Henry, for defendant.
    May 5, 2000
   NEALON, J.,

Defendant, Clark Distribution Systems Inc., has filed preliminary objections in the nature of a demurrer to Count II of the complaint filed by its former employee, plaintiff, John Nazar, in which Nazar asserts a common-law claim for wrongful discharge. Since Nazar asserts that Clark terminated him in retaliation for his filing a complaint with a Commonwealth agency, alleging disability discrimination by Clark, Nazar’s discharge may violate a recognized public policy in Pennsylvania. Therefore, the preliminary objections will be denied.

I. FACTUAL BACKGROUND

According to the well-pleaded allegations of his complaint, Nazar suffered a work-related injury during the course of his employment as a dock worker with Clark, as a result of which he experienced certain physical limitations. (See plaintiff’s complaint, ¶¶12-14.) Nazar contends that in an effort to compel him to quit his job, Clark began to harass and discriminate against him based upon his disability. (Id., ¶¶19-22.) On April 6, 1998, Nazar filed a complaint with the Pennsylvania Human Relations Commission, alleging disability discrimination by Clark. (Id., ¶3.)

Nazar maintains that in retaliation for his filing of a disability claim with the PHRC, Clark terminated him on August 3, 1998. (Id., ¶32.) After Nazar received a “right to sue” letter from the PHRC on October 6,1999, he commenced the above-captioned matter on October 22,1999. (Id., ¶¶4-5.) In his complaint, Nazar advances two causes of action; the first alleging a disability discrimination claim under the Pennsylvania Human Relations Act, and the second asserting a common-law claim for wrongful discharge.

In its preliminary objections, Clark submits that the PHRA provides the sole remedy for a claim of discriminatory termination and precludes an employee from filing a common-law claim for wrongful discharge. In the event that it is determined that Nazar’s exclusive remedy lies within the framework of the PHRA, Clark also seeks to dismiss Nazar’s request for punitive damages on the grounds that they are not recoverable under the PHRA. Nazar counters that he has articulated a cognizable public policy that has been violated by Clark’s discharge of Nazar in retaliation for exercising his statutory right to present a discrimination claim to the PHRC. The parties have submitted their respective memoranda of law, and following the completion of oral argument on May 3, 2000, this matter was submitted for a decision.

II. DISCUSSION

(A) Standard of Review

“Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” White v. PennDOT, 738 A.2d 27, 31 (Pa. Commw. 1999). When considering preliminary objections, all material facts set forth in the challenged pleading are admitted as true, as well as all inferences reasonably deducible therefrom. DeMary v. Latrobe Printing Co., 2000 WL 10232, ¶5 (Pa. Super. 2000); Main Line Health Inc. v. CAT Fund, 738 A.2d 66, 69 n.13 (Pa. Commw. 1999). Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. Pacurariu v. Commonwealth, 744 A.2d 389, 391 n.1 (Pa. Commw. 2000); White, 738 A.2d at 31. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Edwards v. Germantown Hospital, 736 A.2d 612, 614 (Pa. Super. 1999); Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Commw.. 1999).

(B) Wrongful Discharge

It is undisputed that Nazar was an “at-will” employee of Clark since he did not have a written or oral employment contract for a specific period of time, nor was he protected by any collective bargaining agreement. Generally, an employer “may discharge an employee with or without cause, at pleasure, unless restrained by some contract.” Shick v. Shirey, 552 Pa. 590, 595, 716 A.2d 1231, 1233 (1998) (quoting Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 297, 21 A. 157 (1891)); Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 237, 622 A.2d 355, 358 (1993). Absent a statutory or contractual provision to the contrary, the law recognizes the power of either party to terminate an employment relationship for any or no reason. Geary v. U.S. Steel Corp., 456 Pa. 171, 175, 319 A.2d 174, 176 (1974); Holewinski v. Children’s Hospital of Pittsburgh, 437 Pa. Super. 174, 178, 649 A.2d 712, 715 (1994).

However, the employer’s ability to dismiss an employee “at will” with or without cause is not absolute and may be qualified by the dictates of public policy. Shick, supra. Pennsylvania law recognizes a judicially created “public policy” exception to the at-will employment doctrine in those instances in which the discharge of an employee threatens a clear mandate of public policy. Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 580, 670 A.2d 173, 175 (1996). As the Supreme Court of Pennsylvania remarked 25 years ago:

“It may be granted that there are areas of an employee’s life in which his employer has no legitimate interest. An intrusion into one of these areas by virtue of the employer’s power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened.” Geary, 456 Pa. at 184, 319 A.2d at 180.

To state a cause of action for wrongful discharge based upon the public policy exception to the at-will employment doctrine, the employee must identify “a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision.” Hunger, supra; Jacques v. Akzo International Salt Inc., 422 Pa. Super. 419, 430, 619 A.2d 748, 753 (1993). The public policy at issue should be the type which “strikes at the heart of [the] citizen’s social right[s], duties, and responsibilities,” McGonagle v. Union Fidelity Corp., 383 Pa. Super. 223, 231, 556 A.2d 878, 882 (1989), alloc, denied, 525 Pa. 584, 575 A.2d 115 (1990), and “[a]bsent legislation, the judiciary must define the cause of action in case-by-case determinations.” Reitz v. Persing, 831 F. Supp. 410, 414-15 (M.D. Pa. 1993) (citing Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022 (1991)).

In essence, Pennsylvania courts have recognized the existence of a public policy violation in those instances in which the employee is terminated after [s]he: (1) participates in conduct required by law; (2) refuses to perform an act prohibited by law; or (3) engages in conduct which [s]he is privileged by law to do. Therefore, an employee may state a cause of action for wrongful discharge if [s]he is fired for performing a function required by law, for example, reporting a nuclear safety violation in compliance with federal law, Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 420, 565 A.2d 1170, 1180 (1989), or serving on a jury pursuant to 42 Pa. C.S. §4501. Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 33, 386 A.2d 119, 121 (1978). Similarly, an employee may sue for wrongful discharge if the termination was based upon a refusal to participate in unlawful conduct such as furnishing false information to federal investigators, Hanson v. Gichner Systems Group Inc., 831 F. Supp. 403, 406 (M.D. Pa. 1993), or submitting to a polygraph test in an employment setting in violation of 18 Pa. C.S. §7321. Kroen v. Bedway Security Agency Inc., 430 Pa. Super. 83, 93, 633 A.2d 628, 633 (1993).

Moreover, an employee may recover for wrongful discharge if [s]he is fired for exercising a fundamental right protected by law. See Shick, 716 A.2d at 1237-38 (employee discharged in retaliation for filing a workers’ compensation claim); Highhouse v. Avery Transportation, 443 Pa. Super. 120, 126-27, 660 A.2d 1374, 1377-78 (1995) (employee may recover for wrongful discharge if [s]he is terminated for filing an unemployment compensation claim); Novosel v. Nationwide Insurance Co., 721 F.2d 894, 900 (3d Cir. 1983) (public policy violation based upon infringement of First Amendment rights where employee was terminated for refusing to participate in the employer’s legislative lobbying efforts and for opposing the employer’s political stance); Reitz, 831 F. Supp. at 415 (public policy implicated where termination compromised the employee’s First Amendment rights and Pennsylvania constitutional rights to free communication of thoughts); Rettinger v. American Can Co., 574 F. Supp. 306, 311 (M.D. Pa. 1983) (employment terminated in retaliation for filing workers’ compensation claim); Gebert v. Granaban, 101 Lacka. Jur. 75, 85 (1999) (employee discharged in retaliation for filing an unemployment compensation claim).

Relying upon Clay v. Advanced Computer Applications Inc., 522 Pa. 86, 559 A.2d 917 (1989), Clark argues that Nazar is barred from pursuing a tort action for wrongful discharge. While it is true that Clay held that the PHRA affords a statutory remedy which precludes an employee from pursuing a common-law claim for wrongful discharge based upon discrimination, Nazar’s wrongful discharge claim is not predicated upon Clark’s alleged discriminatory actions. Rather, Nazar asserts in Count II of the complaint that he was terminated as a sanction for exercising a statutorily protected right by filing a disability discrimination claim with the PHRC. Thus, the question to be decided at this stage is whether the discharge of an employee in retaliation for filing a PHRA claim against an employer is violative of a public policy mandate in Pennsylvania.

The Supreme Court of Pennsylvania has recently considered what type of legislation or regulation may serve as a basis for a recognized facet of public policy in the context of a wrongful termination claim. In McLaughlin v. Gastrointestinal Specialists Inc., 750 A.2d 283 (Pa. 2000), an employee who voiced internal safety concerns to her employer maintained that she was wrongfully discharged for exercising her rights under the federal Occupational Safety & Health Act of 1970, 29 U.S.C. §§651-660(c). Rejecting the contention that a federal regulation evinces a state public policy, the McLaughlin court held “that it is a mistake to baldly point to a federal statute or administrative regulation and, without more, proclaim this as the public policy of the Commonwealth, such that every violation of any federal code or statute becomes the basis for seeking a common-law remedy against an employer.” Id. at 290.

McLaughlin clearly pronounced, however, that state statutes and laws can serve as the basis for a public policy mandate. As Justice Newman eloquently reasoned:

“Our previous cases in this arena have not directly addressed the issue of what constitutes ‘public policy,’ but we have stated in cases outside of the wrongful termination context that ‘public policy is to be ascertained by reference to the laws and legal precedents and not from supposed public interest.’ ... Implicit in the previous determinations of this court is that we declare the public policy of this Commonwealth by examining the precedent within Pennsylvania, looking to our own constitution, court decisions and statutes promulgated by our legislature....
“McLaughlin is not a case in which the employer avers that she made a complaint to a Commonwealth agency, as existed in Shickand was fired in retaliation. Such a case implicates the policy of the Commonwealth because it thwarts the administration of a Commonwealth'agency and undermines the statutory obligations of the employer and the employee, which a Pennsylvania statute governs....
“Accordingly, we hold that in order to set forth a claim for wrongful discharge, a plaintiff must do more than show a possible violation of a federal statute that implicates only her own personal interest. The plaintiff in some way must allege that some public policy of this Commonwealth is implicated, undermined, or violated because of the employer’s termination of the employee. Public policy of the Commonwealth must be just that, the policy of this Commonwealth. In cases like Shick, there is no question that the public interest and policy of this Commonwealth were at stake, for if we allowed an employer to discharge an employee for filing a complaint with a Commonwealth agency such as the Workers’ Compensation Appeal Board, we impact the rights of that employee and the public by undermining the very purposes of a statute of this Commonwealth.” Id. at 288-89. (emphasis in original) (citations omitted)

Instantly, Nazar argues that he was discharged by Clark in reprisal for filing a complaint with a Commonwealth agency, to wit, the PHRC. The provisions of the PHRA clearly state that “[i]t is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their . .. handicap or disability . . . 43 P.S. §952(b). The PHRA further provides a procedure by which an aggrieved party may assert those rights protected by the Act. See 43 P.S. §§959,1003. As a consequence, a recognized facet of public policy may be violated by terminating an employee in retribution for exercising a right protected by a Pennsylvania statute which, by its plain language, fosters a state public policy.

Thus, this case does involve an allegation by an employee that he was fired in retaliation for submitting a complaint to a Commonwealth agency. In McLaughlin, the Supreme Court acknowledged that “[s]uch a case implicates the policy of the Commonwealth because it thwarts the administration of a Commonwealth agency and undermines the statutory obligations of the employer and the employee” and that a court which “allow [s] an employer to discharge an employee for filing a complaint with a Commonwealth agency . . ., impact[s] the rights of that employee and the public by undermining the very purposes of a statute of this Commonwealth.” There is no logical basis for permitting an employee who is terminated for filing an unemployment or workers’ compensation claim to pursue a common-law wrongful discharge claim, but denying the same rights and recourse to an employee who files a complaint with a different Commonwealth agency that was likewise created to afford remedies to Pennsylvania employees. Since a state public policy may arguably be contravened by firing an employee in retaliation for submitting a complaint to the PHRC, the preliminary objections will be denied. An appropriate order will follow.

ORDER

And now, May 5,2000, upon consideration of the preliminary objections of defendant, Clark Distribution Systems Inc., in the nature of a demurrer to Count II of the complaint, the memoranda of law submitted by the parties and the oral argument of counsel on May 3,2000, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the preliminary objections of defendant, Clark Distribution Systems Inc., are denied.

      . Clark’s request to dismiss the punitive damages claim was contingent upon the grant of its demurrer to Count II of the complaint asserting a common-law claim for wrongful discharge. In light of the denial of the preliminary objections to Count II, the demurrer to the punitive damages will also be denied. See Rue v. K-Mart Corp., 456 Pa. Super. 641, 691 A.2d 498 (1997) (jury awarded punitive damages for wrongful discharge); McGonagle v. Union Fidelity Corp., 383 Pa. Super. 223, 556 A.2d 878 (1989) (same).